Wednesday, August 21, 2013

wanna live with 498a wife? wife who compromised first 498a files next 498a in TWO weeks!! HC says NO quash!! though husband tries every angle for quash !!

wanna live with 498a wife? wife who compromised first 498a files next 498a in TWO weeks!! HC says NO quash!!
 
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excerpts "...Tendency is growing amongst the litigants to rush to the High Court for quashing the first information report, the order by which the process is issued and to close down the prosecutions before any witness is examined...." "...In respect of the prosecutions dealing with the warrant cases, they get an opportunity of putting their grievances at the time of court taking a decision whether charge should be framed or not. ...." !!!!!

  
notes
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* wife seems have compromised a previous 498a on 15.4.1997 : Ref Para 1 where "....... He submitted that on 15.4.1997 a criminal case was amicably compounded in which the original complainant was complainant and present petitioners were accused ..........."
* she comes back later and files another FIR claiming offences took place during the period commencing from 24.4.1997 and ending with 10.6.1997 (Refer Para 2 )
* HC says NO quash !!
* HC says ".........The doors are not shut for the petitioners to vent out their grievances...."
* HC further says "...The case would be tried as a warrant case...." !!!! ... and 
  
* HC adds a gem saying "...Tendency is growing amongst the litigants to rush to the High Court for quashing the first information report, the order by which the process is issued and to close down the prosecutions before any witness is examined...."
 
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Bombay High Court
Shri Sunil Shantaram Pawar And ... vs The State Of Maharashtra Through ... on 31 January, 2003
Equivalent citations: 2003 (2) ALD Cri 55, 2003 BomCR Cri, 2003 CriLJ 2443
Author: J Chitre
Bench: J Chitre
JUDGMENT
J.G. Chitre, J.
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1. Heard the learned counsel for the parties in detail.
 
2. Shri Thorat submitted that the complainant is in the habit of filing false complaints against the petitioners and present one is the same. He submitted that on 15.4.1997 a criminal case was amicably compounded in which the original complainant was complainant and present petitioners were accused and thereafter for harassing the petitioners, his wife, the original complainant, filed another complaint which is the basis of a prosecution which is pending in the court of J.M.F.C. Vita, District Sangli in context with C.r. No. 85 of 1997 revolving around offences punishable under Sections 498A, 323 read with Section 34 of IPC. He submitted that the said prosecution be quashed by exercising the inherent jurisdiction of this Court in view of provisions of Section 482 of the Criminal Procedure Code (hereinafter referred to as "Code" for convenience) and by issuing an appropriate writ in that context.
 
3. Shri Saste, Additional Public Prosecutor, opposed the submissions advanced by Shri Thorat on behalf of the petitioners. He submitted that the complaint in respect of the present petition is in fact a different matter and the cause of action is different. He pointed out the date which has been mentioned in the last column of the charge sheet which indicates that the offences took place during the period commencing from 24.4.1997 and ending with 10.6.1997. He submitted that this petition be dismissed.
 
4. Section 498A of IPC provides:--
 
"Whoever, being the husband or the relative of the husband of a woman, objects 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 purposes of this section, "cruelty" means--
 
(a) any wilful 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 vie 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.
 
Provisions of Section 498A have to be read as a whole and the cruelty which has been indicated by the said section has to be understood by utilising a broad spectrum. The meaning of the word "cruelty" has been given in the said section which in its wide sweep includes any wilful 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. Therefore, an allegation pointing towards such conduct which touches the important facets disclosed by provision of Section 498A indicated in the explanation of Sub-clause (a) has been seen and for that the mental or physical condition of the complainant has to be seen touching the allegations of such wilful conduct. If the wilful conduct is sufficient enough prima facie to lead to mental torture of such complainant, or is likely prima facie to cause damage to her health, such conduct would be coming under the broad spectrum which has been indicated by the said explanation in Clause (a).
 
5. Clause (b) of the explanation gives the idea in respect of the harassment of such woman and that harassment would be in context with 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. Again a broad spectrum has been indicated and a sweeping language has been indicated which would include number of things revolving around the allegation made in the complaint. it is well settled that while exercising the jurisdiction in view of Section 482 of the Code, the Code should be slow to quash the charge sheet, quash the FIR which would lead to a prosecution or a prosecution which is pending in Court for trial. The criteria which is to be used is to judge whether the allegations if not rebutted would warrant a conviction or not. The Court has to see whether there has been abuse of the process of law or whether such FIR or such prosecution would lead to failure of justice or administration of justice. The Court has to make the enquiry whether this is likely to cause a serious prejudice to such offended person who is coming to the Court for exercise of its inherent power; whether survival of such FIR or the prosecution would cause miscarriage of justice.
 
6. The allegations which are mentioned in the last column of he charge sheet shows that the charge sheet is in context with the period commencing from 24.4.1997 and ending with 10.6.1997. Keeping in view that aspect, the submissions advanced by Shri Thorat on the point of offence indicated by Section 498Aof IPC, will have to be dismissed.
 
7. Section 323 of IPC provides that whoever, except in the case provided for by Section 334, voluntarily, causes hurt shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. For understanding this penal provision of India Penal Code as indicated by Section 323, one will have to read the definition given in Section 319 of IPC which defines "hurt". It provides "Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt." Therefore, it has to be understood that whoever voluntarily causes bodily pain whether there is any visible injury or not, is liable to be punished or an offence punishable under Section 323 of IPC if the charge is proved. Whoever causes disease or infirmity to such aggrieved person would be also punishable in view of Section 323 of IPC if the charge is proved. It is immaterial whether there is any visible injury on the body or not. The legal provisions will have to be understood in its proper spirit. Possibility of causing prejudice either to the prosecution or to the defence has to be neatly judged and has to be avoided.
 
8. Keeping in view this aspect of the matter also, the last column of the said charge sheet has to be seen which speaks of the period commencing from 24.4.1997 and ending on 10.6.1997. the said allegations speak that it has been alleged that the petitioners asked the original complainant to bring money for compensating them in respect of the expenditure incurred in context with the earlier prosecution which seems to have been settled amicably. How this aspect of the matter can be ignored at this juncture?
 
9. The doors are not shut for the petitioners to vent out their grievances. The case would be tried as a warrant case. Keeping in view the sentence which has been provided for an offence revolving around Section 498A and at the time of deciding whether a charge is to be framed or not, definitely the petitioners would be heard. At that stage, the petitioners are entitled to move an application and press their prayer for getting discharge from the trial Court.
 
10. Tendency is growing amongst the litigants to rush to the High Court for quashing the first information report, the order by which the process is issued and to close down the prosecutions before any witness is examined. In case of a summons case rial, the Court is bound to explain the particulars of the offence alleged in view of the provisions of Section 251 of the Code and at that time such accused get the opportunity of venting out their grievance. In respect of the prosecutions dealing with the warrant cases, they get an opportunity of putting their grievances at the time of court taking a decision whether charge should be framed or not. For the purpose of wiping out the arrears and preventing the sweating and sufferings of the litigants, a caution bell has to be sounded. Such mad rush creates piling arrears of litigation in the Courts, Sessions Courts and High Courts also. Timid citizens apprehending of fetters on the freedom have to think seriously before knocking the doors of the Courts.
 
11. This happens to be a matter touching the matrimonial dispute. Therefore, this Court does not find it necessary to punish the petitioners by imposing heavy costs. The caution is sufficient. The record if called be dispatched to the trial Court at early time. The stay granted to the hearing of the prosecution stands vacated. The trial Court to complete it as early as possible and positively within six months. The petitioners are at liberty to move fresh application but at appropriate stage for praying discharge in the trial Court.
 
12. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary /Sheristedar of this Court.
 
 
 
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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon. Some notes are made by Vinayak. This is a free service provided by Vinayak (pen name). Vinayak is a member of SIF - Save Indian Family Foundation. SIF is committed to fighting FALSE dowry cases and elder abuse. SIF supports gender equality and a fair treatment of law abiding Indian men. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog or write to e _ vinayak @ yahoo . com (please remove spaces). Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
  
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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist