IN THE COURT OF SHRI SANJAY SHARMA ADDITIONAL SESSIONS JUDGE III (EAST) KARKARDOOMA COURTS :
DELHI Crl. Revision No. 29/2009
Shri Bhola Nath Khanna S/o Late Shri Baij Nath R/o House No. 40B MIG Flats, RMII, Sector2, Rajinder Nagar, Sahibabad, Ghaziabad, UP ...... Revisionist
VERSUS
1. The State of NCT of Delhi
2. Shri Yash Pal Kumar S/o Late Shri Bisheshar Nath R/o 107/45 East Azad Nagar Gali No. 5 Delhi...Respondents
(In CC No. 260/2007 U/S 3, The Dowry Prohibition Act PS Krishna Nagar)
O R D E R :
The present revision has been preferred against the impugned order of Ld. MM dt. 28.3.2009 vide which the criminal complaint filed by revisionist was dismissed under Section 203 Cr. PC.
2.The brief facts giving rise to the present revision petition are that the son of the petitioner namely Sanjay Khanna was married to the daughter of respondent No. 2 namely Ruchi Khanna on 17.12.2006. Within an year of the marriage, because of some matrimonial discord, both the parties separated and subsequently Ruchi Khanna filed a complaint before the CAW Cell on 21.4.2007 on which FIR No. 393/2007 was registered U/S 498A/406/34 IPC at PS Krishna Nagar against the revisionist and his familymembers including his son . Apart from that she also filed a petition under Section 125 Cr. PC. In the said FIR as well as the petition U/S 125 Cr. PC, it was alleged by the complainant that there was a huge demand of dowry on the part of revisionist and the other accused of that case which was fulfilled by her father and that a sum of Rs. 8 Lacs were spent in the marriage. The revisionist filed a criminal complaint case under Section 3 of The Dowry Prohibition Act alleging therein that as per the allegations made in the complaint by Ruchi Khanna as also in her petition under Section 125 Cr. PC, her father gave dowry on the alleged demand of the revisionist and as per Section 3 of The Dowry Prohibition Act, giving of dowry is also an offence. It was, thus, prayed that respondent No. 2 be summoned for the said offence.
3.The revisionist led his presummoning evidence before the Ld.Trial Court and examined three witnesses. CW1 was the revisionist himself who deposed the facts, as alleged above and that a false FIR was got registered against him and his other family members as also a false petition U/S 125 Cr. PC against his son in which it was falsely alleged that on the demand being made by him, dowry was given in the marriage. CW2 Sanjay Khanna was his son and he also deposed similar facts. CW3 Brahm Singh Naib Nazir in the Court of Ms. Neerja Bhatia Ld. MM brought the judicial file of case FIR No. 393/2007 got lodged by the daughter of respondent No. 2 and proved the original complaint, original list of dowry articles, copy of FIR and petition U/S 125 Cr. PC.
4.By the impugned order Ld. MM dismissed the complaint under Section 203 Cr. PC holding that the complainant (revisionist herein) had taken contradictory stand, since on one hand, he claimed that the allegations regarding the demand of dowry are false and on the other hand, he pleaded that the allegations of demand of dowry by the complainant, as made by the complainant in the said State case, be accepted as true. Aggrieved by the said order the present revision has been filed.
5. I have heard Shri Sanjay Gupta Adv. for the revisionist and Ld. Addl. PP for the State/respondent No. 1. Since respondent No. 2 was never summoned, hence, notice to him was dispensed with . The Trial Court Record was also summoned and perused.
6. There is a basic difference between the accusation/allegations and the defence. Both cannot be taken together. Ld. MM while passing the impugned order, in my considered opinion , was confused between the two. The complaint filed by the revisionist was on the basis of the FIR which was lodged by Ruchi Khanna and what was required by the Ld. MM was to see whether the said FIR contained any such allegations that on the demand made by the revisionist, dowry was given by her father/respondent No. 2 in the marriage or after the marriage or whether the list of dowry articles as given in the said FIR , was in conformity with the rules made under the Dowry Prohibition Act. After taking into consideration the contents of the FIR, Ld. MM took note of the defence of the revisionist in the said case which was denial about the said allegations. In case the revisionist would not have denied the fact, as asserted by the wife of his son in the FIR, it could well have been taken as admission in the said State case and could have resulted in his conviction in that case. It was incumbent upon the Ld. MM to see and to restrict the findings, whether from the contents of the FIR and the petition under Section 125 Cr. PC, any offence under Section 3 of The Dowry Prohibition Act is made out or not. At the time of summoning under Section 204 Cr. PC, the Court of Ld. MM has very limited scope and it has to only see whether any prima facie case is disclosed or not, without considering the defence of either of the parties. The intention of the complainant was to bring to the notice of Ld. Trial Court, the statement of daughterinlaw of the revisionist wherein she had alleged that the dowry was given on the demand of the revisionist. Section 3 of The Dowry Prohibition Act provides that giving or taking dowry both are an offence.
7. Ld. Counsel for the revisionist had relied upon a judgment of the Hon'ble Delhi High Court in Neera Singh Vs. State 2008 (3) RCR (Crl.) 287. In that case too in similar situation , in the FIR the complainant had alleged that the dowry was given as per the demand of her inlaws. Taking note of those allegations, the Hon'ble High Court observed that the Ld. MM should have taken cognizance of the offence under the Dowry Prohibition Act which prohibits giving and taking of dowry. It was also observed that the list of dowry articles, which generally in the such cases, is not in conformity with the Rule 2 of the Rules made under The Dowry Prohibition Act.
8. The defence of the accused in the State case under Section 498 A/406 IPC is not to be considered while deciding whether summoning of the accused is made out or not. In the instant case, in my opinion , Ld. Trial Court erred in taking note of the defence of the accused which was the defence in the said State case lodged by the daughter of respondent No. 2 under Section 406/498A IPC. Ld. MM was supposed to confine himself with the contents of the FIR and the petition under Section 125 Cr. PC which were duly proved on record during the inquiry under Section 202 Cr. PC as to whether any offence under Section 3 of The Dowry Prohibition Act was disclosed or not.
9. On considering the entire trial court record including the statement of CW1, CW2 and CW3, I am of the opinion that the contents of the FIR No. 393/2007 of PS Krishna Nagar under Section 498A/406/34 IPC and the petition under Section 125 Cr. PC filed by Ruchi Khanna clearly discloses the allegation that respondent No. 2 gave dowry on the alleged demand made by the revisionist. Since under Section 3 of The Dowry Prohibition Act, giving of dowry is also an offence, therefore, he is prima facie guilty under Section 3 of the said Act.
10. Thus, in light of the above, I am of the view that the impugned order of the Ld. MM dt. 28.3.2009 is not in conformity with the law as also the judgment delivered in Neera Singh's case (supra). Accordingly, the impugned order of Ld. MM dt. 28.3.2009 is set aside and the revision stands allowed. Accordingly the complaint case bearing No. 260/2007 is restored to its original position and number with directions to the Ld. Trial Court to issue process against respondent No. 2 for the offence punishable U/S 3 of the Dowry Prohibition Act. The present revision petition stands disposed of accordingly. Revision file be consigned to Record Room. TCR be sent back to the Ld. Trial Court along with a copy of the order. Both the parties are directed to appear before the Court of Ld. MM on 29.7.2009.
ANNOUNCED IN OPEN COURT ON 18th day of July 2009 (SANJAY SHARMA)
ADDL. SESSIONS JUDGE(EAST) III
KARKARDOOMA COURTS : DELHI
DELHI Crl. Revision No. 29/2009
Shri Bhola Nath Khanna S/o Late Shri Baij Nath R/o House No. 40B MIG Flats, RMII, Sector2, Rajinder Nagar, Sahibabad, Ghaziabad, UP ...... Revisionist
VERSUS
1. The State of NCT of Delhi
2. Shri Yash Pal Kumar S/o Late Shri Bisheshar Nath R/o 107/45 East Azad Nagar Gali No. 5 Delhi...Respondents
(In CC No. 260/2007 U/S 3, The Dowry Prohibition Act PS Krishna Nagar)
O R D E R :
The present revision has been preferred against the impugned order of Ld. MM dt. 28.3.2009 vide which the criminal complaint filed by revisionist was dismissed under Section 203 Cr. PC.
2.The brief facts giving rise to the present revision petition are that the son of the petitioner namely Sanjay Khanna was married to the daughter of respondent No. 2 namely Ruchi Khanna on 17.12.2006. Within an year of the marriage, because of some matrimonial discord, both the parties separated and subsequently Ruchi Khanna filed a complaint before the CAW Cell on 21.4.2007 on which FIR No. 393/2007 was registered U/S 498A/406/34 IPC at PS Krishna Nagar against the revisionist and his familymembers including his son . Apart from that she also filed a petition under Section 125 Cr. PC. In the said FIR as well as the petition U/S 125 Cr. PC, it was alleged by the complainant that there was a huge demand of dowry on the part of revisionist and the other accused of that case which was fulfilled by her father and that a sum of Rs. 8 Lacs were spent in the marriage. The revisionist filed a criminal complaint case under Section 3 of The Dowry Prohibition Act alleging therein that as per the allegations made in the complaint by Ruchi Khanna as also in her petition under Section 125 Cr. PC, her father gave dowry on the alleged demand of the revisionist and as per Section 3 of The Dowry Prohibition Act, giving of dowry is also an offence. It was, thus, prayed that respondent No. 2 be summoned for the said offence.
3.The revisionist led his presummoning evidence before the Ld.Trial Court and examined three witnesses. CW1 was the revisionist himself who deposed the facts, as alleged above and that a false FIR was got registered against him and his other family members as also a false petition U/S 125 Cr. PC against his son in which it was falsely alleged that on the demand being made by him, dowry was given in the marriage. CW2 Sanjay Khanna was his son and he also deposed similar facts. CW3 Brahm Singh Naib Nazir in the Court of Ms. Neerja Bhatia Ld. MM brought the judicial file of case FIR No. 393/2007 got lodged by the daughter of respondent No. 2 and proved the original complaint, original list of dowry articles, copy of FIR and petition U/S 125 Cr. PC.
4.By the impugned order Ld. MM dismissed the complaint under Section 203 Cr. PC holding that the complainant (revisionist herein) had taken contradictory stand, since on one hand, he claimed that the allegations regarding the demand of dowry are false and on the other hand, he pleaded that the allegations of demand of dowry by the complainant, as made by the complainant in the said State case, be accepted as true. Aggrieved by the said order the present revision has been filed.
5. I have heard Shri Sanjay Gupta Adv. for the revisionist and Ld. Addl. PP for the State/respondent No. 1. Since respondent No. 2 was never summoned, hence, notice to him was dispensed with . The Trial Court Record was also summoned and perused.
6. There is a basic difference between the accusation/allegations and the defence. Both cannot be taken together. Ld. MM while passing the impugned order, in my considered opinion , was confused between the two. The complaint filed by the revisionist was on the basis of the FIR which was lodged by Ruchi Khanna and what was required by the Ld. MM was to see whether the said FIR contained any such allegations that on the demand made by the revisionist, dowry was given by her father/respondent No. 2 in the marriage or after the marriage or whether the list of dowry articles as given in the said FIR , was in conformity with the rules made under the Dowry Prohibition Act. After taking into consideration the contents of the FIR, Ld. MM took note of the defence of the revisionist in the said case which was denial about the said allegations. In case the revisionist would not have denied the fact, as asserted by the wife of his son in the FIR, it could well have been taken as admission in the said State case and could have resulted in his conviction in that case. It was incumbent upon the Ld. MM to see and to restrict the findings, whether from the contents of the FIR and the petition under Section 125 Cr. PC, any offence under Section 3 of The Dowry Prohibition Act is made out or not. At the time of summoning under Section 204 Cr. PC, the Court of Ld. MM has very limited scope and it has to only see whether any prima facie case is disclosed or not, without considering the defence of either of the parties. The intention of the complainant was to bring to the notice of Ld. Trial Court, the statement of daughterinlaw of the revisionist wherein she had alleged that the dowry was given on the demand of the revisionist. Section 3 of The Dowry Prohibition Act provides that giving or taking dowry both are an offence.
7. Ld. Counsel for the revisionist had relied upon a judgment of the Hon'ble Delhi High Court in Neera Singh Vs. State 2008 (3) RCR (Crl.) 287. In that case too in similar situation , in the FIR the complainant had alleged that the dowry was given as per the demand of her inlaws. Taking note of those allegations, the Hon'ble High Court observed that the Ld. MM should have taken cognizance of the offence under the Dowry Prohibition Act which prohibits giving and taking of dowry. It was also observed that the list of dowry articles, which generally in the such cases, is not in conformity with the Rule 2 of the Rules made under The Dowry Prohibition Act.
8. The defence of the accused in the State case under Section 498 A/406 IPC is not to be considered while deciding whether summoning of the accused is made out or not. In the instant case, in my opinion , Ld. Trial Court erred in taking note of the defence of the accused which was the defence in the said State case lodged by the daughter of respondent No. 2 under Section 406/498A IPC. Ld. MM was supposed to confine himself with the contents of the FIR and the petition under Section 125 Cr. PC which were duly proved on record during the inquiry under Section 202 Cr. PC as to whether any offence under Section 3 of The Dowry Prohibition Act was disclosed or not.
9. On considering the entire trial court record including the statement of CW1, CW2 and CW3, I am of the opinion that the contents of the FIR No. 393/2007 of PS Krishna Nagar under Section 498A/406/34 IPC and the petition under Section 125 Cr. PC filed by Ruchi Khanna clearly discloses the allegation that respondent No. 2 gave dowry on the alleged demand made by the revisionist. Since under Section 3 of The Dowry Prohibition Act, giving of dowry is also an offence, therefore, he is prima facie guilty under Section 3 of the said Act.
10. Thus, in light of the above, I am of the view that the impugned order of the Ld. MM dt. 28.3.2009 is not in conformity with the law as also the judgment delivered in Neera Singh's case (supra). Accordingly, the impugned order of Ld. MM dt. 28.3.2009 is set aside and the revision stands allowed. Accordingly the complaint case bearing No. 260/2007 is restored to its original position and number with directions to the Ld. Trial Court to issue process against respondent No. 2 for the offence punishable U/S 3 of the Dowry Prohibition Act. The present revision petition stands disposed of accordingly. Revision file be consigned to Record Room. TCR be sent back to the Ld. Trial Court along with a copy of the order. Both the parties are directed to appear before the Court of Ld. MM on 29.7.2009.
ANNOUNCED IN OPEN COURT ON 18th day of July 2009 (SANJAY SHARMA)
ADDL. SESSIONS JUDGE(EAST) III
KARKARDOOMA COURTS : DELHI
Generally it creates so much doubt if one reads by bare act. thanx?
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