Parveen vs State of Haryana

This common order shall dispose of above noted two petitions

as the issue involved therein is identical. However, the facts have been

extracted from CRM-M-26369-2016.

These two petitions have been filed under Section 482 Cr.P.C.

for setting aside the order dated 15.07.2016, passed by the Additional

Sessions Judge, Sonepat, vide which the revision petition of the State has

been accepted and the order of discharge dated 14.06.2013, passed by the

Court of JMIC, Sonepat, has been set aside.

In brief, the facts are that one Manjeet Dagar son of Sh. Ombir

Singh, resident of Malikpur, Chaura Road, near Jaffarpur, Delhi married

with Nidhi, d/o Ishwar Singh Dahiya, resident of Sonepat, on 14.03.2009.

After the solemnization of the marriage, problems arose between Nidhi and

her husband which resulted in her lodging a case against her husband

Manjeet Dagar, father-in-law Ombir, mother-in-law Sheela, elder brother of

her husband Bhalender, Shakuntala-mother-in-law of Bhalender and some

other persons as FIR No. 310 dated 12.08.2009 under Sections 312, 315 and

120-B of the IPC and Sections 3, 4, 5 and 6 of the MPT Act at Police

Station Bahadurgarh. Thereafter, another FIR was lodged bearing No. 36

dated 04.11.2009, under Sections 498-A, 406 and 34 of the IPC against

Manjeet-husband, Bhalender (Jeth), Dipika (Bhalender''s wife), Ombeer

Singh (father of Manjeet and Bhalender), Sheela Devi (mother of Manjeet)

and Parveen Kumar (husband of the sister-in-law).

In the FIR, it was submitted that all the accused were guilty of

demanding dowry with allegation that Dipika (Jethani), accused No. 3,

snatched away all the ornaments and clothing of the complainant and that

the complainant was not allowed to use these clothes. It was further alleged

that Parveen (petitioner in CRM-M-26369-2016) put the demand of the

price of a car to be deposited in his account which amount was deposited in

his account. It is alleged that the car would have to be purchased in the

name of accused No. 1 as dowry article but instead of that, he purchased the

car in his name and in this fashion he induced the father of the complainant

to give him Rs. 4,10,000/-. In FIR No. 36 dated 04.11.2009, under Section

498-A, 406 and 34 of the IPC, the petitioners filed an application for their

discharge on the ground that they were innocent and have no concern in any

manner as they were living separately. It was contended that the petitioner

Parveen was serving in BSF and had purchased the car from the BSF quota

on the request of the father of the complainant so that they would be able to

avail of a concession and the car would be cheaper as against the market

price. The application for discharge of the petitioners was allowed by the

learned JMIC, Sonepat by holding that there was gross misuse of the

provisions of Section 498-A of the IPC as there was a tendency to implicate

all family members of the husband, while also noting the argument that an

amount has been deposited in the account of Parveen in order to avail of

concession of the BSF quota. It was further noted that the car had been

bought and the same was found by the Investigating Officer parked in the

matrimonial home of the complainant but she had refused to take it back. It

was also noted that applicant-Parveen had given a payment of

Rs. 4,10,000/-, under protest, in the Court of Sh. K. C. Sharma, the then

ASJ, Sonepat, during the hearing of the anticipatory bail. It was also noted

as under:

"Seventhly, the documents also reveals that even after receiving the amount of Rs. 4,10,000/-, the complainant with ulterior motive had moved an application dated 05.03.2010 to DGP, BSF, New Delhi against accused No. 6 levelling the allegations against him that he had misappropriated the above said amount of Rs. 4,10,000/- for the purchase of car, which shows that she just wants to implicate all the family members of her husband in this case. Hence, no prima facie case is made out against accused No. 2, 3 & 6 and accordingly, they are hereby discharged. Now, to come up on 14.08.2013 consideration, if any on the charge against accused No. 1, 4 and 6 or otherwise, for framing charge against them."

Against the order of discharge, a revision petition was filed

which was accepted by the Additional Sessions Judge, Sonepat on

15.07.2016 holding that the case was at the stage of framing of charge.

Learned Additional Sessions Judge held that the challan had been submitted

by the police against all accused after investigation and the defence version,

put up by the respondents at the time of framing of charges, could not be

taken into consideration. It was further held that documents regarding

residence of Bhalender and Dipika were not even proved or laid in the

defence to establish the factum that they were not joint in mess. The version

of Parveen, the petitioner herein, was not taken into account. Aggrieved

against setting aside the order of discharge, the instant petitions have been

filed.

Mr. Perdhuman Yadav, learned counsel for the petitioners,

contends that the allegations raised in the FIR are not sufficient to initiate

any proceeding against the petitioners herein. It is argued that the only

allegation raised against Parveen (petitioner in the first petition) is that he

induced the father of the complainant to purchase a car for which a sum of

Rs. 4,10,000/- was deposited in his account and instead of purchasing the

car in the name of the husband of the complainant, the car was purchased in

his own name and hence he had misappropriated a sum of Rs. 4,10,000/-. It

is further argued that other than a statement made that Dipika

(petitioner No. 2 in the second petition) has utilized the Istridhan of the

complainant, no specific allegation has been raised against her and no

allegation whatsoever has been made against Bhalender. Counsel for the

petitioners relies upon a judgment rendered in Arnesh Kumar vs. State of

Bihar, AIR 2014 SC 2756, wherein the habit of roping in all family

members in matrimonial disputes has been deprecated by the Apex Court.

He further relies upon the judgment rendered in Preeti Gupta & another vs.

State of Jharkhand & another, AIR 2010 SC 3363.

Per contra, learned counsel for the complainant urges this Court

that there is no infirmity in the order so passed as there are specific

allegations made out in the complaint against petitioner-Parveen that he had

induced the father of the complainant to deposit a sum of Rs. 4,10,000/- in

his account in order to buy a car which had been bought in his own name

and specific allegations against other accused as demand of dowry and

misusing the Istridhan have also been raised. Learned counsel for the

complainant relies upon a judgment rendered in Sonu Gupta vs. Deepak

Gupta and another, 2015 2 RCR (Criminal) 32 to argue that it is only at

the stage of framing of charge that an accused can seek discharge if he or

she can show that the materials are absolutely insufficient for framing of

charge against the accused. He further relies on Telu Ram vs. State of

Haryana, 2011(2) RCR (Criminal) 162; Chander Kalan vs. Rameshwar

and others, 2010(4) RCR (Criminal) 687; Sanghi Brothers (Indore) Pvt.

Ltd. vs. Sanjay Choudhary and others, 2008(4) RCR (Criminal) 640 and

Deepti @ Arati Rai vs. Akhil Rai & others, 1995(3) RCR (Criminal) 638.

I have heard learned counsel for the parties and with their

assistance have perused the record of the case as well as the judgments

relied upon.

The case as set up by the petitioners herein is that there is no

specific or sufficient allegation in the FIR to summon the petitioners. The

case of the complainant is that a sum of Rs. 4,10,000/- was deposited in the

account of Parveen in order for him to buy a car in the name of the husband

of the complainant, whereas, the car was bought in his own name and

allegations as raised against other petitioners, namely Bhalender and Dipika,

are to the extent that Dipika utilized the Istridhan of the complainant and

omnibus allegations against all the accused are that they demanded dowry.

The Investigating Officer found that the car, which had been purchased, was

lying parked in the matrimonial home of the complainant and when she was

asked to take the car, she refused to do so. Parveen has already deposited a

sum of Rs. 4,10,000/-, though under protest, in the Court of Sh. K. C.

Sharma at the time of getting anticipatory bail and the said money has been

taken by the complainant.

Argument raised by the counsel for the petitioners that the

money had been deposited in the account so that the complainant and her

father could avail of a concession in buying a car through BSF quota would

have merit. It is known that in case a car is bought under a quota, it could

not have been bought directly in the name of the complainant or in the name

of the husband of the complainant. The car would have necessarily be

registered in the name of buyer availing of the said concession. The very

fact that the car was lying at her matrimonial home would be evidence that

the car was purchased for use of the complainant. To show his bonafide, the

petitioner had also deposited a sumo of Rs. 4,10,000/- before the Court at

the time of getting anticipatory bail which amount has been taken by the

complainant, which is not disputed.

As regards the other two petitioners, though there is an

allegation that petitioner-Dipika had utilized the Istridhan of the

complainant, there is no other specific allegation regarding demand of

dowry. In fact, a reading of the FIR would show that the main allegations

are against the immediate family members of the husband i.e. father-in-law

and mother-in-law, who are already facing trial.

The judgment rendered in Sonu Gupta''s case (supra) as relied

upon by the counsel for the complainant is distinguishable and would not be

applicable to the instant case, which arose out of allegations of forgery. In

that case, there was a protracted litigation between the parties and the

husband of the appellant forged the certain documents purported to have

been written by the appellant and in connivance with the police got a weak

FIR registered against himself in which he obtained general bail and then

initiated divorce proceedings. The appellant approached the High Court and

the matter was remanded back to the JMIC to produce alleged documents

which could prove forgery. It was on that stage that an application was filed

by the husband therein seeking discharge which application was dismissed.

In Sonu Gupta''s case (supra), the Apex Court held that:

"8. It is also well settled that cognizance is taken of the offence and not the offender. Hence at the stage of framing of charge an individual accused may seek discharge if he or she can show that the materials are absolutely insufficient for framing of charge against that particular accused. But such exercise is required only at a later stage, as indicated above and not at the stage of taking cognizance and summoning the accused on the basis of prima facie case. Even at the stage of framing of charge, the sufficiency of materials for the purpose of conviction is not the requirement and a prayer for discharge can be allowed only if the court finds that the materials are wholly insufficient for the purpose of trial. It is also a settled proposition of law that even when there are materials raising strong suspicion against an accused, the court will be justified in rejecting a prayer for discharge and in granting an opportunity to the prosecution to bring on record the entire evidence in accordance with law so that case of both the sides may be considered appropriately on conclusion of trial."

It was in view of this background that the order dismissing the discharge

application was upheld.

The law as settled in Pepsi Food Ltd. And another vs. Special

Judicial Magistrate, 1997 4 RCR 761 lays down the well settled principle

that summoning of an accused is a serious matter. The law as laid down in

State of Haryana and ors. vs. Bhajan Lal & others, 1991 (1) RCR

(Criminal) 383 subsequently followed in Thermax Ltd. & others vs. K. M.

Johny & others, 2011(4) RCR (Criminal) 406 upholds the power to quash

criminal prosecution where such proceedings are instituted with malafide or

ulterior motive. Various judgments have held that it is for the Courts to

examine materials collected in investigation and decide if prosecution is to

continue or not.

In Umesh Kumar vs. State of Andhra Pradesh and another,

(2013) 10 SCC 591, the Apex Court held as under:

"27. The scheme for inquiry/trial provided under the Cr.P.C . is quite clear. After investigation, report under Section 173(2) Cr.P.C. is to be submitted before the competent court i.e. magistrate having jurisdiction in the matter and the magistrate may take cognizance under Section 190 Cr.P.C. However, it is still open to the magistrate to direct further investigation under the provisions of Section 173(8) Cr.P.C. If the case is triable by the Court of Sessions, the magistrate would commit the case to the said court under Section 209 Cr.P.C. It is for the court to examine whether there is sufficient material collected during investigation and filed along with the charge sheet that a prima facie view can be taken to proceed against the accused and in view thereof, frame charges under Section 228 Cr.P.C. At this stage the remedy available to the accused is to ask for discharge under Section 227 Cr.P.C. In case charges are framed the accused has to face the trial, charges can be added/altered at any stage of the trial, before the pronouncement of the judgment to suit the evidence adduced before the court, under the provisions of Section 216 Cr.P.C. The only legal requirement is that a witness has to be recalled as provided under Section 217 Cr.P.C. when a charge is altered or added by the court." 15. High Court of Delhi in Bhupinder Singh Patel vs. CBI, 2008

SCC Online Del 711, which was also affirmed by the Apex Court in Rajat

Prasad vs. CBI, (2014) 6 SCC 495, observed as under:

"30. The learned Counsel for the parties fully conscious of the well settled principles on the law governing framing of charges brought to the notice of this Court various precedents in Niranjan Singh Karam Singh Punjabi, Advocate v. Jitender Bhimraj Bijjaya and Ors. ; Union of India v. Prafulla Kumar Samal and Anr. ; Dilawar Balu Kurane v. State of Maharashta ; Soma Chakravarty v. State through CBI ; Om Wati (Smt) and Anr. v. State through Delhi Admin. And Ors. ; State of Orissa v. Debendra Nath Padhi ; Neeraj Gupta and Ors. v. CBI2007 V Ad (Cri.) (DHC) 517 where the court has repeatedly held that the Court at the stage of framing charges has 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. 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. The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay 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. In exercising his jurisdiction under Section 227 of the Code the 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."

On a conjoint reading of the judgments passed and the law

settled therein, this Court has no hesitation in setting aside the orders passed

by the Additional Sessions Judge and upholds the discharge order. Merely

on account of the fact that an amount of Rs. 4,10,000/- was deposited in the

account of Parveen towards a car in order to avail a benefit of the

concession of BSF quota, the petitioner can not be held guilty for demand of -10-

dowry. The fact that the car is not in the possession of the petitioner-

Parveen, as the car was found by the Investigating Officer parked in the

matrimonial home of the complainant, is a factor that can not be ignored.

Moreover, the amount was deposited at the time of the engagement, before

the marriage took place, it would itself not constitute a demand for dowry.

The car could only have been purchased in the name of the petitioner since

he was the person who was serving in BSF and was eligible to avail of the

said concession. As regards the allegations against the petitioners in

CRM-M-29474-2016, they are general in nature and the learned JMIC on

evaluation of the application, documents and the Challan rightly came to the

conclusion that no case is made out against them.

In view of above, these petitions are allowed and the order

dated 15.07.2017 passed by the Additional Sessions Judge is hereby set

aside upholding the order dated 14.06.2013 passed by the JMIC, Sonepat.