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CASE NO.: Appeal (crl.)  1716 of 2007

PETITIONER: ONKAR NATH MISHRA & ORS.

RESPONDENT: STATE (NCT OF DELHI) & ANR.

DATE OF JUDGMENT: 14/12/2007

BENCH: ASHOK BHAN & D.K. JAIN

JUDGMENT: J U D G M E N T [Arising out of S.L.P. (Criminal) No. 2516 of 2007)

D.K. JAIN, J.:

       Leave granted. 2.      This appeal by the three accused arises out of the order  dated 5.3.2007, passed by the High Court of Delhi, dismissing  the Criminal Revision Petition No. 92 of 1998 filed by them.  In  the said petition, a prayer was made by the appellants to  quash the charge sheet and the consequential proceedings  arising out of First Information Report (F.I.R) No. 155 of 1995,  instituted in the court of Metropolitan Magistrate, New Delhi.    Appellants No. 1, 2 and 3 are respectively the father-in-law,  sister-in-law and the husband of the complainant.   3.      A few facts, leading to the present proceedings and  necessary to dispose of the appeal are:         The marriage between the complainant and appellant No.  3 was solemnized at New Delhi on 5.12.1993. After the  marriage, the complainant was residing at her matrimonial  home in Delhi.  It appears that there was some matrimonial  discord between the complainant and her husband, appellant  No. 3, which resulted in filing of a complaint by the  complainant on 17.5.1994 in the Crime against Women  (\023CAW\024 for short) Cell, Delhi, inter alia, alleging that she was  harassed by her husband and in-laws.  However, the matter  was compromised on 26.6.1994 and as agreed, on 3.7.1994,  the complainant joined her husband at Bijnore (U.P.), where  he was posted.  However, she returned back to her parental  home in Delhi in mid-August 1994, as she was expecting a  child.   4.      On 8.11.1994, she lodged another complaint in CAW  Cell.  The said complaint was the foundation for registration of  F.I.R. No. 155 of 1995, alleging commission of offences by the  appellants under Sections 498A, 406/34 of the Indian Penal  Code (\023I.P.C.\024, for short).   For the sake of ready reference, the  same is extracted below: \023I, Neetu, d/o R.P. Dixit W/o Ashutosh Misra  wish to inform you that as per compromise in  the Cell on 22.6.1994 with my husband I went  to Bijnore on 3.7.1994 on the suggestion of my  husband I came to Delhi along with my  parents on 12.8.1994 for delivery.  I gave birth  to a son on 4.9.1994.  My husband came to  hospital on 5.9.1994 and requested me to  come to Bijnore after 40 days.  He gave me no  money for expenditure.  When I left Bijnore he

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gave me only Rs.1/- only.  I did not receive any  phone from him till 7th November, 1994.  Then  I phoned him and told him that he was  required to go to Cell on 28.10.1994.  He told  me that he has no time to go to Cell and to  bring me to Bijnore.  You can come to Bijnore  if you apologize to my father.  Keep him happy,  obey my sister and talk to your father to give  you Rs.50,000/- and VCR to bring with you.   Then I can come to bring you.  If you come  here alone with the child, we will give you good  beatings.   My husband came to Rajouri Garden every  Saturday \026 Sunday in September \026 October  and on Dushera & Diwali.  This can be verified  from neighbour Hira Lal and Smt. Nirmala  Sharma, President Mahilla Jagriti Samiti.   Almost 2 weeks ago, Hira Lal informed me that  my husband took away all my belongings with  him at 4 A.M. In view of above facts, I think these three  persons are conspiring.  Therefore, I request  that my case may be re-opened and my father- in-law, husband and sister-in-law may be  punished.\024 (emphasis supplied)

5.      As noted above, on the basis of the said report, an F.I.R.  was registered on 4.4.1995, wherein date and hours of  occurrence was mentioned as 5.12.1993 to 12.8.1994.  Before  the registration of the F.I.R., another statement of the  complainant was recorded wherein she alleged misbehaviour  on the part of her father-in-law, appellant No. 1.  In the said  statement, she stated that, \023my father-in-law and sister-in-law  clearly warned him that till the time I will not bring  Rs.50,000/- cash and V.C.R. they will not keep me\024.  She also  alleged that when she asked for return of the Stridhan, they  refused to return the same \023with fraudulent intentions\024.  After  investigation by the CAW Cell, the charge-sheet was filed on  15.7.1995.  In the charge-sheet, it has been recorded that  despite issue of notice under Section 160 Cr.P.C. to the  complainant and her father by the ASI, neither the  complainant nor her father turned up to take back her  Stridhan        , which was alleged to be with the appellants.  It has  been noted that the complainant does not want to take back  her Stridhan.  6.      At the time of framing of charge, the Metropolitan  Magistrate came to the conclusion that no case under Section  406 had been made out against any of the accused and  further case under Section 498A was also not made out  against the father-in-law and sister-in-law, being appellants  No. 1 and 2.  Accordingly, he discharged all the appellants for  offences under Section 406 I.P.C. and appellants No. 1 and 2  for offences under Section 498A I.P.C.  7.      Against the said order, the State preferred Revision  Petition to the Sessions Court.  Vide order dated 24.1.1998,  the Additional Sessions Judge came to the conclusion that a  prima facie case under Sections 498A and 406 I.P.C. was  made out against all the appellants.  Accordingly, he directed  the trial court to proceed with the case against all the  appellants under Sections 498A/406/34 I.P.C. and frame the  charges accordingly.   8.      Being aggrieved, the appellants filed a Criminal Revision  Petition before the High Court.  As noted above, the said  Revision Petition was dismissed.  It is this order of the High

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Court, which is questioned in this appeal.   9.      Appellant No. 1, appearing in person, argued the case on  behalf of all the appellants.  It was vehemently contended that  the Additional Sessions Judge as well as the High Court have  failed to appreciate that the first complaint dated 8.11.1994  lodged by the complainant on the CAW Cell, which was the  foundation for the registration of F.I.R. No. 155 of 1995, did  not contain any allegation of demand of dowry or harassment  by appellants No. 1 and 2.  It was submitted that even if the  allegations in the statement of the complainant dated 4.4.1995  are taken at their face value, yet the appellants cannot be  connected with offences under Sections 406 or 498A I.P.C.,  particularly when admittedly after 3.7.1994, when she joined  her husband at Bijnore, she had never lived with appellants  No. 1 and 2.  It is asserted that the said statement was an  after thought, made after almost 8 months of the alleged  occurrence.   10.     Learned counsel appearing on behalf of the complainant  and the State supported the view taken by the High Court.    11.     It is trite that at the stage of framing of charge the court  is required to evaluate the material and documents on record  with a view to finding out if the facts emerging therefrom,  taken at their face value, disclosed the existence of all the  ingredients constituting the alleged offence.  At that stage, the  court is not expected to go deep into the probative value of the  material on record.  What needs to be considered is whether  there is a ground for presuming that the offence has been  committed and not a ground for convicting the accused has  been made out.  At that stage, even strong suspicion founded  on material which leads the court to form a presumptive  opinion as to the existence of the factual ingredients  constituting the offence alleged would justify the framing of  charge against the accused in respect of the commission of  that offence.  12.     In State of Karnataka Vs. L. Muniswamy , a three  judge Bench of this 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\022s liberty substantially, need for proper  consideration of material warranting such order was  emphasized.   13.     Then again in State of Maharashtra and others Vs.  Som Nath Thapa and others , a three judge Bench of this  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: \023if 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.\024

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14.     In a later decision in State of M.P. Vs. Mohanlal Soni ,  this Court, 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. 15.     Having noted the broad guidelines to be kept in view  while deciding whether or not a charge against the accused is  to be framed, we may advert to the facts of the present case to  decide whether on the basis of the material placed before the  trial court, it can reasonably be held that a case for framing  charges against the appellants under Sections 498A and 406  I.P.C. exists.  However, before undertaking this exercise it  would be apposite to briefly note the essential ingredients of  Sections 406 and 498A I.P.C.     16.     According to Section 405 I.P.C., the offence of criminal  breach of trust is committed when a person who is entrusted  in any manner with the property or with any dominion over it,  dishonestly misappropriates it or converts it to his own use, or  dishonestly uses it, or disposes it of, in violation of any  direction of law prescribing the mode in which the trust is to  be discharged, or of any lawful contract, express or implied,  made by him touching such discharge, or wilfully suffers any  other person so to do.  Thus in the commission of the offence  of criminal breach of trust, two distinct parts are involved.   The first consists of the creation of an obligation in relation to  the property over which dominion or control is acquired by the  accused.  The second is a misappropriation or dealing with the  property dishonestly and contrary to the terms of the  obligation created. (See: The Superintendent &  remembrancer of Legal Affairs, West Bengal Vs. S.K. Roy ) 17.     The term \023cruelty\024, which has been made punishable  under Section 498A I.P.C. has been defined in the Explanation  appended to the said Section, to mean: (i)      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 (ii)  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.  Therefore, the consequences of \021\024cruelty\024,  which are either likely to drive a woman to commit suicide or  to cause grave injury, danger to life, limb or health, whether  mental or physical of the woman or the harassment of a  woman, where such harassment is with a view to coercing her  or any person related to her to meet any unlawful demand are  required to be established in order to bring home an offence  under Section 498A I.P.C.  18.     In the present case, from a plain reading of the complaint  filed by the complainant on 8.11.1994, extracted above, it is  clear that the facts mentioned in the complaint, taken on their  face value, do not make out a prima facie case against the  appellants for having dishonestly misappropriated the  Stridhan of the complainant, allegedly handed over to them,  thereby committing criminal breach of trust punishable under  Section 406 I.P.C.  It is manifestly clear from the afore- extracted complaint as also the relevant portion of the charge- sheet that there is neither any allegation of entrustment of any  kind of property by the complainant to the appellants nor its  misappropriation by them.  Furthermore, it is also noted in the  charge-sheet itself that the complainant had refused to take

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articles back when this offer was made to her by the  Investigating Officer.  Therefore, in our opinion, the very pre- requisite of entrustment of the property and its  misappropriation by the appellants are lacking in the instant  case.  We have no hesitation in holding that the learned  Additional Sessions Judge and the High Court erred in law in  coming to the conclusion that a case for framing of charge  under Section 406 I.P.C. was made out.   19.     As regards the applicability of Section 498A I.P.C., in the  complaint dated 8.11.1994 there is not even a whisper of a  wilful conduct of appellants No. 1 and 2 of harassment of the  complainant at their hands with a view to coercing her to meet  any unlawful demand by them so as to attract the provisions  of Section 498A read with Explanation thereto. The complaint  refers to the talk the complainant purports to have had with  her husband, appellant No. 3, who is alleged to have told her  to come to Bijnore if she apologizes to his father; keeps him  happy; obeys his sister and talks to her father (complainant\022s)  to give her Rs. 50,000/- and V.C.R. and brings these articles  to Bijnore.  We are convinced that the allegation of  misbehaviour on the part of appellant Nos.1 and 2 and the  demand of Rs. 50,000/- and V.C.R. by them made by the  complainant in her subsequent statement, dated 4.4.1995,  was an after thought and not bona fide.  Section 498A I.P.C.  was introduced with the avowed object to combat the menace  of dowry deaths and harassment to a woman at the hands of  her husband or his relatives.  Nevertheless, the provision  should not be used as a device to achieve oblique motives.  Having carefully glanced through the complaint, the F.I.R. and  the charge-sheet, we find that charge under Section 498A  I.P.C. is not brought home insofar as appellant Nos. 1 and 2  are concerned. 20.     Consequently, we allow the appeal partly; quash the  charge framed against all the appellants under Section 406  I.P.C.; quash the charge framed against appellant Nos. 1 and 2  under Section 498A I.P.C. and dismiss the appeal of appellant  No. 3 against framing of charge under Section 498A I.P.C.    Needless to add that the trial court shall now proceed with the  trial untrammeled by any observation made by the Additional  Sessions Judge and upheld by the High Court in the impugned  order or by us in this judgment.