BHASKAR LAL SHARMA Vs MONICA .
Bench: P SATHASIVAM,RANJAN GOGOI,SHIVA KIRTI SINGH
Case number: Crl.A. No.-000435-000436 / 2014
Diary number: 12698 / 2008
Advocates: RISHI MALHOTRA Vs
RESPONDENT-IN-PERSON
Page 1
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.
1
Page 2
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
2
Page 3
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,
3
Page 4
“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
4
Page 5
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
5
Page 6
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
6
Page 7
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
7
Page 8
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.
8
Page 9
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.
9
Page 10
(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
10
Page 11
the Code. The scope and ambit of the said provision of the
Code has recently been dealt with in Poongodi and
Another Vs. Thangavel1 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 1 (2013) 10 SCC 618
11
Page 12
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]
12
Page 13
…..........……………………J. [SHIVA KIRTI SINGH]
NEW DELHI, FEBRUARY 18, 2014.
13