[CASE NUMBER] & [CASE NUMBER] IN THE COURT OF SH. [ENTITY] SPECIAL JUDGE (PC ACT) CBI : EAST DISTRICT KARKARDOOMA COURTS, DELHI Criminal Revision Nos. : 69/2016 & 119/2016 Under Section : [SECTION]/[SECTION]/34 [ACT] Police Station : Jagat Puri FIR No. : 126/11 CNR Nos. : DLKA01-001827-2014 & DLKA01-004194-2014 In the matter of [CASE NUMBER] :- [ENTITY] REVISIONIST VERSUS 1. [ENTITY] S/o. Late [ENTITY], R/o H.No.E-50, Room No.66, Vikas Marg, Laxmi Nagar, Delhi-110092. 2. NIRMAL SINGH (Since expired) S/o. Late Amar Singh, R/o. H.No.70, Gagan Vihar, Delhi. 3. SMT. BIRENDER KAUR (Since expired) W/o. Late [ENTITY], R/o. H.No.70, Gagan Vihar, Delhi. RESPONDENTS Date of Institution : 18.02.2014 Date of Receiving : 19.02.2014 Date of reserving judgment : 20.02.2017 Date of pronouncement : 02.03.2017 Decision : Petition is dismissed. AND In the matter of [CASE NUMBER] :- [ENTITY] S/o Late [ENTITY], R/o H.No.E-50, Room No.66, Vikas Marg, Laxmi Nagar, Delhi-110092. REVISIONIST Page 1 of 12 ([ENTITY]) Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] VERSUS [ENTITY] RESPONDENT Date of Institution : 07.04.2014 Date of Receiving : 09.04.2014 Date of reserving judgment : 20.02.2017 Date of pronouncement : 02.03.2017 Decision : Petition is dismissed. ORDER
1. Vide this common order, I propose to decide two criminal revision petitions which were preferred against order dated 09.01.2014, passed by ld. [ENTITY] in the case titled as [ENTITY] v. [ENTITY] etc., bearing FIR No. 126/11, PS Jagatpuri, filed under [SECTION] [ACT]. One revision petition ([CASE NUMBER]) has been filed by accused [ENTITY] and another revision petition ([CASE NUMBER]) has been filed by [ENTITY] against the same order, vide which ld. [ENTITY] had decided to frame charge against the accused [ENTITY] for offence under [SECTION] [ACT] and discharged other accused persons namely [ENTITY] and [ENTITY] along with accused [ENTITY] for offence under [SECTION] [ACT]. Since both the revision petitions challenge the legality of order on charge, therefore, they are being decided together.
2. During pendency of the revision petition, it was reported and verified that accused [ENTITY] and accused [ENTITY] expired and thus, proceedings against them stood abated.
BRIEF FACTS OF THIS CASE : -
3. In nut shell the case of prosecution is that complainant Smt. [ENTITY] made a written complaint before Crime Against Women Cell, Delhi on 20.09.2010. In this complaint, she alleged that she was married to accused [ENTITY] on 31.01.2008. A number of articles were given to the complainant in this marriage by her family Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] members. Prior to the marriage, all three accused persons (as mentioned herein above) had made demand for number of articles as dowry and list of the same was also given. Articles were given as per that list, still they were not satisfied. When complainant went to her matrimonial home, her entire costly articles/ jeweleries etc. were taken by accused [ENTITY], [ENTITY] and [ENTITY] on the pretext to keep them in safe custody. However, whenever complainant demanded her goods from the accused persons, same were not given to her. Rather, she was subjected to cruelty on the grounds of making such demands. Accused [ENTITY] and [ENTITY] gave beatings to the complainant whenever she demanded her goods. It had become a daily routine for these persons to harass and torture the complainant for one reason or other. She was not given proper food, care and attention and was made to work in the house. Complainant was not allowed to go to her parental house or to make any phone calls. She was kept like a bonded labour. When she became pregnant, she was not taken care of and was left at the mercy of God. Even during those period, accused [ENTITY] gave beatings to her as complainant had refused to bring cash amount from her parents to satisfy his demands. On 24.12.2008, complainant gave birth to a male child, but no one was happy and all accused persons demanded to bring cash amount and costly gifts from her parental home. On 10.09.2009, accused [ENTITY] gave severe beatings to the complainant due to which she suffered bodily injury. Whenever complainant used to ask or demand anything for her minor child, she was beaten by accused [ENTITY]. On 03.02.2010 also complainant was taunted for not bringing sufficient dowry. On objection being raised by the complainant, she was beaten by [ENTITY] and [ENTITY]. Complainant informed police, Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] but the matter was settled on request of accused [ENTITY]. Entire streedhan/ dowry articles and jewelery items of the complainant were lying with the accused persons and they were misusing the same for their own benefits. They refused to return the same despite repeated demands of the complainant. Whatever articles were given to the complainant, were also in danger because accused persons had committed theft of golden ring and costly sarees from the almirah of the complainant and she had lodged a complaint in this regard on 17.05.2010 with police. Though, complainant had been residing in her matrimonial home, however, she was harassed and tortured continuously and was made to live in one room. She suffered great mental and physical torture and the accused persons committed cruelty by making demand of more dowry and cash amount etc.
4. After conclusion of investigation, IO chargesheeted all three accused persons for offences under [SECTION] [ACT]. Ld. [ENTITY] vide impugned order observed that the allegations were leveled only against the husband ([ENTITY]) with regard to the beatings given during pregnancy and there was no allegation against other two accused persons. Therefore, charge for offence U/[SECTION] [ACT] was made out only against the accused [ENTITY]. She further observed that complainant at one place in her complaint stated that all her costly sarees and jewelleries were kept by accused persons, while at another place, she alleged that her articles were stolen by all the accused persons. Ld. [ENTITY] further observed that complainant did not mention the items, which were taken by the accused persons for keeping them in safe custody and therefore, entrustment of any article to the accused persons, was not clearly made out. On these grounds, all accused persons were discharged U/[SECTION] [ACT].
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] GROUNDS : -
5. Being aggrieved of impugned order dated 09.01.2014, [ENTITY] has preferred this revision petition on the following grounds :-
That the trial court has grossly erred in the basic law on the point of framing of charges as laid down by Supreme Court that "roving enquiry is not required at this stage and further held that charge can be framed even on strong suspicion" and reliance is placed on the recent judgment pronounced by Apex Court in case of [PRECEDENT]. In [ENTITY] of Maharashtra v. Som Nath Thapa, (1996) (4) SCC 6559, the three judges bench of the Supreme Court had observed that " at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage."
That the trial court failed to appreciate that the complainant [ENTITY] in her complaint before CAW Cell dated 20.09.2010 at para no.3 stated that the entire costly articles, jewellery etc. belonging to the complainant were taken by aforesaid accused persons on the pretext of keeping them in safe custody and same would be returned to the complainant as and when demanded by her. But same were not returned to the complainant whenever she demanded the same from them rather complainant was subjected to cruelty on this ground that how dare the complainant demanded the said goods from them. Complainant also stated that prior to her marriage with the accused [ENTITY], she was doing a private job and after her marriage with the accused aforesaid persons forcibly made her to leave the said job and she was forced to do entire house hold work since morning till late night and she was treated like a free of cost maid in the family. That the trial court failed to appreciate that the complainant [ENTITY] in Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] her complaint before CAW Cell dated 20.09.2010 at para no.3 stated that on 03.02.2010, when the complainant was feeding milk to her minor child, the aforesaid persons came there and started taunting and cursing the complainant for not bringing sufficient dowry and the articles as demanded by them, and when complainant asked them as to why they are using abusive language, her husband [ENTITY] and mother-in-law [ENTITY] started beating complainant with fist and blows. That ld. [ENTITY] while discharging above said accused persons for offence under [SECTION] [ACT] vide impugned order observed that the complainant in her complaint before CAW Cell at one place stated that all the costly saarees and jewellery articles were kept by the accused persons and at other place she had stated that whatever the articles she was having in her possession were stolen by all the accused persons.
That ld. [ENTITY] while giving above said observations failed to appreciate that in her complaint before CAW Cell at para no.3 complainant specifically stated that costly articles and jewellery were kept by the accused persons on the pretext of keeping them in safe custody and same were not returned to the complainant whenever she demanded the same. Whereas in the same complaint at para no.9 complainant stated that entire istreedhan/ jewellery/dowry articles belonging to complainant are still lying with the above said accused persons and whatever articles were given to the complainant are in danger as aforesaid accused persons have committed theft of golden ring and costly saarees from the almirah of complainant in her absence and in this regard complainant had lodged a DD entry bearing no.54-B dated 17.05.2010.
6. Being aggrieved of impugned order dated 09.01.2014, [ENTITY] Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] Singh has preferred this revision petition on the following grounds :-
That the extent of directing the framing of charge against the present petitioner under [SECTION] [ACT] is contrary to law and, if permitted to stand, shall result in serious miscarriage of justice. That the trial court failed to consider the provisions of [SECTION] [ACT] properly.
That the trial court failed to appreciate that neither every cruelty nor every harassment has element of criminal culpability for the purpose of [SECTION] [ACT]. The trial court has further failed to appreciate that there is no material on record in the entire chargesheet filed by the prosecution, to justify the order of framing of charge under [SECTION] [ACT] against the present petition. That the trial court did not appreciate that there is no material placed on the record by the prosecution to show that complainant had ever received any physical/bodily injury. That the trial court failed to appreciate that the complainant had leveled the allegations of demand of dowry or cruelty as a counter blast only after the father of the petitioner had given notice dated 09.03.2010 to the petitioner and complainant to vacate the H.No.70, Gagan Vihar, Delhi-110051 and the father of the petitioner filed a suit for possession against the complainant.
That the trial court has failed to consider that during the entire period from filing the complaint at CAW Cell and even till date, the complainant is residing at 70 Gagan Vihar, Delhi, which shows that her allegations of demand of dowry and infliction of cruelties are false.
That ld. [ENTITY] has mechanically ordered the framing of charge under [SECTION] of [ACT] against the present petitioner and failed to take into account the total effect of evidence and documents produced before the court.
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] ARGUMENTS :-
7. Ld. Counsel for the accused [ENTITY] argued that Ld. [ENTITY] referred to single allegation of beating during pregnancy in order to frame charge U/[SECTION] [ACT], though, there was no MLC filed on the record to support the allegations of beatings of complainant. Even otherwise, cruelty must be in relation to fulfill the demands and there must be continuous harassment to invoke [SECTION] [ACT]. He further submitted that complainant did not pass on the demands to her parents, which meant that she was never compelled so much so as to satisfy those alleged demands. He further submitted that there was no allegations of entrustment and demand of any specific article and the allegation of theft of some articles contradicted the allegations of entrustment of properties. Ld. Counsel further argued that since the year 2010 till date, complainant had been residing in matrimonial home only and if she would have suffered cruelty then she would not have resided there. She lodged this complaint only when her father-in-law filed a suit for possession against her.
8. Per contra, Ld. Addl. PP for the [ENTITY] referred to Para - 4, 5, 7, 8 & 9 of the complaint to submit that complainant had made sufficient allegations to frame charges U/[SECTION] and [SECTION] [ACT]. He further submitted that demand is not sole factor to invoke [SECTION] [ACT] and this provision can be invoked even if there is continuous cruelty. He further submitted that allegations of theft were in respect of only one ring and costly sarees and the remaining articles of streedhan still remained with the accused persons. Therefore, the findings given by ld. [ENTITY] in respect of [SECTION] [ACT] is wrong.
9. Complainant had also filed one written arguments on the record and in her written arguments, she reiterated the same allegations which were made in her complaint. She further stated that her entire streedhan/jewellery articles were lying with the accused persons, Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] which were being mis-used and they were not returned to her despite requests and demands. She further raised question, if accused persons are not prosecuted for offence U/[SECTION] [ACT], then where have her goods gone and from where she should get recovery of those articles?
APPRECIATION OF ARGUMENTS, FINDINGS & DECISION :-
10.On perusal of record of the case, I find a seizure memo of 8 articles which were sized by the IO in this case. However, this seizure memo itself shows that three articles i.e. sofa-set, LCD and refrigerator were acknowledged to be property of the complainant by co-accused Sh. [ENTITY]. Other five articles were though claimed to be belonging to Sh. [ENTITY]. Complainant also raised her claim over these articles. Complainant also gave in writing that in the room occupied by her, there were certain articles of Sh. [ENTITY] which could be taken away by him. In this document, she referred to two rooms situated on ground floor and second floor. Besides this, I find certain lists of streedhan placed on the record under signature of complainant. IO was summoned by this court to find out, if she had made any investigation regarding authenticity of such list and the evidence in support of claim of the complainant. In the presence of complainant itself, IO had reported before this court that complainant had not furnished any receipt of all the articles recovered in this case. Before analysing the facts and evidence on record, it would be appropriate to refer to the law in question.
11.[SECTION] [ACT] was deliberated upon by Delhi High Court in the case of Hans Raj Sharma v. [ENTITY], 2010 (175) DLT 446. Delhi High Court also dealt with the requirements to prove charge under [SECTION] [ACT]. It was observed by the court that prosecution has to prove that deceased was subjected to cruelty as defined in the explanation to the Section. The court held that :-
Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] "It is not every cruelty which is punishable under [SECTION] of [ACT]. The cruelty, as defined in the explanation to [SECTION] of [ACT], is altogether different from the cruelty, which can be subject matter of proceedings, under the provisions of [ACT]. The cruelty, so as to attract penal provisions, contained in [SECTION] of [ACT], has necessarily to be a willful conduct which is of such a nature that it is likely to drive a woman to commit suicide or cause grievous injury or danger to her life or health. The use of the expression 'willful' in the explanation to [SECTION] of [ACT] indicates that the conduct attributed to the accused, in order to be culpable, needs to be deliberate, aimed at causing injury to the health of the woman or bringing misery to her. If the accused knows or is reasonably expected to know that his conduct is likely to cause injury to the life, limb or health of the aggrieved woman or if his conduct is of such a nature, that causing injury to the life, limb or health can be a natural consequence for the woman, who is recipient of such a conduct, it will attract criminal liability on the part of the husband or his relative, as the case may be. Everyone is presumed to intend the natural consequences of his act and such a presumption must necessarily be drawn even if there is no intention to cause any injury or harm to the woman. Whether the conduct in question is likely to drive the woman to cause injury to her life, limb or health, will depend upon a number of factors such as social and economic status of the parties, the level of awareness of the aggrieved woman, her temperament, state of her health, physical as well as mental and how she is likely to perceive such a behavior. If a woman is harassed with a view to coerce her or any of her relatives to meet any unlawful demand for any property or valuable security, it will also constitute cruelty, as defined in the explanation to [SECTION] of [ACT]. Of course, the expression 'cruelty' would take in its ambit mental cruelty as well as physical torture of the woman. If the conduct of the accused with a woman is likely to cause a reasonable apprehension in her mind that her living with the husband will be harmful and injuries to her life and safety, such a conduct would attract criminal liability, envisaged in [SECTION] of [ACT]."
12.The allegations made by complainant in her complaint did not refer Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] to single incident of beating during her pregnancy only. Complainant had referred to several incidents of beatings as well as some other incidents of her harassment i.e. not allowing her to visit her parental home, to make phone to her parents, passing taunts against her for bringing lesser dowry, not taking care of her during her pregnancy and indulging in sexual intercourse against her wishes during pregnancy etc. Ld. [ENTITY] had given reference to the beatings of complainant during her pregnancy as one of those incidents and therefore, as far as decision to frame charge under [SECTION] [ACT] against accused [ENTITY] is concerned, I do not find any infirmity to charge him with offence under [SECTION] [ACT], on the basis of allegations made by the complainant.
13.The next question relates to offence under [SECTION] [ACT]. From the compliant made by complainant as well as written arguments filed by her, I do find that she has not even whispered about the description of the articles, which were allegedly handed over by her to the accused persons for their safe custody. I also find that complainant has made two kinds of allegations. One allegation is that her entire streedhan and costly articles were taken by accused persons for their safe custody. Another allegation is that her costly sarees and one golden ring was stolen by the accused persons for which she lodged report in police on 17.05.2010. The first allegation depicts a scenario wherein nothing was in possession of the complainant. While the second allegation shows that complainant was in possession of at least some of her articles. Therefore, absence of giving description of the streedhan articles allegedly given to the accused persons, assume importance. This situation is further worsened by the fact that complainant has not referred to the time or date when such articles were allegedly entrusted to the accused persons and the time and date, when she had made Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi [CASE NUMBER] & [CASE NUMBER] demand for those articles, but the same were not given to her. Therefore, even if court wishes to frame any charge against accused [ENTITY] for offence under [SECTION] [ACT], court would not be able to describe to the accused that what particular articles were entrusted to him, which have been misused by the accused for his own benefits. A vague charge cannot be framed against any accused because in that situation accused cannot be expected to defend himself against such charge, for want of certainity of allegations.
14.In the case of [PRECEDENT], Supreme Court after referring to other case laws made following observations :-
"From the above discussion, it seems well settled that at the [SECTION] stage 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may 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."
FINDINGS :-
15.In view of my foregoing discussions, I find that there is no legal infirmity in the order passed by ld. [ENTITY] vis a vis accused [ENTITY], hence, both the revision petitions are dismissed.
16. Copy of this order along with TCR be sent back to the trial court.
File be consigned to record room, as per rules.
Announced in the open court ([ENTITY]) today on 02.03.2017 Special Judge (PC Act) CBI, East (This order contains 12 pages) Karkardooma Courts, Delhi Special Judge (PC Act) CBI, East District Karkardooma Courts, Delhi