Wife Facing Criminal Prosecution of Killing her own Husband
Court:PUNJAB AND HARYANA HIGH COURT
Bench: JUSTICE M.M. Kumar
VIDYA DEVI Vs. STATE OF HARYANA & ANR. On 9 October 2002
Law Point:
Section 482 — Indian Penal Code, 1860 — Sections 406, 498-A — Quashing of FIR : Criminal breach of trust, Cruelty : Wife facing criminal prosecution of killing her own husband : FIR lodged against husband under Sections 406 and 498-A, IPC against mother of deceased husband : Is counter-blast to FIR registered against wife : FIR lodged by wife quashed.
JUDGEMENT
1. Vidya Devi mother of one Vijay Kumar has invoked the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘the Code’) and has prayed for quashing FIR No. 76 dated 26.3.1994 registered against her under Sections 406/498-A, Indian Penal Code at Police Station Indri, District Karnal.
2. The version unfolded in the petition by the petitioner Vidya Devi is that her son Vijay Kumar was married to one Malti, respondent No. 2. Vijay Kumar was allegedly murdered on the night intervening 13/14.9.1992 by Malti, his wife and her relations. Vidya Devi, petitioner filed an application before the police for registration of the case against respondent No. 2, her father, brother and other relations. However, the police failed to take any action which resulted in filing of complaint before the Illaqa Magistrate but she did not succeed. Eventually, the petitioner filed Criminal Writ Petition No. 758 of 1992 before this Court under Articles 226/227 of the Constitution of India in which directions were issued by this Court on 31.5.1993 which read as under:
“…It is ordered that a case be registered by respondent Nos. 2 and 3 as described by Vidya Devi for the first time on 16.9.1992, Annexure P2 within a period of 15 days and the police shall proceed to investigate it. It is also observed that the investigation shall be carried out by a Deputy Superintendent of Police.”
3. Accordingly, FIR No. 294 was registered at Police Station, Sadar, Karnal on 25.6.1993. Challan has been presented under Sections 302/201 read with Sections 120B/148/149, Indian Penal Code against Malti, widow of Vijay Kumar, Ram Chand, her father, Shakuntla Devi, her mother, Deepak, Kumar, her brother and three others. The allegation further is that after the issuance of directions by this Court on 31.5.1993, respondent No. 2 as a counterblast filed a complaint on 2.11.1993 in the Court of Illaqa Magistrate, Karnal. Exercising powers under Section 156(3) of the Code, the Magistrate sent the complaint to the police and FIR No. 76 was registered on 26.3.1994 at Police Station Indri, Karnal under Sections 406/498-A, inter alia, against the petitioner. In the FIR numerous allegations have been levelled against various persons. However, the allegation of entrustment of Istri Dhan levelled against the petitioner, mother of Vijay Kumar, by respondent No. 2 is that she was entrusted with one blanket, two suits and Rs. 1,001/- in cash. It is further alleged that apart from the aforementioned articles no other article was even alleged to have been handed over to the petitioner. It is submitted that aforesaid articles would not in any case constitute part of Istree Dhan or dowry. The allegation of the petitioner further is that FIR lodged by respondent No. 2 is a counterblast to the directions issued on 31.5.1993 by this Court in Criminal Writ Petition No. 758 of 1992 and the registration of FIR No. 294 dated 25.6.1993 against respondent No. 2 at P.S. Sadar Karnal under Sections 302/201/148/149, Indian Penal Code.
4. On 7.7.1994 when this matter came up for motion hearing, this Court has stayed further proceedings against the petitioner.
5. Mr. N.K. Joshi, learned State Counsel has argued that FIR cannot be quashed because it is not a case where no allegation has been levelled against the petitioner. According to the learned Counsel there are specific allegations of entrustment of blanket, two suits and cash amount of Rs. 1,001/- to the petitioner who is mother-in-law of respondent No 2. He has further submitted that allegation of misappropriation of Istree Dhan can be substantiated by adducing evidence by the complainant. He has further pointed out that challan in this case has been presented on 26.3.1996.
6. Having heard the learned State Counsel and perusing the record, I am of the considered view that a perusal of the FIR would show that apart from the allegation of entrustment of one blanket, two suits and cash amount of Rs. 1,001/- no other allegation has been levelled against the petitioner. It would also not be fair to assume that such articles constitute a part of the Istree Dhan of respondent No 2 because it is well known that such like articles voluntarily are presented to the mother-in-law at the time of the wedding of the son.
7. The Dowry Prohibition (Haryana Amendment) Act, 1976 (for brevity ‘the Haryana Act’) has adopted definition of dowry, which is different than the one given by the Dowry Prohibition Act, 1961. The Haryana Act received the assent of the President of India on August 5, 1976. Section 2 of the Haryana Act read with Explanation I makes it evident that dowry would include a valuable security or property given or agreed to be given either directly or indirectly to any of the parties to the marriage, by parents of either party to the marriage or by any other person to either party to the marriage or to any other person at or before or after the marriage as consideration for the marriage. The explanation makes it abundantly clear that any present made to either party to the marriage would not be deemed to be dowry within the meaning of Section 2, unless it was consideration for marriage of the said parties. Section 2 along with its explanation read as under:
“2. Substitution of Sections 2, 3 and 4 of Parliament Act 28 of 1961—For Sections 2, 3 and 4 of the Dowry Prohibition Act, 1961 (hereinafter referred to as `the principal Act’), the following sections shall be substituted namely—
“2. Definitions—In this Act, unless the context otherwise requires:
(i) dowry means any property or valuable security given or agreed to be given either directly or indirectly—
(a) by one party to a marriage to the other party to the marriage; or
(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or after the marriage as consideration for the marriage of the said parties but does not include dowry or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.
Explanation 1.—For the removal of doubts it is hereby declared that any presents made at the time of marriage to either party to the marriage in the form of cash ornaments, cloths or other articles, shall not be deemed to be dowry within the meaning of this section, unless they are made as consideration for the marriage of the said parties.
Explanation II.—The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code (45 of 1860).
(ii) ‘marriage expenses’ shall include expenses incurred directly or indirectly at or before the marriage on—
(a) Thakka, Sagai, Tikka, Shagan and Milni ceremonies;
(b) the gifts made by the one party to a marriage on the other party to the marriage or by the parents, grand-parents and brothers of either party to a marriage, to either party to the marriage or the blood relations thereof;
(c) illuminations, food and the arrangements for serving food to the members of the marriage party and other expenses incidental thereto.
Explanation.—For the removal of doubts, it is hereby declared that any gift made by a person other than those specified in Sub-clause (b), at the time of marriage to either party to the marriage shall not be deemed to the marriage expenses.”
8. A perusal of the FIR shows that there is not even an allegation that articles given to the petitioner by the parents of respondent No. 2-complainant at the time of marriage was in consideration for the marriage of the complainant with the son of the petitioner. The concept of Stree Dhan as is known from the textual authorities like Manu Samriti and Yajnavalkya Samriti has never recognised the presents given to person other than the bride to be ‘Stree Dhan’. In the well known work of Dr. Paras Diwan on Hindu Law 2nd Edition 2002 Chapter XX at page 676, reference has been made to textual authorities. The Haryana Act appears to have followed the textual authorities in this regard.
9. Another reason for allowing the present petition is that the FIR lodged against the petitioner on March 26, 1993 is a counterblast to the FIR registered against respondent No. 2 being FIR No. 294 on June 25, 1993 in pursuance of the directions issued by this Court on May 31, 1993 in Criminal Writ Petition No. 758 of 1992.
10. It is true that power to quash FIR under Section 482 of the Code is extremely limited as enumerated by the Supreme Court in the case of State of Haryana v. Bhajan Lal and Others, AIR 1992 SC 604. Those cases have been summed up by the Supreme Court by the following formulations:
“1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. 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.
3. 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.
4. Where the allegations in the FIR do not constitute a cognizable 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.
5. 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.
6. 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.
7. Where a criminal proceeding is manifestly attended with mala fide 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.”
11. A perusal of formulation No. 7 would reveal that criminal proceedings initiated with mala fide intention or with an ulterior motive for wreaking vengeance on the accused would constitute a valid ground for quashing such proceedings. In the present case, respondent No. 2-complainant is facing on the one hand the criminal prosecution of killing her husband along with her close relations and the petitioner could get the FIR registered only when her Criminal Writ Petition No. 758 of 1992 was allowed by this Court on May 31, 1993. Therefore, on this ground also, I find that the FIR against the petitioner is liable to be quashed. Moreover, in cases involving allegations of misappropriation of Stree Dhan and demand of dowry there is a tendency to rope in all the members of the family. This trend has recently been noticed by the Supreme Court in the case of Kans Raj v. State of Punjab, II (2000) CCR 156 (SC)=IV (2000) SLT 162=2002 (2) RCR (Cr.) 695 (SC), while deciding the case involving allegations of dowry death under Sections 304-B and 498-A of the Code. Observing the emergence of the general trend of levelling allegations against all and sundry by the bride-groom, Their Lordships have observed as under:
“A tendency has, however, developed for roping in all the relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.”
(Emphasis added)
For the reasons mentioned above, this petition succeeds and is allowed. FIR in respect of the petitioner is quashed.
Petition allowed.