SHERISH HARDENIA & ORS.versusSTATE OF M.P. & ANR.

                         [2013] 12 S.C.R. 844


 A                   SHERISH HAF<DENIA & ORS.
                                   v.
                        STATE OF M.P. & ANR.
                  (Criminal Appeal No. 2087 of 2013)

B                       DECEMBER 13, 2013

             [T.S.THAKUR AND VIKRAMAJIT SEN, JJ.]

          Code of Criminal Procedure, 1973:
c        s.227 - Discharge - Order of Sessions Judge
    discharging the relatives of husband of deceased and
   ordering continuance of proceedings against husband ulss
   498-A and 306 /PC - Held: At this stage, in discharging the
   accused, Sessions Judge had necessarily to have come to
D the conclusion that on a perusal of the material, no prima
   facie case against them had been disclosed - High Court has
   rightly come to the conclusion that material and evidence on
   record sufficiently support trial of husband, father-in-law,
E mother-in-law and brother-in-law of deceased - High Court
  has also rightly upheld the decision of Sessions Judge in
  holding that the material on record was insufficient to even
  prima facie indicate complicity of sister-in-law of deceased in
  the alleged offences of cruelty and abetment of suicide Penal
F Code, 1860 - ss.498-A and 306.
         Penal Code, 1860:

         ss.498-A and 306 - Consideration of plea of accused
     based on limitation - Discussed.
G
         The wife of the appellant (Crl. A. No. 2088 of 2013)
     committed suicide. Criminal proceedings commenced
     against the appellant, his parents, his brother and sister-

H                               844
       SHERISH HARDENIA v. STATE OF M.P.                 845


in-law for commission of offences u/s 498-A and 306 IPC.        A
The Sessions Judge discharged the four relatives of the
husband. In the revision petitions filed by the father of the
deceased as also her husband, the High Court reversed
the order of the Sessions Judge as regards the parents
and the brother of the husband. Aggrieved, the husband          B
of the deceased and his parents and brother filed the
appeals.

    Dismi$ing the appeals, the Court
                                                                c
    HELD: 1. At this stage, in discharging the accused,
the Sessions Judge had necessarily to have come to the
conclusion that on a perusal of the material, a prima facie
case against them had not been disclosed. The Single
Judge of the High Court has comprehensively and                 o
correctly analyzed the case law and appreciated the
evidence and has rightly come to the conclusion that
there is a prima facie case justifying the trial of the
husband, the father-in-law, the mother-in-law and the
brother-in-law of the deceased. The Single Judge has            E
also rightly upheld the decision of the Sessions Judge
in holding that the material on record was insufficient to
even prima facie indicate the complicity of the sister-in-
law of the deceased in the alleged offences of cruelty and
abetment of suicide. [para 3 and 7] [849-C-E; 851-E-F]          F

     State of Maharashtra v. Somnath Thapa 1996
(1) Suppl. SCR 189 =AIR 1996 SC 1744 = (1996) 4 sec
659; State of Bihar v. Ramesh Singh 1978 (1) SCR 257 = AIR
1977 SC 2013 = (1977) 4 SCC 39; Union of India v. Praful/a      G
Kumar Sama/ 1979 (2) SCR 229 = (1979) 3 SCC 4 and Stree
Atyachar Virodhi Parishad v. Dilip Nathumal Chordia 1989
(1) SCR 560 = (1989) 1 SCC 715 State of Haryana v. Bhajan
Lal 1990 (3) Suppl. SCR 259 = (1992) Supp. 1 335 Michael
                                                                H
    846      SUPREME COURT REPORTS          [2013] 12 S.C.R.


A Machado v. CBI 2000 (1) SCR 981 = (2000) 3 sec 262
  Suman v. State of Rajasthan (2010) 1 SCC 250 =AIR 2010
  SC 518; Sheoprasad Ramjas Agrawal v. Emperor AIR 1938
  Nagpur 394 and Century Spinning & Manufacturing Co. Ltd.
                                              =
  v. State of Maharashtra AIR 1972 SC 545 (1972) 3 SCC
B 282; and State of Kamataka v. L. Muniswamy 1977 ( 3) SCR
  113 =AIR 1977 SC 1489 = (1977) 2 SCC 699 ·referred to.

        2. As regards the plea that no case can possibly be
  made out u/s 306 read with s. 498 -A, IPC after a marriage
C has crossed the seven years' period, suffice it to say that
  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. It
  would be idle and in fact illogical to contend that law
D expects that on the first demand of dowry, prosecution
  u/s 498-A has to be commenced. Therefore, keeping in
  view the concern of the wife and her relatives to save the
  marriage, pleas founded on limitation have to be viewed
  with great circumspection. [para 4-5] [850-D-F; 851 -B]
E
                        Case Law Reference:

          1996 (1) Suppl. SCR 189   referred to    para 3

          1978 (1) SCR 257          referred to    para 3
F
          1979 (2) SCR 229          referred to    para 3

          1989 (1) SCR 560          referred to    para 3
          1990 (3) Suppl. SCR 259   referred to    para 3
G
          2000 (1) SCR 981          referred to    para 3

          c2010) 1 sec 250          referred to    para 3

          AIR 1938 Nagpur 394       referred to    para 6
H
                    .
       SHERISH HARDENIA v. STATE OF M.P.                 847

    (1972) 3 sec 2a2              referred to      para 6        A
    1977 (3) SCR 113              referred to      para 6

    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 2087 of 2013.
                                                                 B
    From the Judgment and Order dated 06.05.2008 of the
High Court of M.P. at Jabalpur in CRLR No. 1400 of 2004.
                              WITH
C.A. No. 2088 of 2013.                                           c
    R.P. Gupta, Megha Gaur, Parmanand Gaur for the
Appellants.

    Vibha Datta Makhija, Mishra Saurabh, C.D. Singh,             0
Santosh Kumar, V. Sushant Gupta, Mushtaq Ahmad for the
Respondents.

    The Judgment of the Court was delivered by

     VIKRAMAJIT SEN, J. 1. Leave granted. These appeals          E
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 Revision Petitions    F
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     G
namely, his parents, Shri La]a Shankar and Sm!. 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
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    848      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A 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
B 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 Harderiia, widower of the
  deceased Archana who was the daughter of Dr. R.~. Sharma,
C 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
D law applicable to the controversy.

       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
E 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.
F 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
G 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
H
         SHERISH HARDENIA v. STATE OF M.P.                    849
                [VIKRAMAJIT SEN, J.]
 of Amrish, his parents Shri Lajja Shanker and Smt. Meera and         A
 his brother Sherish. However, Judges cannot be blind to the
 disgraceful and distressing reality vis-a-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           B
 anathema, which must be dealt with firmly.

        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              C
 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
                                                                      0
  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.        E
  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. Prafulfa
  Kumar Sama/ (1979) 3 SCC 4 and Stree Atyachar Virodhi               F
  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               G
   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
   the approach of the Judge must be to consider whether the
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    850     SUPREME COURT REPORTS                [2013) 12 S.C.R.

A 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
B 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
C 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-a-vis the
0
  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
E 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.
F
       5. It would be idle and in fact illogical to contend that law
  expects that on 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
G 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
H
      SHERISH HARDENIA v. STATE OF M.P.                    851
             {VlKRAMAJIT .SEN, J.~
treatment and taunts knowing that the marriage would be A
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 B
 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 C
  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
                                                                    0
 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 =(1972) 3 SCC 282 and
  State of Kamataka v. L. Muniswamy Al R 1977 SC 1489 =
  (1977) 2 SCC 699 to be satisfied that the material and E
  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      F
 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 Lalla Shankar, Meera and Sherish   G
 have been established and that the Sessions Judge erred in
 discharging these three persons.


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    852     SUPREME COURT REPORTS               [2013] 12 S.C.R.


A       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
B findings punitive costs would have followed.

    R.P.                                    Appeals dismissed.