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Sec. 482 of Cr.P.C. – to quash complaint filed under sec.498 A and 406 of I.P.C – Cruelty may be mental – absence of physical cruelty in pleadings does not mean there is no cruelty against the complaint – Mental cruelty was established prima faice – as far as sec. 406 – the allegations are enough to attracts the fiduciary status of accused and their custody of her sridhana – No grounds to quash – accused petition was dismissed by the Apex court – Curative petition by wife – not maintainable for execution of maintenance order simply because the husband is at foreign country as sec. 125 (3) and sec. 145 of cr.p.c provided vast remedies to execute the maintenance order – a family court can transfer the case to the nearest J.F.C.M to execute the maintenance order if necessary – Apex court dismissed the curative petition too = BHASKAR LAL SHARMA & ANR. … APPELLANT (S) VERSUS MONICA AND ORS. … RESPONDENT (S) = 2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41229

Sec. 482 of Cr.P.C. – to quash complaint filed under sec.498 A and 406 of I.P.C – Cruelty may be mental – absence of physical cruelty in pleadings does not mean there is no cruelty against the complaint – Mental cruelty was established prima faice – as far as sec. 406 – the allegations are enough to attracts the fiduciary status of accused and their custody of her sridhana – No grounds to quash – accused petition was dismissed by the Apex court – Curative petition by wife – not maintainable for execution of maintenance order simply because the husband is at foreign country as sec. 125 (3) and sec. 145 of cr.p.c  provided vast remedies to execute the maintenance order – a family court can transfer the case to the nearest J.F.C.M to execute the maintenance order if necessary – Apex court dismissed the curative petition too =

No Grounds to Quash the complaint =

whether  on

the allegations made in the complaint petition filed  by  the  respondent  a

prima facie case of commission of offences under Sections 498A  and  406  of

the Penal Code is made out against the appellants. 

We disagree.  ‘Cruelty’ as defined in the Explanation to Section  498A

of the Penal Code has a twofold meaning.  The contentions of Shri Sharan  do

not deal with the  Explanation  (a)  and  is  exclusively  confined  to  the

meaning dealt with by Explanation (b).  Having given our anxious consideration to the  averments  made in the complaint petition, we are of the view that the  statements  made  in

the relevant paragraphs of the complaint can  be  understood  as  containing

allegations  of  mental  cruelty  to  the   complainant.    The   complaint,

therefore, cannot be rejected at the threshold.

Insofar as the  offence  under  Section  406  of  the  Penal  Code  is

concerned, it is clear from the averments made in paragraphs 16, 18, 24  and

29 of the complaint petition that it has been alleged  that  the  appellants

were entrusted or had exercised dominion over the property belonging to  the

respondent and further that  the  appellants  had  unlawfully  retained  the

same.  

The  statements  made  in  para  6  of  the  complaint  also  alleges

retention of cash and other gifts received by the respondent-complainant  at

the time of her marriage to the accused-appellant No. 2.   

In  the  face  of

the said averments made in the complaint petition, it cannot  be  said  that

the complaint filed by the respondent is shorn of the necessary  allegations

to prima facie sustain the case of commission of the offence  under  Section

406 by the appellants.

 

12.   In view of the above, we unhesitatingly come to  the  conclusion  that

the complaint petition registered  as  Complaint  No.  287/1A   (Monica  Vs.

Vikas Sharma and Others) presently pending  in  the  Court  of  Metropolitan

Magistrate, Patiala House, New Delhi cannot be interdicted  but  has  to  be

finally concluded by the learned Trial Court.  

We,  therefore,  dismiss  the appeals filed by the accused .

 

Curative petition  filed by wife =

 

The order passed under Section 125 of the  Code  granting  maintenance

to the writ petitioner appears to have attained finality in  law.   Such  an

order can be executed by following the  provisions  of  sub-Section  (3)  of

Section 125 of the Code. 

The scope and ambit of the said provision  of  the

Code has recently been dealt with in Poongodi and Another  Vs.  Thangavel[1]

wherein reference has been made to several earlier decisions on  the  issue.

When the enforcement and execution of an order passed  under  a  statute  is

contemplated by the statute itself, normally, an aggrieved litigant  has  to

take recourse to the  remedy  provided  under  the  statute.   In  fact  the

petitioner has  initiated  a  proceeding  for  execution  of  the  order  of

maintenance granted in her favour. 

The fact  that  the  husband  (respondent

herein) against whom the order of maintenance is  required  to  be  enforced

lives outside the territory of India, in our considered view,  cannot  be  a

reasonable basis for invoking the extraordinary remedy under Article  32  of

the Constitution inasmuch as the provisions of the  Code  i.e.  Section  105

makes elaborate provisions  for  service  of  summons  in  case  the  person

summoned  by  the  court   resides   outside   the   territory   of   India.

  In view of the remedy that is available to  the  petitioner

under the Code and having regard to the fact that resort to such remedy  has

already been made, we decline to invoke our jurisdiction  under  Article  32

of the Constitution in facts of the present case.  Instead,  we  direct  the

Family Court No. 2, Saket, New Delhi to pass  appropriate  final  orders  in

Petition No.M-298/2011 as expeditiously as possible.  

We would also like  to

make it clear that in the event it is found so necessary the learned  Family

Court may transfer the case to the competent criminal court  whereafter  the

concerned criminal court will make all endeavour to bring the proceeding  to

a early conclusion.

 

2014 ( Feb.Part) judis.nic.in/supremecourt/filename=41229             P SATHASIVAM, RANJAN GOGOI, SHIVA KIRTI SINGH

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.435-436 OF 2014
Special Leave Petition (Crl) Nos.4125-4126 OF 2008
BHASKAR LAL SHARMA & ANR. … APPELLANT (S)

VERSUS

MONICA AND ORS. … RESPONDENT (S)

With
WRIT PETITION (CRL.) No. 101 OF 2013
J U D G M E N T
RANJAN GOGOI, J.

1. As ordered earlier, both the cases were heard together and are being
disposed of by this common Order.

SLP (Crl.) No. 4125-4126/2008

2. Leave granted.
3. The essential facts may be noticed at the outset.
The respondent, herein, Monica, had filed a complaint under Sections
498A, 406 read with Section 34 of the Indian Penal Code (hereinafter
referred to as the “Penal Code”) against the appellants and one Vikas
Sharma (respondent No.2). The appellants are the father and mother-in-law
of the respondent-Monica whereas the subsequently impleaded respondent No.
2 is her husband.

On 21.3.2005 the learned Metropolitan Magistrate, Patiala House, New
Delhi took cognizance of the offences alleged by the respondent in the
complaint petition which was numbered as 287/1A and issued summons to the
appellants and the second respondent herein. Aggrieved, the appellants
moved the High Court of Delhi under Section 482 of the Code of Criminal
Procedure Code, 1973 (hereinafter referred to as the “Code”) for quashing
the complaint. By judgment and order dated 21.1.2008 the High Court
dismissed the application filed by the appellants. Against the said order
the appellants moved this Court by means of two special leave petitions.
By order dated 27.07.2009 leave was granted and the appeals registered as
Criminal Appeal Nos. 1325-1326 of 2009 were disposed of by this Court
holding that while no offence under Section 498A of the Penal Code was made
out against either of the appellants, the offence under Section 406, as
alleged, was prima facie made out against the appellant No. 2 alone.

4. Aggrieved by the said judgment and order dated 27.07.2009 of this
Court, the respondent filed Review Petition Nos. 384-385 of 2009 which were
dismissed by this Court by order dated 01.09.2009. Thereafter, the
National Commission for Women as well as respondent herself filed Curative
Petition (Crl.) Nos. 24-25 of 2010 and Curative Petition (Crl.) No. D 10575
of 2010 respectively which were allowed by this Court by order dated
14.03.2013. It is pursuant to the aforesaid order dated 14.03.2013 passed
in the Curative Petitions that the present appeals were re-heard by us.

5. In the order dated 14.03.2013 passed in the Curative Petitions it has
been observed that,
“As far as the question regarding making out of a case under Section
498A I.P.C. is concerned, it has to be kept in mind that the appeals
were against the initial order summoning the accused to stand trial.
Accordingly, it was too early a stage, in our view, to take a stand as
to whether any of the allegations had been established or not.”

 
6. However, as in the very same order dated 14.03.2013 it was made clear
that “the observations made in this order is for the purposes of the
hearing of the curative petitions and should not, in any way, prejudice the
outcome of the appeals, when they are heard afresh”, we have proceeded to
re-hear the appeals on its own merit.

We would also like to observe, at this stage, that in the present
appeals the only question that would require to be decided is whether on
the allegations made in the complaint petition filed by the respondent a
prima facie case of commission of offences under Sections 498A and 406 of
the Penal Code is made out against the appellants. We will not be concerned
with such allegations made against the second respondent who, though named
as accused No. 1 in the complaint, had chosen not to question the same. In
fact, the said accused has been brought on the record of the present
proceedings as respondent No. 2 on the basis of an application filed by the
respondent Monica claiming that the addition of her husband as a respondent
is necessary for the purposes of facilitating a reconciliation which,
however, did not materialise though was attempted.

7. We have read and considered the statements made by the complainant
(respondent herein) in the complaint petition, particularly those in
paragraphs 16, 17, 18, 19, 24 and 29 thereof. The said paragraphs have
also been noticed by the High Court in its order dated 21.01.2008. A
detailed recital of the manner in which the present appellants and the
respondent No. 2 had allegedly ill-treated the respondent-complainant after
her marriage and had withheld different items of her stridhan property has
been set out by the respondent-complainant in the aforesaid paragraphs of
her complaint.

8. Shri Amarendra Sharan, learned senior counsel for the appellants has
urged that the statements/averments made in the complaint petition, even if
taken to be correct, do not make out any offence against any of the accused
appellants either under Sections 498A or 406 of the Penal Code, as alleged.
Shri Sharan has laid stress on the fact that there is no averment in the
complaint petition with regard to any demand for dowry by the appellants;
or of any ill-treatment of the respondent by the appellants or commission
of any act in connection with any such demand which could amount to
‘cruelty’ within the meaning of Section 498A IPC. Shri Sharan has also
urged that no where in the complaint petition entrustment within the
meaning of Section 405 of the Penal Code has been alleged against the
appellants so as to even prima facie make the appellants liable for the
offence under Section 406 of the Penal Code.

9. We disagree. ‘Cruelty’ as defined in the Explanation to Section 498A
of the Penal Code has a twofold meaning. The contentions of Shri Sharan do
not deal with the Explanation (a) and is exclusively confined to the
meaning dealt with by Explanation (b). Under Explanation (a) conduct which
is likely to cause injury or danger to life, limb or health (mental or
physical) would come within the meaning of the expression “cruelty”. While
instances of physical torture would be plainly evident from the pleadings,
conduct which has caused or is likely to cause mental injury would be far
more subtle. Having given our anxious consideration to the averments made
in the complaint petition, we are of the view that the statements made in
the relevant paragraphs of the complaint can be understood as containing
allegations of mental cruelty to the complainant. The complaint,
therefore, cannot be rejected at the threshold.

10. The facts, as alleged, therefore will have to be proved which only be
done in the course of a regular trial. It is wholly unnecessary for us to
embark upon a discourse as regards the scope and ambit of the Court’s power
to quash a criminal proceeding. Appreciation, even in a summary manner, of
the averments made in a complaint petition or FIR would not be permissible
at the stage of quashing and the facts stated will have to be accepted as
they appear on the very face of it. This is the core test that has to be
applied before summoning the accused. Once the aforesaid stage is
overcome, the facts alleged have to be proved by the
complainant/prosecution on the basis of legal evidence in order to
establish the penal liability of the person charged with the offence.

11. Insofar as the offence under Section 406 of the Penal Code is
concerned, it is clear from the averments made in paragraphs 16, 18, 24 and
29 of the complaint petition that it has been alleged that the appellants
were entrusted or had exercised dominion over the property belonging to the
respondent and further that the appellants had unlawfully retained the
same. The statements made in para 6 of the complaint also alleges
retention of cash and other gifts received by the respondent-complainant at
the time of her marriage to the accused-appellant No. 2. In the face of
the said averments made in the complaint petition, it cannot be said that
the complaint filed by the respondent is shorn of the necessary allegations
to prima facie sustain the case of commission of the offence under Section
406 by the appellants.

12. In view of the above, we unhesitatingly come to the conclusion that
the complaint petition registered as Complaint No. 287/1A (Monica Vs.
Vikas Sharma and Others) presently pending in the Court of Metropolitan
Magistrate, Patiala House, New Delhi cannot be interdicted but has to be
finally concluded by the learned Trial Court. We, therefore, dismiss the
appeals filed by the accused and in view of the time that has elapsed, we
direct that the trial be completed expeditiously and in any case within a
period of one year from the date of receipt of a copy of this order by the
learned Trial Court.

Writ Petition (Crl.) No. 101/2013

13. Monica, the respondent in the Criminal Appeals dealt with by this
order, has instituted this writ petition under Article 32 of the
Constitution seeking the following reliefs :
“(A) To serve notice to the Respondent No.1 Sh. Vikas Sharma through
his mother Smt. Vimla Sharma who is being represented by ld.
Counsel/AOR Shri Sumit Attri in SLP(Crl.) No. 4125-4126/2008.
(B) To tag the instant writ petition with SLP (Crl.) No. 4125-
4126/2008 entitled Bhaskar Lal Sharma & Anr. Versus Monica &
Ors.
(C) To direct the Respondent No.1 to immediately pay the maintenance
arrears to the tune of Rs.55,65,000(Sept 2004-June 2013 to the
petitioner-wife alongwith 50% penalty amount of Rs. 27,82,500.
D) To direct the Respondent No.1 to pay Rs. 93,500 per month to the
petitioner from July 2013 onwards.”

 

14. It appears that by an order dated 03.07.2007 passed under Section 125
of the Code by the learned A.C.M.M., New Delhi in Complaint Case No.
176/1/1006 maintenance has been granted to the writ petitioner at the rate
of Rs. 50,000/- per month with effect from 4.9.2004. An application dated
30.11.2011 had been filed by the writ petitioner before the Family Court
No. 2, Saket, New Delhi for payment of the arrears of maintenance as also
the current monthly maintenance. The said petition numbered as Petition
No. M-298/2011 is presently pending.

15. The order passed under Section 125 of the Code granting maintenance
to the writ petitioner appears to have attained finality in law. Such an
order can be executed by following the provisions of sub-Section (3) of
Section 125 of the Code. The scope and ambit of the said provision of the
Code has recently been dealt with in Poongodi and Another Vs. Thangavel[1]
wherein reference has been made to several earlier decisions on the issue.
When the enforcement and execution of an order passed under a statute is
contemplated by the statute itself, normally, an aggrieved litigant has to
take recourse to the remedy provided under the statute. In fact the
petitioner has initiated a proceeding for execution of the order of
maintenance granted in her favour. The fact that the husband (respondent
herein) against whom the order of maintenance is required to be enforced
lives outside the territory of India, in our considered view, cannot be a
reasonable basis for invoking the extraordinary remedy under Article 32 of
the Constitution inasmuch as the provisions of the Code i.e. Section 105
makes elaborate provisions for service of summons in case the person
summoned by the court resides outside the territory of India.
Comprehensive guidelines have been laid down by the Government of India
with regard to service of summons/notices/judicial process on persons
residing abroad. In view of the remedy that is available to the petitioner
under the Code and having regard to the fact that resort to such remedy has
already been made, we decline to invoke our jurisdiction under Article 32
of the Constitution in facts of the present case. Instead, we direct the
Family Court No. 2, Saket, New Delhi to pass appropriate final orders in
Petition No.M-298/2011 as expeditiously as possible. We would also like to
make it clear that in the event it is found so necessary the learned Family
Court may transfer the case to the competent criminal court whereafter the
concerned criminal court will make all endeavour to bring the proceeding to
a early conclusion.

16. We, therefore, dispose of the writ petition in the above terms.
..…………………………CJI.
[P. SATHASIVAM]

 

……..………………………J.
[RANJAN GOGOI]

 
………….……………………J.
[SHIVA KIRTI SINGH]
NEW DELHI,
FEBRUARY 18, 2014.
———————–
[1] (2013) 10 SCC 618

———————–
8

 

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