Full Judgment Text
IN THE HIGH COURT OF DELHI: NEW DELHI
+ CRL. M.C. NO. 72/2011
rd
% Judgment decided on: 3 May, 2011
NEERU SHARMA & ORS. ....PETITIONERS
Through: Ms. Sima Gulati and Ms.
Sugam Puri, Advs. for the
petitioner with petitioner No 1
in person.
Versus
THE STATE (NCT, DELHI) & ANR. ….RESPONDENTS
Through: Mr. U.L. Watwani, APP for the
State with SI Pratap Singh, P.S.
Kirti Nagar.
Mr. Suresh Sisodia, Adv. for
respondent No. 2 with
respondent No. 2 in person.
Coram:
HON’BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
A.K. PATHAK, J. (Oral)
1. By way of present petition under Section 482 Cr.P.C.,
th
petitioners seek setting aside of summoning order dated 30
September, 2010 passed by the learned Metropolitan Magistrate
as also quashing of the complaint case titled “Dhirendra Singh
Chhaunkar vs. Neeru Sharma and Ors.”, pending in the court of
Metropolitan Magistrate.
Crl. M.C. No. 72-2011 Page 1 of 7
2. Respondent No.2 has filed a complaint under Section 200
Cr.P.C. before the Metropolitan Magistrate (Trial Court) praying
therein that petitioners be summoned, tried and punished for
the offences under Sections 323/324/329/379/406/417/452
/468/506 and Section 120-B IPC. After recording pre-
summoning evidence Trial Court has summoned the petitioners
under Sections 379/506/34 IPC.
3. Petitioner No. 1 is wife; whereas petitioner No. 2 is father-
in-law, petitioner No. 3 is mother-in-law, petitioner No. 4 is
sister-in-law and petitioner No. 5 is brother-in-law of respondent
No. 2 (complainant). As per the complaint, petitioners Nos. 2 to
4 compelled the respondent No. 2 to marry petitioner No. 1 on
th
8 December, 2009 in Arya Samaj Mandir, Kirti Nagar, New
Delhi. After the marriage, petitioner No. 1 and respondent No. 2
started living together. However, petitioner No.1 started
blackmailing, torturing and humiliating respondent No. 2 at the
instigation of petitioner Nos. 2 to 5. She asked the respondent
No. 2 to buy a flat for the petitioner Nos. 2 to 5 in the same
locality. She told him to pay ` 20,000/- p.m. for maintenance of
her parents. She threatened that in case her demands were not
met, she would commit suicide and falsely implicate the
th
respondent No.2. On 11 April, 2010, respondent No. 2 found
the gold and diamond jewelry of his deceased mother and
` 50,000/- in cash missing from the almirah. When he enquired
from the petitioner No. 1 as to where the jewelry and cash had
Crl. M.C. No. 72-2011 Page 2 of 7
vanished, she replied that she had taken out the same at the
instigation of her mother and sister and had passed it on to
th
them. On 13 April, 2010, when respondent No. 2 asked the
petitioner No. 1 to return the jewelry and cash, she called
petitioner Nos. 2 to 5, who came there along with 5-6 muscle
men and quarreled with him and beat him up. Thereafter,
rd
petitioner No. 1 left the matrimonial home with them. On 23
April, 2010, she again visited the matrimonial home along with
petitioner Nos. 2 to 4 and asked him to transfer all his movable
and immovable properties in her name. They threatened him
with dire consequences in case their demands were not met. He
approached police station Sunlight colony but no action was
taken. Thereafter, petitioner No. 1 filed a complaint in Crime
th
Against Women Cell (CAW Cell) on 4 June, 2010 alleging
therein that she had been treated with cruelty by the respondent
No. 2 on the point of dowry.
4. Learned counsel for the petitioners has vehemently
contended that present complaint has been filed by the
respondent No. 2 as a counterblast and in order to put pressure
on the petitioner No.1. Petitioner No. 1 was treated with cruelty
by the respondent No. 2. Sufficient dowry was given by the
parents of petitioner No.1; however, respondent No. 2 was still
not satisfied and demanded more dowry. He demanded ` 5 lacs
th th
from her on 9 /10 April, 2010. Respondent No. 2, with the
help of his brother and sister, gave beatings to petitioner No. 1
Crl. M.C. No. 72-2011 Page 3 of 7
in order to compel her to bring money from her parents.
Brother-in-law and sister-in-law of petitioner No. 1 caught hold
of her while friend of respondent No. 2, namely, Ganesh threw
ash on petitioner No. 1 after performing some puja. Petitioner
No. 1 was molested by the brother-in-law of respondent no. 2.
th
On 13 April, 2010, petitioner no. 1 was beaten badly and was
forced to leave the matrimonial home. Respondent No. 2
th st
appeared before the CAW Cell on 11 June, 2010, 21 June,
th th
2010, 30 June, 2010 and 7 July, 2010. He did not make any
complaint before the concerned officials of the CAW Cell that his
marriage was forcibly performed with petitioner No. 1 by
extending threats, inasmuch as, during the arguments of bail
application he took up a new plea that his marriage was not
performed with the petitioner no. 1 and all the documents in
this regard were forged and fabricated. In nutshell, counsel for
petitioners has contended that present complaint has been filed
in order to harass and victimize the petitioners. She has further
contended that no prima facie case was made out against the
petitioners since all the articles of either of the spouse remain in
joint possession of husband and wife and even if wife takes
some of the articles no case of theft can be said to have been
made out. Reliance has been placed on Neelam and Ors. vs.
State, 1988 (1) Crimes 545, 34(1988) DLT 152 and
Harmanpreet Singh Ahluwalia and Ors. vs. State of Punjab
and Ors., JT 2009(6) SC 375 .
Crl. M.C. No. 72-2011 Page 4 of 7
5. As against this, learned counsel for respondent No. 2 has
contended that complaint filed by the petitioner No. 1 is a
counterblast to the complaint filed by respondent No. 2. At this
nascent stage complaint against the petitioners cannot be
quashed. Allegations and counter allegations leveled by the
parties have to be tested during the trial.
6. I have considered the rival contentions of both the parties.
It is no doubt true that powers under Section 482 Cr.P.C. are to
be exercised sparingly and only in exceptional cases and not as
an appellate/revisional court. But, at the same time, it can be
exercised to prevent the abuse of process of court. In case it
emerges from the record that the prosecution has been launched
in order to harass the accused by the complainant or to wreak
personal vendetta, then High Court will be well justified in
quashing the complaint in exercise of inherent powers under
Section 482 Cr.P.C. If the court comes to the conclusion that
proceedings initiated by way of criminal complaint were uncalled
for and unjustified, then High Court is entitled to quash the
proceedings. In State of A.P. vs. Gourishetty Mahesh and
Ors., (2010) 11 SCC 226 , Supreme Court has held that though
High Court may exercise its power relating to cognizable offences
to prevent abuse of process of any Court or otherwise to secure
the ends of justice, the power should be exercised sparingly. For
example, where the allegations made in the FIR or complaint,
even if they are taken at their face value and accepted in their
Crl. M.C. No. 72-2011 Page 5 of 7
entirety do not prima facie constitute any offence or make out a
case against the accused or allegations in the FIR do not
disclose a cognizable offence or do not disclose commission of
any offence and make out a case against the accused or where
there is express legal bar provided in any of the provisions of the
Code or in any other enactment under which a criminal
proceeding is initiated or sufficient material is there to show that
the criminal proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused due to private
and personal grudge, the High Court may step in.
7. In the facts of this case, the present complaint, pursuant
whereof FIR in question has been registered, appears to be a
counterblast to the complaint of the petitioner No. 1 before the
CAW Cell. Present complaint appears to have been filed by
respondent no.2 in order to exert pressure on petitioner No. 1 to
come to terms with him. This fact is evident from the allegations
made in the FIR. Though respondent No. 2 claims that his
marriage with petitioner No. 1 was solemnized by petitioner Nos.
th
2 to 5 under threat on 8 December, 2009, however, no such
complaint was filed immediately after the marriage. Respondent
No. 2 claims that petitioner No. 1 had removed the jewelry and
th
` 50,000/- in cash on 13 April, 2010 from the Almirah.
Immediately after the incident no prompt action was taken to
lodge the complaint. No such plea was even taken before the
CAW Cell though he had participated in the proceedings as
Crl. M.C. No. 72-2011 Page 6 of 7
many as on five occasions. He has filed this complaint only after
the complaint was filed by the petitioner no. 1 in the CAW Cell.
That apart, he has virtually roped in entire family of his wife.
This itself shows that the present complaint has been filed
maliciously in order to exert pressure on the wife to come to
terms with him.
8. If the matter is examined from another angle then also
ingredients of offence of theft are not disclosed. For constituting
the offence of theft, essential ingredient is removal of a movable
article from somebody’s possession and that removal must be in
pursuance of dishonest intention. At the time of alleged incident
of theft, husband and wife were living together. All the articles,
including jewelry, were lying in the Almirah which was in their
joint possession. Thus, it was for their common use and
enjoyment. It is not the case that wife had taken any jewelry
after breaking open the Almirah. Thus, even if jewelry and cash
had been taken by the wife, same being in joint possession of
the spouses, the offence of theft is not made out.
9. For the foregoing reasons, complaint case No. 113/2001
titled as “Dhirendra Singh Chhaunkar vs. Neeru Sharma and
Ors.” is quashed.
10. Petition is disposed of in the above terms.
A.K. PATHAK, J.
MAY 03, 2011/ rb
Crl. M.C. No. 72-2011 Page 7 of 7
+ CRL. M.C. NO. 72/2011
rd
% Judgment decided on: 3 May, 2011
NEERU SHARMA & ORS. ....PETITIONERS
Through: Ms. Sima Gulati and Ms.
Sugam Puri, Advs. for the
petitioner with petitioner No 1
in person.
Versus
THE STATE (NCT, DELHI) & ANR. ….RESPONDENTS
Through: Mr. U.L. Watwani, APP for the
State with SI Pratap Singh, P.S.
Kirti Nagar.
Mr. Suresh Sisodia, Adv. for
respondent No. 2 with
respondent No. 2 in person.
Coram:
HON’BLE MR. JUSTICE A.K. PATHAK
1. Whether the Reporters of local papers
may be allowed to see the judgment? No
2. To be referred to Reporter or not? No
3. Whether the judgment should be
reported in the Digest? No
A.K. PATHAK, J. (Oral)
1. By way of present petition under Section 482 Cr.P.C.,
th
petitioners seek setting aside of summoning order dated 30
September, 2010 passed by the learned Metropolitan Magistrate
as also quashing of the complaint case titled “Dhirendra Singh
Chhaunkar vs. Neeru Sharma and Ors.”, pending in the court of
Metropolitan Magistrate.
Crl. M.C. No. 72-2011 Page 1 of 7
2. Respondent No.2 has filed a complaint under Section 200
Cr.P.C. before the Metropolitan Magistrate (Trial Court) praying
therein that petitioners be summoned, tried and punished for
the offences under Sections 323/324/329/379/406/417/452
/468/506 and Section 120-B IPC. After recording pre-
summoning evidence Trial Court has summoned the petitioners
under Sections 379/506/34 IPC.
3. Petitioner No. 1 is wife; whereas petitioner No. 2 is father-
in-law, petitioner No. 3 is mother-in-law, petitioner No. 4 is
sister-in-law and petitioner No. 5 is brother-in-law of respondent
No. 2 (complainant). As per the complaint, petitioners Nos. 2 to
4 compelled the respondent No. 2 to marry petitioner No. 1 on
th
8 December, 2009 in Arya Samaj Mandir, Kirti Nagar, New
Delhi. After the marriage, petitioner No. 1 and respondent No. 2
started living together. However, petitioner No.1 started
blackmailing, torturing and humiliating respondent No. 2 at the
instigation of petitioner Nos. 2 to 5. She asked the respondent
No. 2 to buy a flat for the petitioner Nos. 2 to 5 in the same
locality. She told him to pay ` 20,000/- p.m. for maintenance of
her parents. She threatened that in case her demands were not
met, she would commit suicide and falsely implicate the
th
respondent No.2. On 11 April, 2010, respondent No. 2 found
the gold and diamond jewelry of his deceased mother and
` 50,000/- in cash missing from the almirah. When he enquired
from the petitioner No. 1 as to where the jewelry and cash had
Crl. M.C. No. 72-2011 Page 2 of 7
vanished, she replied that she had taken out the same at the
instigation of her mother and sister and had passed it on to
th
them. On 13 April, 2010, when respondent No. 2 asked the
petitioner No. 1 to return the jewelry and cash, she called
petitioner Nos. 2 to 5, who came there along with 5-6 muscle
men and quarreled with him and beat him up. Thereafter,
rd
petitioner No. 1 left the matrimonial home with them. On 23
April, 2010, she again visited the matrimonial home along with
petitioner Nos. 2 to 4 and asked him to transfer all his movable
and immovable properties in her name. They threatened him
with dire consequences in case their demands were not met. He
approached police station Sunlight colony but no action was
taken. Thereafter, petitioner No. 1 filed a complaint in Crime
th
Against Women Cell (CAW Cell) on 4 June, 2010 alleging
therein that she had been treated with cruelty by the respondent
No. 2 on the point of dowry.
4. Learned counsel for the petitioners has vehemently
contended that present complaint has been filed by the
respondent No. 2 as a counterblast and in order to put pressure
on the petitioner No.1. Petitioner No. 1 was treated with cruelty
by the respondent No. 2. Sufficient dowry was given by the
parents of petitioner No.1; however, respondent No. 2 was still
not satisfied and demanded more dowry. He demanded ` 5 lacs
th th
from her on 9 /10 April, 2010. Respondent No. 2, with the
help of his brother and sister, gave beatings to petitioner No. 1
Crl. M.C. No. 72-2011 Page 3 of 7
in order to compel her to bring money from her parents.
Brother-in-law and sister-in-law of petitioner No. 1 caught hold
of her while friend of respondent No. 2, namely, Ganesh threw
ash on petitioner No. 1 after performing some puja. Petitioner
No. 1 was molested by the brother-in-law of respondent no. 2.
th
On 13 April, 2010, petitioner no. 1 was beaten badly and was
forced to leave the matrimonial home. Respondent No. 2
th st
appeared before the CAW Cell on 11 June, 2010, 21 June,
th th
2010, 30 June, 2010 and 7 July, 2010. He did not make any
complaint before the concerned officials of the CAW Cell that his
marriage was forcibly performed with petitioner No. 1 by
extending threats, inasmuch as, during the arguments of bail
application he took up a new plea that his marriage was not
performed with the petitioner no. 1 and all the documents in
this regard were forged and fabricated. In nutshell, counsel for
petitioners has contended that present complaint has been filed
in order to harass and victimize the petitioners. She has further
contended that no prima facie case was made out against the
petitioners since all the articles of either of the spouse remain in
joint possession of husband and wife and even if wife takes
some of the articles no case of theft can be said to have been
made out. Reliance has been placed on Neelam and Ors. vs.
State, 1988 (1) Crimes 545, 34(1988) DLT 152 and
Harmanpreet Singh Ahluwalia and Ors. vs. State of Punjab
and Ors., JT 2009(6) SC 375 .
Crl. M.C. No. 72-2011 Page 4 of 7
5. As against this, learned counsel for respondent No. 2 has
contended that complaint filed by the petitioner No. 1 is a
counterblast to the complaint filed by respondent No. 2. At this
nascent stage complaint against the petitioners cannot be
quashed. Allegations and counter allegations leveled by the
parties have to be tested during the trial.
6. I have considered the rival contentions of both the parties.
It is no doubt true that powers under Section 482 Cr.P.C. are to
be exercised sparingly and only in exceptional cases and not as
an appellate/revisional court. But, at the same time, it can be
exercised to prevent the abuse of process of court. In case it
emerges from the record that the prosecution has been launched
in order to harass the accused by the complainant or to wreak
personal vendetta, then High Court will be well justified in
quashing the complaint in exercise of inherent powers under
Section 482 Cr.P.C. If the court comes to the conclusion that
proceedings initiated by way of criminal complaint were uncalled
for and unjustified, then High Court is entitled to quash the
proceedings. In State of A.P. vs. Gourishetty Mahesh and
Ors., (2010) 11 SCC 226 , Supreme Court has held that though
High Court may exercise its power relating to cognizable offences
to prevent abuse of process of any Court or otherwise to secure
the ends of justice, the power should be exercised sparingly. For
example, where the allegations made in the FIR or complaint,
even if they are taken at their face value and accepted in their
Crl. M.C. No. 72-2011 Page 5 of 7
entirety do not prima facie constitute any offence or make out a
case against the accused or allegations in the FIR do not
disclose a cognizable offence or do not disclose commission of
any offence and make out a case against the accused or where
there is express legal bar provided in any of the provisions of the
Code or in any other enactment under which a criminal
proceeding is initiated or sufficient material is there to show that
the criminal proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused due to private
and personal grudge, the High Court may step in.
7. In the facts of this case, the present complaint, pursuant
whereof FIR in question has been registered, appears to be a
counterblast to the complaint of the petitioner No. 1 before the
CAW Cell. Present complaint appears to have been filed by
respondent no.2 in order to exert pressure on petitioner No. 1 to
come to terms with him. This fact is evident from the allegations
made in the FIR. Though respondent No. 2 claims that his
marriage with petitioner No. 1 was solemnized by petitioner Nos.
th
2 to 5 under threat on 8 December, 2009, however, no such
complaint was filed immediately after the marriage. Respondent
No. 2 claims that petitioner No. 1 had removed the jewelry and
th
` 50,000/- in cash on 13 April, 2010 from the Almirah.
Immediately after the incident no prompt action was taken to
lodge the complaint. No such plea was even taken before the
CAW Cell though he had participated in the proceedings as
Crl. M.C. No. 72-2011 Page 6 of 7
many as on five occasions. He has filed this complaint only after
the complaint was filed by the petitioner no. 1 in the CAW Cell.
That apart, he has virtually roped in entire family of his wife.
This itself shows that the present complaint has been filed
maliciously in order to exert pressure on the wife to come to
terms with him.
8. If the matter is examined from another angle then also
ingredients of offence of theft are not disclosed. For constituting
the offence of theft, essential ingredient is removal of a movable
article from somebody’s possession and that removal must be in
pursuance of dishonest intention. At the time of alleged incident
of theft, husband and wife were living together. All the articles,
including jewelry, were lying in the Almirah which was in their
joint possession. Thus, it was for their common use and
enjoyment. It is not the case that wife had taken any jewelry
after breaking open the Almirah. Thus, even if jewelry and cash
had been taken by the wife, same being in joint possession of
the spouses, the offence of theft is not made out.
9. For the foregoing reasons, complaint case No. 113/2001
titled as “Dhirendra Singh Chhaunkar vs. Neeru Sharma and
Ors.” is quashed.
10. Petition is disposed of in the above terms.
A.K. PATHAK, J.
MAY 03, 2011/ rb
Crl. M.C. No. 72-2011 Page 7 of 7