C482/615/2008 of PAWN KUMAR SHARMA Vs STATE and ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 615 of 2008

Pawan Kumar Sharma …………. Applicant

versus

State of Uttarakhand and another …………. Respondents

Mr. S.K. Agarwal, Sr. Advocate assisted by Mr. Rajeev Kumar Saxena, Advocate for the applicant. Mr. P.S. Danu, Brief Holder for the respondent State.

Hon’ble U.C. Dhyani, J. (oral)

By way of present application / petition, moved under Section 482 of Cr.P.C., the applicant seeks to quash the entire proceedings of case no. 1749 of 1993, State vs. Pawan Kumar and others, under Sections 304B, 306 of IPC and under Section ¾ of the Dowry Prohibition Act, registered with police station Raipur, District Dehradun, pending before the court of Chief Judicial Magistrate, Dehradun.

2) On 10.11.1992, an FIR was lodged by Anirudh Kumar Sharma, brother of deceased Neetu, stating therein that his sister married to Pawan Kumar Sharma on 27.06.1990 according to Hindu religion and rites. This marriage was settled by the jeeja / brother-in-law of applicant Pawan Kumar Sharma. After marriage, his sister started living with her husband at Lucknow. It was alleged that from the very beginning, the in-laws of his sister started demanding dowry from her. On account of this, she was subjected to cruelty.

When the informant came to know of said fact, he went to meet his sister on 25.04.1991. The informant revealed the ordeal of his sister to his father. One week thereafter, on 01.05.1991, the victim was brought back to her parental home by her father at Dehradun. The victim was pregnant at that time. The victim was keen to give birth of her child in the house of the jeeja / brother-in-law of her husband at BHEL, Haridwar. When the relations between the parties became sour on account of demand of dowry, on 01.11.1992, the parents of the deceased went to the door of the applicant for compromise, but they were ill-treated on that date also. On account of this, the sister of the informant committed suicide on 07.11.1992, at about 04:30 P.M., by consuming pesticide in her parental home. The victim died on the same day i.e. 07.11.1992 in the hospital at Dehradun at 06:00 P.M. It was stated in the FIR that the deceased was in the habit of penning down her emotions and feelings in diary. This diary was handed over to the police by the informant.

3) It is submitted by learned counsel for the applicant that in her diary the deceased showed resentment towards her parents holding her responsible for breaking her marriage. In the diary, the deceased did not pen down anything about any demand of dowry made by her in-laws. The letter which was written by the father of the deceased to the brother-in-law of his daughter after the delivery of the child of the deceased

shows that father of the deceased appreciated the sincere efforts, cooperation and prompt medical attention provided by the brother-in-law to his daughter. It is relevant to point out here that letter was also written by the deceased to her parents when she got female child. From bare perusal of this letter it is crystal clear that at that time she did not make any whisper of any demand of dowry. It shows that woman of such sound mind cannot complain to her parents about any demand of dowry. It is proved from this letter that to what extent she was happy and attached to her family after having child, learned counsel for the applicant added.

4) It is relevant to point out that the applicant filed criminal misc. application under Section 482 of Cr.P.C. before this Court. The Court was pleased to dismiss the same vide its order dated 18.06.2007 and the trial court was directed to proceed with the trial. Feeling aggrieved with the above said order, the applicant preferred an appeal before the Hon’ble Apex Court. Initially the Apex Court stayed the effect and operation of the order dated 18.06.2007, passed by this Court. Finally when the above said appeal was heard, the Hon’ble Apex Court having set aside the order, remanded back the matter to the trial court to pass fresh order.

5) It is also submitted by learned counsel for the applicant that Smt. Neetu Sharma (deceased) alongwith her brother Arvind Kumar Sharma came to the residence of his sister and brother-in-law situated at Raipur and they took each and every article which was given at the time of marriage on 01.11.1992. Smt. Neetu Sharma as well as her brother Arvind Kumar Sharma wrote receipt which was also signed by sister and brother-in-law alongwith others. It is further submitted that the anxiety of the parents especially brother of the deceased arose after the termination of the applicant from his service. He was terminated from B.H.E.L. Jagdishpur, District Rae Bareli because of medical reimbursement issue. The husband being out of job was also concern to her. This was why her parents virtually took away all her articles given in marriage. It made her conserve that all doors for her to lead happy married life stood foreclosed by her parents. As matter of fact this became the cause for suicide in the house of her parents. It was further stated that after nine days, father of the deceased Ramesh Chandra Sharma got information about her death on 9[th]November 1992. The letter written to the niece of her husband will disclose that she had hardly any grievance against her in-laws. The trial of the applicant for the abovesaid charges is nothing but gross abuse of the process of the court hence deserves to be quashed. No offence is disclosed in this application from the evidence furnished in the chargesheet.

6) The extracts of personal diary of the deceased were read over by learned counsel for the applicant in the open Court and submitted that no offence under Section 304B of IPC was, prima facie, made out on bare reading of the personal diary.

7) Learned counsel representing State submitted that initially the FIR was filed under Section 306 of IPC and under Section ¾ of the Dowry Prohibition Act, but after the investigation of the case, the chargesheet was submitted under Section 304B of IPC only and the cognizance was also taken by the Court in respect of selfsame offence, i.e., Section 304B of IPC. An argument regarding the ouster of jurisdiction of the case was raised before learned Chief Judicial Magistrate, Dehradun, but he declined to interfere on that issue and held that the court at Dehradun had jurisdiction to try the case (Chapter XIII of the Cr.P.C.).

8) This Court is not entering into the question as to whether an offence punishable under Section 306 of IPC is made out or under Section 304B of IPC is made out, but the fact remains, that the deceased was harassed so much that she committed suicide. Prima facie, offence under Section 306 of IPC or under Section 304B of IPC was definitely made out against the accused-applicant on bare reading of the FIR, personal diary and other prosecution papers, read

together jointly or severally. The scope of interference by this Court under Section 482 of Cr.P.C. is limited. The Court would apply the test as to whether the uncontroverted allegation as were made from the case and the documents submitted, prima facie, establish the offence or not. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not. The High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. The Court is concerned primarily with the allegations taken as whole. Whether they will constitute an offence or not? If, prima facie, no offence is made out then only the High Court should interfere. The said principles were propounded by the Hon’ble Supreme Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986. The facts of this case therefore, pointed to the conclusion that the High Court should not interfere in exercise of its inherent jurisdiction under Section 482 of Cr.P.C., which has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid

down in the Section itself. It is not such case that no offence against the accused-applicant is made out. Prima facie, the offence is definitely made out. The only controversy, which arises for consideration, is –whether offence punishable under Section 304B of IPC is made out or offence punishable under Section 306 of IPC is made out.

9) While deciding the application under Section 482 of Cr.P.C., the narrow inspection hole through which this Court is required to go into in this case is limited to the reading of FIR, Section 161 Cr.P.C., chargesheet and, of course, the diary maintained by the deceased during her lifetime in view of law laid down by the Hon’ble Apex Court inR.P. Kapoor vs. State of Punjab, AIR 1960 SC 866, State of Haryana vs. Bhajan Lal, 1992 SCC (Crl.) 4226 and Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, to cite few of the landmark rulings. case bare reading of the FIR reveals that prima facieunder Section 304B of IPC is made out against the accused. The statements of the witnesses recorded under Section 161 of Cr.P.C. point out the same. Chargesheet has also been filed supportive to FIR and statements (under Section 161 of Cr.P.C.). But, the contents of the Diary maintained by the victim during her lifetime do not support the allegations of demand of dowry. The same describes the circumstances which led the victim to commit suicide. The same points outtowards abetment of suicide. prima facie case under Section 306 of IPC is made out against the accused on the basis of such personal diary maintained by the victim. There is reference of dowry in the personal diary at two places but the same refers to date, prior to her marriage. The accused are prima facie found to have harassed the victim to such an extent as to derive her to commit suicide. The intention of the accused to aid or instigate or abet the deceased to commit suicide appears to have come to the fore. The misery and agony thus created compelled the married woman to end her life.

10) Thus, it is hardly case worth granting relief in exercise of jurisdiction under Section 482 of Cr.P.C.

11) To recapitulate, this Court in its order dated June 18, 2007 held that the FIR clearly reveals the ingredients of Section 304B of IPC, as it is clearly alleged that due to the non-fulfillment of demand of dowry, the deceased was harassed and she took the extreme step of committing suicide. The petition under Section 482 of Cr.P.C. was dismissed. Hon’ble Apex Court, vide order dated December 10, 2007, while allowing the appeal of the accused-appellant Pawan Kumar Sharma, set aside the impugned judgment and order dated June 18, 2007, and directed the court concerned to pass fresh order as early as possible reminding that the Hon’ble Supreme Court has clearly

made out distinction between an order taking cognizance of an offence and an order of issuance of process inState of Karnataka and another vs Pastor P. Raju, (2006) 6 SCC 728. Learned Chief Judicial Magistrate, in his order dated 29.01.2008 deliberated upon the issue. Learned Chief Judicial Magistrate referred to the contents of the FIR which was initially lodged under Section 306 of IPC and Section ¾ of the Dowry Prohibition Act and later on registered under Section 304B of IPC. Learned Chief Judicial Magistrate also referred to the statements under Section 161 of Cr.P.C., as also the personal diary maintained by the victim, took cognizance of the offence punishable under Section 304B of IPC and summoned the accused person to face the trial for the said offence. Aggrieved against the said order dated 29.01.2008, present application under Section 482 of Cr.P.C. was preferred. This Court while deciding the matter under Section 482 of Cr.P.C. should refrain itself from commenting upon the applicability of the particular penal statute, in view of limited scope of Section 482 of Cr.P.C.

12) While Second petition moved by the applicant under Section 482 of Cr.P.C. is dismissed in view of parameters laid down by the Hon’ble Supreme Court in R.P. Kapoor vs. State of Punjab, AIR 1960 SC 866; State of Haryana vs. Bhajan Lal, 1992 SCC (Crl.) 4226 and Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, it is left open to the

Magistrate concerned to pass fresh order in terms of the judgment dated December 10, 2007, of the Hon’ble Supreme Court, applying its judicial mind not only on whether on the basis of the allegations made in the complaint petition and the statements made by the complainant and his witnesses, prima facie case has been made out for issuing processes but also must consider as to whether case has been made out in terms of proper provisions of the penal statute for issuance of process for alleged commission of the offences vis-à-vis the allegations made. Since the process(es) are yet to be issued to the accused persons, learned Magistrate is requested to apply his mind on the contents of the personal diary as well, which was maintained by the victim during her lifetime, before issuance of process while deciding to proceed against the offenders against whom prima facie case is made out. The learned Magistrate is required to see which of the either offence is, prima facie, made out against the accused persons – Whether under Section 304B of IPC or under Section 306 of IPC?

13) With the observations as above, the application under Section 482 of Cr.P.C. is thus finally disposed of.

(U.C. Dhyani, J.)