SHERISH HARDENIA Vs STATE OF M.P.
Bench: T.S. THAKUR,VIKRAMAJIT SEN
Case number: Crl.A. No.-002087-002087 / 2013
Diary number: 23213 / 2008
Advocates: PARMANAND GAUR Vs
MUSHTAQ AHMAD
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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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
(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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Crl.A @ SLP(Crl.)No.6067/2008 etc. …. (contd.)
J. [VIKRAMAJIT SEN]
New Delhi December 13, 2013.
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