Hi SKJ,
I do not welcome your words because I did not harss my wife. The dispute between my wife and me are not with reagard to dowry .... it was regarding the place that she likes to live ...wife is not interested to live in India whereas husband wants to live in India.
Then wife asked 20lacks and divorce.....after failing to meet wife demands filed 498A case.... I have the vedio record of this incident.
For your information I worked with Honorable Sri.Dr.Abdul Kalam and with Sri.Dr.Anil Kakodkar who was dealing Indo-US Civil Nuclear deal.
Even politicians agreed that Indian Systems failed in the said case why you are not accepting....
I repeat still my Discharge petition is pending ... not yet decided by the court.
I will post the judgement that will be passed by the court in this forum....
For your information here is my written argument (prepared by me) of my discharge fins one ground which is illegal:
WRITTEN ARGUMENTS SUBMISSION
MAY IT PLEASE YOUR HONOR,
Humbly submits, applicant/petitioner is the Accused (A1) in the above said court case. Applicant is approaching this Hon’ble Court with this discharge application, under section 239 of Criminal Procedure Code, to get discharged from the proceedings in CC. No. xxx of this Court on the below grounds:
1. Above said case proceedings are abusing the process of law by non-complying with the sections 177 to 181, 156 & 170 of criminal procedure codes (CrPC). Respondent, SHO PS, has no jurisdiction to file the charge sheet and is not maintainable under the law.
2. Miscarriage of justice would result due to non-complying with the sections 177 to 181, 156 & 170 of criminal procedure codes (CrPC).
3. There is no prima facie evidence available with the prosecution related to the offence under aforesaid section in the FIR and charge sheet for proceeding in the case. So, there is no ground for presuming the commission of any offence by the accused person.
4. The allegations even if they are taken at their face value and accepted in their entirety, do not prima facie constitute any offence under section 498A of IPC or make out a case against the accused person.
Detailed explanation of the above grounds, with citing the applicable judgments from Hon’ble Supreme Court of India, various Hon’ble High Courts of India and other Courts, is as described below:
TERRITORIAL JURISDICTION
OF THIS HON’BLE COURT:
1. Humbly submit, plain reading of charge sheet reveals that defacto complainant, complainant herein, lived with applicant/petitioner (A1) at their matrimonial home in Mangalore City, Karnataka Sate and no part of the alleged allegations happened in Hyderabad, Andra Pradesh State. Further submit that as per charge sheet, alleged allegations happened in Karnataka State only and during the investigation, even without visiting the crime place, admitted by the SHO . in his reply letter, ref: 404/B2 point no.4, dated: 09-08-20aa under Right To Information Act i.e., Mangalore City, respondent completed investigation in Andra Pradesh State and filed the charge sheet in this Hon’ble Court. The criminal proceedings in CC.No.xxxx/2008 on the file of this Hon’ble Court are abusing the process of law by non-complying with the sections 177 to 181, 156 & 170 of criminal procedure codes (CrPC) and the charge sheet is not maintainable as described below:
a. As per section 177 of CrPC, the criminal case can be tried only, where cause of action arose and in the present case, as per the charge sheet and as per the complainant the cause of action arose only in Mangalore City i.e., at the matrimonial home of the complainant at Mangalore City, Karnataka State, hence this Hon’ble court has no jurisdiction to try this case, where it is pending. Further submit that it is admitted version of the complainant in her affidavits submitted in MC.No.BBB/2009, on the file of Hon’ble Family Court, P.A. Nagar, BB. District and in Transfer Petition No.aaa, on the file of the Hon’ble Supreme Court of India that both the applicant and the complainant lived only at Mangalore and further submit that the petitioner did not claim that both lived anywhere other than Mangalore City, hence only Mangalore City courts has jurisdiction to try this case. Hence pray this Hon’ble Court to discharge the petitioner on this sole ground. Applicant put reliance on the below list of judgments from Hon’ble Supreme Court of India in support of this ground.
i. Manish Ratan and Ors. Vs State of M.P and Anr. Reported in 2007 volume-1 SCC 262.
ii. Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another reported in 2004, SCC Crl-2134.
iii. Satvinder Kaur vs. State (Govt. of NCT of Delhi) (1999) 8 SCC 728
iv. Bhanu Ram and Ors. Vs State of Rajasthan 7 Anr in CASE NO: Appeal (crl.) 587 of 2008 [arising out of Special Leave Petition (Crl.) No. 79 of 2006).
v. Sonu and Ors Vs Govt. of NCT of Delhi and Anr. in W.P (Crl.). No.1266/2007, Decision on 10.10.2007.
b. As per section 156 of CrPC, police has the power to investigate any cognizable case, which a court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII. Section 156 CrPC read as:
Section 156 of CrPC: Police officer's power to investigate cognizable cases:
1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a court having jurisdiction over the local area within the limits of such station would have power to enquire into or try under the provisions of Chapter XIII.
2) No proceedings of a police officer in any such case shall at any stage be called in question on the ground that the case was one, which such officer was not empowered under this section to investigate.
3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
In present case, plain reading of the charge sheet reveals that alleged allegations were not happened within the territorial jurisdictional limits of . police station and also provide information that alleged offence happened in the jurisdiction of Mangalore City, Karnataka State only. Whereas the . police investigated the case in their jurisdiction and filed the charge sheet in this Hon’ble Court, is contrary to the provisions of the section 156 of CrPC and charge sheet is not maintainable in law. Applicant put reliance on the below list of judgments from Hon’ble Supreme Court of India in support of this ground.
i. Satvinder Kaur vs. State (Govt. of NCT of Delhi) (1999) 8 SCC 728
ii. Sonu and Ors Vs Govt. of NCT of Delhi and Anr. in W.P (Crl.). No.1266/2007, Decision on 10.10.2007.
c. . police failed to transfer the FIR to the concern police station having the jurisdiction for investigation as per the law. Further submit that in the case of Satvinder Kaur Vs. State (Govt. of NCT of Delhi) (1999) 8 SCC 728, the Hon’ble Supreme Court of India observed that Section 170 Cr.P.C specifically provides that if, upon investigation, it appears to the Officers In-charge of the Police Station that crime was not committed within the territorial jurisdiction of Police Station, that FIR can be forwarded to the Police Stating having jurisdiction over the area in which crime is committed.
d. Respondent furnished false information in the charge sheet, Para-1, saying alleged allegations happened at Hyderabad whereas the plain reading of the charge sheet reveals that no part of the alleged allegation happened in Hyderabad.
2. Further submit the proceedings of the case in this Hon’ble Court by violating the section 177 to 181, 156 and 170 of CrPC would result in miss carriage of justice as described below:
a. The Deputy Commissioner of Police, Madapur Zone, reply under Right To Information Act, No: 05/DCP-MIZ/RTI-M2/ dated 26/09/2009 says “the documentary evidences from various departments from Mangalore provide said allegations to be false’”, whereas no documentary evidence is collected by the Investigating Agency during the investigation and failed to visit Mangalore even once during the case investigation causing malicious prosecution against the accused in another state that accused lived.
b. Respondent failed to collect the telephone calls list of A4 & A5 in support of complainant allegation before filing the charge sheet on A4 & A5. Further submit that respondent failed to get the facts from neighbors of the complainant and from the residents of the sister-in-law of the complainant that sister-in-law family did not live with complainant family at Mangalore City. Without investigating the crime at the alleged crime place respondent filed the charge sheet.
c. Respondent did not investigate the case at its alleged occurrence place, i.e., Mangalore City, Karnataka State and failed to meet the possible eye-witnesses i.e., neighbor families of the complainant and hospital authorities, to know the truthiness of the complainant allegations.
d. Further submit that the allegations in the charge sheet are new and different from complaint allegations and these new allegations were not communicated to the accused to defend by the accused by producing supporting evidences which provide information that said allegations are false. Improper investigation is leading the accused to face the malicious criminal case trail in this Hon’ble court.
e. The respondent failed to collect possible eye-witnesses statements and the documentary evidences in support of either complainant or applicant which exists only at Mangalore City.
f. Considering the complainant statement that complainant was not allowed to speak with her relatives is happened to be true, the complainant’s relatives can not become the witnesses to this case being they are not even heard about the so called alleged offence, whereas the respondent collected the statements from non-relevant witnesses to the case i.e., the complainant’s relatives. Evidence in support of the allegations exists at Mangalore City and police failed to visit alleged crime place and failed to collect the evidences which would destroy upon failing to collect in time.
g. The potential eye-witnesses for either complainant or petitioner/applicant, includes women, are residents of Mangalore City and applicant is also resident of Mangalore City. Either the applicant or his supporting witnesses does not have any relatives or friends in this area and have threat from the complainant side people.
h. The accused side witnesses may not prefer to travel 700KM that to another state jurisdiction would result in great inconvenience to defend the criminal case and would result in miss carriage of justice.
i. As per petitioner alleged allegations made by the complainant and her witnesses are false. To initiate perjury proceedings against the offenders in Hyderabad, Andra Pradesh state while petitioner is working in Mangalore City, Karnataka State would result in great in convenience to the proceedings by the petitioner as well as by the investigation agency and also would results financial losses to the petitioner.
ARREST AND CHARGES U/s 3 & 4 OF
DOWRY PROHIBITION ACT IS ILLEGAL:
3. Further submit, the applicant arrest under section 3 & 4 of Dowry Prohibition Act is illegal as described below:
Complainant’s written complaint, to police, version:
a. As per complaint version the property items viz, Rs.40,00,000/- worth agriculture land, 80 Kasulu gold and Rs.3,00,000/- cash were given to complainant by her parents. Further submit that the allegation in the complaint followed by this statement say that accused harassed the complainant to sell the property given to her, reveals that property is with the complainant.
b. Further submit there were no demands by the accused were reported and F.I.R is registered under section 498A only.
Complainant’s affidavit version, in Transfer Petition (Crl).No. AAAA in the Hon’ble Supreme Court of India:
c. Further submit that as per the complainant’s affidavit submitted in Hon’ble Supreme Court of India, in the Transfer Petition No.AAA, it is said that these said property items were given to the complainant by her parents as Sridhan property as per complainant parent’s family tradition.
d. No demands were reported by any of the witness or by the complainant reveals marriage is happened with out the element of dowry. Arresting the accused under section 3 & 4 of Dowry Prohibition Act and sending to jail with out having evidence is illegal and also provide information that respondent is misused police powers to harass the accused under the influence of complainant.
e. As per complaint these items were given to complainant by her parents, whereas as per charge sheet version these items were given to A1. Considering that the said property items were given to A1 and are with A1, no documentary proofs are collected in support of the allegation though the allegation is contradicting to the complainant and without application of mind respondent sent the petitioner to jail without checking the truthfulness of the complainant.
f. Further submit that upon respondent believing that property items are given to A1 there will not be any requirement to the A1 to harass the complainant to sell the property to get money from complainant. Further submit marriage is happened without the element of dowry and saying that A1 demanded additional dowry and harassed the complainant saying dowry is not enough is absurd. Further submit that none of the witnesses supported the allegation that complainant was demanded for additional dowry or did harassment to the complainant for giving less dowry.
NO EVIDENCE IN SUPPORT OF F.I.R ALLEGATIONS:
4. The FIR allegations were not supported by any of the witnesses (LW2 to LW6), including the blood relatives of the complainant and FIR allegations were not present in CrPC-161 statement of the complainant recorded by the police during the investigation. Further submit that no documentary evidences, possible to exists considering the allegations are true, supported the complainant allegations hence as per section 239 CrPC the petitioner/applicant is liable to discharged from the criminal case proceedings. Details are furnished below:
REF [1]: Section 239 of CrPC: When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
REF [2]: In State of Karnataka v. L. Muniswamy AIR 1977 SC 1489, a three Judges Bench of Apex Court had observed that at the stage of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasized.
REF [3]: In State of Maharashtra and Ors. v. Som Nath Thapa and Ors. AIR 1996 SC 1744, a three judge Bench of Supreme Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: “if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage.”
REF [4]: In Omwati and Anr Vs. State AIR 2001 SC 1507, the Apex Court while referring to its earlier decision on the point in the cases of Kanti Bhadra Shah and Anr. Vs. State of W.B. AIR 2000 SC 522, Stree Atyachar Virodhi Parishad Vs. Dilip N. Chartia 1989 (1) SCC 715, State of Bihar vs. Ramesh singh AIR 1977 SC 2018. Supdt. S. Remembrancer of legal affairs W.B. Vs. Anil Kumar Bhunja- AIR 1989 SC 52 and Satish Mehra Vs. Delhi Admn. (1996)9 SCC 766, held that at this stage the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be meticulously judged. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of framing Charge. Even a strong suspicion on the basis of the material before it can lead the court to form a presumptive opinion regarding existence of factual ingredients constituting the offence alleged and in that case, the court will be justified in framing Charge against the accused. Obviously the consideration, which will weigh with the court at the stage of final decision of case, will not be the same as those at the stage of charge.
REF [5]: In a later decision in State of M.P. v. Mohanlal Soni AIR 2000 SC 2583, Supreme Court while referring to several previous decisions held that the crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.
Below table no.1 details the list of the allegations made by the complainant in her complaint on petitioner/Applicant (A1), on which FIR is registered, and the supporting witness details.
Below table no.2 details the list of the allegations made by the complainant in her CrPC-161 statement recorded by the police during the investigation on petitioner/Applicant (A1) and the supporting witness details.
TABLE#1:
|
FIR-Allegations on A1
|
Supporting Witness (LW2- W6)
|
Presence of FIR allegation in the 161 Statement of complainant
|
|
A1 use to harass the complainant to get rid of her saying given dowry is less and A1 lost an alliance of worth 1 crore rupees.
|
NONE
|
NO
|
|
A1 demanded complainant to give money by selling her property given to her at the time of her marriage by her parents.
|
NONE
|
NO
|
|
Complainant was restricted to make phone calls.
|
NONE
|
NO
|
|
Complainant in-laws used to call A1 to advise A1 on phone.
|
NONE
|
NO
|
|
A1 used to suspect complainant character even if she speak with her brother
|
NONE
|
NO
|
|
Complainant got pregnancy of 4 weeks and A1 publicized saying she is carrying 3 months pregnancy
|
NONE
|
NO
|
|
A1 forced the complainant to consume pregnancy abortion tablets by herself.
|
NONE
|
YES
|
|
Submission: All the allegations in the FIR on A1 are mentioned in the table. No documentary evidence either in support of harassment or forcible abortion exists.
|
NO EVIDENCE IN SUPPORT OF ALLEGATIONS IN CrPC-161 STATEMENT OF COMPLAINANT:
The CrPC-161 statements of the complainant were not supported by any of the witnesses (LW2 to LW6) including the blood relatives of the complainant. Below tables gives the list of allegations made by the complainant in her complaint, on which charge sheet is filed, and the allegations supported witnesses details:
TABLE#2:
|
Allegations in the CrPC-161 statement of complainant.
|
Supporting Witness (LW2- W6)
|
Presence of allegation in FIR.
|
|
Complainant was harassed physically by A1 saying that house hold items are not enough.
|
NONE
|
NO
|
|
Complainant was manhandled by A1 saying that she bought less dowry.
|
NONE
|
NO
|
|
A1 suspected complainant pregnancy and forced to abort her pregnancy
|
NONE
|
NO
|
|
A1 suspected complainant character and forced complainant to abort pregnancy.
|
NONE
|
NO
|
|
On 22nd May-2008 gold ornaments were taken from complainant and she was thrown out off house by A1 and A3.
|
NONE
|
NO
|
|
Complainant got pregnancy of 4 weeks and is tested in hospital before 20th May-2008 at Mangalore City.
|
NONE
|
YES
|
|
On 20th May 2008, complainant was forcibly consumed pregnancy abortion tablets and was locked in house.
|
YES
(LW1-LW5)
|
YES
|
|
Submission: None of the FIR allegations are present in complainant’s CrPC-161 statement.
|
From the above two tables it is evident that none of the complainant allegations are supported by the witnesses (LW2-LW6) except on the forcible abortion allegation. SHO . refused to investigate allegation on forcible pregnancy abortion and replied to the accused, under Right To Information Act, allegation do not attract section 498A IPC hence no investigation is required. As per charge sheet, complainant joined the petitioner/applicant in April-2008 and did not live together even a complete month (by the date May-19th) completely still making allegation saying complainant got pregnancy of 4 weeks is absurd.
5. Further submit that as per complaint in-laws use to advice the accused A1 via phone whereas no documentary proofs exists in support of this allegation still charge sheet is made on in-laws. Further submit that the in-laws call to accused and phone call effect on harassment is not disclosed and no details of this allegation in the charge sheet, reveals falseness of the allegation.
6. Further submit that as per complainant’s CrPC-161 statement, on the day of her marital life joining, she was harassed saying that brother of the complainant (LW4) purchased house hold items were not enough and also harassed saying that given dowry is not enough. None of the witnesses (LW2 to LW5) CrPC-161 statement says that accused did physical harassment to the complainant. Further submit that complainant did not disclose which items were purchased and no supporting documents were submitted. Further submit that in the affidavit filed by the complainant in MC. No.BBB/2009, on the file of Hon’ble Family court, P.A. Nagar, BB. District, did not report such incident occurrence while complainant is describing the cruelty that she was subjected by accused. Further submit that in the entire affidavit complainant did not make even single allegation on additional dowry demand made by accused.
7. Further submit that no investigation is carried by the respondent on the forcible pregnancy abortion allegations. As per respondent information to A1, through the Right To Information Act reply letter No. 441/RTI, to the accused no investigation is required on pregnancy allegation being allegation is not attracting the sections of the case registered on A1. Further submit that this allegation is not part of the affidavit filed by complainant in M.C. No.BBB/2009 on the file of Hon’ble Family court, P.A. Nagar, BB. District, in which complainant is alleging that cruelty is one of the ground to live separately from husband/petitioner. Further submit that a criminal case is registered on complainant under section 313, 506, 384, 500 and 120B IPC in IInd MM Court, Mangalore City and court took the cognizance of the offence and directed the police for investigation.
CONTRADICTIONS BETWEEN WITNESSES AND COMPLAINANT
8. Further submit that witness statements version contradicts with complainant and also contradicts with other witness version as described below:
TABLE#3:
|
CrPC-161 statement version of the complainant
|
CrPC-161 statement version of the complainant brother (LW2) - Eye witness
|
|
Petitioner/applicant asked the complainant to join him and complainant joined the petitioner at Mangalore in April-2008.
On the day that complainant joined the respondent at Mangalore, she was harassed saying LW2 purchased house hold items are less.
Further complainant was physically manhandled for additional dowry.
Complainant was refused to abort pregnancy and petitioner forced her to abort pregnancy on 20th May-2008.
Complainant was thrown out off house on 22nd May-2008, by taking her gold ornaments, along with her brother upon complainant brother was questioned about the petitioner’s pregnancy abortion.
|
Petitioner/applicant asked the complainant to join him and complainant joined the petitioner at Mangalore in April-2008.
Complainant joined the petitioner at Mangalore and she was scolded saying purchased house hold items are not enough.
****
(Not made allegations on additional dowry demands)
21st received call from complainant saying that she is in danger and wants to save complainant.
Complainant said to LW-2 that her pregnancy was aborted forcibly and she was locked in house by the petitioner. Upon asking the explanation from petitioner, he was thrown out off house along with complainant.
|
|
Submission: LW2 CrPC-161statement does not support FIR allegations on A1. Further submit LW2 version do not support the complainant version.
None of the above complainant statements were part of her affidavit submitted in CrPC-125 maintenance case while describing the cruelty happened to her by A1.
|
TABLE#4:
|
CrPC-161 statement version of the complainant
|
CrPC-161 statement version of the complainant parents (LW3-LW4) & LW5.
|
|
***
(No allegations for the period 11th Nov-2007 to April-2008)
Petitioner/applicant asked the complainant to join him and complainant joined the petitioner at Mangalore in April-2008.
On the day that complainant joined the respondent at Mangalore, she was harassed saying LW2 purchased house hold items are less.
Further complainant was physically manhandled for additional dowry.
Complainant was refused to abort pregnancy and petitioner forced her to abort pregnancy on 20th May-2008.
Complainant was thrown out off house on 22nd May-2008, by taking her gold ornaments, along with her brother upon complainant brother was questioned about the petitioner’s pregnancy abortion.
|
During Dec-2007 complainant was not provided food and facilities to cook food and further threatened the complainant to bring money by selling her properties else give divorce to her.
Petitioner/applicant asked the complainant to join him and complainant joined the petitioner at Mangalore in April-2008.
Complainant joined the petitioner at Mangalore and she was taunted on the purchased house hold items.
****
(Not witnessed any allegations on additional dowry demands)
On 21st received call from complainant saying that she is in hospital and is in danger wants to save complainant.
On 22nd May-2008 complainant brother went to Mangalore and saw that complainant was bleeding and her legs were seriously injured. Later came to know that petitioner was forcibly consumed abortion tablets and taken to hospital and did the abortion. Later complainant and her brother were thrown out off house.
|
|
Submission: None of the FIR/Complaint allegations are supported by the witnesses, LW2-LW6, reveals FIR allegations do not have supporting evidence.
The LW6 witness CrPC-161statement support neither the complainant nor the witnesses, LW2 to LW5, CrPC-161 statements.
|
Some more contradictions:
a. As per complainant property items were given to her by her parents as sridhan, whereas LW1 to LW5 say that property items ware given to A1.
b. As per complainant’s parents (LW2&LW3) and witness (LW5), complainant was harassed by A1 during the period Nov-2007 to Dec-2007 at Mangalore City. Whereas either complainant or her brother (LW4) did not report such incidents occurrence.
c. As per witnesses LW2 to LW5 statements, only taunting happened on the less house hold items purchased by the complainant brother (LW4), no physical harassment is reported. Whereas complainant says that physical harassment is happened to her.
d. Complainant’s brother (LW4), the eye-witness did not report in CrPC-161 statement that additional dowry is demanded by A1 on the marital life joining day. Whereas complainant reported that additional dowry is demanded by A1. Further submit that none of the witnesses from LW2 to LW5 support the complainant’s allegation on additional dowry demand.
9. As per complainant version, she was restricted to call her relatives during her stay at matrimonial home. Considering this statement true, it is evident that the statements of the witnesses (LW2 to LW5) stand no value. The possible witnesses could be the neighbors of the complainant at matrimonial home. Respondent failed to meet the neighbors to record their statements and failed to do investigation properly to real the facts.
ALLEGATIONS DO NOT ATTRACT SECTION 498A I.P.C:
10. The allegations, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence under IPC 498-A or make out a case against the accused as described in the application and in support of the this ground various judgments from Hon’ble Supreme Court of India are cited for reference. The complete details are as follows:
Section 498-A of the Indian Penal Code reads as under:-
“ 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.”
Under Explanation (a): the cruelty has to be of such gravity as is likely to drive a woman to commit suicide or to cause grave injury or danger to life, limb or health.
Under Explanation (b): cruelty means 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.
Explanation (b) does not make each and every harassment cruelty. The harassment has to be with a definite object, namely to coerce the woman or any person related to her to meet harassment by itself is not cruelty. Mere demand for property etc. by itself is also not cruelty. It is only where harassment is shown to have been committed for the purpose of coercing a woman to meet the demands that it is cruelty and this is made punishable under the section.
REF [1]: While interpreting the provisions of Section 304-B, 498-A, 306 and 324, IPC in the decision reported as State of H.P.V Nikku Ram & Ors 1995 (6) SCC 219 the Supreme Court observed that harassment to constitute cruelty under explanation (b) to Section 498-A must have nexus with the demand of dowry and if this is missing the case will fall beyond the scope of Section 498-A, IPC.
REF [2]: The mental cruelty is explained by the Supreme Court of India by laying the following definition of “mental cruelty” in V.Bhagat Vs. Mrs.D.Bhagat AIR 1994 SC 710: “the parties cannot reasonably be expected to live together”. The situation must be such that the wronged party cannot reasonably be asked to put with such conduct and continue to live with the other party.
REF [3]: The supreme court in CRIMINAL APPEAL NO. 299 OF 2003 MANJU RAM KALITA vs. STATE OF ASSAM decided on 28/05/09 answered the question in negative. Speaking for the bench his lordship honorable Dr. B.S. Chauhan, J held that :
"Cruelty" for the purpose of Section 498-A I.P.C. is to be established in the context of section 498-A IPC as it may be a different from other statutory provisions. It is to be determined / inferred by considering the conduct of the man, weighing the gravity or seriousness of his acts and to find out as to whether it is likely to drive the woman to commit suicide etc. It is to be established that the woman has been subjected to cruelty continuously / persistently or at least in close proximity of time of lodging the complaint. Petty quarrels cannot be termed as `cruelty' to attract the provisions of Section 498-A IPC. Causing mental torture to the extent that it becomes unbearable may be termed as cruelty.”
REF [4]: In Mohd. Hoshan v. State of A.P.; (2002) 7 SCC 414, the Supreme Court while dealing with the similar issue held that mental or physical torture should be "continuously" practiced by the accused on the wife. The Court further observed as under:
"Whether one spouse has been guilty of cruelty to the other is essentially a question of fact. The impart of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty. In other words, each case has to be decided on its own facts to decide whether the mental cruelty was established or not."
REF [5]: In Girdhar Shankar Tawade v. State of Maharashtra,
AIR 2002 SC 2078; the Supreme Court held that "cruelty" has to be understood having a specific statutory meaning provided in Section 498A I.P.C and there should be a case of continuous state of affairs of torture by one to another.
REF [6]:Supreme Court in Dr.N.G.Dastane Vs. Mrs.S.Dastane
(1975) 2 SCC 326 has referred to this aspect of `cruelty' like this:-
“The cruelty must be of such a character as to cause `danger' to life, limb or health or as to give rise to a reasonable apprehension of such a danger. Clearly danger to life, limb or health or a reasonable apprehension”.
REF [7]: Similar view was taken by the Punjab & Haryana High Court in the decision reported as Richhpal Kaur v. State of Haryana and Anr. 1991 (2) Recent Criminal Reports 53 wherein it was observed that offence under Section 498-A IPC would not be made out if beating given to bride by husband and his relations was due to domestic disputes and not on account of demand of dowry.
REF [8]: In the decision reported as Smt. Sarla Prabhakar Waghmare v State of Maharashtra & Ors 1990 (2) RCR 18, the Bombay High Court had observed that it is not every harassment or every type of cruelty that would attract Section 498-A IPC. Beating and harassment must be to force the bride to commit suicide or to fulfill illegal demands.
REF [9]: It is thus clear from the reading of Section 498-A IPC and afore-noted judicial pronouncements that pre-condition for attracting the provisions of Explanation (b) to Section 498-A IPC is the demand and if the demand is missing and the cruelty is for the sake of giving torture to the women without any nexus with the demand then such a cruelty will not be covered under explanation (b) to Section 498-A, IPC. It may be a cruelty within the scope of Hindu Marriage Act, 1955 as held by the Supreme Court in the decision reported as Shobha Rani v Madhukar Reddy AIR 1998 SC 121. In said case, it was observed that cruelty under Section 498-A IPC is distinct from the cruelty under Hindu Marriage Act, 1955.
REF [10]: Judgments, from the Hon’ble Supreme Court of India, say material evidence required to prove demand of dowry as follows:
i) M. Srinivasulu v. State of A.P., AIR 2007 SC 3146,
ii) Ran Singh and Anr. Vs. State of Haryana and Anr, Case no. appeal (Crl) 222 of 2008 arising out of SLP (Crl.) No. 3089 of 2006
iii) Appasaheb & Anr. v. State of Maharashtra, AIR 2007 SC 763,
iv) Shivanand Mallappa Koti v. State of Karnataka, AIR 2007 SC 2314,
v) Sukhram v. State of Maharashtra, AIR 2007 SC 3050,
vi) Hira Lal & Ors. v. State (Govt. of NCT), Delhi, AIR 2003 SC 2865.
vii)Kaliyaperumal & Anr. v. State of Tamil Nadu, AIR 2003 SC 3828.
Below is the detailed explanation that gives details of non-applicability of section 498A IPC on the complainant alleged allegations.
CrPC-161 STATEMENT ALLEGATIONS OF
COMPLAINANT DOES NOT ATTRACT 498A IPC:
a. Even considering the allegation that applicant (A1) harassed the complainant saying the house hold articles purchased by the complainant’s brother (LW4) at Mangalore are not enough, is happened to be true allegation do not attract Section 498A IPC as described below:
i. Applicant asked the complainant to join him and no demands were made by the applicant reveals no expectations of any illegal items from complainant. During the initial 6 months period, i.e., before the complainant date of joining with applicant at Mangalore City, no allegations either on demands or on harassment are reported reveals no demands from applicant side.
ii. The nature and details of the harassment happened to the complainant is not disclosed either in complaint or in respondent investigation report hence it can not be said that allegations attracts ingredients of section 498A IPC. As per eye-witness, i.e., brother (LW4) of complainant and the complainant parent’s CrPC-161 statements i.e., his parents (LW3&LW4), only taunting taken place saying house hold items are less, no specific items were demanded hence as per REF[1] allegation do not attract section 498A-IPC.
iii. No physical harassment proofs, attracting the section 498A IPC, are submitted hence as per REF [4] & REF [6] allegation do not attract section 498A IPC.
iv. Further submit that complainant continued matrimonial life with applicant at Mangalore reveals complainant did not feel mental cruelty hence as per REF [2] allegation do not attract section 498A IPC. Further submit that complainant brother (LW4) left to his native place also reveal there was no danger or threat to complainant from the applicant.
v. There is no allegation reported saying that demands were continued during the complainant’s stay with the applicant hence as per REF [3], REF [4] & REF [5] allegation do not attract section 498A IPC. Taunting on the house hold items which even did not force the complainant leave matrimonial house, such incident do not attract the section 498A IPC.
vi. Also complainant did not allege that either applicant (A1) or other Accused demanded any specific house hold items from either complainant or from complainant’s brother (LW4) and also failed to reveal the list of house hold items were purchased by the complainant’s brother (LW4), reveals the allegation is vague in nature.
vii. This allegation is not present in complaint. Further submit that while complainant describing the cruelty happened to her in her affidavit submitted in the case MC.No.BBB/2009 on the file of Hon’ble Family Court, P.A. Nagar, BB. District, did not report that this incident is happened. This reveals the dishonesty of the petitioner in procuring the false allegations against the applicant.
b. Even considering the allegation in charge sheet, that applicant (A1) demanded additional dowry at the time of dispute on house hold items, is happened to be true this allegation do not attract Section 498A IPC as described below:
i. Mere demand of property is not amount to cruelty as per explanation (b) of the section 498A IPC, hence allegation do not attract section 498A IPC. Either continuous demand or harassment is not reported to meet the illegal additional dowry demand hence as per REF [3], REF [4] & REF [5] allegation do not attract section 498A IPC.
ii. No documentary evidence is available to show that additional dowry is demanded petitioner relies on judgments from Hon’ble Supreme Court of India listed in REF [10]. Admitted fact is that no dowry is given to applicant and making an allegation that additional dowry is demanded is absurd.
iii. Continuous demand or continuous harassment is not reported either by complainant or witnesses (LW2 to LW6) and complainant continued to live with applicant at Mangalore reveals complainant did not feel mental cruelty as per REF [2] hence allegation do not attract section 498A IPC.
iv. This allegation is not present in complaint. Further submit that while complainant describing cruelty happened to her in the affidavit of the case MC. No.BBB/2009 on the file of Hon’ble Family Court, P.A. Nagar, BB. District, did not report that additional dowry demand incident is happened.
c. Even considering the allegation in charge sheet, that applicant (A1) suspected complainant’s character by saying one year required to get pregnancy and complainant got pregnancy in six months and forced the complainant to consume pregnancy abortion tablets on 20th May-2008, is happened to be true this allegations do not attract Section 498A IPC as described below:
i. As per complainant version the cause of action for forcible abortion is not the dowry demand or additional dowry demand, hence allegation does not attract section 498A IPC as per REF [1].
ii. As per complainant version applicant forced her to abort her pregnancy whereas no physical cruelty is reported. During the dispute also applicant did not subjected the complainant to any physical cruelty such that complainant received injuries which would attract section 498A IPC as per REF [2], REF [3], REF [4] and REF [5].
iii. The complainant is B.Sc graduate and has one year working experience in medical domain though no medial reports are submitted in support of the forcible abortion provide information that allegation is false and even no medical report on pregnancy termination confirmation report at Mangalore is submitted.
iv. . police refused to investigate the allegation on forcible pregnancy abortion even after applicant requested them and replied saying allegation does not attract 498A IPC hence no need of investigation. Pregnancy abortion did not happen at Mangalore till complainant left matrimonial home. Supporting documents are in Annexure -P/7.
v. Applicant filed criminal complaint against the complainant under sections 312 IPC, 506, 120B, 384 and 500 of IPC at Mangalore City; Hon’ble Court in Mangalore City took the cognizance and ordered for investigation.
vi. Further submit that while complainant describing the cruelty and harassment caused by the applicant in the affidavit filed in the case MC.No.BBB/2009 on the file of Hon’ble Family Court, P.A Nagar, BB. District, did not report that this incident is happened.
d. Even considering the allegation in charge sheet, that applicant (A1) and his brother-in-law (A3) necked out the complainant out off matrimonial home, is happened to be true allegation do not attract section 498A as described below:
i. As per REF [1] allegation do not attract section 498A IPC being this incident happened not to meet dowry demands by the complainant.
ii. No physical injuries reported and the incident did not create danger to complainant life hence as per REF [3], REF [4] and REF [5] incident do not attract section 498A IPC.
iii. Further submit that as per complainant brother (LW4) CrPC-161 statement he is the eye-witness of the incident but he did not say that complainant gold ornaments were taken from her by A1.
iv. Further submit that police did not register the case under applicable sections for this allegation.
v. Further submit that complainant admitted version in her affidavit in MC. No.BBB/2009 on the file of Hon’ble Family Court, P.A. Nagar, BB. District, says applicant was physically not present at the time complainant was leaving the matrimonial home and also said that even on phone applicant was not available reveals that this incident occurrence is not possible.
F.I.R ALLEGATIONS DO NOT ATTRACT 498A IPC:
e. Even considering the allegation that applicant (A1) used to harass the complainant saying A1 lost an alliance of worth Rs. 1,00,00,000/- rupees and also beaten the complainant to get rid of her is happened to be true allegation do not attract Section 498A IPC as described below:
i. As per CrPC-161 statements of complainant and witnesses (LW2 to LW6) no such incident occurrence is disclosed.
ii. It is not reported that the physical harassment incident is repeated or is exercised repeatedly and complainant lived with A1 reveals A1 did not fell danger to life and did not report any physical injury hence as per REF [2] to REF [9] neither physical nor mental harassment happened.
iii. As per complainant petitioner married while A1 has offers better than complainant alliance reveals that petitioner is not greedy of money.
iv. As per complainant affidavit submitted in the case MC.No.BBB/2009 on the file of Hon’ble Family Court, P.A. Nagar, BB. District, says that only ill-treatment is done by the accused and his relatives and no physical beating details are reported. This reveals the dishonesty of the petitioner in procuring the false allegations against the applicant.
f. Even considering the allegation that applicant (A1) used to harass the complainant to give money by selling her property, is happened to be true allegation do not attract Section 498A IPC as described below:
i. Complaint do not disclose the kind harassment details that she was subjected to, whereas as CrPC-161 statement of the complainant do not say that she was harassed to give money by selling her property. No specific harassment is disclosed even after investigation. Hence it can not be said that allegation attracts 498A IPC. Further submit that to meet the alleged demand what kind of harassment is caused by the A1 is not disclosed even in the respondent investigation report.
11. Applicant made complaint to the Commissioner of Police, Mushirabad about the improper investigation and requested to collect documentary evidences from Mangalore City that provides information that alleged allegations are false. Deputy Commissioner of Police replied by saying that the documentary evidences submitted by the applicant already provide information that said allegations are false. The reply, under Right To Information Act, from the Deputy Commissioner of Police is ANNEXURED in the petition.
In the above said circumstances Hon’ble court may be pleased to discharge of applicant (A1) from the case CC. No. xxxx/2008 in the interest of justice and to secure ends of justice.
Date:
Place: Applicant/Petitioner (A1)
Counsel for petitioner:
