Argument in Discharge hearing
1. 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.
Section 498A
reads as follows:
“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.”
There is NO Injury reported by
wife/complainant, So, No ‘physical’ cruelty.
The vagueness of mental cruelty
is cleared by the
Supreme Court of India by lying 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.”
Also, cruelty is
defined in Dr.N.G.Dastane
Vs. Mrs.S.Dastane (1975) 2 SCC 326 and Savitri Devi Vs Ramesh Chand ,
2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100
>> However, the wife/complainant
wants to live with the husband/accused. She has filed a case u/s 9 for
Restitution of Conjugal Rights.
·
o Both Parties are willing to
LIVE together, so, there is NO CRUELTY.
Where there was
allegation by wife against her husband but such allegations were not supported
by any reliable evidence. Wife was prepared to live with her Husband. The
accused was entitled for benefit of doubt. Lawrence Vs State of Kerala, 2002 Cri LJ 3458
(Ker.)
Supreme Court in Ajay Mitra Vs State of M.P. and
others reported in 2003 (3) KCCR 2043 held that the FIR which does not allege
or disclose essential requirement of a penal provision are prima facie
satisfied , cannot form the foundation or constitute the starting point of
lawfull investigation.
And, In the case of Ashok Chaturvedi and other Vs
Shitul H Chanchani and another reported in ( 1998) 7 S.C.C. 698
it was held that allowing the criminal proceeding to continue even when the
allegation of the complaint petition do not make out any offence would be
tantamount to abuse of the process of the court.
1. Prosecution has blindly “denied”
all the paragraphs of application for discharge u/s239, whereas
applicant/husband has attached wife/ complainant’s own admittance/statements
and prosecution’s own documents as a part of application from Annexure R1 to
Annexure R 16
o Prosecution has denied the
Affidavit submitted in the Punjab and Haryana High Court by the Jagmohan Singh,
DSP on behalf of SSP, patiala and State of Punjab.
§
§ How can Prosecution deny their
own affidavit filed in HIGH COURT ??
o Prosecution has denied all the
para, even their own complaints and its contradictions,
For example, in the charge-sheet in line
33 of Page 2 reads as “Mr.SoAndso.
left Zirakpur on 14-10-2005 for Gujarat and asked me that I can go to my
parental house at Patiala and can live with my parents for about 10 days”
Contrary to above
para, line 13 of page 2 (back side) reads as “he asked me that why I have not returned to
Zirakpur, on this I asked that I am waiting for him as he while going to
Gujarat in October 2005 asked me that until and unless he do not return back
from to Zirakpur and not reached Patiala, I need not come to Zirakpur of my own”
§ Can wife/complainant’s
version/statement be relied upon?
§ Is wife/complainant speaking
truth?
§ Is wife/complainant approached
the Court with Clean hands?
o In para 20, prosecution have
even denied the Powers of the Hon’ble Court.
1. Prosecution has admitted in
para 2 that investigation was carried out by Women Cell, Patiala
o Women Cell report clearly
states that “she
(complainant) is determined to teach a lesson to her husband and his family by
leveling serious allegations”
o Women cell investigation
concluded that “No
action is required by Police, so, the complaint to be filed”
1. Wife /Complainant has not
approached the court with clean hands, all bills all fake, prepared with an
intension to procure the conviction.
How can anyone
taunt for bring inferior/cheap articles, when the ‘claimed’ articles don’t have
any existence???
1. Complainant/wife claims that
the Bills of Gift articles are not Fake. If the bills are assumed to be true,
It is pertinent to note that these bills are of LG brand products
Is there any brand better than
LG ?
How can anyone taunt for a LG
product? Is LG inferior brand???
As such “”Taunting is not Cruelty”” in Savitri
Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100
1. Complainant/wife has filed
petition for “Restitution of Conjugal Rights” under section 9 of HMA.
·
How
can complainant/wife live with a Criminal? This itself shows that complaint u/s
498a was filed to fulfill the uterious motives.
·
Complainant
has admitted that there were frequent picnic tours, more than 8 destinations
have been admitted by complainant for her total stay of about 10 months.
So, the
allegations doesn’t fall under the preview of mental or physical cruelty
because “The
mental cruelty can broadly be defined as
that conduct which
inflicts upon the other party such mental pain
and suffering as
would make it not possible for that party to live with the other”
1. NO SPECIFIC ALLEGATIONS, even
the allegations of Demand of dowry etc. is not quantified/ specified in the
complaint. All allegations are VAGUE.
·
In
Krishan Jeet
Singh Vs State of Haryana, II (2003) DMC 127 (P&H) it was
held that “Where there is no specific
allegations in complaint, charge could not be proved” also in
Hon’ble HIGH COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE
(GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as made in
the complaint by the petitioner against every member of the family of husband
cannot be accepted by any court at their face value and the allegations have to
be scrutinized carefully by the Court before framing charge”.
1. Hon’ble Court shall refer to a
leading decision of SC court reported in State
of Haryana Vs. Bhajan Lal [1992 Suppl. {1} SCC 335] in which SC
court pointed out certain category of cases by way of illustrations wherein the
inherent power can be exercised either to prevent abuse of the process of any
court or otherwise to secure the ends of justice. The same are as follows :-
o Where the allegations made in
the first information report or the complaint, even if they are taken at their
face value and accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
o Where the allegations in the
first information report and other materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying an investigation by police
officers under Section 156(1) of the Code except under an order of a Magistrate
within the purview of Section 155(2) of the Code.
o Where the uncontroverted
allegations made in the FIR or complaint and the evidence collected in support
of the same do not disclose the commission of any offence and make out a case
against the accused.
o Where, the allegations in the
FIR do not constitute a cognizable offence but constitute only a non-cognizable
offence, no investigation is permitted by a police officer without an order of
a Magistrate as contemplated under Section 155(2) of the Code.
o Where the allegations made in
the FIR or complaint are so absurd and inherently improbable on the basis of
which no prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
o Where there is an express legal
bar engrafted in any of the provisions of the Code or the concerned Act (under
which a criminal proceeding is instituted) to the institution and continuance
of the proceedings and/or where there is a specific provision in the Code or the
concerned Act, providing efficacious redress for the grievance of the aggrieved
party.
o Where a criminal proceeding is
manifestly attended with malafide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal grudge.
2. In the case of Pepsi Food Limited and another
Vs Special Judicial Magistrate and others reported in AIR 1998 S.C 128 it
was held that Summoning and Accussed in a
criminal case is serious matter .Criminal Law cannot be set into Motion as
matter of course .
3. in the case of Saritha Vs
R.Ramachandra reported in (I) (2003) DMC 37 ( DB ) made an observation that “the court would like to go on
record that for nothing the educated women are approaching the courts for
divorce and resorting to proceedings against in-laws under section 498a , IPC
implicating not only the husbands but also their family members whether in
India or Abroad. This is nothing but misuse of the beneficial provision
intended to save the women from unscrupulous husbands . It has taken a reverse
trend now. In some cases this kind of actions is coming as a formidable hurdle
in the reconciliation efforts made by either well meaning people or the courts.
and the sanctity attached to the marriage in Hindu Religion and the statutory
mandate that the courts try to save the marriage through conciliatory efforts
till last , are being buried neck-deep . It is for the law commission and the
parliament either to continue that provision ( section 498a IPC ) in the same
form or to make that offense non cognizable and bailable so that ill-educated
women of this country do not misuse the provision to harass innocent people for
the sin of contracting marriage with egoistic women “
Judgments
·
It
is the duty of the court, even at the stage of framing the charge to consider
whether there was sufficient material to go into trial. In other words, whether
the evidence collected by the prosecution ,if rebutted, warrant any conviction.
In doing so, the court can also consider the material on record in State of assam Vs. Achit Ranjan
Dey, 1989 Cri LJ 1117 at 1118 (Gau), Sessions Judge Vs. I R redid, 1972 Cri LJ
1485, Abdul Aziz Vs. State of Mysore, 1975 Cri LJ 335 (kant)
·
State
of Karnataka Vs. L. Muniswamy
, a three judge Bench of SC 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 persons liberty substantially, need for proper
consideration of material warranting such order was emphasized.
·
When
offences not prima facia made out against accused person framing of charge not
proper in Imtiaz
Ahmed Vs State of m.P. , 1997 Cri LJ 1844 (MP)
·
Allegations
has to be specific in Krishan
Jeet singh Vs. State of Haryana, 11 (2003) DMC 127 (P & H)
·
General
allegations are not sufficient to procure 498-A in Surajmal Barithia V. State of
west Bengal 11 (2003) DMC 546 (Cal) (DB)
·
Vague
allegations are not acceptable in sher
Singh V. state of Punjab 11 (2003) DMC 192 (P & H)
·
Bhajan
Lal Bhatia & ors. Vs. Sarita Neelam 2005 Vol I HLR 59
·
Where
evidence on record neither disclosed that there was cruelty on part o the
accused which was of such a nature as was likely to drive victim to commit
suicide or cause grave injury or danger to her life or limb or mental or
physical health nor showed that she was harassed by accused with regard to any
demand for additional dowry, section 498-A could not be attracted in such
circumstances in Bomma
Ilaiach Vs. State of U.P. , 2003 Cri LJ 2439 (AP)
·
Where
there is no specific allegations in complaint, charge could not be proved in Krishan Jeet Singh Vs State of
Haryana, II (2003) DMC 127 (P&H)
·
Conviction
not sustainable in the absence of evidence of ‘torture’ or “harassment” in Benumadhab Padhi Mohapatra Vs
State, 2004 (13) AIC 253 (ori.)
·
Taunting
is not Cruelty in Savitri
Devi Vs Ramesh Chand , 2003, Cri LJ 2759 (Del) : 2003 (3) Crime 100
·
Dr.
Sant Singh Vs. State of Punjab, 11 (2003) DMC 232 (P & H)
·
Where
there was allegation by wife against her husband but such allegations were not
supported by any reliable evidence. Wife was prepared to live with her Husband.
The accused was entitled for benefit of dobut. Lawrence Vs State of Kerala, 2002 Cri LJ 3458
(Ker.)
·
State
of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335,
·
Janata
Dal Vs. H.S.Chowdhary, (1992) 4 SCC 305,
·
State
of Bihar Vs. P.P. Sharma, (1992)Supp. 1 SCC 222,
·
Roopan
Deol Bajaj Vs. Kanwar Pal Singh Gill, (1995) 6 SCC 194,
·
State
of U.P. Vs. O.P.Sharma, 1996(1) ALD (Crl.) 823 (SC) = (1996) 7 SCC 705
·
State
of Maharashtra Vs. Ishwar Piraji Kalpatri, 1996(1) ALD (Crol.) 139 (SC) =(1996)
1 SCC 542
·
Kumar
Bhada, (1997 Rashmi Kumar Vs. Maheswh) 2 SCC 397
·
Rajesh
Bajaj Vs. State NCT of Delhi, 1999 (1) ALD (Crl.) 760 (SC) = (1999(3) SCC 259
·
Satvinder
Kaur Vs. State (Govt. of NCT of Delhi), (1999)8 SCC 728,
·
Jagdish
Ram Vs. State of Rajasthan, 2004(1) ALD (Crl.) 672 (SC) = (2004) 4 SCC 432,
·
A.V.
Mohan Rao Vs. M. Kishan Rao, (2002) 6 SCC 174,
·
State
of Karnataka Vs. M. Devendrappa, 2002(1) ALD (Crl.) 412 (SC) = 2002(3) SCC 89
·
State
of Orissa Vs. Saroj Kumar Sahoo, (2005)13 SCC 540
·
Sushil
Kumar Sharma Vs. Union of India (UOI) and Ors – Jul 19 2005 JT 2005 (6) SC 266 it was held
that by misuse of the 498A provision a new LEGAL TERRORISM can be unleashed.
·
HIGH
COURT OF DELHI in CRL.M.C.7262/2006 on 23.02.2007 in Smt. Neera Singh Vs STATE
(GOVT. OF NCT OF DELHI) and ORS held that “vague allegations as
made in the complaint by the petitioner against every member of the family of
husband cannot be accepted by any court at their face value and the allegations
have to be scrutinized carefully by the Court before framing charge”.
·
In
R.P. Kapur. vs.
State of Punjab (AIR 1960 SC 866), SC Court summarized some
categories of cases where inherent power can and should be exercised to quash
proceedings.
1.
1. Where it manifestly appears
that there is a legal bar against the institution or continuance, e.g. want of
sanction;
2. Where the allegation in the
first information report or complaint taken at its face value and accepted in
their entirety do not constitute the offence alleged;
3. Where the allegations
constitute an offence, but there is no legal evidence adduced or the evidence
adduced clearly or manifestly fails to prove the charge.
·
Madhavrao
Jiwaji Rao Scindia and Ors. v. Sambhajirao Chandrojirao Angre and Ors. [1988
[1] SCC 692],
SC Court has reiterated the same principle and laid down that when a
prosecution at the initial stage is asked to be quashed, the test to be applied
by the court is as to whether the uncontroverted allegations as made prima
facie establish the offence.
·
Pratibha
Rani Vs. Suraj Kumar and Anr. [1985] 2 SCC 370
·
State
of Bihar Vs. Murad Ali Khan & Ors. [1988 [4] SCC 655]
