Supreme Court: Discharge of 498a & 406, Onkar Nath Mishra Vs State, 14.12.2007, Justice Ashok Bain & Justice D.K. Jain

Supreme Court: Discharge of 498a & 406, Onkar Nath Mishra Vs State, 14.12.2007, Justice Ashok Bain & Justice D.K. Jain

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

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 fatherin-
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

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

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 aforeextracted
complaint as also the relevant portion of the chargesheet
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

articles back when this offer was made to her by the
Investigating Officer. Therefore, in our opinion, the very prerequisite
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.