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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.

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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  

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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,  

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“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  

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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  

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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  

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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  

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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.

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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.

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(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  

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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

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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]

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…..........……………………J. [SHIVA KIRTI SINGH]

NEW DELHI, FEBRUARY 18, 2014.

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