Material on record do not disclose commission of offence alleged 498A quashed: Supreme Court 2017

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1565 OF 2017
(Arising from SLP(Crl.) No.5458/2016)
Varala Bharath Kumar and another ..Appellants
Versus
State of Telangana and another ..Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR,J.
Leave granted.
2. The impugned order dated 28.03.2016 passed by the
High Court of Judicature at Hyderabad for the State of Telangana
and the State of Andhra Pradesh in Criminal Petition No. 3302 of
2016, as well as, the criminal proceedings initiated against the
appellants in C.C. No. 442 of 2015 on the file of XIV Metropolitan
Magistrate, Cyberabad at L.B. Nagar, arising out of Crime No. 151
of 2015 of Saroornagar Women Police Station, Cyberabad,
registered for the offences punishable under Sections 498A and 406
of the Indian Penal Code, are called in question.
3. The brief facts leading to this appeal are as under:
The marriage between the first appellant and the second
respondent (complainant) was solemnized at Hyderabad as per
Hindu rites and rituals. They lived together for about 20 days in
matrimonial house. Thereafter, the first appellant left India and
went to Australia, where he is working as an engineer. It is alleged
by the second respondent, that during her stay at the matrimonial
house for the period of afore-mentioned 20 days, the first appellant
did not come close to the complainant and he was not even willing
to talk freely with the complainant, despite her sincere efforts to
come close to her husband. It is also alleged, that the first appellant
never behaved as a dutiful husband and used to evade the
complainant whenever she approached to him; he maintained the
distance even during nights; when asked, the first appellant
informed the complainant that he was suffering from viral fever; the
first appellant took treatment in the hospital for two-three days,
and even after discharge from the hospital, he did not come closer
to the complainant; the first appellant postponed the nuptial night
ceremony and he was not interested in co-habitation. Even after
the first appellant left for Australia, the family members of the first
appellant including the second appellant were not talking to the
complainant. The complainant left for her parents’ house and
started residing there. It is further alleged, that the parents of the
complainant had spent about rupees fifteen lakhs for the marriage
ceremony and rupees twenty lakhs for the gold ornaments. On
these, among other grounds, complaint came to be lodged by the
second respondent.
4. The police after registering the crime for the offences
punishable under Sections 498A and 406 of the Indian Penal Code
investigated and filed the charge sheet, which culminated in CC No.
442 of 2015, pending on the file of XIV Metropolitan Magistrate,
Cyberabad, L.B. Nagar.
5. The appellants herein approached the High Court of
Judicature at Hyderabad under Section 482 of the Code of Criminal
Procedure seeking to quash the proceedings initiated against the
appellants. The High Court by the impugned order has rejected the
prayer of the appellants to quash the proceedings initiated against
them, and instead directed appellant no.1 to file an application
under Section 70(2) Cr.P.C. seeking to recall NBW issued against
him and directed appellant no.2 to file an application under Section
205 Cr.P.C. seeking to dispense with his presence before the trial
Court. Hence, this appeal.
6. Respondent No.2, though served, has chosen to remain
absent. We have heard learned counsel for the rival parties who are
present and perused the record. Having carefully perused the first
information report, as well as, the contents of the charge sheet, we
find that the ingredients of Sections 498A and 406, IPC are not
forthcoming. The entire story narrated by the complainant does not
attract the afore-mentioned provisions, as there has not been any
dowry demand of the appellants or harassment to the second
respondent. Before proceeding further, it would be relevant to note
the provisions of Sections 498A, 405 and 406 of the Indian Penal
Code, which read thus:

“498A. Husband or relative of husband of a woman
subjecting her to cruelty – Whoever, being the husband
or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment
for a term which may extend to three years and shall also
be liable to fine.
Explanation:-For the purpose of this section, “cruelty”
means—
(a) any willful conduct which is of such a nature as is
likely to drive the woman to commit suicide or to cause
grave injury or danger to life, limb or health (whether
mental or physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her
to meet any unlawful demand for any property or
valuable security or is on account of failure by her or
any person related to her to meet such demand.

405. Criminal breach of trust – Whoever, being in any
manner entrusted with property, or with any dominion
over property, dishonestly misappropriates or converts to
his own use that property, or dishonestly uses or
disposes of that property in violation of any direction of
law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied,
which he has made touching the discharge of such trust,
or willfully suffers any other person so to do, commits
“criminal breach of trust”.
Explanation [1] – A person, being an employer [of an
establishment whether exempted under section 17 of the
Employees’ Provident Funds and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not] who deducts
the employee’s contribution from the wages payable to
the employee for credit to a Provident Fund or Family
Pension Fund established by any law for the time being
in force, shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the
said Fund in violation of the said law, shall be deemed to
have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
Explanation 2 – A person, being an employer, who
deducts the employees’ contribution from the wages
payable to the employee for credit to the Employees’ State
Insurance Fund held and administered by the
Employees’ State Insurance Corporation established
under the Employees’ State Insurance Act, 1948 (34 of
1948), shall be deemed to have been entrusted with the
amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the
said Fund in violation of the said Act, shall be deemed to
have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.
406. Punishment for criminal breach of trust – Whoever
commits criminal breach of trust shall be punished with
imprisonment of either description for a term which may
extend to three years, or with fine, or with both.”

7. It is by now well settled that the extraordinary power
under Article 226 or inherent power under Section 482 of the Code
of Criminal Procedure can be exercised by the High Court, either to
prevent abuse of process of the court or otherwise to secure the
ends of justice. Where allegations made in the First Information
Report/the complaint or the outcome of investigation as found in
the Charge Sheet, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out the case against the accused; where the allegations do
not disclose the ingredients of the offence alleged; where the
uncontroverted allegations made in the First Information Report or
complaint and the material collected in support of the same do not
disclose the commission of offence alleged and make out a case
against the accused; where a criminal proceeding is manifestly
attended with mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to private and personal
grudge, the power under Article 226 of the Constitution of India or
under Section 482 of Code of Criminal Procedure may be exercised.
While exercising power under Section 482 or under
Article 226 in such matters, the court does not function as a Court
of Appeal or Revision. Inherent jurisdiction under Section 482 of
the Code though wide has to be exercised sparingly, carefully or
with caution and only when such exercise is justified by the tests
specifically laid down under Section 482 itself. It is to be exercised
ex debito justitiae to do real and substantial justice, for the
administration of which alone courts exist. The court must be
careful and see that its decision in exercise of its power is based on
sound principles. The inherent powers should not be exercised to
stifle a legitimate prosecution. Of course, no hard and fast rule can
be laid down in regard to cases in which the High Court will
exercise its extra ordinary jurisdiction of quashing the proceedings
at any stage.
8. We are conscious of the fact that, Section 498A was
added to the Code with a view to punish the husband or any of his
relatives, who harass or torture the wife to coerce her or her
relatives to satisfy unlawful demands of dowry. Keeping the
afore-mentioned object in mind, we have dealt with the matter. We
do not find any allegation of subjecting the complainant to cruelty
within the meaning of Section 498A of IPC. The records at hand
could not disclose any willful conduct which is of such a nature as
is likely to drive the complainant to commit suicide or to cause
grave injury or danger to life, limb or health (whether mental or
physical) of the complainant. So also, there is nothing on record to
show that there was a demand of dowry by the appellants or any of
their relatives, either prior to the marriage, during the marriage or
after the marriage. The record also does not disclose anywhere that
the husband of the complainant acted, with a view to coerce her or
any person related to her to meet any unlawful demand of any
property or valuable security.
9. The ingredients of criminal breach of trust are also not
forthcoming from the records as against the appellants. The
allegations contained in the complaint and the charge sheet do not
satisfy the definition of criminal breach of trust, as contained in
Section 405 of the I.P.C. In view of the blurred allegations, and as
we find that the complainant is only citing the incidents of
unhappiness with her husband, no useful purpose will be served in
continuing the prosecution against the appellants. This is a case
where there is a total absence of allegations for the offences
punishable under Section 498A and Section 406 of the I.P.C. In the
matter on hand, the allegations made in the First Information
Report as well as the material collected during the investigation,
even if they are taken at their face value and accepted in their
entirety, do not prima facie constitute the offences punishable
under Section 498A and 406 of the IPC against the
accused/appellants. So also the uncontroverted allegations found
against the appellants do not disclose the commission of the offence
alleged and make out a case against the accused. The proceedings
initiated against the appellants are liable to be quashed.
10. Accordingly, we allow this appeal, set aside the impugned
order of the High Court, and quash the proceedings initiated
against both the appellants in CC No. 442 of 2015, pending on the
file of XIV Metropolitan Magistrate, Cyberabad at L.B. Nagar, arising
out of Crime No. 151 of 2015 of Saroornagar Women Police Station,
Cyberabad, Registered for the offences punishable under Sections
498A and 406 of the Indian Penal Code.
…..…………………………………….J.
[ARUN MISHRA]
………………………………………….J.
[MOHAN M. SHANTANAGOUDAR]
NEW DELHI;
SEPTEMBER 05, 2017.