RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Misc. Application No. 53/2010 Mukesh Sethi …….Petitioner Versus State of Uttarakhand & Anr. …….Respondents October 28, 2010 Hon’ble Dharam Veer, J. Heard Mr. MK Goyal, Advocate for the petitioner, Mr. MA Khan, Brief Holder for the State/respondent no. 1 and Mr. DK Sharma, Advocate for the respondent no. 2. By means of this petition, moved under Section 482 of Code of Criminal Procedure, 1973 (for short, CrPC), the petitioner has prayed for quashing the summoning order dated 11.6.2008 passed by the Additional Chief Judicial Magistrate III, Dehradun in Criminal Case No. 4353/2009, State v. Mukesh Sethi under Section 498A, 323, 506 IPC and 3/4 Dowry Prohibition Act. Facts, in brief, are that on 27.11.2007, respondent no. 2 Smt. Sonia Sethi lodged an FIR with the averments that she was married to the petitioner. Soon after the petitioner, her husband (petitioner) and her mother-in-law started harassing her for dowry. They also used to beat her. She was also beaten on 22.11.2007, when she came to meet her children. Somehow she came out of the house and called her mother. Thereafter the petitioner also beaten her mother on the road and also threatened to kill the complainant. After investigation, chargesheet was filed against the petitioner, on the basis of which learned Magistrate took cognizance against the petitioner under Section 498A, 323, 506 IPC and 3/4 Dowry Prohibition Act and issued the summoning order dated 11.6.2008. Learned Counsel for the petitioner argued that the petitioner has been falsely implicated in this case and on the basis of the averments made in the FIR, the provisions contained under Section 498A IPC and 3/4 Dowry Prohibition 2 Act are not attracted in the present case and, therefore, the impugned summoning order is bad in the eyes of law. I do not find any force in the argument of learned Counsel for the petitioner inasmuch as the main ingredient of Section 498- A IPC is the act of cruelty by the husband or the relative of the husband. It further contemplates that such cruelty shall mean any willful conduct which may drive the woman to commit suicide or to cause grave injury or danger to life, limb or health, either mental or physical and to meet any unlawful demand for any property or valuable security. In the FIR, it has categorically mentioned that the complainant was being harassed and beaten by the petitioner/husband for the dowry. The complainant was also threatened by the petitioner for her life. For the sake of convenience, Section 498A IPC is reproduced below: 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 willful 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. Section 2 of the Dowry Prohibition Act defines ‘dowry’ as under: “Section 2. Definition of ‘dowry’.—In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly. (a) by one party to a marriage to the other party to the marriage; or (b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before or any time after the marriage in connection with the marriage of the said parties, but does not 3 include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. Explanation II—The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860)” For the reasons recorded above and having considered the arguments advanced by learned counsel for the petitioner; perusal of the FIR and other papers available on record, I am of the view that a prima facie case against the petitioner under the aforesaid sections is made out. The dispute involves factual questions which cannot be decided by this Court. The dispute can be decided only after adducing the oral and the documentary evidence by the parties before the trial court. It cannot be decided by this Court only on the basis of papers filed on the record. Even otherwise, the trial court will decide the case after recording the evidence of the complainant as well as of the accused and also on the basis of the appreciation of the evidence as per law. It is well settled that while exercising jurisdiction under Section 482 CrPC, the High Court would not ordinarily embark upon the enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of trial court. If the allegations made in the FIR and the evidence collected by the Investigating Officer and the statements of witnesses recorded by the I.O. during the course of investigation are taken at their face value and accepted in their entirety, I am of the view that the petitioner has rightly been summoned by the trial court. The trial court will decide the case after recording the evidence adduced before it. I am of the view that in the present case there is neither any miscarriage of justice nor any abuse of process of Court. Resultantly, the petition being devoid of merit is hereby dismissed. Interim order dated 19.1.2010 stands vacated. (Dharam Veer, J.) 28.10.2010 PRABODH 4