IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL APPLICATION NO.727 OF 2006 (U/s 482 Of Cr.P.C.) Girish Chandra Sharma & othes …………Applicants Versus State of Uttaranchal & others …………Respondents Dated: August 3, 2010 Sri RS Sammal, Adv. for the applicants Sri Amit Bhatt, Addl. GA for the State/respondent no.1 & 3 Sri Pradeep Hairiya, Adv. for respondent no.2 HON. DHARAM VEER, J. This criminal application, preferred u/s 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred as Cr.P.C.), is directed for quashing the charge sheet and also the entire proceedings in Criminal Case No.2641 of 2006, U/s 323/506/498-A IPC & 3/4 Dowry Prohibition Act [hereinafter to be referred as the Act], pending before J.M., Haldwani. Heard learned counsel for the parties and perused the material on record. In brief, the facts of the case are that the respondent no.2 Smt. Kamlesh Sharma lodged an FIR with the averments that petitioner Girish Chandra Sharma (Samdhi of complainant) proposed for marriage of complainant’s daughter with the petitioner Saurabh Aggarwal, S/o Pawan Kumar Aggarwal (petitioner), which was accepted by the complainant. On 14.4.2005 engagement ceremony was solemnized in which the complainant gave money to the relations of her in-laws. After the engagement, the petitioner Saurabh took Rs.60,000/- at different times from her daughter Nidhi. When since long the date of marriage was not fixed, then the complainant enquired from petitioner Girish Chand Sharma on which he told that on being paid Rs.2.00 lacs in cash, the date would be fixed, which the complainant somehow managed to give the same to them. Later on the date fixed, the petitioner Saurabh alone came for marriage and when the complainant enquired from petitioner Girish Chandra about the parents of Saurabh, who informed 2 that his friend Pawan Kumar (petitioner) is demanding Rs.5.00 lacs in cash and directed her to arrange the same, however since the complainant could not able to arrange the same, somehow her daughter was sent at her in-laws house. In the marriage she gave articles as per her status. Thereafter the complainant also gave Rs.50000/- to the petitioner Pawan Kumar towards the Reception expenses. For some days everything was normal and after sometime, the petitioners Pawan Kumar, Smt. Lalita, Km. Swati and Saurabh started committing mental harassment upon the complainant’s daughter. When the complainant enquired from the petitioner Girish Chand Sharma for the same, he told that she insulted him by not giving the amount of Rs.5.00 lacs to his friend Pawan Kumar and he further threatened her that he would make the life hell of her daughter Smt. Sarika. On 18.2.2006 petitioner Saurabh took complainant’s daughter Nidhi for medical check up where she was found pregnant and the doctor advised her for taking precaution. However the behaviour of the petitioners became worsen and on 26.2.2006 when the health of Nidhi became worse, then Pawan Kumar, Rakesh Gupta and Subhash Aggarwal left Smt. Nidhi at the house of complainant’s daughter Smt. Sarika and her husband Prabhat Sharma in her worn clothes. When the complainant immediately got her daughter Nidhi medically checked, it was found that she had an abortion. When the complainant enquired from petitioner Girish Chandra Sharma about all this, he became furious and ill-treated her on 7.3.2006. It was also stated that the petitioners Girish Chand Sharma and Pawan Kumar threatened the complainant that she and her daughter Nidhi, Sarika and son in law Prabhat would be murdered. Since then the petitioners Girish Chandra Sharma, Pawan Kumar, Saurabh and other unknown persons were giving threat to the complainant that if she would initiate any legal proceedings, she along with her son in law Prabhat and his sons would be killed. With the same averments the FIR was lodged. After the investigation, the I.O. submitted the charge sheet against the petitioners U/s 323/506/498-A IPC and 3/4 of the Act, on the basis of which the J.M. Haldwani vide order dated 3.8.2006 took cognizance and summoned the petitioners. Hence this petition. Learned counsel for the petitioners argued that the petitioner Girish Chandra Sharma is not at all related with Saurabh 3 Aggarwal, husband of Nidhi Aggarwal. Virtually he is the relative of complainant Kamlesh Sharma, as he is the father in law of her elder daughter Sarika Sharma. He further submitted that as per Section 498-A IPC, if the cruelty is committed by the husband or the relative of the husband of a woman, only that person is responsible for the offence u/s 498-A IPC and as per the aforesaid discussion, the offence punishable under Section 498-A IPC is not proved against the petitioner Girish Chandra Sharma. Mr. Pradeep Hairiya, Advocate for the respondent no.2 also conceded to this point. For the sake of convenience Section 498-A IPC is quoted 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.] From a bare perusal of Section 498-A IPC, it reveals that if the Cruelty is committed by the husband or the relative of the husband is committed, then only Section 498-A is attracted. It is admitted that the petitioner Girish Chandra Sharma is not at all related to Saurabh Aggarwal, who is the husband of victim Nidhi Sharma. Due to these facts and circumstances of the case, the offence punishable under Section 498-A IPC is not made out against the petitioner Girish Chandra Sharma and as such the charge sheet and the proceedings pending against him before the court below under this section, is hereby set aside. Learned counsel for the petitioners next argued that the rest of the offences punishable under Sections 323, 506 IPC and 3/4 of the Act are also not made out against the petitioner Girish Chandra Sharma. Here I do not find any force in this argument. Sections 3(1) and 4 of the Act is relevant to mention which is quoted below: - 4 3(1) Penalty for giving or taking dowry – (1) If any person, after the commencement of this Act, gives or takes or abets the giving or taking of dowry, he shall be punishable with imprisonment for a term which shall not be less than [five years, and with fine which shall not be less than fifteen thousand rupees or the amount of the value of such dowry, whichever is more:] Provided that the Court may, for adequate and special reasons to be recorded in the judgment, impose a sentence of imprisonment for a term of les than [five years]. 4. Penalty for demanding dowry- If any person demands, directly or indirectly, from the parents or other relatives or guardian of a bride or bridegroom, as the case may be, any dowry, he shall be punishable with imprisonment for a term which shall not be less than six months, but which may extend to two years and with fine which may extend to ten thousand rupees: Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than six months.] From the averments made in the FIR and other documents on record as well as the statements of the witnesses recorded u/s 161 Cr.P.C., it reveals that all the petitioners had abetted the complainant to give Rs.5.00 lacs to Sauarav Aggarwal and Pawan Aggarwal and on their instructions, once the complainant also paid Rs.2.00 lacs to them. It also reveals from the above said evidence that the petitioner Girish Chandra has abetted the complainant to give the money in dowry to the petitioners Saurav Aggarwal and Pawan Aggarwal, as such the offence punishable u/s 3/4 of the Act is amply proved against him. Even from a perusal of the entire material on record, the offence punishable u/s 323/506 IPC is also made out against the petitioner Girish Chandra as he threatened the complainant that if she would not pay Rs.5.00 lacs in dowry then she would be killed and she would also face the dire consequences and even the child of victim Smt. Nidhi was also aborted. From the contents of the FIR and the other investigation conducted by the I.O. and the statements of witnesses recorded u/s 161 Cr.P.C., offences u/s 323/506 IPC are also prima facie made out against the petitioner Girish Chandra. Learned counsel for the petitioners next argued that against the rest of the petitioners, no offence is made out against them. I again do not find any force in this argument inasmuch as on the basis of the averments made in the FIR, the statements of the witnesses recorded u/s 5 161 Cr.P.C. as well as considering the entire facts and circumstances of the case, the offences punishable u/s 323/506/498-A IPC and 3/4 Dowry Prohibition Act are prima facie made out against them and they have rightly been summoned by the trial court. Even it is the disputed questions of fact which cannot be decided by this Court at this stage and the same can only be decided by the trial court after adducing the evidence before it. For the reasons recorded above, the C482 petition is partly allowed. The summoning order and the proceedings u/s 498-A IPC are hereby quashed against the petitioner-Girish Chandra Sharma only, however the proceedings shall continue against him u/s 323/506 IPC and 3/4 Dowry Prohibition Act before the trial court. However, against the rest of the petitioners, namely, Pavan Kumar Aggarwal, Saurav Kumar Aggarwal, Smt. Lalita Aggarwal and Km. Swati, the trial court shall proceed as per law for the offences punishable u/s 323/506/498-A IPC and 3/4 of Dowry Prohibition Act. Interim order dated 03.11.2006 is vacated. (Dharam Veer, J.) August 3, 2010 Rdang