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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

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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)

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.

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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.  

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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  

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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  

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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 =  

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(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]

      ............................................

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J. [VIKRAMAJIT SEN]

New Delhi December 13, 2013.

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