Kusum Sawai vs State & Anr
2023 Latest Caselaw 3426 Del

                          $~23
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          %                          Date of decision:    August 16, 2023
                          +      CRL.REV.P. 862/2017
                                 KUSUM SAWAI                                ..... Petitioner
                                                    Through:    Mr. Gaurav Singh, Proxy
                                                                Counsel.
                                                    versus
                                 STATE & ANR                                ..... Respondents
                                                    Through:    Mr. Utkarsh, APP for State/R-1
                                                                with SI Vijay Pal Singh, P.S.
                                                                CWC, Nanak Pura.

                                 CORAM:
                                 HON'BLE DR. JUSTICE SUDHIR KUMAR JAIN
                                            J U D G M E N T (oral)

1. The present revision petition is filed to impugn the order dated

04.07.2017 whereby the respondent no. 2 was discharged for the

offence punishable under section 498A IPC in FIR bearing

no.0157/2014 registered at P.S. Nanak Pura passed by the court of

Ms. Richa Gosain Solanki, MM-01, Mahila Court, South-West

District, Dwarka Courts, Delhi.

2. The present FIR bearing no.0157/2014 dated 28.11.2014 was

got registered at P.S. Crime (Women) Cell under section 498A IPC on

the basis of complaint dated 21.04.2014 made by the petitioner before

DCP, Crime Against Women Cell wherein the petitioner stated that

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 she got married with the respondent no. 2 on 18.06.1998 and out of

their marriage, two children were born. The conduct of the respondent

no. 2 was not normal towards the petitioner who used to abuse and

beat the petitioner. The petitioner also got registered FIR under section

323 IPC on the basis of incident happened on 24.12.2013 for which,

MLC was also prepared. The petitioner in the FIR, stated that despite

registration of FIR under section 323 IPC, the respondent no. 2

continued to quarrel with her and the concerned local police officials

has not taken any action against the respondent no. 2. The petitioner

prayed for registration of FIR under section 498A IPC. During the

investigation, the supplementary statement of the petitioner was also

recorded under section 161 Cr.P.C. on 12.02.2015 wherein the

petitioner repeated the contents of the complaint made before the

DCP, Crime Against Women Cell dated 21.04.2014 on the basis of

which, FIR was got registered. The petitioner in the supplementary

statement also stated that the respondent no. 2 asked the petitioner to

bring Rs.20 lacs for raising the construction of another floor. After

conclusion of investigation, the charge-sheet was filed under section

498A IPC.

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3. The court of Ms. Richa Gosain Solanki, MM-01, Mahila Court,

South-West District, Dwarka Courts, Delhi vide order dated

04.07.2017, observed that the petitioner herself admitted that the

respondent no. 2 was living separately since December, 2013. The

petitioner was living in the house owned by the respondent no. 2 and

the respondent no. 2 was not living in the said house. The trial court

observed that there was no occasion for the respondent no. 2 to raise

any dowry demands.

4. The Chapter XIX of the Code deals with trial of warrant cases

by Magistrate. Section 239 deals with situation when the accused shall

be discharged. Section 240 deals with framing of charge in warrant

trial. Sections 239 and 240 deal as under:-

239. When accused shall be discharged. If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.

240. Framing of charge (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.

(2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.

5. The purpose of framing a charge is to intimate the accused

about the clear, unambiguous and precise nature of accusation that the

accused is called upon to meet in the course of a trial as observed in

V.C. Shukla V State through C.B.I., 1980 Supp SCC 92. The

prosecution is required to establish a prima facie before a charge can

be framed. The Supreme Court in Union of India V Prafulla Kumar

Samal & another, (1979) 3 SCC 4 considered scope of inquiry at the

stage of framing of charge as per section 227 of the Code in Sessions

criminal trial and observed as under:-

(1) That the Judge while considering the question of framing the charges under section 227 of the Code 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.

(2) 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.

(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code is a senior and experienced Judge 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 appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.

6. The Supreme Court in Onkar Nath Mishra & others V State

(NCT of Delhi) & another, Appeal (Crl.)1716 of 2007 decided on

14th December, 2007 regarding framing of charge observed as under:-

It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 6.1 The Supreme Court Dipakbhai Jagdish Chandra Patel V

State of Gujarat, (2019) 16 SCC 547 discussed law relating to the

framing of charge and discharge and observed as under:-

15. We may profitably, in this regard, refer to the judgment of this Court in State of Bihar v. Ramesh Singh wherein this Court has laid down the principles relating to framing of charge and discharge as follows:

4.....Reading Sections 227 and 228 together in juxtaposition, as they have got to be, it would be clear that at the beginning and initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial....

If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227.

23. At the stage of framing the charge in accordance with the principles which have been laid down by this Court, what the Court is expected to do is, it does not act as a mere post office. The Court must indeed sift the material before it. The material to be sifted would be the material which is produced and relied upon by the prosecution. The sifting is not to be meticulous in the sense that the Court dons the mantle of the Trial Judge hearing arguments after the entire evidence has been adduced after a full-fledged trial and the question is not whether the prosecution has made out the case for the conviction of the accused. All that is required is, the Court must be satisfied that with the materials available, a case is made out for the accused to stand trial. A strong suspicion suffices. However, a strong suspicion must be founded on some material. The material must be such as can be translated into evidence at the stage of trial. The strong suspicion cannot be the pure subjective satisfaction based on the moral notions of the Judge that here is a case where it is possible that accused has committed the offence. Strong suspicion must be the suspicion which is premised on some material which commends itself to the court as sufficient to

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 entertain the prima facie view that the accused has committed the offence.

6.2 The Supreme Court in Asim Shariff V National Investigation

Agency, (2019) 7 SCC 148 expressed that the trial court is not

expected or supposed to hold a mini trial for the purpose of

marshalling the evidence on record. The Supreme Court in State of

Karnataka V M.R. Hiremath, (2019) 7 SCC 515 held that it is a

settled principle of law that at the stage of considering an application

for discharge the court must proceed on the assumption that the

material which has been brought on the record by the prosecution is

true and evaluate the material in order to determine whether the facts

emerging from the material, taken on its face value, disclose the

existence of the ingredients necessary to constitute the offence. The

Supreme Court in Ghulam Hassan Beigh V Mohammad Maqbool

Magrey & Others, Criminal Appeal No. 001041 of 2022 (Arising Out

of S.L.P. (Criminal) no 4599 OF 2021) decided on 26th July, 2022

observed as under:-

Thus from the aforesaid, it is evident that the trial court is enjoined with the duty to apply its mind at the time of framing of charge and should not act as a mere post office. The endorsement on the charge sheet presented by the

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 police as it is without applying its mind and without recording brief reasons in support of its opinion is not countenanced by law. However, the material which is required to be evaluated by the Court at the time of framing charge should be the material which is produced and relied upon by the prosecution. The sifting of such material is not to be so meticulous as would render the exercise a mini trial to find out the guilt or otherwise of the accused. All that is required at this stage is that the Court must be satisfied that the evidence collected by the prosecution is sufficient to presume that the accused has committed an offence. Even a strong suspicion would suffice. Undoubtedly, apart from the material that is placed before the Court by the prosecution in the shape of final report in terms of Section 173 of CrPC, the Court may also rely upon any other evidence or material which is of sterling quality and has direct bearing on the charge laid before it by the prosecution. (See: Bhawna Bai v. Ghanshyam, (2020) 2 SCC 217).

7. Section 498A IPC deals with provision when husband or his

relative subjected a woman to cruelty for dowry demands. The

consequences of cruelty as per mandate of section 498A IPC are either

likely to drive a woman to commit suicide or to cause grave injury,

danger to life, limb or health, whether mental or physical of the

woman or the harassment of a woman, where such harassment is with

a view to coercing her or any person related to her to meet any

unlawful demand and are required to be established in order to bring

home an offence under Section 498A IPC. Section 498A IPC reads as

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498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful 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 mental or physical) of the woman; or

(b) 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.

8. In relation to offence punishable under section 498A, the

Supreme Court in Sushil Kumar Sharma V Union of India and

others , (2018) 10 SCC 443 observed as under:-

Provision of S. 498A of Penal Code is not unconstitutional and ultra vires. Mere possibility of abuse of a provision of law does not per se invalidate a legislation. Hence plea that S. 498A has no legal or constitutional foundation is not tenable. The object of the provisions is prevention of the dowry menace. But many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the Courts have to take care of the situation within the existing frame-work.

8.1 The Supreme Court in Kahkashan Kausar @ Sonam &

others V State of Bihar & others, Criminal Appeal No 195 of 2022

decided on 08th February, 2022 observed that section 498A of IPC was

aimed at preventing cruelty committed upon a woman by her husband

and her in-laws, by facilitating rapid state intervention. However, it is

equally true, that in recent times, matrimonial litigation in the country

has also increased significantly and there is a greater disaffection and

friction surrounding the institution of marriage, now, more than ever.

This has resulted in an increased tendency to employ provisions such

as 498A IPC as instruments to settle personal scores against the

husband and his relatives. The Supreme Court in Arnesh Kumar V

State of Bihar and another, (2014) 8 SCC 273 observed as under:-

4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested11.1 The Supreme Court in Kahkashan Kausar @ Sonam & others V State of Bihar & others, Criminal Appeal No 195 of 2022 decided on 08 th February, 2022 observed that section 498A of IPC was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency to employ provisions such as 498A IPC as instruments to settle personal scores against the husband and his relatives. The Supreme Court in Arnesh Kumar V State of Bihar and another, (2014) 8 SCC 273 observed as under:-

4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed- ridden grand- fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested.

8.2 The Supreme Court in Preeti Gupta & another V State of

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 Jharkhand & another, (2010) 7 SCC 667 observed that it is a matter

of common experience that most of these complaints under section

498A IPC are filed in the heat of the moment over trivial issues

without proper deliberations and large number of such complaints

which are not even bona fide and are filed with oblique motive.

However rapid increase in genuine cases of dowry harassment is also

a matter of serious concern. It was further observed that at the time of

filing of the complaint the implications and consequences are not

properly visualized by the complainant and such complaint can lead to

insurmountable harassment, agony and pain to the complainant,

accused and his close relations. The Supreme Court cast a duty on

courts that the courts have to be extremely careful and cautious in

dealing with these complaints and must take pragmatic realities into

consideration while dealing with matrimonial cases. The allegations of

harassment of husband's close relations who had been living in

different cities and never visited or rarely visited the place where the

complainant resided would have an entirely different complexion. The

allegations of the complaint are required to be scrutinized with great

care and circumspection. The Supreme Court in Geeta Mehrotra &

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 another V State of UP & another, (2012) 10 SCC 741 after referring

G.V. Rao V L.H.V. Prasad &others, (2000) 3 SCC 693 observed

that the High Court should have quashed the complaint arising out of a

matrimonial dispute wherein all family members had been roped into

the matrimonial litigation. The Supreme Court in Kahkashan Kausar

@ Sonam & others V State of Bihar & others quashed FIR for

offence punishable under section 498A IPC besides other offences on

ground that the contents of the FIR revealed that general allegations

are levelled against the appellants and no specific and distinct

allegations have been made against either of the appellants and no

specific role is attributed to any of the appellant. It was also observed

that the allegations are general and omnibus and can at best be said to

have been made out on account of small skirmishes.

9. This Court in judgment titled as Hemlata V State & Others in

CRL.M.C. 6030/2019 decided on 07.08.2023 held that that the general

allegations which are not specific in nature regarding harassment

caused to a wife for dowry demands cannot be basis of framing of

charge for offence punishable under section 498A IPC. The husband

and his other family members cannot subject to prosecution on basis

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Digitally Signed By:NIDHI Signing Date:18.08.2023 18:20:19 of general allegations regarding dowry demands

10. The allegations made by the petitioner in complaint and

statement under section 161 of the Cr.P.C are appearing to be general

in nature and without any specification and do not reflect that the

petitioner was subjected to the harassment/cruelty due to dowry

demands. It appears to be the normal day-to-day life and there is no

specific allegation regarding the harassment caused to the petitioner

for dowry demand. The husband cannot be subjected to prosecution on

the basis of general allegations regarding dowry demands.

11. After considering all facts, no ground is made out to interfere in

the impugned order dated 04.07.2017. Hence, the present petition

along with pending applications, if any, stands dismissed.

(DR. SUDHIR KUMAR JAIN) JUDGE AUGUST 16, 2023 N/SD

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