Delhi High Court
Kuhu Pandya & Anr vs State Nct Of Delhi & Ors on 24 August, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 24th July, 2018
Pronounced on: 24th August, 2018
+ CRL.M.C. 3040/2011 & CRL.M.A Nos. 14296/2012,
4418/2013
KUHU PANDYA & ANR ..... Petitioners
Through: Mr. K. Sultan Singh, Sr. Adv.
versus
STATE NCT OF DELHI & ORS ..... Respondents
Through: Mr. Ashish Dutta, APP for
State.
Mr. Jagjit Singh & Mr.
Narayan Dev Parashar, Advs.
for R-2 & 3
+ CRL.M.C. 4787/2016 & CRL.M.A 19910/2016
RAJENDRA PRASAD PANDEYA & ANR ..... Petitioners
Through: Mr. Jagjit Singh & Mr.
Narayan Dev Parashar,
Advocates
versus
STATE (GOVT OF NCT OF DELHI) &ANR ... Respondents
Through: Mr. Ashish Dutta, APP for
State.
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
Crl.MC Nos.3040/2011 & 4787/2016 Page 1 of 12
ORDER
1. Both these petitions relate to the criminal case
(no.97051/2016) presently pending trial in the court of the
Metropolitan Magistrate on the basis of a report under Section 173
of the Code of Criminal Procedure, 1973 (Cr. PC) submitted upon
conclusion of investigation into the first information report (FIR)
no.84/2010 of police station Chitranjan Park. The FIR was
registered on 21.04.2010 in the wake of inquiry into the complaint
that had been lodged on 19.11.2009 by the second petitioner (Kuber
Boddh) in the first captioned petition, he being the brother of the
first petitioner (Kuhu Pandeya) in the said matter. It was taken up
for investigation into offences punishable under Sections 498A, 406,
34 of Indian Penal Code, 1860 (IPC) allegedly committed by the
second to eighth respondents in the first captioned petition.
2. The report under Section 173 Cr.PC (charge-sheet) was
submitted on 27/28.06.2011 against all the private party respondents
in the first captioned petition proposing their trial for offence under
Section 498A of the IPC observing that no evidence for offences
under Section 406 of the IPC had come on record. The Metropolitan
Magistrate, by order dated 30.06.2011, took cognizance on the said
charge-sheet, presumably accepting the report that prosecution was
to be initiated only for the offences under Section 498A IPC and
issued process though restricting it to the petitioners in the second
captioned petition, they being the father-in-law and mother-in-law
respectively of Kuhu Pandeya.
3. The first captioned petition invokes the inherent jurisdiction
of this court under Section 482 Cr. PC to bring a challenge to the
abovesaid order dated 30.06.2011 praying for prosecution of all the
private party respondents for the offences under Sections 498A, 406,
34 of the IPC respecting which allegations had been made in the FIR
and evidence in support collected during investigation thereinto.
4. After securing the presence of the persons summoned as
accused, the Metropolitan Magistrate considered the question of
charge. By order dated 18.02.2015, however, she found no
sufficient evidence having been brought out for putting Rajendra
Prasad Pandeya (father in law) and Maya Devi Pandeya (mother-in-
law) - first and second petitioner respectively in the second
captioned petition - and consequently directing they to be
discharged.
5. The State challenged the abovesaid order in the court of the
Sessions invoking its revisional jurisdiction by petition (Crl.
Revision Petition 125/2016). The court of Sessions, by its order
dated 09.08.2016, set aside the order of discharge and directed
instead the said two persons to be put on trial on the charge for
offence under Section 498A read with Section 34 IPC.
6. The second captioned petition invokes the inherent
jurisdiction of this court under Section 482 Cr. PC to assail the
aforesaid order of the revisional court.
7. Since both the petitions arise out of the same case and have
common background facts, they have been heard together and are
being decided by this common order.
8. Kuhu Pandeya (de-facto complainant) was married to Samrat
Pandeya, son of Rajendra Prasad Pandeya and Maya Devi Pandeya.
Her parental family hails from District Datiya in Madhya Pradesh,
the marriage concededly having been solemnized on 21.11.2007 in
Delhi, the matrimonial home also being in Delhi. Samrat Pandeya
died on 20.08.2009 after a brief illness. There is material available
on record to show that he died as a result of swine flu.
9. On 19.11.2009 i.e. within three months of the death of Samrat
Pandeya, Kuber Boddh (first informant), the elder brother of the
complainant lodged a complaint with police station Chitranjan Park
alleging that the complainant was being subjected to harassment for
dowry, the acts of commission and omission allegedly committed by
her parents-in-law, sisters-in-law and their respective husbands also
constituting the offence of criminal breach of trust. It was alleged
that the complainant was being deprived of food, sleep and comforts
and she was being pressurized to relinquish her rights to the
properties of her late husband and also being subjected to mental
and physical cruelty by being accused of having brought about the
pre-mature death of Samrat Pandeya.
10. There is material on record to show that, on 20.11.2009, with
the assistance of police, the complainant was rescued from the house
of the accused persons at 86-B, Masjid Moth, DDA flats, phase-2,
New Delhi. There is also material on record showing that at the
time of leaving the matrimonial home, with the assistance of police,
Kuhu Pandeya had carried along only her used clothes and a few
belongings, the list of such articles having been documented and
statedly endorsed even by accused Maya Devi Pandeya (mother-in-
law).
11. The preliminary inquiry by Crime Against Women Cell
(CAW Cell) into the complaint dated 19.11.2009 remained pending
till 21.04.2010 when the FIR was registered on its basis. During the
course of the said inquiry, Rajendra Prasad Pandeya (father-in-law)
had filed a complaint with police station Chitranjan Park of the
complainant (Kuhu Pandeya) having caused the death of Samrat
Pandeya in conspiracy with her family members. The fact of filing
of the said complaint was logged by daily diary entry no.41B. It
was, however, never followed up with any seriousness as no further
action thereupon seems to have been taken.
12. The CAW Cell concluded the preliminary inquiry noting,
inter alia, that proof had been adduced as to the procurement of the
stridhan articles which had been given in or around the time of
marriage by the parental family of Kuhu Pandeya. It also noted that
the matrimonial family had "not returned" the said stridhan articles
to Kuhu Pandeya who had been rescued from the matrimonial home
with the help of local police. These facts were also specifically
mentioned by the Assistant Commissioner of Police (ACP) of CAW
Cell while recommending registration of the FIR on 23.03.2010. As
noted above, the report under Section 173 Cr.PC (charge-sheet), in
contrast, was submitted on 27.06.2011, inter alia, with the
conclusion that no direct evidence of entrustment of jewellery or
commission of offence under Section 406 IPC had come up during
investigation.
13. The complainant and the first informant are aggrieved on
account of the investigating agency having dropped the case for
prosecution under Sections 406 / 34 IPC. They are also aggrieved
because the Metropolitan Magistrate while taking cognizance, by
order dated 30.06.2011, issued process only against Rajendra Prasad
Pandeya (father-in-law) and Maya Devi Pandeya (mother-in-law),
expressing no opinion qua the other relatives of the deceased Samrat
Pandeya, they being his three sisters named Aggya Pandeya, Rashim
Sadana and Meghna Bhatt, the later two admittedly being married
sisters, their husbands having been named as Amit Sadana and
Pradeep Bhatt, all of them having been shown as fourth to eighth
respondents in the first captioned petition.
14. The revisional court, by its order dated 09.08.2016, which is
assailed in the second captioned petition, has found material
available to put Rajendra Prasad Pandeya (father-in-law) and Maya
Devi Pandeya (mother-in-law) on trial for the offence under Section
498A read with Section 34 IPC. While they question the framing of
charge against them on the available material, the grievance of the
petitioner in the first captioned petition also concerns the dropping
of the criminal action for the offence under Section 406, 34 IPC.
15. In Sajjan Kumar Vs. CBI, (2010) 9 SCC 368, the Supreme
Court summarized the principles which are to be kept in mind by the
criminal court at the stage of consideration of a case for framing of
charge under Sections 227 and 228 of Cr. PC. The court ruled thus :
"21. On consideration of the authorities about the
scope of Sections 227 and 228 of the Code, the
following principles emerge:
(i) The Judge while considering the question of framing
the charges under Section 227 CrPC has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie
case against the accused has been made out. The test to
determine prima facie case would depend upon the
facts of each case.
(ii) Where the materials placed before the court
disclose grave suspicion against the accused which has
not been properly explained, the court will be fully
justified in framing a charge and proceeding with the
trial.
(iii) The court cannot act merely as a post office or a
mouthpiece of the prosecution but has to consider the
broad probabilities of the case, the total effect of the
evidence and the documents produced before the court,
any basic infirmities, etc. However, at this stage, there
cannot be a roving enquiry into the pros and cons of the
matter and weigh the evidence as if he was conducting
a trial.
(iv) If on the basis of the material on record, the court
could form an opinion that the accused might have
committed offence, it can frame the charge, though for
conviction the conclusion is required to be proved
beyond reasonable doubt that the accused has
committed the offence.
(v) At the time of framing of the charges, the probative
value of the material on record cannot be gone into but
before framing a charge the court must apply its
judicial mind on the material placed on record and
must be satisfied that the commission of offence by the
accused was possible.
(vi) At the stage of Sections 227 and 228, the court is
required to evaluate the material and documents on
record with a view to find out if the facts emerging
therefrom taken at their face value disclose the
existence of all the ingredients constituting the alleged
offence. For this limited purpose, sift the evidence as it
cannot be expected even at that initial stage to accept
all that the prosecution states as gospel truth even if it
is opposed to common sense or the broad probabilities
of the case.
(vii) If two views are possible and one of them gives
rise to suspicion only, as distinguished from grave
suspicion, the trial Judge will be empowered to
discharge the accused and at this stage, he is not to see
whether the trial will end in conviction or acquittal."
(emphasis supplied)
16. The counsel representing the complainant and the first
informant while arguing that a case was made out for three sisters of
Samrat Pandeya including two married ones and their respective
husbands also to be summoned as an accused referred to the
allegations - in his submissions "specific allegations" - made
against them in the complaint dated 19.11.2009. The allegations
which were pointed out by him generally relate to demands made by
Rajendra Prasad Pandeya (father-in-law) and Maya Devi Pandeya
(mother-in-law) and the taunts connected thereto, this being
followed by abuses and threats. He referred to the statements of
both the petitioners, their father and one more witness (B.M.
Sharma) as recorded by the police under Section 161 Cr. PC in
corroboration.
17. On careful perusal of the aforesaid material on record, this
court finds that though a case has been properly made out not only
for summoning of Rajendra Prasad Pandeya (father-in-law) and
Maya Devi Pandey (mother-in-law) but also for putting them on trial
on the charge under Sections 498A / 34 IPC, the allegations against
the three sisters and the husbands of two of them are general in
nature, not necessarily connected with the cruelty meted out by the
former two i.e. their parents. The two married sisters, even
otherwise, were living away in their respective homes and there are
no clear allegations as to on what occasion or on what date or time,
they had joined the parents-in-law in exerting pressure on Kuhu
Pandeya or her parental family to accede to the illicit demands. The
sweeping allegations made to rope in almost all adult members of
the family seem to be out of a sense of vendetta. Mere suspicion
arising therefrom is not sufficient to put the three sisters and spouses
of two of them on trial.
18. Without doubt, the Metropolitan Magistrate while taking
cognizance on the charge-sheet on 30.06.2011 should have passed a
speaking order as to why process was being issued under Section
204 Cr. PC only against Rajendra Prasad Pandeya (father-in-law)
and Maya Devi Pandeya (mother-in-law) and particularly as to why
the request of the investigating agency for the three sisters and
husbands of two of them to be also prosecuted was not being
accepted. But then, given the above scrutiny of the material and the
conclusions reached thereupon, there is no case for interfering with
the order dated 30.06.2011 omitting prosecution of other accused.
19. The above observations also take care of the grievances set
out in the second captioned petition vis-à-vis the order of the
revisional court in framing charge for offences under Sections 498A
/ 34 of the IPC against Rajendra Prasad Pandeya (father-in-law) and
Maya Devi Pandeya (mother-in-law). Consequently, the said
petition is liable to be dismissed.
20. But the question remains, as arises from the first captioned
petition, as to whether the material submitted with the charge-sheet
on 27/28.06.2011 made out a case for prosecution to be also
launched for offences under Section 406 / 34 IPC. Upon scrutiny of
the said material on record, in the considered opinion of this court,
both the investigating agency and the court of Magistrate seem to
have failed to take a proper view in this regard. There is ample
evidence available to show that the dowry given in the marriage of
Kuhu Pandeya was quite lavish. It included not only valuable
articles given at the time of „God Bharai‟ and „engagement‟ but also
at the time of marriage ceremony. It included not only a number of
jewellery articles but also cash, gold coins, silver coins and other
expensive gifts for the bride and bridegroom, this, in addition to,
gifts for their near relatives. The gifts meant for the bride were
indeed part of her stridhan.
21. As noted earlier, Samrat Pandeya died on 20.08.2009. The
allegations of cruelty meted out to Kuhu Pandeya relates to the
period within three months post the death of Samrat Pandeya. As
noted earlier, at the instance of her brother Kuber Boddh, she was
"rescued" from the matrimonial home on 20.11.2009. As also noted
earlier, the exit from the matrimonial home on 20.11.2009, with the
assistance of police, was duly documented, it prima facie showing
that she had not carried along any of her stridhan articles.
Assumably, the stridhan would have been left behind by Kuhu
Pandeya in the matrimonial home at the time of leaving with the
police on 20.11.2009. Given the chronology of events the parents-
in-law would have the custody and control over such stridhan
articles. This is why during the preliminary inquiry, efforts were
made to have the stridhan articles restored to her. The report of
CAW Cell would unmistakably show that in spite of being called
upon to do so, Rajendra Prasad Pandeya (father-in-law) and Maya
Devi Pandeya (mother-in-law) would not return the stridhan. In
these circumstances, report dated 23.03.2010 of ACP of the CAW
Cell itself sufficiently adds to the circumstances to make out a case
that the stridhan articles were not returned inspite of demand. On
the basis of the above facts, on basis of grave suspicion, a pima facie
case for charge under Section 406 read with Section 34 of the IPC
was also made out against Rajendra Prasad Pandeya (father-in-law)
and Maya Devi Pandeya (mother-in-law).
22. For the foregoing reasons, the impugned orders dated
30.06.2011 and 18.02.2015 of the Metropolitan Magistrate and dated
09.08.2016 of the revisional court need suitable amends. A case for
putting Rajendra Prasad Pandeya (father-in-law) and Maya Devi
Pandeya (mother-in-law) on trial on the additional charge for
offence under Section 406 / 34 IPC having been made out, the
Metropolitan Magistrate is directed to frame the said additional
charge before proceeding further with the trial. Needless to add,
after framing of the additional charge, such of the witnesses for
prosecution as may have been earlier examined will have to be
recalled and examined further, if required, followed by renewed
opportunity for cross-examination to be given to the said two
accused persons.
23. The second captioned petition is dismissed. The first
captioned petition is allowed in above terms.
(R.K. GAUBA)
JUDGE
AUGUST 24, 2018
yg
