1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. Crl. Miscellaneous Petition No.877/2007 (Sharad Chandra & Ors. Vs. State of Rajasthan) Date of Order : 10.03.2010 HON'BLE MR. JUSTICE M.N. BHANDARI Mr.Ravi Yadav, for the petitioners. Mr.Laxman Meena, PP. By the Court: By this miscellaneous petition, a challenge has been made to the order of framing charges. The charge has been framed against the petitioners for an offence under Section 498A of Indian Penal Code (hereinafter referred to as “the IPC”) and under Section 31/32 of Protection of Women (Against Domestic Violence) Act, 2005 (hereinafter referred to as “the Act of 2005”). Learned counsel for the petitioners submits that perusal of the FIR itself does not disclose offence under Section 498A of IPC, however, charges have been framed ignoring the aforesaid. The charges could not have been framed beyond the allegations made in the FIR. It is stated that if the provisions of Section 498A of IPC is looked into, then for making out a case, the allegation should exists so as the evidence taken during the course of investigation. The Court below framed the charges ignoring aforesaid. A reference of the judgment in the case of Shakson Belthissor VS. State of Kerala & Anr. reported in 2009 2 (2) CAR (SC) 612 has been given. It is further stated that the Act of 2005 came in effect from 26th October, 2006. The court below framed the charge under Section 31/32 of the Act of 2005 ignoring the fact that even as on the date of framing of the charges, i.e., dated 01.08.2006, the Act of 2005 was not existing. On the aforesaid two grounds, a challenge has been made to the order of framing charges. Learned Public Prosecutor opposed the miscellaneous petition and submits that the case under Section 498A of IPC is made out in view of the allegations made in the FIR, thus the charge was rightly framed. So far as the issue of framing of the charges under Section 31/32 of the Act of 2005 is concerned, it was fairly conceded that the Act come in effect from 26th October, 2006, thus charge under Section 31/32 of the Act of 2005 could not have been framed. I have considered the submissions made by the learned counsel for the parties and scanned the matter carefully. Perusal of the FIR does not disclose the fact regarding demand of dowery and otherwise, it is not a case, which is falling under the provisions of Section 498A of IPC explanation (a) of (b). The word “cruelty” has been explained under Section 498A. As per the explanation (a) there has to be a willful conduct of a nature likely to derive the woman to commit suicide or to cause grave injury or danger to life, limb or 3 health. Perusal of the FIR does not show any of such allegations. Explanation (b) is in regard to the harassment to the woman with a view to meet unlawful demand for any property or valuable security. The FIR does not contain such allegations. My view is supported by the judgment of the Hon'ble Apex Court in the case Shakson Belthissor VS. State of Kerala & Anr. (Supra) wherein the meaning of cruelty has been given interpretation. The proceedings initiated against the petitioner-appellant therein were quashed. In view of the aforesaid, framing of the charges under Section 498A of IPC cannot be said to be legal. So far as the issue of framing charges under Section 31/32 of the Act of 2005 is concerned, the Act itself come in effect on 26th October, 2006 yet while framing charges on 01.08.2006, Section 31/32 of the Act of 2005 was taken note of. It seems that the Court below was misguided by taking note of the Act to be of 2005. The court below ignored that it was to take effect from the date notified in the gazette. The gazette notification was issued on 17th October, 2006 with the clear stipulation to given effect to the Act of 2005 from 26th October, 2006. In view of the aforesaid, when the Act of 2005 was not existing on the date of framing of the charges, the order for framing charges for the offence under Section 31/32 of the Act of 2005 is not sustainable in the eye of law. In view of the discussion made above, the order framing charges against the petitioner cannot allow to stand and accordingly, the impugned order is 4 set aside. The criminal miscellaneous petition is allowed. (M.N. BHANDARI),J. Preety Item NO.38