BHASKAR LAL SHARMA & ANR.versusMONICA & ORS.

                        [2014) 2 S.C.R. 990


A                BHASKAR LAL SHARMA & ANR.
                                  v.
                         MONICA & ORS.
              (Criminal Appeal Nos. 435-436 of 2014)
                       FEBRUARY 18, 2014
B
      [P. SATHASIVAM, CJI., RANJAN GOGOi AND SHIVA
                     KIRTI SINGH, JJ.]

        Code of Criminal Procedure, 1973:
c
         s.482 - Quashing of proceedings - Complaint filed u/
    ss.498A, 406 /PC - Quashed on the ground that while no
    offence u/s.498A, /PC was made out against either of the
    appellants, the offence u/s.406, as alleged, was prima facie
0   made out against the appellant No. 2 alone - Held: The
    complaint should not have been rejected at the threshold -
    The facts, as alleged, have to be proved which can only be
    done in the course of a regular trial - Appreciation, even in a
    summary manner, of averments made in a complaint petition
    or FIR would not be permissible at the stage of quashing and
E   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 said stage is
    overcome, the facts alleged have to be proved by the
    complainant/prosecution on the basis of legal evidence in
F   order to establish the penal liability of the person charged with
    the offence - In the instant case, in the face of the avennents
    made in complaint petition regarding mental cruelty for
    bringing dowry and retention of cash and other gifts received
    by the respondent-complainant at the time of her marriage by
G   the accused-appellant No. 2, it cannot be said that the
    complaint filed by respondent was shom of the necessary
    allegations to prima facie sustain the case of commission of
    the offence u/s.498A and s.406- Therefore, complaint petition
    pending in the trial court cannot be interdicted but has to be
H                                   990
  BHASKAR LAL SHARMA & ANR. v. MONICA & ORS. 991


  finally concluded by the trial court - Trial court directed to   A '
  complete trial expeditiously.

         s. 125 - Maintenance granted u/s. 125 by trial court - Writ
   petition u/Article 32 for service of notice on the husband
   (respondent)-and for payment of the arrears of maintenance 9
   as also the current monthly maintenance - Maintainability of
   - Held: Order of maintenance u/s. 125 can be executed by
   following the provisions of sub-section (3) of s. 125 - When the
   enforcement and execution of an order passed under a
   statute is contemplated by the statute itself, normally, an C
   aggrieved litigant has to take recourse to the remedy provided
   under the statute - In fact, petitioner wife has already initiated
    a proceeding for execution of the order of maintenance
   granted in her favour - The fact that the husband against
    whom the order of maintenance is required to be enforced
   lives outside the territory of India cannot be a reasonable D
   basis for invoking the extraordinary remedy under Article 32
   of the Constitution inasmuch as the provisions of the Code
   i.e. s.105 makes elaborate provisions for service of summons
   in case the person summoned by the court resides outside
__ the territory of India - In view of the remedy that is available E
    to the petitioner under the Cr.P.C. and having regard to the
   fact that resort to such remedy has already been made,
   jurisdiction under Article 32 of the Constitution in facts of the
   present case cannot be invoked - Instead, the Family Court
   is directed to pass appropriate final orders as expeditiously F
   as possible - Constitution of India, 1950 - Article 32.

      The respondent had filed a complaint under sections
  498, 406 IPC against the appellants-parents-in-law and
  subsequently also impleaded-husband-respondent no.2.             G
  The trial court took cognizance of offence and issued
  summons. The appellants sought quashing of complaint
  before the High Court. The High Court dismissed the
  application. The appellants filed appeals, which were
  disposed of by the Supreme Court holding that while no
                                                                   H
    992    SUPREME COURT REPORTS              [2014] 2 S.C.R.


A offence under Section 498A, IPC 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. Against this, the respondent filed.
  the review petition which was dismissed. Thereafter, the
B National Commission for Women as well as respondent
  herself filed Curative Petitions which were allowed by the
  Supreme C9urt on 14.03.2013. In the said order, it was
  observed that as far as the question regarding making out
  of a case under Section 498A l.P .C. was concerned, the
c appeals were against the initial order summoning the
  accused to stand trial and therefore, it was too early a
  stage to take a stand as to whether any of the allegations
  were established or not. Pursuant to the said order, the
  instant appeals were placed for re-hearing. The
0 respondent also filed instant writ petition for
  maintenance.

       Disposing of the appeals and the writ petition, the
    Court

E      HELD: 1.1. in the instant appeals, the only question was
  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, IPC was made
  out against the appellants. The statement made by the
F complainant (respondent) in the complaint petition,
  particularly those in paragraphs 16, 17, 18, 19, 24 and 29
  thereof was to the effect that the appellants and respondent
  No. 2 had allegedly ill-treated the respondent-complainant
  after her marriage and had withheld different items of her
G stridhan property as was set out by the respondent-
  complainant. [paras 6, 7] [997-H; 998-A-B, D-E]

      1.2. The contention for the appellants was that there
  was no averment in the complaint petition with regard to
  any demand for dowry by the appellants; or of any ill-
H treatment of the respondent by the appellants or
BHASKAR LAL SHARMA & ANR. v. MONICA & ORS. 993


commission of any act in connection with any such                 A
demand which could amount to 'cruelty' within the
meaning of Section 498A, IPC and that no where in the
complaint petition entrustment within the meaning of
Section 405, IPC was alleged against the appellants so·
as to even prima facie make the appellants liable for the         B
offence under Section 406, IPC. The contention is not
accepted. 'Cruelty' as defined in the Explanation to
Section 498A, IPC has a twofold meaning. The
contentions of the appellants do not deal with the
Explanation {a) and is exclusively confined to the                c
meaning dealt with by Explanation {b). Under Explanation
{a) conduct which is likely to cause injury or danger to
life, limb or health {mental or physical) would come within
the meaning of the expression "cruelty". While instances
of physical torture would be plainly evident from the
                                                                  0
pleadings, conduct which has caused or is likely to cause
mental injury would be far more subtle. 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. The facts, as alleged, therefore       E
will have to be proved which only be done in the course
of a regular trial. It is wholly unnecessary 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                    F
averments made in a co~plaint 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 said stage is                     G
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. Insofar as the offence under
Section 406, IPC is concerned, it is clear from the               H
    994     SUPREME COURT REPORTS                [2014] 2 S.C.R.

 A averments made in 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
 B para 6 of the complaint also alleged 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 car1not be said that the complaint filed by the
 c respondent is shorn of the necessary allegations to prima
   facie sustain the case of commission of the offence under
   Section 406 by the appellants. The complaint petition
   pending in the Court of Metropolitan Magistrate cannot
   be interdicted but has to be finally concluded by the trial
   court. The trial court is directed that the trial be completed
 0
   expeditiously and in any case within a period of one year
   from the date of receipt of a copy of this order by the trial
   court. [paras 8 to 12] [998-G-H; 999-A-H; 1000-A-E]

         2. By an order passed by ACMM under Section 125,
. E Cr.P.C., maintenance was granted to the wife-petitioner
    at the rate of Rs. 50,000/- per month with effect from
    4.9.2004. An application filed by the writ petitioner before
    the Family Court for payment of the arrears of
    maintenance as also the current monthly maintenance is
  F pending. The order passed under Section 125 of the Code
    granting maintenance to the writ petitioner has attained
    finality in law. Such an order can be executed by
    following the provisions of sub-Section (3) of Section 125,
    Cr.P.C. The scope and ambit of the said provision of the
  G Code was recently dealt with in *Poongodi wherein
    reference was 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
  H to the remedy provided under the statute. In fact the
BHASKAR LAL SHARMA & ANR. v. MONICA & ORS. 995


petitioner has initiated a proceeding for execution of the A
order of maintenance granted in her favour. The fact that
the husband (respondent) against whom the order of
maintenance is required to be enforced lives outside the
territory of India cannot be a reasonable basis .for
invoking the extraordinary remedy under Article 32 of the B
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 c
India with regard to service of summons/notices/judicial
process on persons residing abroad. In view of the
remedy that is available to the petitioner under the Cr.P.C.
and having regard to the fact that resort to such remedy
has already been made, jurisdiction under Article 32 of D
the Constitution in facts of the present case cannot be
invoked. Instead, the Family Court is directed to pass
appropriate final orders as expeditiously as possible. In
the event it is found so necessary the Family Court may
transfer the case to the competent criminal court
whereafter the concerned criminal court will make all E
 endeavour to bring the proceeding to a early conclusion.
 [paras 14, 15) [1001-C-H; 1002-A-D] ·

    *Poongodi and Another vs. Thangavel (2013) 10 SCC
618: 2014 AIR 24 - Referred to.                           F
                   Case Law Reference:
    2014 AIR 24            Referred to        Para 15
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal      G
Nos. 435-436 of 2014.

    From the Judgment and Order dated 21.01.2008 of the
High Court of Delhi at New Delhi in CRLMC No. 4742 and
4743 of 2005.
                                                          H ..
    996      SUPREME COURT REPORTS                 [2014] 2 S.C.R.


A                                  WITH
    W.P. (Criminal) No. 101 of 2013.

       Mohan Jain, ASG, Amarendra Sharan, Anand Grover,
  Rishi Malhotra, Jyotika Kalra, Kiran Bhardwaj, Surya Kant, S.N.
B Terdal, Sushma Suri, Saurabh Chauhan, Varun Jain, Mihir
  Samson, Sumit Attri for the appearing parties and Respondent-
  in-person.

          The Judgment of the Court was delivered by

C         RANJAN GOGOi, J. 1. As ordered earlier, both the cases
    were heard together and are being disposed of by this common
    Order.

    SLP CCrl.) No. 4125-4126/2008
D
          2. Leave granted.

          3. The essential facts may be noticed at the outset.

      The respondent, herein, Monica, had filed a complaint
E 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
F 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
G 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
H by the appellants. Against the said order the appellants moved
BHASKAR LAL SHARMA & ANR. v. MONICA & ORS. 997
            [RANJAN GOGOi, J.]
this Court by means of two special leave petitions. By order       A
dated 27 .07 .2009 leave 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,      B
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        C
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         D
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,
                                                                   E
    "As far as the question regarding making out of a
    case under Section 498A l.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          F
    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      G
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
                                                                   H
    998     SUPREME COURT REPORTS                 [2014] 2 S.C.R.


A 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
B concerned with such allegations made against the second
  respondent who, though named as accused No. 1 in the
  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
c 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
D 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
E No. 2 had allegedly ill-treated the respondent-complainant after
  her marriage and had withheld different items of her stridhan
  prop~rty has been set out by the respondent-complainant in the
  aforesaid paragraphs of her complaint.

F      8. Shri Amarendra Sharan, learned senior counsel for the
  appellants has urged that the statements/averments made 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.
G 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
H
BHASKAR LAL SHARMA & ANR. v. MONICA & ORS. 999
             [RANJAN GOGOi, J.]
in the complaint petition entrustment 'within the meaning of        A
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    B
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 or        C
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     D
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   E
which only be done in the course of a regular trial. It is wholly
unnecessary for us to embark upo_n 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          F
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 stage is overcome, the facts
alleged have to be proved by the complainant/prosecution on         G
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      H
    1000     SUPREME COURT REPORTS                   [2014] 2 S.C.R.


A 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
B 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
c the offence under Section 406 by the appellants.
        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,
D 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
E copy of this order by the learned Trial Court.

    Writ Petition (Crl.l No. 101 /2013

         13. Monica, the respondent in the Criminal Appeals dealt
F   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. Vimfa Sharma who
                is being represented by Id. Counsel/AOR Shri
G               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.
H
BHASKAR LAL SHARMA & ANR. v. MONICA & ORS.1001
             [RANJAN GOGOi, J.]
      (C)   To direct the Respondent No.1 to immediately pay         A
            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.
                                                                     B
      (D)   To dire<:( 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 C
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 D
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 u.1;1der Section 125 of the Code          E.
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
the Code. The scope and ambit of the said provision of the
Code has recently been dealtwith in Poongodi and Another
Vs. Thangavel wherein reference has been made to several             F
earlier decisions on the issue. Wher:i 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     G
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        H
    1002      SUPREME COURT REPORTS                  [2014] 2 S.C.R.


A inasmuch as the provisions of the Code i.e. Section 105 makes
  elaborate provisions for seNice 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 seNice of summons/notices/
B 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
c direct the Family Court No. 2, Saket, New Delhi to pass
   appropriate final orders in Petition No.M~98/2011 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
D 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
E terms.
    D.G.                       Appeals & Writ Petition disposed of.