Gowthami Amirthalingam v. State Rep by

ORDER This Criminal Original Petition is filed by the petitioners to call for the records of proceedings in C.C.No.347 of 2021 on the file of the learned Judicial Magistrate, Additional Mahila Court, Namakkal in Cr.No.20 of 2019 on the file of the 1st respondent as against the petitioner No.1/Accused No.4 for the alleged offence under section 498(A) of IPC and as against the petitioner No.2/Accused No.5 for alleged offence under section 498A, 506(i) of IPC and to quash the proceedings as against the petitioners.

¶2The learned counsel for the petitioners contended that the petitioners are A4 and A5 in C.C.No.347 of 2021. In pursuance of the complaint given by the defacto complainant Deepa, a case has been registered in Cr.No.20 of 2019 by the 1st respondent police against A1 to A5. A1 is the husband of the defacto complainant. A2 and A3 are the in-laws of defacto complainant. A4 and A5 who are the petitioners herein are sister and brother in law of A1. After investigation, the 1st respondent police filed a final report against the accused for the offence under sections 498A and 506(i) IPC, which was taken on the file of the learned Judicial Magistrate Additional Mahila Court, Namakkal.

¶3The learned counsel further contended that against these petitioners, the trial court framed charges for the offence under sections 498 A IPC and 506(i) IPC. The marriage between A1 and the defacto complainant took place on 1.1.2017 at Namakkal. After marriage, they resided at German. The petitioners, who are sister of A1 and brother in law of A1 are the permanent residents of Sweden. Since there is a difference of opinion between A1 and defacto complainant at German, divorce proceedings were initiated at the Famil Court of Esslingen, Gernmany which culminated in annulment of marriage with effect from 31.07.2019 and before that, there is an exchange of legal ntoices between them.

¶4He further submitted that after marriage they opened joint account and availed locker facility in Andhra Bank, Vadavalli, Coimbatore and left for Germany and did not visit India till they got separated. With regard to return of jewels of the defacto complainant, the defacto complainant herself fixed a date on 24.12.2019 to get back the jewels from the bank locker and it was also informed by the defacto complainant's counsel to the counsel of the A1/husband. Further, there is no specific allegation in the statement of the defacto complainant with regard to the involvement of these petitioners demanding dowry from the defacto complainant or harassing her and also threatened her on 24.12.2019. Under these circumstances, the criminal proceedings against the petitioners is misusing the process of court. After getting divorce, in order to take vengeance against these petitioners, they were implicated in the offence by the defacto complainant with malafide intention. Therefore, the criminal proceedings against the petitioners has to be quashed. To support his arguments, he relied upon the judgment of the Supreme Court, reported in the case of Kahkashan Kausar and others vs. State of Bihar and others reported in MANU/SC/0163/2022.

¶5The learned Govt. Advocate (crl.side) appearing for the 1st respondent submitted that in the statement of the defacto complainant, she stated about the demand of dowry by these petitioners and also the threatening made by the 2nd petitioner on 24.12.2019 after taking out jewels from the bank. Under these circumstances, these factual aspects had to be adjudicated by letting evidence before the trial court and therefore, it is not proper to quash the criminal proceedings against the petitioners. Thus he seeks to dismissal of this petition.

¶6Heard the learned counsel appearing for the petitioners and the learned Govt. Advocate (crl.side) appearing for the 1st respondent.

¶7Perusal of records would reveal that the petitioners are sister's husband of the first accused namely Arun Amirthalingam and the defacto complainant Deepa married the first accused on 01.01.2017. Thereafter, they lived at German. During that period, there was a difference of opinion between them and exchange of legal notices. Finally, they got divorced at German on 31.07.2019. The fact that divorce has been granted by the German Court between the husband and wife is not disputed. Further, the date of divorce i.e., 31.07.2019 is also not disputed. Further, with regard to return of jewels of the defacto complainant there was exchange of notices between the counsel of both parties and finally the defacto complainant fixed the date on December 24th 2019 and opened the bank locker. It was communicated by the defacto complainant counsel to the husband/A1's counsel. It is also not disputed. On 24.12.2019, the bank locker was opened and the defacto complainant took all her jewels. Subsequently on

28.12.2019, before the respondent police, a complaint was lodged before the respondent police and in pursuance of the complaint, a case has been registered against the accused in FIR.No.20 of 2019 for the offence under sections 294(b), 498A, 506(ii) IPC.

¶8On perusal of the statement of the defacto complainant, there is no specific allegation against the petitioners with regard to the demand of dowry and harassment in pursuance of demanding dowry. For better appreciation, the statement of Deepa/defacto complainant is reproduced hereunder; 161(3) Cr.P.C thf;FK:yk; jPgh(33) f-bg/ uhn$e;jpud;. f/vz;/ 5-28 ? gp nryk; nuhL/ 6tJ fpuh!;. KUfd; nfhapy;. ehkf;fy; ehs; 28/12/2019 ehd; ehkf;fy;. nryk; nuhL. KUfd; nfhapy;. 6TJ fpuh!;. f/vz; 5-28 ? gp trpj;J tUfpnwd;/ ehd; gp blf; goj;Js;nsd;. ehd; fle;j 2014?k; tUlk; Kjy; b$h;kdp ehl;oy; cs;s !;Ll;fhl; efhpy; O?!p!;lk; vd;w fk;bgdpapy; bkd;bghUs; bghwpahsuhf ntiy bra;J tUfpnwd;/ ehd; eha[L rK:fj;ij nrh;e;jts;/ vdf;Fk; nfhit ghujpahh; a[dpth;rpl;o m";ry;. fpUc;&zh bjU. Thpnah fhh;ld; mbtd;a{ vz; 26 vd;w Kfthpapy; trpj;J tUk; njth';f brl;oahh; rK:fj;ij nrh;e;j mkph;jyp';fk; kfd; mUz; vd;gtUf;Fk; jkpH;

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¶9Perusal of the above statement reveals that against these petitioners only a general allegation has been attributed by the defacto complainant. It is to be noted that the complaint is emerged after granting of divorce to the defacto complainant and after two days of taking the jewels of the defacto complainant from the locker, the complaint has been lodged. Under these circumstances, the principle stated by the Supreme Court in Kahkashan Kausar and others vs. State of Bihar and others reported in MANU/SC/0163/2022 is to be taken for guidance. For better appreciation, it is reproduced hereunder; "11. Having perused the relevant facts and contentions made by the Appellants and Respondents, in our considered opinion, the foremost issue which requires determination in the instant case is whether allegations made against the in-laws Appellants are in the nature of general omnibus allegations and therefore liable to be quashed?

¶12Before we delve into greater detail on the nature and content of allegations made, it becomes pertinent to mention that incorporation of Section 498A of Indian Penal code was aimed at preventing cruelty committed upon a woman by her husband and her in-laws, by facilitating rapid state intervention. However, it is equally true, that in recent times, matrimonial litigation in the country has also increased significantly and there is a greater disaffection and friction surrounding the institution of marriage, now, more than ever. This has resulted in an increased tendency of emply provisions such as 498A Indian Penal Code as instruments to settle personal scores against the husband and his relatives.

1.3 This court in its judgment in Rajesh Sharma and Ors. v. State of U.P. And Anr.MANU/SC/0909/2017: (2018) 10 SCC 472, has observed:

¶14Section 498-A was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498A covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawfu demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. This Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bonafide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the Accused but also to the complainant. Uncalled for arrest mayt ruin the chances of settlement.

¶14Previously, in the landmark judgment of this court in Arnesh Kumar v. State of Bihar and Anr. MA NU/SC/0559/2014: (2014) 8 SCC 273, it was also observed:

¶4There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage isgreatly revered in this country. Section 498-A Indian Penal Code was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that section 498-A Indian Penal Code is a cognizable and non-bailable offence has lent it a dubious place of pride amongs the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grandfathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested.

¶15Further in Preeti Gupta and Anr. v. State of Jharkhand and Anr.MANU/SC/0592/2010 : (2010) 7 SCC 667, it has also been observed:

¶32It is a matter of common experience that most of these complaints Under Section 498A Indian Penal code are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

¶33The learned Members of the Bar have enomous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned Members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must dischare their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

3.4. Unfortunately, at the time of filing of the complaint the implications and consequences are not properlty visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, Accused and his close relations.

3.5. The ultimate object of justice is to find out the truty and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint arerequired to be scrutinised with great care and circumspection.

¶36Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that incases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.

¶16In Geeta Mehrotra and Anr.V. State of U.P. And Anr. MANU/SC/0895/2012: (2012) 10 SCC 741, it was observed:

¶21It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V.Rao v. L.H.V. Prasad and Ors. Reported in MANU/SC/3156/2000 : (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:: there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial sirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved wiht the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes.

¶17Recent,y in K.Subba Rao, V. The State of Telangana MANU/SC/0880/2018 : (2018) 14 SCC 452, it was also observed that:

¶6The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.

¶18The above-mentioned decisions clearly demonstrate that this Court has at numerous instances expressed concern over the misuse of section 498A Indian Penal Code and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.

¶19Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the appellants. The complainant alleged that 'all Accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each Accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High Court, we have not examined the veracity of allegations made against him. However, as far as the appellants are concerned, the allegations made against them being general and omni bus, do not warrant prosecution.

20.Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No.1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md.Ikram befor ethe Ld. Principal Judge Purnea, to not harass the respondent wife herein for dowry and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated

01.04.2019 is distinct and independent, and cannot be termed as a repetion of an earlier FIR dated 11.12.17.

¶21Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an a use of the process of law.

¶22Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

¶10Applying the above principle, in this case also, the statement of defacto complainant is only general against the petitioners. There is no specific date mentioning, on which date, these petitioners have threatened the defacto complainant and harassed her. Further, it is to be noted that the petitioners are residing at Sweden and this defacto complainant and her husband are residing at German. The problem took place between the defacto complainant and her husband in German and they have got divorced in German. Only they came to India to open the locker and take back the jewels of the defacto complainant on 24.12.2019. In these circumstances, there is no offence made out against the petitioners for the offence under sections 498A and 506(i) IPC.

¶11In view of the foregoing discussions, this court is of the view that the proceedings against the petitioners in C.C.No.347 of 2021 is unsustainable and is liable to be quashed. Accordingly, the criminal proceedings against the petitioners in C.C.No.347 of 2021 on the file of Judicial Magistrate, Additional Mahila Court, Namakkal is hereby quashed. The Criminal Original Petition is allowed. Consequently, the connected miscellaneous petitions are closed.

19.09.2023 Index:Yes/No Internet:Yes/No msr To

¶1The Judicial Magistrate, Additional Mahila Court, Namakkal.

¶2The Inspector of Police, AWPS, Namakkal, Namakkal District.

¶3The Public Prosecutor, High Court, Madras

V.SIVAGNANAM, J. Msr Crl.O.P.No. 22232 of 2021 & Crl.M.P.Nos.12087 & 12088 of 2021

19.09.2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.09.2023 CORAM THE HONOURABLE MR. JUSTICE V. SIVAGNANAM Crl.O.P.No.22232 of 2021 & Crl.M.P.Nos.12087 & 12088 of 2021 1. Gowthami Amirthalingam 2. Subish Vasu .. Petitioners vs 1. State, represented by Inspector of Police, AWPS-Namakkal, Namakkal District. (Cr.No.20 of 2019) 2. R. Deepa ... Respondents Prayer: Criminal Original Petition filed under section 482 Cr.P.C.,to call for the records of proceedings in C.C.No.347 of 2021 on the file of the learned Judicial Magistrate, Additional Mahila Court, Namakkal in Cr.No.20 of 2019 on the file of the 1st respondent as against the petitioner No.1/Accused No.4 for alleged offence under section 498(A) of IPC and as against the petitioner No.2/Accused No.5 for alleged offence under section 498A, 506(i) of IPC and to quash the proceedings as against the petitioners. For Petitioners : Mr. K.R. Samratt For Respondents : Mr. V.J. Priyadarsana Govt. Advocate (crl.side) for R1 R2- Notice served, none appeared