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Sec.498 A , 306 of I.P.C. – DISCHARGE OF REST OF ACCUSED – NO CASE AGAINST RELATIVES OF HUSBAND – ADDITIONAL SESSIONS JUDGE DISCHARGED THEM – HIGH COURT CONFIRMED – APEX COURT ALSO CONFIRMED AND DISMISSED THE APPEAL = Sherish Hardenia & Ors. …..Appellants Versus State of M.P. & Anr. …..Respondents = published in judis.nic.in/supremecourt/filename=41091

 

Sec.498 A , 306 of I.P.C. – DISCHARGE OF REST OF ACCUSED – NO CASE AGAINST RELATIVES OF HUSBAND – ADDITIONAL SESSIONS JUDGE DISCHARGED THEM – HIGH COURT CONFIRMED – APEX COURT ALSO CONFIRMED AND DISMISSED THE APPEAL =

Whether it is quashing of an  FIR  or  a  Charge-Sheet,  or

   summoning a party under Section 319,  CrPC,  this  Court  has  repeatedly

   opined that the approach of the Judge must be  to  consider  

whether  the

   collected material and evidence is indicative of existence  of  merely  a

   prima facie case.  

It is only where there is  absence  of  even  a  prima

   facie case that the Judge would be justified in cancelling  the  FIR,  or

   quashing the Charge-Sheet, or declining the summoning of a  third  person

   under Section 319, CrPC.  =

The learned Single Judge, as  we  have  already

   noticed above, comprehensively and correctly analyzed the  case  law  and

   appreciated the evidence to come to the conclusion that there was  enough

   material available even at that stage for  maintaining  the  trial,  i.e.

   reversing the view of the Sessions Judge on this score.  

The Single Judge

   was correct in maintaining that there was inadequate material  in  regard

   to Sangeeta as had been held by the Sessions Judge.

 

The learned Single Judge has also rightly supported the decision  of  the

   Sessions Judge in holding that the material on record was insufficient to

   even prima facie indicate the  complicity  of  Sangeeta  in  the  alleged

   offences of cruelty and abetment of suicide.  We entirely agree with  the

   conclusion arrived in the impugned Order to the effect that a prima facie

   case justifying the trial of the Lajja Shankar, Meera  and  Sherish  have

   been established and that the Sessions Judge erred in  discharging  these

   three persons.

8. Accordingly, the appeals fail and are dismissed being devoid  of  merits.

   We would  have  imposed  exemplary  costs  on  the  Appellants  in  these

   proceedings but for the fact that the impugned Order reverses  the  order

   passed by the Sessions Court.  In other words if we had  been  confronted

   with concurrent findings punitive costs would have followed.

REPORTABLE

 
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2087 OF 2013
[Arising out of S.L.P.(Crl.)No.6067 of 2008]

 
Sherish Hardenia & Ors. …..Appellants

Versus

State of M.P. & Anr. …..Respondents

WITH

CRIMINAL APPEAL NO. 2088 OF 2013
[Arising out of S.L.P.(Crl.)No.7424 of 2008]
Amrish Hardenia …..Appellant

Versus

State of M.P. …..Respondent

 
J U D G M E N T

 
VIKRAMAJIT SEN, J.
1. Leave granted. These appeals assail the Judgment of the learned Single
Judge of the High Court of Madhya Pradesh at Jabalpur delivered in Crl.
Revision Nos.1400 and 1445 of 2004 passed on 6.5.2008. The learned
Single Judge was called upon to decide two Revision Petitions against the
Order dated 26.08.2004 passed by the First Additional Sessions Judge,
Bhopal in Sessions Trial No.83 of 2004. Amrish Hardenia, the Petitioner
in Cr.R.No.1445/2004 stood charged with offences punishable under
Sections 498-A and 306 of the Indian Penal Code (IPC). Four other
accused namely, his parents, Shri Lajja Shankar and Smt. Meera, as also
his brother and sister-in-law Shri Sherish Hardenia and Smt. Sangeeta
have been similarly charged by the prosecution. The First Additional
Sessions Judge, however, favoured the view that no case worthy of trial
had been made out against the latter four persons, and therefore had
discharged them. Proceedings against Amrish Hardenia, husband of late
Archana Hardenia had been ordered to continue. In these circumstances,
the father of the deceased, Dr. R.K. Sharma had approached the High Court
in Criminal Revision No.1400 of 2004 challenging the legal propriety of
the said Order of the Sessions Judge discharging his deceased daughter’s
parents-in-law and borther-in-law and his wife. Amrish Hardenia, widower
of the deceased Archana who was the daughter of Dr. R.K. Sharma, had
filed Cr.R. No.1445 of 2004 asserting in essence that no case worthy of
trial had been disclosed against him either. We must recognise, at the
threshold, that the impugned Order manifests a comprehensive marshalling
of the facts and of the law applicable to the controversy.
2. Amrish and Archana were married to each other on 19.11.1995, and
immediately turmoil in the marriage appears to have started, allegedly
owing to dowry demands, the evidence of which is founded on
contemporaneous letters written by her to her parents. In those
instances where the assertion is that dowry demands had been made as
early as within one year of marriage, it would be sanguine and far too
optimistic to surmise that such demands would not be reiterated,
rearticulated and repeated during the marriage. Of course, a change in
the mindset of the husband is theoretically possible and we expect that
evidence in this regard would be led to dispel the veracity of the
initial demand which has been reduced to an epistolary document and/or
its recurrence thereafter. Although it is not an inflexible rule, a
demand for dowry made by a husband will invariably be prompted and
encouraged by the thinking of his parents. In making these observations
we should not be misunderstood to indicate that we have formed an
unfavourable opinion as to the culpability of Amrish, his parents Shri
Lajja Shanker and Smt. Meera and his brother Sherish. However, Judges
cannot be blind to the disgraceful and distressing reality vis-à-vis
dowry, which prevails in some sections of our society. What we find
extremely disconcerting is that this social malaise is spreading amongst
all religious communities. The demand of dowry is a social anathema,
which must be dealt with firmly.
3. So far as the prosecution is concerned it was of the opinion that a
triable case had been established against Amrish, the husband, both his
parents, his brother. The prosecution had made out a case even against
his brother’s wife who came into the family five years after the
performance of the hapless marriage and approximately two years before
the tragic suicide of late Archana. At this stage therefore, in
discharging all four persons other than the husband/widower Amrish, the
Sessions Judge had necessarily to have come to the conclusion that on a
perusal of the material before the Court there was no likelihood of a
conviction being returned, nay, that not even a prima facie case against
them had been disclosed. We need not travel beyond the decisions
rendered by this Court in State of Maharashtra v. Somnath Thapa AIR 1996
SC 1744 = (1996) 4 SCC 659; State of Bihar v. Ramesh Singh AIR 1977 SC
2013 = (1977) 4 SCC 39; Union of India v. Prafulla Kumar Samal (1979) 3
SCC 4 and Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia
(1989) 1 SCC 715. We also think that the line of decisions including
State of Haryana v. Bhajan Lal (1992) Supp. 1 335 as well as Michael
Machado v. CBI (2000) 3 SCC 262 and Suman v. State of Rajasthan (2010) 1
SCC 250 = AIR 2010 SC 518 are also apposite in the context of Section 319
of the CrPC. Whether it is quashing of an FIR or a Charge-Sheet, or
summoning a party under Section 319, CrPC, this Court has repeatedly
opined that the approach of the Judge must be to consider whether the
collected material and evidence is indicative of existence of merely a
prima facie case. It is only where there is absence of even a prima
facie case that the Judge would be justified in cancelling the FIR, or
quashing the Charge-Sheet, or declining the summoning of a third person
under Section 319, CrPC. The learned Single Judge, as we have already
noticed above, comprehensively and correctly analyzed the case law and
appreciated the evidence to come to the conclusion that there was enough
material available even at that stage for maintaining the trial, i.e.
reversing the view of the Sessions Judge on this score. The Single Judge
was correct in maintaining that there was inadequate material in regard
to Sangeeta as had been held by the Sessions Judge.
4. An argument has been continuously raised vis-à-vis the passage of seven
years before the subject marriage ended with the suicide of Archana.
This has rightly been found not to vitiate the trial against any of the
persons (except Sangeeta). There can be no gainsaying that no case can
possibly be made out under Section 306 read with Section 498-A, IPC after
a marriage has crossed the seven years’ period; it is only the statutory
presumption that stands removed, thereby also shifting the onerous burden
from the shoulders of the accused to that of the prosecution.
5. It would be idle and in fact illogical to contend that law expects that
on the first demand of dowry, prosecution under Section 498-A has to be
commenced. In the Indian idiom, where it is oftspoken that on her
marriage a daughter ceases to be a member of her parents’ family and may
return to it only as a corpse, the reality is that only when it is
obvious that the marriage has become unredeemably unworkable that the
wife and her family would initiate proceedings under Section 498-A, IPC.
Before that stage is arrived at, the bride endures the ill treatment and
taunts knowing that the marriage would be undermined and jeopardized by
running to the police station. We must hasten to add that a malpractice
is now widely manifesting itself in that lawyers invariably advise
immediate commencement of Section 498-A proceedings employing them as a
weapon of harassment. Courts however, are aware and alive to this abuse
of otherwise salutary statutory provision. Therefore, pleas founded on
limitation have to be viewed with great circumspection. In this regard
the statement of Ms. Sheetal Bhandari pertaining to conversations held by
the deceased Archana in August, 2003 will indubitably be cogitated upon
by the Trial Court.
6. In the impugned Order the learned Single Judge has kept in perspective
the time endured decision in Sheoprasad Ramjas Agrawal v. Emperor AIR
1938 Nagpur 394 and of this Court in Century Spinning & Manufacturing Co.
Ltd. v. State of Maharashtra AIR 1972 SC 545 = (1972) 3 SCC 282 and State
of Karnataka v. L. Muniswamy AIR 1977 SC 1489 = (1977) 2 SCC 699 to
be satisfied that the material and evidence on record sufficiently
support the trial against Amrish, Shri Lajja Shankar, Smt. Meera and
Sherish.
7. The learned Single Judge has also rightly supported the decision of the
Sessions Judge in holding that the material on record was insufficient to
even prima facie indicate the complicity of Sangeeta in the alleged
offences of cruelty and abetment of suicide. We entirely agree with the
conclusion arrived in the impugned Order to the effect that a prima facie
case justifying the trial of the Lajja Shankar, Meera and Sherish have
been established and that the Sessions Judge erred in discharging these
three persons.
8. Accordingly, the appeals fail and are dismissed being devoid of merits.
We would have imposed exemplary costs on the Appellants in these
proceedings but for the fact that the impugned Order reverses the order
passed by the Sessions Court. In other words if we had been confronted
with concurrent findings punitive costs would have followed.

 
……………………………………..J.
[T.S.THAKUR]

 

 
……………………………….
…….J.
[VIKRAMAJIT SEN]
New Delhi
December 13, 2013.
———————–
4

 

 

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