Manu Nischal & Ors. vs State Of Nct & Anr.
2009 Latest Caselaw 523 Del

                "REPORTABLE"
*     HIGH COURT OF DELHI AT NEW DELHI

+     Crl. M.C. No. 2823/2007 & Crl. M.A.
      No.10029/2007


                    Order reserved on: December 11, 2008
                        Date of decision : February 13, 2009


#     MANU NISCHAL & ORS.          ..... Petitioners
!             Through : Mr. Chetan Sharma, Sr. Adv.
                        Mr. Sushil Kr. Pandey, Adv.


                             Versus


$     STATE OF NCT & ANR.          ..... Respondents
^              Through : Mr. O.P. Saxena, APP
                         ASI Raj Kumar
                         Complainant in person.
%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?         Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                Yes

                           JUDGMENT

ARUNA SURESH, J.

1. Petitioners have invoked the jurisdiction of this Court

under Section 482 of the Code of Criminal Procedure

(hereinafter referred to as Cr.P.C.) seeking quashing

of the entire proceedings in FIR No. 472/2003, Police

Station Paschim Vihar wherein chargesheet dated

28.7.2004 has been filed in the court of learned MM,

Rohini.

2. Briefly narrated the case of the prosecution is that

complainant/ (respondent no.2 herein) Mrs.Sudha

was married to petitioner no. 1 Manu Nischal on

19.11.2000 at Delhi. Petitioner no. 1 was settled in

USA since before he married the complainant and

after about three months of the marriage he went

back to USA leaving behind the complainant with his

other family members, i.e. petitioners no.2 to 4.

However, after few days of the departure of her

husband complainant left her matrimonial home and

started living with her parents. Petitioner no.1 visited

India in March/April as he had to attend marriage of

his nephew (son of his sister). Complainant also

joined his company in her matrimonial home.

Petitioner no.1 returned back to USA on 15.7.2001

leaving behind the complainant. Soon after he left for

USA, complainant again came back to her parents'

house. She gave birth to a female child on

19.10.2001. After going back to USA, petitioner No. 1

remained in contact with the complainant till July

2003 on telephone as well through e-mail. Meanwhile

on 17.7.2003 Petitioner No.1 filed a suit in the court

of Pennsylvania, USA seeking decree of dissolution of

marriage between him and the complainant. On

25.8.2003 complainant filed a complaint in Police

Station Paschim Vihar which culminated into

registration of FIR No. 472/2003 dated 25.8.2003

against all the petitioners for offences under Sections

498A/406/328/354/34 of Indian Penal Code

(hereinafter referred to as IPC).

3. In the complaint it was alleged that immediately after

marriage petitioner no.1 demanded Rs. 20 lacs from

her for settling in USA. Her husband had started

physically torturing her before he left for USA. When

his demands were not fulfilled, his sisters; petitioners

no. 3 and 4 also used to mentally and physically

harass her. Soon after petitioner No.1 left for USA,

she was thrown out of the house by her sisters-in-law

and she came back to her parents' house. It is also

alleged in the complaint that soon after her marriage

petitioner No.3, Vinod had taken all her ornaments

except a pair of Karas. She came back to her

matrimonial home to reside with her husband; Manu

Nischal when he revisited India to attend the

marriage of his nephew. After he left for USA, she

was again thrown out of the house and she came back

to her parents' house.

4. In the complaint it was also alleged that petitioner

no.2, Om Prakash Nischal, the brother in law (Jeth) of

the complainant allegedly called her to her

matrimonial home on next day of Janmashtmi to chart

out the programme of her visit to USA. There she was

made to take some cold drink forcibly and thereafter

he removed her Karas which she was wearing. Om

Prakash allegedly hugged her and indulged into

indecent activities with her. She ran away from the

house. After reaching her parents' home she became

unconscious. She was removed to the hospital.

Complainant suspected, rather, believed that

petitioner no.2 Om Prakash and petitioner nos. 3 and

4, Vinod and Shobha intended to kill her.

5. After the investigation was complete chargesheet was

filed in the court. The trial court vide its detailed

order dated 13.5.2005 was pleased to discharge the

petitioners for offence under Section 328 IPC and

remanded back the case to the court of learned MM

to proceed against the petitioners under Sections

498A/406/354/34 IPC. A revision petition was filed

against this order by the complainant in this court.

The said revision petition was dismissed on 26.9.2005.

6. A divorce petition filed by petitioner No.1 in

Pennsylvania was duly contested by the complainant.

Petitioner no. 1 was successful in obtaining a decree

for divorce in his favour against the complainant on

28.1.2005.

7. Petitioner no.1 admittedly is not appearing before the

trial court. Even in this petition he has not put in

appearance despite the fact that he was directed to be

present in person vide order dated 21.8.2008. He

again did not appear in the Court on 15.10.2008 and

on 6.11.2008. It was noted on 6.11.2008 that

petitioner no.1 still was not appearing before the trial

court, where charges are to be framed, resulting into

delay in the trial of the case. On the request of the

learned counsel for the petitioners one more

opportunity was granted to ensure the presence of

petitioner no.1. He failed to appear in the court on

11.12.2008. On that date a communication was filed

by petitioners no.2 to 4 stating that despite their

information to petitioner no.1 through registered post

he had failed to appear in the court. In view of his

conduct petitioners no. 2 to 4 made it clear to the

court that since petitioner no.1 has failed to appear in

the Court and was not responding to the

communication they were no longer representing him

and the Court should proceed with the petition as

having been filed by petitioners no. 2 to 4. Under

these circumstances, it is made clear that this order

in no manner would be taken as order passed by this

Court in a petition filed by Manu Nischal, petitioner

No.1 seeking quashing of the proceedings in the

impugned FIR.

8. Mr. Chetan Sharma, learned senior counsel for the

petitioners has argued that allegations against the

petitioners in the FIR are vague as no details of the

alleged incidents have been given, complainant has

not given the date of the alleged demand of car by the

petitioners, complainant was a divorcee when she

married petitioner no.1 in November 2000, she of her

own accord left her matrimonial home soon after

petitioner no.1 went to USA where he was already

residing prior to his marriage with the complainant,

the FIR does not contain any allegations of cruelty for

demand for dowry for the period from 19.11.2000

when she married to petitioner no. 1 till June 2001,

the complaint has been filed with malafide intentions

to wreck vengeance against the petitioners after

petitioner No. 1 filed divorce petition against her in

Pennsylvania, USA.

9. It is further argued by the learned counsel for the

petitioners that prima facie no offence under Section

406 IPC is made out against the petitioners as there

are no allegations of entrustment of dowry articles,

nor alleged articles were demanded back by the

complainant.

10. It is further argued that the alleged incident of

obscenity as was done by petitioner Om Prakash on

next day of Janmashtmi, cannot be said to be an act of

cruelty within the meaning of Section 498A IPC and

the allegations in the FIR are false being not specific.

There are no allegations of cruelty in the FIR and

taking holistic view of the circumstances as narrated

in the FIR prima facie no offence under Sections

498A/406/354/34 IPC is made out against any of the

petitioners. He has placed reliance on Jatinder

Kumar and others v. State (Delhi Admn.) Delhi -

1992 Crl. L.J. 1482.

11. All these allegations have been refuted by Mr. O.P.

Saxena, learned APP for the State. He has argued

that as per the contents of the FIR and the evidence

available on the record prima facie an offence under

Sections 498A/406/354/34 IPC is made out against all

the petitioners as there are specific allegations of

demand for dowry, tortures and beatings against the

petitioners. There are also specific allegations that

petitioners had thrown out the complainant from her

matrimonial home soon after her husband left for USA

on both the occasions and that petitioner No.1 did not

even care to find out the welfare of the minor

daughter, rather obtained divorce from the

complainant at Pennsylvania. He has also highlighted

the conduct of petitioner no.1, husband of the

complainant, who is living in USA and is avoiding his

arrest and has not joined the investigation of the case

at any stage.

12. To make out an offence under Section 406 IPC

complainant has to show that she had entrusted her

property with the petitioners which they misused or

refused to return her back when demanded. The

allegations of entrustment are only against petitioner

no. 3 Vinod and petitioner no. 2 Om Prakash.

Allegations of entrustment against Vinod is that soon

after her marriage Vinod took in her possession the

jewellery belonging to the complainant except two

karas. Allegations of entrustment against Om

Prakash are that when she had gone to her

matrimonial home on the next day of Janmashtmi to

chart out her programme for going to USA to join the

company of her husband, Om Prakash removed her

Karas which she was wearing after she was made to

drink something forcibly by her sister in law Shoba

i.e. petitioner no.4. Averments in the complaint

therefore are vague in nature with no details of the

jewellery articles allegedly taken into possession by

petitioner no. 3 Vinod. The date or month of the

incident when the alleged ornaments were taken into

possession is also not disclosed. It is not the case of

the complainant that she had entrusted her jewellery

with the petitioner no. 3 Vinod to keep it in safe

custody to be returned back to her as and when

demanded. At the time of alleged incident

complainant's husband was living with her at Delhi,

probably she never made such complaint to her

husband against her sister-in-law; Vinod for having

taken away her jewellery. Had she informed her

husband about the conduct of her sister-in-law Vinod

the same would have found mention in the complaint

itself. No complaint was lodged by the complainant at

that time against petitioner no. 3 Vinod. In the

absence of any specific details of the jewellery items

allegedly taken away by petitioner no. 3 and for want

of particulars of the alleged incident prima facie it

would not be appropriate to say that complainant had

entrusted her jewellery with petitioner no.3 Vinod.

Alleged taking away of the jewellery belonging to the

complainant by petitioner no.3 does not constitute an

offence for criminal breach of trust as ingredients of

entrustment defined in Section 405 IPC are not made

out. It is not disputed that there was no entrustment

of dowry articles by the complainant with any of the

petitioners. There are no allegations of any dishonest

misappropriation of the jewellery by any of the

petitioners.

13. Petitioner no.3 Om Prakash is alleged to have

removed the karas from the hands of the complainant

when she went to her matrimonial home on his

invitation to make out a proper programme for her

visit to USA. This allegation in itself also does not

constitute any entrustment of jewellery i.e. pair of

karas by the complainant with petitioner no. 2 Om

Prakash. There are no allegations of dishonest

misappropriation of her karas by any of the

petitioners.

14. Significantly when petitioners sought anticipatory

bail and the petition came up for hearing on 1.9.2003

the father of the complainant was also present in the

Court and he made a statement to the Court that till

that day no demand for return of the dowry articles

was ever made from the petitioners. While granting

anticipatory bail vide order dated 1.9.2003 the Court

had observed that under the circumstances when no

demand for return back of the dowry articles was

made there was no question of petitioners having

refused to return back the articles.

15. It is pertinent to note that complainant was a

divorcee and her marriage with Manu Nischal

petitioner no.1 was a love marriage as stated by her

in the complaint. Under these circumstances I find

that ingredients of criminal breach of trust are

completely missing in this complaint.

16. Petitioners have been chargesheeted for offence

under Section 498A IPC as well. To make out an

offence under Section 498A IPC complainant has not

only to allege demand for dowry but also that she was

subjected to cruelty by her husband or relatives of the

husband for non-fulfillment of their unlawful demand.

Cruelty as defined in Section 498A IPC means any

willful conduct which is of such a nature as is likely to

drive the woman to commit suicide or to cause grave

injury or danger to life, limb or health whether

mentally or physically to the woman or harassment of

the woman where such harassment is with a view to

coercing her or any person related to her to meet any

unlawful demand for any property or valuable security

or is on account of failure by her or any person

related to her to meet such demand. Following are

the ingredients in this Section:

a. The woman must be married;

b. She must be subjected to cruelty and

harassment and such cruelty or harassment

must have been shown either by husband of

the woman or relative of her husband;

c. Such harassment is with a view to coerce her

or her relative to meet any unlawful demand

of any property or valuable security or on

account of failure of her or her relative to

meet such demand.

17. Accusations of demand of dowry against petitioners

No.2 to 4 as made out from the complaint are:

a. A car was demanded by petitioners No.2 to 4.

b. She was harassed for non-fulfilment of the

demand.

c. Complainant was severely and mercilessly

beaten and thrown out of the house after her

husband had left for USA.

d. She was taunted and beaten whenever she

visited her in-laws house in the absence of her

husband.

e. She came back to her matrimonial home in

March 2001 when her husband came to

attend the marriage of his nephew and after

he left for USA she was again thrown out of

the house.

f. On next day of Janmashtmi her Karas were

removed and her brother-in-law (jeth) tried to

molest her.

g. She was forced to take cold drink and

thereafter she became unconscious and was

taken to the hospital where she was medically

treated.

18. The alleged accusations as narrated in the FIR at

the best can be considered as a demand. The alleged

demand is not coupled with cruelty so as to attract

provisions of Section 498A IPC. No specific date,

place or occasion has been indicated of the alleged

demand or cruelty and half-hearted attempt has been

made when complainant has alleged that she was

given beatings by petitioners No.2 to 4 and was

thrown out of the house. As regards the allegations of

intoxicating her with a view to kill her as pointed out

above, the court has discharged all the petitioners of

offence under Section 328 IPC. Allegations against all

the petitioners are elusive, vague and are not

illustrative of any specific act on the part of any of the

petitioners so as to prima facie implicate them for an

offence under Section 498A IPC.

19. There is no dispute that complainant was earlier

married to one Hitender Shokeen on 24.9.1993 and

after few months of her marriage she separated from

him and obtained divorce by mutual consent.

Complainant had also filed a private complaint under

Sections 406/498A/377 IPC against Hitender Shokeen

on the basis of which FIR No. 278/94 under Sections

498A/406 IPC was registered against her erstwhile

husband. Hitender Shokeen has been acquitted of the

offences by the trial court vide detailed order dated

4.1.2008. In the said complaint also complainant

alleged that her father had given her a car make

Maruti 800 in her marriage but, she was being

harassed and tortured by Hitender Shokeen and his

family members for bringing, car make Maruti 1000.

Complainant had also levelled allegations that her

jewellery was taken away. There were allegations of

her erstwhile husband demanding Rs. 1 lac through

his sister. It seems that complainant is in the habit of

involving her husbands and their family members with

similar nature of allegations for criminal breach of

trust and torture for demand for dowry. She did not

file any complaint against any of the petitioners; after

she was thrown out of the house; even when she was

again thrown out of the house in July 2001. This

complaint was filed in August 2003 only after

petitioner No.1 had filed a petition seeking divorce in

the court of Pennsylvania, USA, presumably as a

counterblast to wreck vengeance against her husband

and his family members.

20. Mere vague statement of the complainant that she

was subjected to cruelty for demand for dowry and

that her jewellery (unexplained) except her Karas

were taken away by her sister-in-law Vinod and her

Karas were subsequently removed by her brother-in-

law Om Prakash; without any specific allegations,

prima facie no offence is made out against petitioners

no.2 to 4 for framing of charges under Sections

498A/406/354 IPC.

21. Cruelty for the purposes of Section 498A IPC

means any willful conduct which is likely to cause

grave injury or danger to life. In this case there are

no allegations of such a nature which might indicate

willful conduct on the part of the petitioners to

instigate her to commit suicide or the nature of

cruelty was such that it was a danger to her life or

caused grave injury to her limb or health whether

mental or physical. She never received any physical

injury on her person. There is nothing on the record

to suggest that she suffered mental cruelty at the

hands of the petitioners. As per the complaint,

admittedly the marriage between the complainant;

Sudha and petitioner No.1 Manu Nischal was a love

marriage. Under the circumstances when she was

already a divorcee and probably sought divorce

because she wanted to marry petitioner No.1 Manu

Nischal and in view of the nature of evidence

collected by the investigating officer during the

investigation of the case it is doubtful if any dowry

articles were given to the complainant in her

marriage.

22. As already discussed no list of dowry articles

movable or immovable and jewellery has been

provided by the complainant either to the police or to

the court. Under these circumstances an allegation

of molestation against the petitioner no. 2 also are of

no consequence, are trivial in nature to frame him in

an offence under Section 354 IPC. In the absence of

the same prima facie I do not find sufficient evidence

on the record to proceed against the petitioners No.2

to 4 for offences under Section 406/498A/354 IPC.

23. For the foregoing reasons, petition is partly

allowed. FIR No. 472/2003 and the proceedings of

the Court in the case, only qua the petitioners no.2 to

4 are quashed. The petitioners no.2 to 4 are

accordingly discharged. Petition qua petitioner no.1

Manu Nischal is dismissed for non prosecution. The

trial court shall proceed as against petitioner No.1

Manu Nischal in accordance with law.

24. Attested copy of the order be sent to the trial court

through special messenger.

(ARUNA SURESH) JUDGE February 13, 2009 jk