Telangana High Court
Mohd. Abdul Quadeer, Another, vs The State Of Ap Rep By Its Pp Hyd., … on 14 August, 2018
Bench: T. Rajani
                         SMT JUSTICE T. RAJANI

     CRIMINAL PETITION Nos.7352 of 2011 and 13 of 2012

COMMON ORDER:


        These petitions are filed, seeking for quash of the

proceedings against the petitioners, who are A1 & A2 and A3 &

A4 respectively in these petitions, in C.C.No.51 of 2011 on the

file   of   the   XIII    Additional    Chief    metropolitan        Magistrate,

City Criminal Courts, Red Hills, Hyderabad. The offences alleged

are under Sections 498A and 406 r/w 34 IPC.


2.      Heard the counsel for the petitioners and the Public

Prosecutor, appearing for the 1st respondent. None appears for

the 2nd respondent in spite of notice.

3. A perusal of the complaint would show that no allegations are made against the husband of the complainant. The allegations are only against the petitioners, who are the brothers-in-law and the wife of the brother-in-law. Even according to the complaint, A2 resides in USA, A3 and A4 reside in Jeddah, Middle East Countries, whereas A1 resides in Hyderabad. The complainant resides separately at Maqta Madarsab, Raj Bhavan Road, Hyderabad. The allegations are that A2 instigates A3 and A4 over phone from USA and they harassed the complainant, saying that she did not bring dowry, though it is a second marriage for her.

4. The counsel for the petitioners submits that in order to some how wreck out her vengeance with regard to the property disputes between the parties, the complainant filed this false complaint. Learned counsel also submits that there are civil cases pending between the parties.

5. The allegations, as can be seen from the complaint, do not inspire confidence. Admittedly, none of the petitioners in these petitions are staying together with the complainant and the alleged harassment seems to be far fetched. The complainant, at one place, states that it is A2, who instigated the other accused, and, at other place, she states that A3 and A4 used to instigate A1. On the face of it, it appears that the allegations are false. Hence, continuing the proceedings against the petitioners in the above CC would only result in abuse of process of law.

6. In view of the above, this court opines that it is a fit case for quashing the proceedings.

8. With the above observations, the Criminal Petition is allowed and the proceedings against the petitioners, who are A1 & A2 and A3 & A4 respectively in these petitions, in C.C.No.51 of 2011 on the file of the XIII Additional Chief Metropolitan Magistrate, City Criminal Courts, Red Hills, Hyderabad, are hereby quashed.

As a sequel, the miscellaneous applications, if any pending, shall stand closed.

__________ T. RAJANI, J August 14, 2018 LMV

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Telangana High Court
Eerothu Veerababu And 5 Others vs State Of Ap., Rep By Its P.P … on 12 November, 2018
Bench: U.Durga Prasad Rao
        HON'BLE SRI JUSTICE U.DURGA PRASAD RAO

                  Criminal Petition No.15141 of 2013

ORDER:

In this petition filed under Section 482 Cr.P.C., the petitioners/A2 to A6 seek to quash the proceedings against them in C.C.No.66 of 2013 on the file of IV Additional Judicial First Class Magistrate, Kakinada. This petition was filed also on behalf of A1 but later the same was dismissed as withdrawn against him by order dated 19.12.2013.

2) The defacto complainant is the wife of A1; A2 and A3 are parents and A4 and A6 are the sister and brother of A1 and A5 is the husband of A4.

a) The complaint allegations are that the marriage between defacto complainant and A1 was performed on 14.08.2010 at Kakinada as per Hindu customs and rites; during the marriage, her parents gave Rs.4 lakhs towards dowry as against the demand of Rs.10 lakhs; apart from that her father agreed to give two storied building situated at Gold Market Centre at Kakinada and to that extent he executed a Will also; after marriage, she joined the matrimonial home at Samalkota; from the first day onwards all the accused demanded for the additional dowry of Rs.6 lakhs and harassed her both mentally and physically and on one occasion they tried to kill her by pouring petrol; while so, A1 shifted the family to Hyderabad where he demanded to sell the house which was gifted by her father and bring the money to purchase a house in Hyderabad; twelve months before the complaint, A1 left the complainant in her parents’ house and gave a warning that unless and until they pay the additional dowry of Rs.6 lakhs, complainant will not be permitted to enter the house.

b) Basing on the said complaint, the police of III Town (Law and Order) PS, Kakinada registered a case in Cr.No.109 of 2012 and after investigation filed charge sheet which was taken cognizance by learned IV Additional Judicial First Class Magistrate, Kakinada and registered as C.C.No.66 of 2013 for the offence under Section 498A IPC and Sections 3 and 4 of Dowry Prohibition Act, 1961.

Hence, the instant quash petition.

3) Heard arguments of Sri Ashok Talla, learned counsel for petitioners/A2 to A6, Sri A.Hari Prasad Reddy, learned counsel for respondent No.2/complainant and learned Additional Public Prosecutor (AP) for respondent No.1.

4a) Severely fulminating the charge sheet allegations, learned counsel for petitioners/A2 to A6 would argue that all the allegations in the complaint and charge sheet are false to the core only to rope the petitioners without their fault. He would submit petitioners have never demanded complainant for additional dowry or harassed her and such allegations are only myth and concoction. Learned counsel would submit, for few days after marriage the complainant and A1 resided with other accused at Samalkota and later they left to Hyderabad where A1 was doing job. At Hyderabad, the complainant behaved in a mad and eccentric manner without cooperating with A1 in the conjugal life and other household activities and due to her mental abrasion and abnormal behaviour, A1 suffered a lot and then A1 and other accused came to know that the parents of complainant performed her marriage concealing her mental illness. He would submit that other accused never telephoned nor goaded A1 to harass her for additional dowry of Rs.6 lakhs and other paraphernalia. On the other hand, the parents of complainant used to pester A1 to leave his job at Hyderabad as Development Officer in LIC and come back to Kakinada as illatum son- in-law which was refused by A1 on that, the father of complainant bore grudge against him and took back his daughter to Kakinada. The efforts made by A1 and other accused to bring back the complainant to the matrimonial home did not fructify and ultimately unable to bear the mental cruelty meted out by the complainant, A1 filed divorce application DOP No.217 of 2015 on the file of III Additional Senior Civil Judge, Kakinada and after a hot contest, the said Court having held that complainant herein treated her husband with cruelty and deserted him for more than 3 years, allowed divorce petition and granted decree of divorce on 18.01.2018. Learned counsel thus submitted that the above order is a clear manifestation of how the complainant lodged police report with all false and untenable allegations besides causing unbearable cruelty to her husband.

b) Sofaras petitioners/A2 to A6 are concerned, learned counsel would argue the allegations against them are two fold. Firstly, that while the complainant stayed at Samalkota for a short stint, they harassed her for dowry of Rs.6 lakhs and secondly that on the grouse she did not meet their demand, once they attempted to kill her by pouring petrol and setting fire. However, neither the complainant nor her parents gave any report to the police against the alleged atrocious act. Surprisingly, in the lawyer’s notice dated 04.11.2011 got issued by the complainant to A1, she did not make even whisper of alleged attempt to kill her by the petitioners. In the chief affidavit of complainant filed in O.P.No.217 of 2015 also she did not make any averment with regard to alleged attempt made by petitioners on her life. All this would show that she intentionally tried to rope all the petitioners including the married sister and her husband in the criminal case to bring them down to her dictates. Learned counsel thus argued that the allegation that the petitioners tried to kill by pouring petrol on the ground that she did not meet the demand for additional dowry of Rs.6 lakhs is an utter falsehood and on the other hand, the facts would show that she lived in her matrimonial home at Samalkota for few days and later the complainant went along with A1 to Hyderabad to lead conjugal life where none of the petitioners/A2 to A6 went and resided with them and they had absolutely no concern with complainant and A1. From Hyderabad the complainant was taken away by her father to Kakinada where at present she is residing. Hence, he argued, the facts would unmistakenly show the petitioners/A2 to A6 have never had any occasion to meet her with cruelty. Though they lived apart from her during the relevant period, she purposefully roped them in criminal case. Learned counsel placed reliance on the judgment of the Apex Court in Preeti Gupta and others vs. State of Jharkhand and others1.

5) In oppugnation, learned counsel for 2nd respondent/complainant would argue that at the time of marriage, all the accused demanded dowry of Rs.10 lakhs apart from gold and other paraphernalia, but the father of the complainant could give only Rs.4 lakhs as dowry and therefore, since after marriage when the complainant stepped into her in-laws house at Samalkota, they started harassing her intensely for the balance dowry amount of Rs.6 lakhs and when she failed to bring the said amount from her parents, they even tried to kill her by pouring petrol. She informed this fact to her parents but no action was taken considering her future marital life. Learned counsel further argued that even though the complainant went to Hyderabad with A1 to lead conjugal life, petitioners/A2 to A6 used to prompt A1 to demand her for the balance amount of Rs.6 lakhs and harassed her on that count and made her life a hell and finally unable to bear his torture, her father took her back to Kakinada. The cruelty meted out by all the accused is writ large in the statements of witnesses in this case. He thus prayed to dismiss the petition.

AIR 2010 SC 3363 = (2010) 7 SCC 667

6) The point for determination is:

“Whether there are merits in this petition to allow?”

7) POINT: It should be noted that in this petition we are concerned with the allegations and evidence relating to petitioners/A2 to A6 alone as the petition in respect of A1 was already withdrawn. Admittedly, the marriage between A1 and complainant was held on 14.08.2010. The complainant and her parents are residents of Kakinada, whereas the parents of A1 are residents of Samalkota. Even some time prior to marriage A1 has been residing at Hyderabad on account of his job where he is working as Development Officer in LIC. The complaint and charge sheet allegations sofaras petitioners/A2 to A6 are concerned, when after marriage, the complainant resided in her in-laws house at Samalkota for short duration, petitioners/A2 to A6 demanded her to bring the remaining dowry amount of Rs.6 lakhs and in that regard they caused her mental and physical cruelty. Further, once they tried to kill her by pouring petrol on her and she bore the torture to preserve her marital relationship with A1. The other accusation against petitioners/A2 to A6 is that some time thereafter when she went to Hyderabad along with A1 for leading conjugal life, petitioners/A2 to A6 used to telephone and abuse her and they used to goad A1 to demand the balance dowry amount and beat her. Listening their words A1 used to beat her and did not provide food and raiment. These are the main allegations against petitioners/A2 to A6 as we find in complaint and charge sheet.

8) However, when we peruse 161 Cr.P.C. statements of witnesses and also the other material, we will find a different picture. LWs.1 to 3 are the complainant and her parents. They no doubt, stated in their 161 Cr.P.C. statements in tune with complaint. However, the version of independent witnesses as depicted in their statements is quite different. For instance, LW7–Elisetty Narasimha Murthy stated that after marriage complainant and A1 stayed at Samalkota for few days and went away and thereafter some disputes arose between them at Hyderabad. He further stated that while staying at Samalkota both complainant and A1 were living amicably. LW8–A.Veera Babu who is the neighbour of accused at Samalkota, also gave a statement in similar lines stating that while residing at Samalkota, A1 and complainant lived happily without any disputes. LW9–A.Laxminarayana, LW10– B.Harikrishna and LW11–N.Suryanarana gave statements in same manner. Their statements would prima facie show that while staying at Samalkota A1 and complainant lived happily. Therefore, the allegation that while complainant stayed at Samalkota, petitioners/A2 toA6 harassed her for dowry and tried to kill her appears to be highly doubtful. This doubt further intensifies due to subsequent events. The complainant got issued legal notice dated 04.11.2011 through her counsel at Kakinada to A1 demanding him to take her back from her parents and live with her by setting up family. In the said notice, she narrated about the harassment allegedly meted out by the accused. However, surprisingly she did not make a whisper about the attempt allegedly made by petitioners/A2 to A6 on her life at Samalkota. Surely she would not miss this ghastly incident if it were true. Not only that, in her chief affidavit in O.P.No.217 of 2015 also she did not make any mention about such attempt made by accused to kill her. In the cross- examination in O.P.No.217 of 2015 she stated as if she informed about the said incident to her parents immediately and they lodged a report in II Town PS (Mahila Police Station), Kakinada. She went to the extent of saying that she filed the report into the Court. However, she did not file the said report as can be seen from the judgment in O.P.No.217 of 2015 a copy of which is filed along with material papers.

9) All these facts and circumstances create a genuine doubt about the veracity of allegations levelled by the complainant against petitioners/A2 to A6 in the complaint and charge sheet. It is not out of place to mention here that in the judgment in O.P.No.217 of 2015, the III Senior Civil Judge, Kakinada made an observation that the complainant herein has mentioned false allegations in C.C.No.66 of 2013 which were not mentioned in her notice (Ex.A4). The learned Judge found her guilty of desertion and cruelty towards A1 and granted decree of divorce. So, the allegations of cruelty said to be meted out at Samalkota have no intrinsic truth. Sofaras the harassment at Hyderabad is concerned, it is nobody’s case that petitioners/A2 to A6 physically went to Hyderabad to harass her. As already stated supra, we are not concerned with A1 in this petition. The allegation that petitioners/A2 to A6 made phone calls and incited A1 to harass her also do not stand to scrutiny as no material is placed along with charge sheet to that effect.

10) So, on a conspectus of entire material on record, one can only come to a logical conclusion that the complaint tried to rope the petitioners/A2 to A6 without any tangible cause.

11) In Preeti Gupta’s case (1 supra), the Apex Court observed that:

“To find out truth in matrimonial cases it becomes a herculean task and 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 and 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 Court further observed that 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 said allegations of the complaint are required to be scrutinized with great care and circumspection. Present case appears to be one of such instance. Though in a quash petition the High Court is not expected to make a roaming enquiry about the facts and evidence sought to be adduced during trial, still the Court cannot shut its eyes against those facts where criminal proceedings were manifestly attended with mala fide and with an ulterior motive as observed by Apex Court in State of Haryana and others vs. Bhajan Lal and others2.

The case on hand appears to be similar.

1992 Supp. (1) SCC 335

12) In the light of above discussion, this Criminal Petition is allowed and proceedings in C.C.No.66 of 2013 on the file of IV Additional Judicial First Class Magistrate, Kakinada are quashed against the petitioners/A2 to A6.

As a sequel, miscellaneous applications pending, if any, shall stand closed.

__________________________ U. DURGA PRASAD RAO, J Date: 12.11.2018 Murthy

K.Raghuveer 3 Others vs State Of A.P., Rep By P.P Another on 12 October, 2018
Bench: M.Satyanarayana Murthy
THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY

    CRIMINAL PETITION Nos.7652 AND 9774 OF 2017

COMMON ORDER:

     These two petitions are filed by accused Nos.4, 1, 2 3

and 5 respectively under Section 482 Cr.P.C. to quash the

proceedings in P.R.C.No.9 of 2017 on the file of the Judicial

Magistrate of First Class, at Kandukur, registered for the

offences punishable under Sections 498-A, 307 IPC read with

34 IPC and Sections 3 and 4 of Dowry Prohibition Act.


     The second respondent in both the petitions is the de

facto complainant. She lodged report with the police at Kandukur Town Police Station alleging that her marriage was performed on 27.04.2016 at Ongole in PLR Kalyana Mandapam, at the time of marriage her parents gave rupees fifty lakhs in cash, 200 tulas of gold and rupees twenty lakhs worth property as dowry. The property was registered in the name of the de facto complainant. After marriage, she joined with her husband at Kandukur and during their wedlock, she became pregnant and after conceiving, her husband demanded Audi Car. Her father agreed to purchase the car as demanded by her husband A1. On 13.05.2016 her husband and mother-in-law, took her to Apollo Hospital in Nellore for medical examination i.e. confirmation of pregnancy but forced her to get aborted with a threat to see her end. Her husband, mother-in-law, father-in-law and one Metla Ashok Babu made her to believe that her husband is an IRS MSM,J And 9774 of 2017 officer, performed her marriage with him. After the marriage, they informed that he is working as PR Commissioner in Customs Department at Chennai. After marriage, she insisted her husband to set up family at Chennai, but he postponed the same and started harassing her. Her husband, mother-in-law Meena Kumari, sister-in-law Videesha and Metla Ashok Kumar subjected her to harassment both mentally and physically for her failure to meet their illegal demand of amount of rupees twenty lakhs as additional dowry and they also tried to kill the de facto complainant with a view to marry another girl by A1 to get more dowry. They also beat her mercilessly even without expressing any sympathy though she is pregnant during that time.

On 12.12.2016 when she was at her parents house at about 5.00 p.m., her husband, father-in-law, mother-in-law, sister-in-law and Ashok Kumar forcibly entered into their house and her husband A1 tried to stab her with knife, immediately she raised cries and on arrival of their father and mother, he ran away and left the house in a car. Thus, the petitioners subjected her to harassment for payment of dowry and made an attempt to kill her.

On the basis of the written telugu report lodged by the second respondent, the Station House Officer, Kandukur Town Police Station, registered a case in Crime No.178 of MSM,J And 9774 of 2017 2016 for the offences punishable under Sections 498(A)307 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act, and issued FIR.

On the strength of the FIR, the sub-inspector of police took up investigation, recorded the statements of 12 witnesses during investigation under Section 161(3) Cr.P.C., visited the scene of offence, examined and after completion of investigation, having concluded that there is prima facie material to proceed against these petitioners, filed charge sheet before the Judicial Magistrate of First class, Kandukur, for various offences stated supra against all the accused.

The fourth accused filed Criminal Petition No.7652 of 2017, A1, A2, A3 and A5 filed a separate Criminal Petition bearing No.9774 of 2017 raising two different sets of grounds to quash the proceedings by exercising power under Section 482 Cr.P.C.

The main grounds urged in the petition filed by A4 are that the evidence collected during investigation and the allegations made in the charge sheet do not constitute the offences punishable under Sections 498-A307 read with 34 IPC and 3 and 4 of Dowry Prohibition Act and more particularly against this petitioner-A4, no case is made out since the allegations are vague, unfounded and apart from that no specific overt acts are attributed to the petitioner except she entered into the house along with her parents and MSM,J And 9774 of 2017 brother. Therefore, on the basis of these vague allegations against this petitioner-A4, the proceedings cannot be continued.

It is also contended that before registering FIR, the police ought to have verified the allegations, character, conduct of the father of the second respondent and his capacity to give such huge amount of dowry when he indebted to many persons by obtaining loan. The house property said to have been given as dowry was mortgaged by the father of the second respondent to a Nationalised Bank and without discharging the loan amount, created a sham document by way of gift deed in the name of second respondent as Sthri Dhana to deprive the bank from realization of the amount. He has indebted to many persons and several money suits are pending against the father of the second respondent. Therefore, the allegation of demand for payment of additional dowry and agreement for purchase of “Audi Car” by the father of the second respondent, is improbable to the natural circumstances, who is heavily indebted. It is also contended that the allegation of forcing her to abort in the guise of ultra sound scanning test etc., is not based on any material. The second respondent lived for two days after the marriage with her husband and when the first accused went to Chennai to attend his employment, she was taken back to Ongole by her parents, since then she has not turned up either to join at Chennai or Nellore to lead MSM,J And 9774 of 2017 marital life and in such circumstances, no prudent man would accept such an allegation of harassment for her failure to meet the illegal demand of additional dowry. The second respondent with the help of her parents trying to spoil the career of this petitioner – A4 as she secured a seat in engineering in US university and her VISA was also approved. To spoil her bright future both in professional and personal career, she was roped into the false case filed under Sections 498-A307 read with 34 IPC and Sections 3 and 4 of Dowry Prohibition Act and it is nothing but abuse of process of Court.

Whereas, accused Nos.1, 2, 3 and 5, who filed a separate petition, raised specific contentions almost identical to the grounds urged by the petitioner-A4, who filed another petition, while drawing the attention of this court to various allegations relating to offence punishable under Sections 498- A and its consequences. Therefore, this Court need not repeat the grounds urged in the petition except a ground that a crime was registered against these petitioners for the offence under Section 307 IPC purposefully with an intent to subject the petitioners to severe harassment, and to see that they do not get bail, by abuse of process of law and thereby such proceedings against the petitioners cannot be continued, prayed to quash the proceedings against these petitioners for the offences punishable under Sections 498-A307 read with 34 IPC and Sections 3 and 4 of the Dowry MSM,J And 9774 of 2017 Prohibition Act in P.R.C.No.9 of 2017 on the file of the Court of Additional Judicial First Class Magistrate at Kandukur, Prakasam District.

During hearing, learned counsel for the petitioners contended that based on vague allegations in the complaint, the police registered a serious crime against the petitioners, who are highly placed in the society and roping the petitioner in Criminal Petition No.7652, who is an aspirant of engineering (MS) admission in US university, after obtaining VISA is nothing but an abuse of process of Court, since, their intention is to prevent her from leaving the country and therefore the respondent No.2 by abusing the process of law, harassing these petitioners and such harassment cannot be permitted while directing the petitioners to face prolonged trial for the grave offences punishable under Sections 498-A and 307 IPC and 3 and 4 of Dowry Prohibition Act. But lodging of complaint is nothing but harassment and the Court cannot encourage the parties to use the process of Court as a tool of harassment against these petitioners. He further contended that none of the allegations made in the complaint do not constitute an offence punishable under Sections 498- A, 307 read with 34 IPC and 3 and 4 of Dowry Prohibition Act and requested to allow the petition, quashing the proceedings against these petitioners for the alleged offences. He placed reliance on five judgments of the Hon’ble Apex Court reported in Rajesh Sharma and others Vs.State of U.P. and MSM,J And 9774 of 2017 another1, Swapnil and others Vs.State of Madhya Pradesh2, Ram Saran Varshney and others Vs.State of Uttar Pradesh and another3, Arnesh Kumar Vs. State of Bihar and another4, Preeti Gupta and another Vs. State of Jharkhand and another5 and Varala Bharath Kumar and another Vs. State of Telangana and another6. On the strength of the law declared by the Apex Court in the above judgments, he requested this Court to quash the proceedings against these petitioners for various offences referred supra.

Whereas, learned counsel for the 2nd respondent contended that the material allegations made in the Telugu written complaint lodged with the police in Kandukuru Police Station and the statements of witnesses recorded under Section 161(3) Cr.P.C. pointing out the complicity of petitioners for various offences and when the allegations are directly establishing the involvement of these petitioners, prima facie, the Court cannot exercise the power under Section 482 Cr.P.C. to quash the proceedings and such disputed question can be decided only after full fledged trial and at this stage, this Court cannot quash the proceedings against the petitioners and requested to dismiss both the petitions.

2017(2) ALD (Crl.) 568 SC (2014) 13 Supreme Court Cases 567 (2016) 3 Supreme Court Cases 724 (2014) 8 Supreme Court Cases 273 (2010) 7 Supreme Court Cases 667 (2017) 9 Supreme Court Cases 413 MSM,J And 9774 of 2017 Considering the above contentions and perusing the material on record, the point that arises for consideration is:

“Whether the allegations made in the charge sheet if accepted on its face value, would constitute the offences punishable under Sections 498-A307 read with 34 IPC and 3 and 4 of the Dowry Prohibition Act in P.R.C.No.9 of 2017 on the file of the Court of Additional Judicial First Class Magistrate, Kandukur, Prakasam District, if not whether the proceedings against these petitioners are liable to be quashed by exercising inherent jurisdiction under Section 482 Cr.P.C.?” POINT:

Section 482 of Cr.P.C states the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power, the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but MSM,J And 9774 of 2017 merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice.

To give effect to any order under Code means, the first class of order, which the section embraces are orders that may be necessary to give effect to any order under this Court. When a Court has authority to make an order, it must also have the power to carry out the order into effect. The power to enforce obedience to the mandates of the Court necessarily springs from the very existence of the authority to issue the mandates and, if that power is not expressly given by the statute, it must be deemed to be inherent in the Court, vide Emperor v. Sukhdeo7.

To prevent abuse of the process of any Court, the authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority, so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse in the process of the Court to allow a suitor to litigate over again the same question which has been already decided against him. The High Court would, in the exercise of its inherent jurisdiction, reject an application for 1930 Lah 465 31 Cr LJ 482 MSM,J And 9774 of 2017 the transfer of a criminal case, where such an application based upon the same facts had already been refused. The words “process” is a general word meaning, in effect, anything done by the Court. In exercise of the powers under this section the High Court would be justified to quash the proceedings if it finds that the institution or continuance of criminal proceedings amounts to abuse of the process of the Court or if quashing of those proceedings would otherwise secure the ends of justice. Where there is no material before the Magistrate on the basis of which he can issue process against the accused to stand trial, it will be gross abuse of the process of the Court if the accused is put to trial, hence the proceedings should be quashed at the threshold. Similarly, where it is not shown that there is any abuse of process of the Court, the proceeding will not be quashed. The jurisdiction of the High Court in quashing the complaint or the first information report is very limited. The High Court is justified in quashing the complaint when no offence is made out on the allegations made in the compliant or the documents accompanying it per se.

The basis for registration of FIR is the telugu written report lodged by the second respondent with Kandukur Town Police Station dated 13.02.2016. The specific allegations made in the telugu written complaint disclose that A1 the first petitioner, Korimerla Meena Kumari/mother-in-law(A2) made an attempt to abort the pregnancy of the de facto MSM,J And 9774 of 2017 complainant and when she was necked out from the house and stayed with her parents at Ongole, on 12.12.2016 at about 5.00 p.m., her husband, mother-in-law, father-in-law, sister-in-law Videesha – A4(petitioner in Criminal Petition No.7652 of 2017) and the maternal uncle of A1, by name, Metla Ashok Kumar – 4th petitioner in Criminal Petition No.9774 of 2017, highhandedly trespassed into their house and her husband made an attempt to stab her. Immediately, she raised cries and on hearing cries, her parents, who are staying in the adjacent room came there and on their arrival, the petitioners left the house of her parents. The complaint also discloses that they demanded for payment of additional dowry of rupees twenty lakhs besides demand of Audi Car and causing physical and mental harassment, more particularly, causing injuries with ropes by the petitioners prima facie pointing out the complicity of these petitioners for the offences punishable under Sections 498-A307 read with 34 IPC and 3 and 4 of Dowry Prohibition Act. Even if the allegations in the complaint though incomplete, it cannot be the sole basis for proceeding against these petitioners but it is only the information to the police about commission of the cognizable offence, to set the criminal law into motion to conduct investigation. Therefore, the allegations made in the FIR alone cannot form the basis for proceeding further in the PRC at present.

MSM,J And 9774 of 2017 On the basis of FIR, the Sub-Inspector of Police took up investigation, examined as many as 12 witnesses. L.W.1 the second respondent herein is the prime witness in the incident. She being a victim stated to the police about the harassment meted out by her in the hands of the petitioner for her failure to meet the illegal demand of additional dowry and Audi Car besides the dowry given at the time of marriage including presentation of gold etc., and so also the attempt made by the petitioners to kill her on 12.12.2016 at about 5.00 p.m. This statement is supported by the statement of her mother and father Davuluri Ramesh and Latha. But they are not eye witnesses to the incident of subjecting her to harassment both physically and mentally or to the alleged attempt to kill her by these petitioners while she was staying at her in-laws house in Nellore and they received information from L.W.1 the second respondent herein, about the harassment she suffered in the hands of these petitioners for her failure to meet the illegal demand for payment of dowry. The incident that occurred at Kandukur was also not witnessed by them, however, they heard cries of their daughter the second respondent L.W.1 when her husband allegedly made an attempt to kill her by causing stab injury and at the same time, all the petitioners high-handedly entered into the house, her husband alone made an attempt to kill her, then she raised cries, therefore, they are not direct witnesses to the incident either at Nellore or at Kandukur, MSM,J And 9774 of 2017 but they received information about the harassment, the second respondent suffered in the hands of these petitioners and witnessed the fleeing of these petitioners after the second respondent raised cries when her husband made an attempt to kill her. Similarly, L.Ws.4 and 5 the neighbours of L.Ws.2 and 3 supported the evidence of L.W.1 with regard to the attempt made by A1 husband of the second respondent, the first petitioner in Criminal Petition No.9774 of 2017, and they fled away from the house of L.Ws.2 and 3, therefore, they are not the direct witnesses to the incident. They received information about the harassment suffered by L.W.1 the second respondent for her failure to meet the illegal demand of payment of dowry by her parents as demanded by the petitioners and at the same time, as per the law declared by Apex Court in the Judgments referred supra, the duty of the Court while deciding the petitions under Section 482 Cr.P.C. is to verify the allegations made in the charge sheet and find out whether those allegations are sufficient to constitute any offence and this Court cannot take into consideration of the defence set up by the petitioners in a petition filed under Section 482 Cr.P.C., in view of the law declared by the Hon’ble Apex Court in Mrs. Dhanalakshmi vs. R. Prasanna Kumar & Ors.8; Ganesh Narayan Hegde vs. S. Bangarappa AIR 1990 SC 494 MSM,J And 9774 of 2017 & Ors.9; and M/s Zandu Pharmaceutical Works Ltd. & Ors. vs. Md. Sharaful Haque & Ors.10 In “State of Haryana v. Bhajan Lal11” the Apex Court considered in detail the powers of High Court under Section 482 Cr.P.C. and the power of the High Court to quash criminal proceedings or FIR. The Apex Court summarized the legal position by laying down the following guidelines to be followed by High Courts in exercise of their inherent powers to quash a criminal complaint:

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(1995) 4 SCC 41 AIR 2005 SC 9 1992 Supp (1) SCC 335 MSM,J And 9774 of 2017 (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) 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.

If these principles are applied to the present facts of the case, the duty of the Court to verify the allegations made in the charge sheet, which includes the statements recorded by the police during investigation and other material evidence collected during investigation. Since the statements recorded under Section 161(3) Cr.P.C. forms part of the charge sheet in view of the judgment of Apex Court in State of Himachala Pradesh Vs. Priti Chand wherein, held as follows: “the power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinize the FIR/charge-Sheet/complaint. In deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter and decide whether the allegations constitute the MSM,J And 9774 of 2017 offence. It must be remembered the FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted and the charge- sheet is laid the prosecution produces the statements of the witnesses recorded under Section 161 Cr.P.C in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non- compliance. It would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether court could take cognizance of the offence, on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence – the court may embark upon the consideration thereof and exercise the power.”

Thus, in view of the law declared by the Apex Court in “State of H.P. v. Pirthi Chand” (referred supra) unless the Court come to a conclusion that the averments in the charge sheet and the statements of witnesses on the record in MSM,J And 9774 of 2017 support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial, if, it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the proceedings.

As discussed above, the prime duty of the Court is to verify the allegations made in the charge sheet and the statements of witnesses recorded by the investigating agency during investigation, the statements produced before the Court, more particularly statements recorded under Section 161(3) Cr.P.C. which forms part of the charge-sheet. Though, such statement recorded under Section 161(3) Cr.P.C is not a substantive piece of evidence, it can be used only for limited purpose of contradicting the witness under Indian Evidence Act. However, this Court is competent to deduce its conclusion on the statements recorded under Section 161(3) Cr.P.C during investigation, though not a substantive piece of evidence.

Keeping in mind the principles laid down in the above judgment, it is the duty of the Court to verify the contents of the charge sheet, whether those allegations are sufficient to constitute prima facie offence punishable under Section 498- A IPC and this Court cannot appreciate the evidence at the stage but it can evaluate the material on record and this Court cannot take into consideration of any additional MSM,J And 9774 of 2017 documents filed along with the petition except the documents filed along with the charge sheet filed by the investigating agency. The Apex Court in State of Himachal Pradesh Vs. Priti Chand, ordinarily the High Court will not allow the documents produced by the petitioner under Section 482 Cr.P.C. the Court cannot permit them, which cannot be termed as evidence for being decided and proved. While exercising jurisdiction under Section 482 Cr.P.C., it is impermissible to look into the material produced and the acceptance of which is essentially a matter for consideration for trial. But public documents are materials which are beyond the suspicion and relied on by the accused can be taken into consideration by the High Court while exercising the power under Section 482 Cr.P.C. vide Umesh Kumar Vs. State of A.P.12 Thus, in view of the law declared by the Apex Court and other High Courts, the Court cannot look into the documents filed along with the petition except the public documents which are beyond suspicion can be taken into consideration.

Keeping in mind the principles laid down in the above judgments, I would like to examine the allegations made in the complaint while ignoring the material produced before this Court by the counsel for the petitioners, i.e. charge sheet in C.C.No.887 of 2017, FIR in Crime No.461 of 2016 of Nellore Air 2014 SC 1106 MSM,J And 9774 of 2017 Police Station, FIR and complaint in Crime No.120 of 2008 and other material filed along with USR No.58559 of 2018 dated 10.08.2018.

In the facts of the case as discussed above, the allegations both made in the telugu written complaint lodged with the police and the statements of the witnesses recorded by the police during investigation under Section 161(3) Cr.P.C. directly pointing out the complicity of these petitioners for the offences punishable under Sections 498-A307 read with 34 IPC and 3 and 4 of Dowry Prohibition Act but too vague.

Coming to the case of prosecution for the offences under Sections 3 and 4 of Dowry prohibition Act, the alleged payment of dowry of Rs.50.00 lakhs cash and presentation of gold of 200 tulas and registration of property in the name of the second respondent took place at the time of marriage, i.e. on 27.04.2016 and the later act of demanding for Audi Car etc. would constitute an offence under Sections 3 and 4 of Dowry Prohibition Act. The complaint was lodged before the Magistrate on 13.12.2016, whereas the first incident of payment of dowry would attract the offence punishable under Section 3 of Dowry Prohibition Act, took place on 27.04.2016. Section 3 of Dowry Prohibition Act deals with punishment for payment of dowry and for receiving of dowry. Such complaint shall be lodged with the police within one year, according to MSM,J And 9774 of 2017 Rule 5 (c) of the rules framed by the High Court under the Act known as A.P. Dowry Prohibition Rules, 1998, every complaint under the rules shall be made by aggrieved party itself or any person on behalf of aggrieved party, the place of trial or enquiry shall be from the place where the complainant is residing. Any complaint shall be made either on the demand of dowry or accepting dowry within a period of one year. The acceptance of dowry of Rs.50.00 lakhs, gold of 200 tulas etc., was allegedly on 27.04.2016. As per the allegations made in the complaint and the charge sheet including the statements of witnesses recorded under Section 161(3) Cr.P.C. and when the complainant wants to complain against the petitioner about the commission of offence punishable under Section 3 of Dowry Prohibition Act, such complaint must be lodged within one year in view of Rule 5(c) read with Rule 10, which prescribed the limitation for filing complaint and its finalization. According to Rule 10, any offence under Section 3 and 4 or any dispute under Section 6 of the Act, shall be filed before expiry of one year and the same shall be finalized within two years from the date of filing. Here, the offence punishable under Section 3 of Dowry Prohibition Act allegedly occurred on 27.04.2016 when the petitioners received dowry as defined under Section 2 of the Act but the complaint was lodged after expiry of more than one year eight months, therefore, the proceedings for the offence punishable under Section 3 of the Act are liable to be MSM,J And 9774 of 2017 quashed, on the ground of violation of Rule 5(c) and Rule 10 of rules framed by the High Court under the Dowry Prohibition Act.

Coming to the offence punishable under Section 4 of the Dowry Prohibition Act, the petitioner conceived in the month of May 2016 and she was allegedly taken to Apollo Hospital and forced her to abort. After she conceived, her husband A1 demanded for Audi Car without specifying the date of alleged demand. Even assuming for a moment, immediately after she conceived such demand was made, the complaint is barred in view of Rule 5(c) read with Rule 10 of A.P.Dowry Prohibition Rules, since the complaint was lodged almost after one year seven months. The other allegation made against all the petitioners is that she was subjected to cruelty for her failure to meet illegal demand of additional dowry of Rs.20.00 lakhs, both physical and mental with a view to kill her. But no specific details are mentioned as to the exact date, time and place of occurrence except making a vague allegation against these petitioners for the offence under Section 4 of Dowry Prohibition Act. But in the statements recorded by the police under Section 161(3) Cr.P.C., L.W.1 the victim woman stated that all these petitioners while she was carrying pregnancy, subjected her to cruelty by beating her indiscriminately. Such act may attract an offence punishable under Section 4 of Dowry Prohibition Act, but the allegations are absolutely vague without disclosing the date, time and place of MSM,J And 9774 of 2017 occurrence of commission of such offence. Therefore, based on such vague allegations, the Court would normally exercise power to quash the proceedings. In Ramsaran Varshey and others Vs. State of U.P. and others13 in Swapnil and others referred supra, the apex Court quashed the proceedings on the ground that the allegations are vague and bereft of details as to the place and time of incident. The principles are directly applicable to the present facts of case as the charge sheet is bereft of details.

In Preeti Gupta and another Vs. State of Jharkhand and another (referred supra) the Apex Court on an occasion deal with similar circumstances and high lighted the powers of the Court under Section 482 Cr.P.C. The facts of the case are that A1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, A2 is a permanent resident of goregaon, Maharashtra. They have never visited the place where the alleged incident had taken place and they never lived with the second respondent and her husband and thereby, their implication in the complaint is meant to harass and humiliate the husband’s relatives. This seems to be the only basis to file the complaint against the appellants. Permitting the complainant to pursue the complaint would be an abuse of process of Court and the Court further observed that when the complaint was filed with an oblique motive and (2016) 3 SCC 724 MSM,J And 9774 of 2017 at the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern. When the accused were living at a different place, their implication and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

The Apex Court also highlighted the ultimate object of justice and is to find out the truth 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 the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the 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 complainant are required to be scrutinized with great care and circumspection while exercising the power under Section 482 Cr.P.C. The experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a MSM,J And 9774 of 2017 matter of common knowledge that in cases 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 an amicable settlement altogether. The process of suffering is extremely long and painful. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. While making such observations, the Court quashed the proceedings against the petitioners but this position is of no sustenance to the present facts of the case, for the reason, the accused 1 and 2 therein are residing at different places with the husband after their marriage and there is no possibility of frequent visit of the scene of offence. The vague allegations made in the complaint are not sufficient to proceed with the trial against these petitioners for the serious offences punishable under MSM,J And 9774 of 2017 Sections 498-A IPC and 3 and 4 of Dowry Prohibition Act. Since the very object of Section 498-A IPC is laudable to punish the 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 State of Objects and Reasons of the Act 46 of 1983. But the ‘cruelty’ under Section 498-A covers conduct which may drive the women to commit suicide or to cause grave injury or danger to life, limb or health(whether mental or physical) of the woman etc., and in view of pendency of increasing such offences, the Apex Court in Rajesh Sharma and others Vs. State of U.P. and another(stated 1 supra) laid down certain guidelines. Of course, these guidelines to certain extent were reversed by the Apex Court in recent decision in Social Action Forum For Manav Adhikar and others Vs. Union of India14 and this judgment is also not applicable to the present facts of the case relied on by the learned counsel for the petitioners. Whereas, in Varala Bharath Kumar and another Vs. State of Telangana and another (stated 6 supra), the Apex Court had an occasion to deal with an identical issue, where allegations were made in the FIR/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 2018(30 L.S.31(SC) MSM,J And 9774 of 2017 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; the court can exercise power under Article 226 of the Constitution of India or under Section 482 of the Code of Criminal Procedure may be exercised. 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. In the absence of specific allegations, the Court cannot encourage the parties to harass the husband or the relative of the husband of a woman by lodging criminal complaints implicating them into grave criminal offences.

Similarly, in Swapnil and others Vs. State of Madhya Pradesh (referred supra) the Apex Court had an occasion to discuss about the procedure to be followed under Section 482 Cr.P.C. to quash the proceedings in the complaint registered MSM,J And 9774 of 2017 for the offences under Sections 498-A and 506 IPC. When the allegations are vague and bereft of the details as to the place and the time of the incident, the proceedings are liable to be quashed. The principle laid down in Swapnil and others’ case (referred supra) is squarely applies to the present facts of the case since the allegations made in the complaint, the statements of the witnesses recorded under Section 161(3) Cr.P.C. and the report lodged with the police did not disclose the date, time and place of occurrence i.e. demand of payment of dowry and subjecting her cruelty for her failure to meet the demand for payment of additional dowry. In the absence of such details, the Court can exercise the power under Section 482 Cr.P.C. and quash the proceedings.

Turning to the object and purpose of incorporating section 498-A, in Bhaskar Lal Sharma and another v. Monica and others15 the Apex Court considered what amounts to cruelty and ingredients of Section 498-A in para 29 and proof of an offence punishable under Section 498-A I.P.C. In para 37 of the judgment, the Supreme Court held as follows:

“Ex facie no case has been made out under Section 498A of the IPC so far as the appellants are concerned. The allegations relating to the place where the marriage took place has nothing to do with an offence under Section 498A of the IPC. Allegations that appellant No.2 kicked the respondent with her leg and told her that her mother to be a liar may make out some other offence but not the one punishable under Section 498A. Similarly her allegations (2014) 3 Supreme Court Cases 383 MSM,J And 9774 of 2017 that the appellant No.2 poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant could not be said to be offences punishable under Section 498A. Even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the IPC.”

But the facts of the present case though different and in the absence of specific allegations, the cruelty in connection with demand of dowry, the offences punishable under Section 498-A cannot be accepted. More over, the Apex Court in Sushil Kumar Sharma vs. Union of India & Ors16 reiterated the object of Section 498-A holding that the object of which Section 498-A was introduced is ample, reflected in statements and objects and reasons while enacting the criminal law second amendment and in paragraphs 10 & 19 of the said judgment, the Supreme Court held as follows:

“10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short “CrPC“) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused (2005) 6 SCC 281 MSM,J And 9774 of 2017 does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed.

In paragraph 40 in Bhaskarlal Sharma’s case, the Supreme Court discussed about quashability of the case by relying on Bhajanlal’s case held as follows:

“The jurisdiction of the High Court to quash an order of summoning and/or a criminal proceeding as also this Court are well known. The parties have relied upon the decisions of this Court in State of Haryana vs. Bhajan Lal [1992 (Supp.) 1 SCC 335]. We may notice the categories 1, 3, 5 and 7 mentioned in Para 102 of the said decision, which are as under:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(7) 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.”

In Pashaura Singh v. State of Punjab and another17, the Supreme Court held that subjecting woman to cruelty by husband and his relatives and in the absence of proof of demand of dowry or harassment by accused, High Court found that only allegation made in FIR was the appellant-

(2010) 11 Supreme Court Cases 749 MSM,J And 9774 of 2017 accused and his family members started harassing appellant’s wife for not bringing more dowry. But there was no demand for dowry, nor was there any specific entrustment of dowry articles to accused as alleged in FIR and held that offence under Section 498-A is not made out.

There are two parallel lines of judgment in the law declared by the Apex Court. One view is that the Court must construe the act of Cruelty liberally so as to achieve the object of the incorporation of Section 498-A IPC. The other view of decision is that the Court must strictly construe the word ‘cruelty’ and in the absence of specific allegations and when the complaint or charge sheet are bereft of details like date, time and place of harassment, the Court can exercise its power and quash the proceedings.

In the present facts of the case, all the petitioners allegedly subjected the second respondent to cruelty without specific details regarding date, time and place of offence but based on vague allegations both in the complaint and in the statements recorded under Section 161 (3) Cr.P.C. proceedings against them is nothing but subjecting the petitioners to harassment using the criminal law as a tool of harassment. Therefore, the allegations made in the complaint and the evidence collected are too vague and on the basis of such vague allegations, the Court cannot proceed against these petitioners and the proceedings cannot be continued by MSM,J And 9774 of 2017 applying the principle laid down in Swapnil and others case(referred supra).

In view of the law declared by the Apex Court, it is clear that in the absence of any details, based on vague allegations both in the complaint and the charge sheet, the proceedings against these petitioners for the offences punishable under Sections 498-A IPC and Sections 3 and 4 of Dowry Prohibition Act shall not be continued and this Court can exercise power under Section 482 Cr.P.C. to avoid unjust harassment of these petitioners by applying the guidelines laid down by the Apex Court in Bhajanlal’s case (referred supra). Accordingly, proceedings against the petitioners in Crl.P.No.9774 of 2017 for the offences punishable under Sections 498-A IPC and 3 and 4 of Dowry Prohibition Act are quashed, as the allegations made in the charge sheet even if accepting on its face value do not constitute offences punishable under Section 498-A IPC and 3 and 4 of Dowry Prohibition Act, and that apart the complaint was filed beyond one year as required under Rule 5(c) read with Rule 10 of A.P. Dowry Prohibition Rules framed under the Act.

Coming to the other offence alleged against the petitioner, i.e., punishable under Section 307 IPC. The allegations in the complaint and as well as in the statements of the witnesses recorded by the police during investigation are clear that on 12.12.2016 the first accused, husband of MSM,J And 9774 of 2017 the de facto complainant-second respondent herein, at about 5.00 p.m., along with other accused came to the house of the parents of the second respondent and A1 the first petitioner in Crl.P.No.9774 of 2017 made an attempt to stab her with a view to kill her. If this allegation is accepted as true on its face value, it would constitute an offence punishable under Section 307 IPC since making of an attempt to stab with an intention to kill a person constitute an offence prima facie punishable under Section 307 IPC. Whereas the complaint or charge sheet is bereft of any allegations to constitute an offence under Section 307 IPC against accused 2 to 5, the petitioners 2, 3 and 5 in Criminal Petition No.9774 and A4 the petitioner in Criminal Petition No.7652 of 2017.

It is not the case of the second respondent that the petitioners are jointly and severally liable and they conspired together to commit the murder of the second respondent. When A1 alone made such an attempt in the absence of common intention to invoke Section 34 IPC, and joint and several liability under Section 149 IPC, the proceedings against the other petitioners – A2, A3, A4 and A5 cannot be continued for the offence punishable under Section 307 IPC. Therefore, taking into consideration the facts and circumstances of the case, accepting the allegations made in the complaint and charge sheet including the statements recorded under Section 161(3) Cr.P.C., it is difficult to conclude that there is prima facie material to proceed against MSM,J And 9774 of 2017 A2 to A5 for the offence punishable under Section 307 IPC. But the charge sheet disclosed prima facie case against the first petitioner in Criminal Petition No.9774 of 2017.

Hence, I find that it is a fit case to quash the proceedings against A2, 3 and 5, the petitioners 2, 3 and 5 in Criminal Petition No.9774 of 2017 and sole petitioner A4 in Criminal Petition No.7652 of 2017 by exercising power under Section 482 Cr.P.C. and in view of the principles laid down in the judgments referred supra.

In view of my foregoing discussion, the proceedings against the petitioners in both the petitions – A2, A3, A4, A5 (2nd, 3rd and 4th petitioners in Criminal Petition No.9774 of 2017) and the sole petitioner in Criminal Petition No.7652 of 2017 for the offence punishable under Sections 498(A)307 IPC and Sections 3 and 4 of Dowry Prohibition Act are hereby quashed in P.R.C.No.9 of 2017 pending on the file of the Court of Additional Judicial Magistrate of First Class, Kandukur, Prakasam District, while permitting the magistrate to proceed against A1 the first petitioner in Criminal Petition No.9774 of 2017 for the offence punishable under Section 307 IPC only.

Accordingly, the Criminal Petition No.7652 of 2017 is allowed and Criminal Petition No.9774 of 2017 is partly allowed quashing the proceedings in P.R.C.No.9 of 2017 on the file of the Court of Additional Judicial Magistrate of First MSM,J And 9774 of 2017 Class, Kandukur, Prakasam District, against all the petitioners for the offences punishable under Sections 498-A IPC and 3 and 4 of Dowry Prohibition Act, the proceedings against A2 to 5 for the offence punishable under Section 307 of IPC. The proceedings against the first petitioner (A1) in Criminal Petition No.9774 of 2017 are concerned, the Magistrate is hereby directed to proceed further for the offence punishable under Section 307 IPC only.

As a sequel, miscellaneous petitions, pending if any, shall stand closed.

___________________________________ M. SATYANARAYANA MURTHY, J Date: 12.10.2018 Rns

Patna High Court
Dipak Malakar & Ors vs State Of Bihar & Anr on 25 April, 2018
        IN THE HIGH COURT OF JUDICATURE AT PATNA
                    Criminal Miscellaneous No.33640 of 2015
      Arising Out of PS. Case No.-50 Year-2014 Thana- KHAGARIA COMPALINT CASE
                                      District- Khagaria
   ======================================================

1. Dipak Malakar, S/o Wakil Malakar

2. Wakil Malakar, S/o Late Anandi Malakar

3. Chandrakala Devi, W/o Wakil Malakar

4. Reena Devi, D/o Wakil Malakar

5. Pankaj Malakar @ Pankaj Kumar, S/o Wakil Malakar All resident of Village- Durgapur, P.S.- Muffasil, District- Khagaria … … Petitioner/s Versus

1. The State of Bihar.

2. Soni Devi, W/o Deepak Malakar, D/o Bhagwat Malakar, At present residing at Gogri, P.O- Gogri, District- Khagaria … … Opposite Party/s ====================================================== Appearance :

For the Petitioner/s : Mr. Ranjeet Kumar Singh, Advocate For the Opposite Party No.1 : Mr. B.N.Panday (APP) For the Opposite Party No.2 : Mr. Mrityunjay Kumar, Advocate Mr. Umesh Prasad, Advocate ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE ORAL JUDGMENT Date : 25-04-2018 Seeking quashing of Complaint Case 50C/2014 pending in the Court of Sub-Divisional Judicial Magistrate, Khagaria and an order dated 30th of April, 2015 taking cognizance for an offence under Section 498A of the Indian Penal Code, this application has been filed by the petitioners.

Petitioner No.1 Dipak Malakar is the husband of opposite party no.2-the complainant Soni Devi. Petitioner No.2 is Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 the father of petitioner no.1, petitioner no.3 is the mother of petitioner no.1 and petitioner nos. 4, and 5 are the brother in law and sister in law of the complainant.

It is the case of the complainant that she was married to petitioner no.1 Dipak Malakar on 20th June, 2007 according to Hindu Rites and religious customs. On the eve of marriage, gifts to the tune of Rs.60,000/- and a cash of Rs.31,000/- was paid, but after coming and staying in the matrimonial house, a child was born to her and thereafter the family members started harassing her and demanding Rs.50,000/-. She communicated the same to her parents and when the same was not paid, harassment is maintained upon her. Accordingly, based on the aforesaid, the complaint has been filed.

It is the case of the petitioners that allegations of harassment are incorrect. Petitioner no.1, after the complainant left the house, had filed an application for restitution of conjugal rights and in retaliation thereof, it is stated that this application has been filed complaining commission of an offence under Section 498A of the Indian Penal Code. By referring to the complaint and the statement of the complainant on affidavit and the statements of three witnesses examined and the proceedings held before the Court below, it is stated that omnibus and general allegations are Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 made with regard to demand of dowry and harassment and based on the same against all the petitioners, the allegations are not proved.

Learned counsel for the opposite parties refuted the aforesaid and argued that once the complainant has made specific averment with regard to harassment, at this stage in a proceeding under Section 482 of the Code of Criminal Procedure, the Court should not interfere.

The principles of interfering into such matters has been laid down by the Hon’ble Supreme Court to the following cases viz:- Gian Singh Versus State of Punjab and another, (2012) 10 SCC 303; Taramani Parakh Versus State of Madhya Pradesh and others, (2015) 11 SCC 260; Kans Raj Versus State of Punjab and others; (2000) 5 SCC 207; and Amit Kapoor Versus Ramesh Chander and another, (2012) 9 SCC 460, and it is seen that in the case of Taramani Parakh (supra) after referring to the principles governing quashing of the complaint in a proceeding under Section 482 of the Code of Criminal Procedure in paras 10 and 11, the following principles have been crystallized:-

10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 of process of law, the proceedings can be quashed but if there is a triable case the Court does not go into reliability or otherwise of the version or the counter version. In matrimonial cases, the Courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.

11. Referring to earlier decisions, in Amit Kapoor V. Ramesh Chander, (2012) 9 SCC 460, it was observed:

“27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.

27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.

27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.

27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a “civil wrong” with no “element of criminality” and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.

27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 27.10. It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 ]; Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 ]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297];

Sheonandan Paswan v. State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192 ]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v. State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.”

If we analyze the case in hand in the backdrop of the aforesaid principles, it is seen that except for making general allegation that her husband was taking dowry and harassing her, no specific allegation with regard to nature of harassment, the particulars when and how the harassment was made, are indicated against any of the petitioners. At best, specific allegation is made against petitioner no.1 Dipak Malakar. As far as other petitioners are concerned, general omnibus allegations are made against all the family members.

Keeping in view the nature of complaint made and the law laid down, as indicated in the cases referred to hereinabove, I am of the considered view that except for petitioner no.1 Dipak Malakar, the husband, no specific allegations are made out on a bare reading of the complaint against petitioner nos.2 to 5 and, therefore with regard to these petitioners, the petition has to be allowed and is, accordingly, allowed.

Accordingly, the order so far it pertains to taking cognizance and registering the complaint against petitioner nos.2 to 5 are concerned, the same is quashed. Petitioner No.1 Dipak Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018 Malakar should face the trial and raise all objections, as are permissible in law before the court below.

With the aforesaid, the application is allowed and disposed of.

(Rajendra Menon, CJ) Sunil/-

AFR/NAFR                NAFR
CAV DATE                NA
Uploading Date          30.04.2018
Transmission Date       30.04.20

 

Telangana High Court
Nenavath Hanumanthu Naik … vs Smt. M. Nirmala Bai, W/O N. … on 11 June, 2018
Bench: M.Satyanarayana Murthy
   THE HON'BLE SRI JUSTICE M.SATYANARAYANA MURTHY


               CRIMINAL PETITION NO.1578 OF 2014

ORDER:

This criminal petition is filed under Section 482 of Criminal Procedure Code (for short “Cr.P.C.”) to quash the proceedings in C.C.No.111 of 2013 on the file of Judicial First Class Magistrate, Rayadurg, Ananthapur District, registered for the offences punishable under Section 498-A of Indian Penal Code (for short “I.P.C.”) and under Sections 3 and 4 of Dowry Prohibition Act.

Respondent No.1 Smt.M.Nirmala Bai, lodged a written report with the police on 30.05.2013 alleging that her marriage was performed on 27.11.2012 with accused No.1, the petitioner No.1 herein – N.Hanumanthu Naik in the presence of elders at Nesepeta, Efrath Church in Rayadurg town. At the time of marriage, parents of defacto complainant paid Rs.1,50,000/- cash and presented 12 tulas of gold as dowry to the petitioner No.1/accused No.1 and spent Rs.12,00,000/- for performing marriage. After marriage, she joined with accused No.1 and lived happily for few days at Karmika Nagar, Yousifguda, Hyderabad along with accused Nos.2 to 6/petitioner Nos.2 and 3 and other accused (proceedings against accused Nos.4 to 6 are quashed vide order dated 21.03.2018 passed in Crl.P.No.9631 of 2013). Later, petitioner No.1 and his family members, who are accused Nos.2 to 6, started harassing the respondent No.1 both physically and mentally demanding additional dowry from her parents to get a car or Rs.4,00,000/- cash or alternatively to get the property of her parents registered in the name of petitioner No.1. The same was brought to the notice of her parents, who in turn expressed their inability to meet the illegal demand and it was settled in the MSM,J Crl.P_1578_2014 panchayat held in the presence of elders, but all the accused did not change their attitude and made baseless allegations suspecting the character of respondent No.1 with an intention to get additional dowry. The petitioner No.1 called his brother-in-law to Hyderabad and sent his wife to her parents house at Rayadurg.

On 27.12.2012 accused No.1 sent a letter to the respondent No.1 with regard to her illegal contacts with others. Again on 09.02.2013 respondent No.1 and one Mood Thippeswamy @ Thipperudra, who is junior paternal uncle of respondent No.1, went to the house of the petitioner No.1, but on seeing them, he pushed both the respondent No.1 and her junior paternal uncle, abused them in filthy language and threatened them with dire consequences. On that day, respondent No.1 and her junior paternal uncle stayed in the church nearby her residential house and returned to Rayadurg. Later on 03.03.2013 respondent No.1 and her parents went to the house of petitioner No.1 and found the same was locked. Accused Nos.1 to 6 subjected the respondent No.1 to harassment and cruelty to pay additional dowry and requested to take necessary action against the petitioners herein and other accused.

On the strength of the same, police registered the case in Crime No.57 of 2013 for the offence punishable under Section 498-A of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act, issued F.I.R., took up investigation. During investigation, investigating agency examined as many as 18 witnesses, recorded their statements under Section 161 (3) of Cr.P.C., visited scene of offence, prepared rough sketch of scene of offence on 20.06.2013. After completion of investigation, based on material collected during investigation, investigating agency concluded that there is material against the MSM,J Crl.P_1578_2014 petitioners herein and other accused, filed charge sheet against the accused.

Petitioner Nos.1 to 3/accused Nos.1 to 3 herein filed the present petition under Section 482 of Cr.P.C. to quash the proceedings in C.C.No.111 of 2013 on the file of Judicial First Class Magistrate, Rayadurg, Ananthapur District on the ground that the complaint lodged with the police and the charge sheet filed before the Magistrate by the police after completion of investigation, does not disclose any specific allegation against the petitioner to attract the offence punishable under Section 498-A of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act while denying the allegations made in the written statement and that the present report was lodged with the police only with a view to wreck vengeance in view of private complainant lodged by husband/accused No.1 before XXIII Special Magistrate, Hyderabad in C.C.No.105 of 2013 registered for the offence punishable under Sections 387 and 506 of I.P.C., and in the absence of any specific allegation against the petitioners, the proceedings cannot be continued as it would amount to harassment of innocent accused and prayed to quash the proceedings against the petitioners.

During pendency of the petition, the petitioner No.1/acused No.1 has withdrawn his claim. Hence, the petition was dismissed as withdrawn against petitioner No.1/accused No.1 only vide order dated 17.02.2014. Thus, the petitioner Nos.2 and 3/accused Nos.2 and 3 i.e. father and mother of petitioner No.1/accused No.1 are only prosecuting the present petition and prayed to quash the proceedings on the same grounds.

MSM,J Crl.P_1578_2014 During hearing, this Court ordered notice to respondent No.1. Accordingly notice was served, proof of service was filed, but none appeared for respondent No.1.

During hearing, learned counsel for the petitioner Nos.2 and 3 mainly contended that in the absence of specific allegations, based on omnibus allegations, the Court cannot continue the proceedings against the petitioner Nos.2 and 3/accused Nos.2 and 3, who are in- laws of respondent No.1 and placed reliance on the judgments of Apex Court rendered in “Geeta Mehrotra v. State of U.P.1″ “Neelu Chopra v. Bharti2

Learned counsel for the petitioners also brought to the notice of this Court the order passed in Crl.P.No.9631 of 2013 by this Court on 21.03.2018 filed by accused Nos.4 to 6 in the same case, whereby the proceedings in C.C.No.111 of 2013 on the file of Judicial Magistrate of First Class, Anantapur were quashed. Learned counsel for the petitioners contended that when the proceedings were quashed against accused Nos.4 and 6, the proceedings against these petitioners/accused Nos.2 and 3 also liable to be quashed, who are similarly placed and the allegations made against the petitioner Nos.2 and 3 are also one and the same in the statements recorded by the police under Section 161 (3) of Cr.P.C., in the report lodged with the police and prayed to quash the proceedings.

Considering the contentions of the learned counsel for the petitioner Nos.2 and 3 and perusing the material available on record, the sole point that arose for consideration is as follows:

AIR 2013 SC 181 (2009) 10 SCC 184 MSM,J Crl.P_1578_2014 Whether the allegations made in the charge sheet on its face value would constitute offence under Section 498-A of I.P.C. and Sections 3 and 4 of Dowry Prohibition Act? If not, whether the proceedings in C.C.No.111 of 2013 pending on the file of Judicial Magistrate of First Class, Rayadurg be quashed by exercising jurisdiction under Section 482 of Cr.P.C.

P O I N T:

Section 482 of Cr.P.C saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is an obvious proposition that when a Court has authority to make an order, it must have also power to carry that order into effect. If an order can lawfully be made, it must be carried out; otherwise it would be useless to make it. The authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely to promote justice and to prevent injustice. Section 482 of Cr.P.C confers no new powers but merely safeguards existing powers possessed by the High Court. Such power has to be exercised sparingly in exceptional cases and this power is external in nature to meet the ends of justice.

To give effect to any order under Code means, the first class of order, which the section embraces are orders that may be necessary to give effect to any order under this Court. When a Court has authority to make an order, it must also have the power to carry out the order into effect. The power to enforce obedience to the mandates MSM,J Crl.P_1578_2014 of the Court necessarily springs from the very existence of the authority to issue the mandates and, if that power is not expressly given by the statute, it must be deemed to be inherent in the Court, vide “Emperor v. Sukhdeo3“.

To prevent abuse of the process of any Court, the authority of the Court exists for the advancement of justice, and if any attempt is made to abuse that authority, so as to produce injustice, the Court must have power to prevent that abuse. In the absence of such power the administration of law would fail to serve the purpose for which alone the Court exists, namely, to promote justice and to prevent injustice. It would be an abuse in the process of the Court to allow a suitor to litigate over again the same question which has been already decided against him. The High Court would, in the exercise of its inherent jurisdiction, reject an application for the transfer of a criminal case, where such an application based upon the same facts had already been refused. The words “process” is a general word meaning, in effect, anything done by the Court. In exercise of the powers under this section the High Court would be justified to quash the proceedings if it finds that the institution or continuance of criminal proceedings amounts to abuse of the process of the Court or if quashing of those proceedings would otherwise secure the ends of justice. Where there is no material before the Magistrate on the basis of which he can issue process against the accused to stand trial, it will be gross abuse of the process of the Court if the accused is put to trial, hence the proceedings should be quashed at the threshold. Similarly, where it is not shown that there is any abuse of process of the Court, the proceeding will not be quashed. The jurisdiction of the 1930 Lah 465 31 Cr LJ 482 MSM,J Crl.P_1578_2014 High Court in quashing the complaint or the first information report is very limited. The High Court is justified in quashing the complaint when no offence is made out on the allegations made in the compliant or the documents accompanying it per se.

The words used in under Section 482 of Cr.P.C “or otherwise to secure the ends of justice, the High Court has been given powers under this section, in addition to what it possesses under its Charter and Letters Patent, to interfere in order to secure the ends of justice. If the High Court feels that the ends of justice require that an order should be made in an application, although the application is not contemplated by the Code the High Court will entertain the application and make the necessary orders to secure the ends of justice. The Court while deciding a law point may decide it rightly or wrongly. An application under this section will not lie on the ground that the Court has decided a point of law incorrectly and has resulted in gross injustice to the applicant. Vide “Ramji Singh v. State4”. Thus, the inherent powers of the Court can be exercised sparingly in extraordinary circumstances and with great circumspection.

The scope of Section 482 of Cr.P.C was time and again discussed in catena of perspective pronouncements of the Apex Court and in a classic judgment of the Apex Court in “State of Haryana v. Bhajan Lal5“, seven guidelines were laid down and they are as under:

(a) where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused;

1972 Cr LJ 1545 (A) 1992 Supp. (1) SCC 335 MSM,J Crl.P_1578_2014

(b) where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

(c) where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused;

(d) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code;

(e) where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused;

(f) where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party;

(g) where a criminal proceeding is manifestly attended with malafide 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. In the instant case, the allegations made in the complaint, do clearly constitute a cognizable offence justification and this case does not call for the exercise of extraordinary or inherent powers of the High Court to MSM,J Crl.P_1578_2014 quash the F.I.R. itself. [307B] State of West Bengal v. S.N. Basak, [1963] 2 SCR 52; distinguished.

Similarly, in “Madhavrao Jiwaji Rao Scindia & anr. etc. vs. Sambhajirao Chandrojirao Angre & ors. etc6”, the Apex Court laid down a specific test to be applied by the Court as to whether the uncontroversial allegations as made prima facie establish the offence. In the above judgment, it is stated that the inherent power is to be exercised ex debito justitiae, to do real and substantial justice, for administration of which alone Courts exist. Wherever any attempt is made to abuse that authority so as to produce injustice, the Court has power to prevent the abuse. It is, however, not necessary that at this stage there should be a meticulous analysis of the case before the trial to find out whether the case ends in conviction or acquittal. (Vide “Mrs. Dhanalakshmi vs. R. Prasanna Kumar & Ors.7″; “Ganesh Narayan Hegde vs. S. Bangarappa & Ors.8″; and “M/s Zandu Pharmaceutical Works Ltd. & Ors. vs. Md. Sharaful Haque & Ors.9″).

It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code should be exercised. But some attempts have been made in that behalf in some of the decisions by Apex Court vide State of Haryana vs. Bhajan Lal (referred supra), “Janata Dal vs. H.S. Chowdhary and Others10”, “Rupan Deol Bajaj (Mrs.) and 1988 AIR 709 AIR 1990 SC 494 (1995) 4 SCC 41 AIR 2005 SC 9 1992 (4) SCC 305 MSM,J Crl.P_1578_2014 Another vs. Kanwar Pal Singh Gill and Another11″, and “Indian Oil Corp. vs. NEPC India Ltd. and Others12“.

Those guidelines though elliptic, followed by the Court while exercising power under Section 482 of Cr.P.C, the power of the Court is to decide whether the allegations made in the charge sheet on its face value would constitute an offence and meticulously cannot go into the details of the allegations to conclude that whether the case would end in acquittal or conviction at the stage of deciding a petition under Section 482 Cr.P.C. Therefore, keeping in mind the limited scope of jurisdiction of this Court, I would like to decide the dispute before this Court based on the allegations made in the charge sheet and other material.

The marriage of respondent No.1 and petitioner No.1 is not in dispute, but the dispute is only with regard to harassment allegedly meted-out by the respondent No.1 in the hands of petitioners herein and other accused. The specific allegation made against the petitioners/accused Nos.2 and 3 is that the petitioner No.3 did not allow her son to spent time with the defacto complainant during night time and when respondent No.1 enquired about the gold ornaments entrusted to them, her mother-in-law – petitioner No.3, father-in-law, petitioner No.2 and one Gowri Bai, Yohan Naik started harassing her by taunting. Thereafter, the same was informed to her parents. Later, her parents, grandfather and maternal uncle Sriramulu Naik and her bother Dasaradh Naik went to the Hyderabad on 03.03.2013 and found the house was locked. Thereafter, respondent No.1 lodged report with the police on the same day, but the petitioner No.1 though contacted, he did not 1995 (6) SCC 194 2006 (6) SCC 736 MSM,J Crl.P_1578_2014 respond to the phone calls of police also while declaring that he already filed private complaint and everything will be decided in the Court itself and not willing to come to the police station. Thus, the allegation made against the petitioner Nos.2 and 3 is that they subjected the respondent No.1 to harassment when she questioned about the gold ornaments, whereas in the statement recorded by the police under Section 161 (3) of Cr.P.C, the respondent No.1 did not specifically state anything about the harassment caused by the petitioner Nos.2 and 3 except alleging that the petitioner Nos.2 and 3 and others with a view to dissolve the marriage took away the gold ornaments, cash and subjected her to cruelty both physically and mentally and that they insisted to bring a new car or to pay Rs.4,00,000/- or alternatively execute a registered sale deed conveying the property of her parents without disclosing the date, time and place of incident.

Similarly, mother of the respondent No.1 reiterated the contents of statement of respondent No.1, but there is a little improvement that the respondent No.1 was subjected to cruelty for her failure to meet the illegal demand for payment of additional dowry, whereas statement of father of respondent No.1 is silent on this aspect.

Similarly other witnesses stated in the same lines without disclosing any specific details as to the incident.

Coming to the contents of charge sheet, it is bereft of any details including the acts of petitioner Nos.2 and 3 as to how they subjected the respondent No.1 to harassment except a bald allegation that the accused No.1 harassed and tortured the respondent No.1 with strong support of accused Nos.2 and 3 with an intention to get MSM,J Crl.P_1578_2014 additional dowry. Except this allegation, there are no details either in the statements of witnesses recorded under Section 161 (3) of Cr.P.C. during investigation or in the charge sheet, at least in the report lodged with the police by the respondent No.1.

       In   view    of    the    judgments       referred   supra       in

Mrs.   Dhanalakshmi; Ganesh       Narayan    Hegde    and M/s     Zandu

Pharmaceutical Works Ltd. & Ors., cases (referred supra), this Court while deciding a petition under Section 482 of Cr.P.C need not meticulously go into the evidence available on record collected during investigation by the police and if the allegations made in the charge sheet on its face value would constitute an offence, the Court can decline quashing the proceedings. Therefore, the statements recorded by the investigating officer under Section 161(3) cannot be gone into at this stage, even though they are taken on its face value.

The first ground urged before this Court by the petitioner Nos.2 and 3 that there were no specific allegations against the petitioner Nos.2 and 3 either in the written report, statements recorded under Section 161 (3) Cr.P.C. during investigation or in the charge sheet. In the absence of any specific allegation, the proceedings against the petitioners are liable to be quashed.

In “Geeta Mehrotra v. State of U.P.” (referred supra) the Apex Court held that “mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.” The Apex Court adverting to the MSM,J Crl.P_1578_2014 law laid down in various judgments concluded that the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498-A323,504,506 of Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act.

In “Neelu Chopra v. Bharti” (referred supra) the Apex Court held as follows:

“In order to lodge a proper complaint, mere mention of the sections and the language of those sections is not be all and end of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence.”

From the principles laid down in the above two judgments, it is clear that to continue the proceedings against any relative of the husband of the defacto complainant, there must be specific allegation and the active role played by each of such relative, otherwise the proceedings are liable to be quashed.

Section 498-A of I.P.C. deals with subjecting the wife to cruelty by husband or relative of husband for her failure to fulfill the illegal demand for payment of dowry. The explanation thereto explained what amounts to cruelty. “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 MSM,J Crl.P_1578_2014 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.

Thus, subjecting the wife by husband or relative of husband for her failure to fulfil demand for payment of additional dowry would certainly fall within the ambit of cruelty under Clause (b) of Section 498-A IPC.

Section 2 of Dowry Prohibition Act defined ‘dowry’, which reads as follows:

2 Definition of ‘dowry’. –In this Act, “dowry” means any property or valuable security given or agreed to be given either directly or indirectly–

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parent of either party to a marriage or by any other person, to either party to the marriage or to any other person, at or before 1 [or any time after the marriage] 2 [in connection with the marriage of the said parties, but does not include] dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies. 3 [***] Explanation II.– The expression “valuable security” has the same meaning as in section 30 of the Indian Penal Code (45 of 1860).

The basic essential ingredients to attract Section 498A are:

a) The woman must be married

b) She must be subjected to cruelty or harassment; and

c) Such cruelty or harassment must have been shown either by husband of the woman or by the relative of her husband.

A bare glance of the section shows that the word ‘cruelty’ covers any or all of the following elements:

(i) Any ‘willful’ conduct which is of such a nature as is likely to drive the woman to commit suicide; or MSM,J Crl.P_1578_2014

(ii) any ‘willful’ conduct which is likely to cause grave injury to the woman; or

(iii) any ‘willful’ act which is likely to cause danger to life, limb or health whether physical or mental of the woman. I have already discussed about the allegations made against the petitioner Nos.2 and 3 along with other accused in various documents referred supra and nowhere the witnesses stated any specific act or role played by each of the petitioner Nos.2 and 3 along with other accused except making omnibus allegations that they demanded additional dowry and subjected the respondent No.1 to cruelty for her failure to meet the illegal demand without specifying the date, time and place.

The Apex Court in “Pawan Kumar v. State of Haryana13” has gone to the extent of holding that cruelty or harassment need not be physical but mental torture can also be treated as cruelty.

The Apex Court in “Kuppisetti Subbharao @ Subramaniam v. State of A.P.14″ held that the very thrust of offence under Section 304-B is dowry death. The evils sought to be curbed are distinct, and separate from persons committing offending acts. The Court went on to say that there could be no impediment in law to liberally construe words or expressions relating to persons committing offence.

The Supreme Court also held that while deciding the cases under Section 498-A of I.P.C., the Court has to keep in mind the intention of the legislature in incorporating such provision and decide the matter.

AIR 1998 SC 958 2009 Cri LJ 3480 (SC) MSM,J Crl.P_1578_2014 In view of the law declared in the above judgments, it is clear that the allegations referred in the charge sheet must be clear and specific disclosing the active role played by each of the petitioner with details. On verification of material available on record, it is clear that except making bald allegation that petitioner Nos.2 and 3 along with other accused Nos.4 to 6 subjected the respondent No.1 to cruelty for her failure to meet the illegal demand of payment of additional dowry or providing car to accused No.1; alternatively to get the property of her parents conveyed by executing registered sale deed. Thus, the said allegations are not suffice to proceed against the petitioner Nos.2 and 3 for the offence punishable under Section 498-A of I.P.C. and sections 3 and 4 of Dowry Prohibition Act in view of the judgments of Apex Court rendered in “Neelu Chopra v. Bharti” and “Geeta Mehrotra v. State of U.P.” (referred supra).

In “Bhaskar Lal Sharma v. Monica15” the Apex Court considered what amounts to cruelty and ingredients of Section 498-A of I.P.C. in para 29 and proof of an offence punishable under Section 498-A I.P.C. In para 37 of the judgment, the Supreme Court held as follows:

“Ex facie no case has been made out under Section 498A of the IPC so far as the appellants are concerned. The allegations relating to the place where the marriage took place has nothing to do with an offence under Section 498A of the IPC. Allegations that appellant No.2 kicked the respondent with her leg and told her that her mother to be a liar may make out some other offence but not the one punishable under Section 498A. Similarly her allegations that the appellant No.2 poisoned the ears of her son against the respondent; she gave two used lady suits of her daughter to the complainant and has been given perpetual sermons to the complainant could not be said to be offences punishable under Section 498A. Even threatening that her son may be divorced for the second time could not bring out the offence under Section 498A of the IPC.”

(2014) 3 Supreme Court Cases 383 MSM,J Crl.P_1578_2014 In “Sushil Kumar Sharma vs. Union of India & Ors16” the Apex Court reiterated the object of Section 498-A of I.P.C. holding that the object of which Section 498-A of I.P.C. was introduced is ample, reflected in statements and objects and reasons while enacting the criminal law second amendment and in paragraphs 10 & 19 of the said judgment, the Supreme Court held as follows:

“10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short “CrPC“) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty.

19. The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well- intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed.

In paragraph 40 in Bhaskarlal Sharma’s case, the Supreme Court discussed about quashability of the case by relying on Bhajanlal’s case held as follows:

“The jurisdiction of the High Court to quash an order of summoning and/or a criminal proceeding as also this Court (2005) 6 SCC 281 MSM,J Crl.P_1578_2014 are well known. The parties have relied upon the decisions of this Court in State of Haryana vs. Bhajan Lal [1992 (Supp.) 1 SCC 335]. We may notice the categories 1, 3, 5 and 7 mentioned in Para 102 of the said decision, which are as under:

“(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(7) 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.”

In “Pashaura Singh v. State of Punjab and another17″, the Supreme Court held that subjecting woman to cruelty by husband and his relatives and in the absence of proof of demand of dowry or harassment by accused, High Court found that only allegation made in FIR was the appellant-accused and his family members started harassing appellant’s wife for not bringing more dowry. But there was no demand for dowry, nor was there any specific entrustment of dowry articles to accused as alleged in FIR and held that offence under Section 498-A is not made out.

In “Preeti Gupta v. State of Jharkhand18” the Apex Court held that “the criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must (2010) 11 Supreme Court Cases 749 AIR 2010 SC 3363 MSM,J Crl.P_1578_2014 take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.”

Keeping in view the law laid down in various judgments referred supra, the basic requirement to continue the proceedings against the petitioner Nos.2 and 3 is that there must be a specific allegations about the active role played by each petitioner in subjecting the respondent No.1 to cruelty for her failure to meet the illegal demand of additional dowry and in the absence of such allegations, the proceedings against the petitioner Nos.2 and 3 are liable to be quashed in view of the judgments of Apex Court rendered in “Neelu Chopra v. Bharti” and “Geeta Mehrotra v. State of U.P.” (referred supra). Hence, on this ground also the proceedings are liable to be quashed.

The other ground raised by the learned counsel for the petitioner Nos.2 and 3 is that when the proceedings against accused Nos.4 to 6 in C.C.No.111 of 2013 on the file of Judicial Magistrate of First Class, Raidurg, Anantapur District are quashed by order dated 21.03.2018 in Crl.P.No.9631 of 2013, the proceedings against the petitioner Nos.2 and 3, who are similarly placed are liable to be quashed since the allegations made against the petitioner Nos.2 and 3 and the petitioners in Crl.P.No.9631 of 2013 are one and the same.

No doubt, the allegations made against the accused Nos.4 to 6 against whom the proceedings are already quashed vide order in Crl.P.No.9631 of 2013, the proceedings against the petitioner Nos.2 MSM,J Crl.P_1578_2014 and 3 are liable to be quashed in view of the law declared by the Apex Court in “D.B. Negandhi v Registrar of Companies19”.

In view of my foregoing discussion, I find that it is a fit case to quash the proceedings in C.C.No.111 of 2013 on the file of Judicial First Class Magistrate, Rayadurg, Ananthapur District, against the petitioner Nos.2 and 3/accused Nos.2 and 3. The point is answered accordingly.

In the result, the criminal petition is allowed. The proceedings in C.C.No.111 of 2013 on the file of Judicial First Class Magistrate, Rayadurg, Ananthapur District, are hereby quashed against petitioner Nos.2 and 3/accused Nos.2 and 3. No costs.

The miscellaneous petitions pending, if any, shall also stand closed.

_________________________________________ JUSTICE M. SATYANARAYANA MURTHY 11.06.2018 Ksp (2017) 15 SCC 661

Calcutta High Court (Appellete Side)
Priyabrata Mukhopadhyay & Ors vs The State Of West Bengal & Anr on 17 July, 2019
                       IN THE HIGH COURT AT CALCUTTA
                           Criminal Appellate Jurisdiction

Before:

The Hon'ble Mr. Justice Madhumati Mitra


                                C.R.R. 2255 of 2017


                         Priyabrata Mukhopadhyay & Ors.
                                       Vs.
                         The State of West Bengal & Anr.



For the Petitioners               :      Mr. Md. Sabir Ahmed,
                                         Mr. Hillol Saha Poddar,
                                         Mr. Arpan Saha.

For the State                     :      Mr. Saryati Datta.


For the Opposite Party No.2       :      Mr. Sanat Chatterjee,
                                         Mr. Sujan Chatterjee.


Judgement delivered on            :      17.07.2019


Madhumati Mitra, J. :


      The petitioners have prayed for quashing of the proceedings in G.R. Case

No. 261 of 2011 arising out of Chandannagore Police Station Case No.42 of

2011 dated 4th April, 2011 under Sections 498A, 406, 341, 323 and 325 of the

Indian Penal Code pending before the learned Additional Chief Judicial

Magistrate, Chandannagore.



      The petitioners are the in-laws of the opposite party no.2.
                                             2



       The facts which are necessary to dispose of the present application for

quashing of the criminal proceedings pending against the petitioners are as

follows:-

        The marriage of the opposite party no.2 was solemnised with one

Punyabrata Mukherjee in the year 2002 in accordance with the Hindu Rites and

Ceremonies. At the time of marriage, a sum of Rs.3,00,000/- cash, golden

ornaments weighing of 25 to 30 bhoris and other valuable articles were given.

After marriage the opposite party no.2 and her husband started their conjugal life.

One daughter was born out of their wedlock.



       On the basis of the First Information Report lodged by the opposite party

no.2, Chandannagore Police Station Case No.42 of 2011 dated 4.4.2011 under

Sections 498A, 406, 341, 323 and 325 of the Indian Penal Code was started

against all the FIR named persons.



       After completion of investigation, charge sheet was submitted against all

the FIR named persons except Jyotsna Mukherjee, wife of Atal Behari

Mukherjee.

       Learned Advocate appearing for the State has produced a copy of the

case diary.

       Learned Advocate appearing for the petitioners has submitted that in the

First Information Report there is no specific allegation against the present

petitioners. He has contended that the names of the petitioners have been

mentioned in the First Information Report out of personal grudge and malice.

There is nothing in the First Information Report, wherefrom, it can be presumed

that the petitioners treated the opposite party no.2 with cruelty. In the absence of
                                             3



any specific allegation against the present petitioners in the First Information

Report, the continuance of the proceedings against them would be an abuse of

the process of Court.



       The present petitioners are the in-laws of the opposite party no.2. From

the materials placed on record, it appears that the marriage of the opposite party

no.2 was solemnised with Punyabrata Mukherjee who is accused no.1 in the

First Information Report. After marriage, the opposite party no.2 and her husband

started their conjugal life. From the allegations contained in the First Information

Report, it appears that prior to lodging of the First Information Report, the

opposite party no.2 and her husband used to reside together with their daughter.

It has been alleged by the opposite party no.2 in the First Information Report that

she was subjected to cruelty and torture for demand of dowry since her marriage.



       In matrimonial dispute the general tendency is to involve all the members

of the family of the matrimonial home and to make exaggerated allegation in the

First Information Report or complaint. As such it is the duty of the Court in

matrimonial dispute to scrutinize averments of the First Information Report with

great care and circumspection specially against the relative of the husband

otherwise innocents may be victimised. In the instant case, the names of the

present petitioners have been mentioned in the First Information Report in a very

cursory and casual manner. The First Information Report is completely silent

about the role played by the present petitioners individually at the time of

commission of the alleged offences. The allegations of facts as contained in the

First Information Report do not constitute prima facie case against the present

petitioners, In the instant case admittedly, charge sheet has been submitted for
                                             4



commission of the alleged offences against all the FIR named accused persons

except one for commission of the offences under Sections 498A, 406, 341, 323

and 325 of the Indian Penal Code. The allegations in the First Information

Report, if taken on their face value and accepted in their entirety do not constitute

the alleged offences under Sections 498A, 406, 341, 323 and 325 of the Indian

Penal Code against the present petitioners. In this connection, it would not be

out of place to place reliance on the decision laid down in R.P. Kapur Vs. State

of Punjab reported in AIR 1960 SC 866. The principles as laid down by the

Hon'ble Supreme Court are as follows:


         (i)           where it manifestly appears that there is a legal

                 bar against the institution or continuance of the

                 proceedings;

         (ii)          where the allegations in the First Information

                 Report or the complaint taken at their face value and

                 accepted in their entirety, do not constitute the offence

                 alleged;

         (iii)         where the allegations constitute offence, but

                  there is no legal evidence adduced or the evidence

                  adduced clearly or manifestly fails to prove the

                  charge".


       I would like to cite the decision of State of Haryana and Others Vs. Ch.

Bhajan Lal and Others reported in AIR 1992 SC 604.

        In paragraph 108, the illustrations are as follows:-
                                     5



1.

“Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused;

2. Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by Police Officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out case against the accused;

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplate under Section 155 (2) of the Code;

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused;

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuation of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress, for the grievances of the aggrieved party;

7. Where a criminal proceeding is manifestly accompanied 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.”

In the instant case, the First Information Report does not disclose any specific allegation in respect of the above-mentioned petitioners and the materials collected by the Investigating Officer during investigation do not justify to proceed against the petitioners for commission of the alleged offences.

After considering all aspects, I am of the view that it is a fit case to exercise discretion under Section 482 of the Code of Criminal Procedure as the continuance of the criminal proceedings against the present petitioners would be an abuse of the process of Court. Thus the proceedings being G.R. Case No. 261 of 2011 arising out of Chandannagore Police Station Case No.42 of 2011 dated 4th April, 2011 under Sections 498A406341323 and 325 of the Indian Penal Code pending before the learned Additional Chief Judicial Magistrate, Chandannagore in respect of the present petitioners namely Priyabrata Mukhopadhyay, Shibabrata Mukhopadhyay, Usha Mukhopadhyay, Amiyo Kumar Mukherjee, Ajanta Mukhopadhyay, Sujata Mukherjee, Atal Behari Mukhopadhyay and Arkabrata Mukherjee are hereby quashed.

The revisional application being C.R.R. 2255 of 2017 is allowed. The case diary be handed over to the learned Advocate appearing for the State immediately.

Urgent photostat certified copy of this order may be supplied to the parties expeditiously, if applied for.

(Madhumati Mitra, J.) NB

Calcutta High Court (Appellete Side)
Biswajit Singha Roy & Anr vs The State Of West Bengal & Anr on 22 May, 2019

Form No.J(1) IN THE HIGH COURT AT CALCUTTA Criminal Revisional Jurisdiction Present:

The Hon’ble Justice Madhumati Mitra C.R.R. 3472 of 2018 Biswajit Singha Roy & Anr.

Vs.

The State of West Bengal & Anr.

With CRAN 1152 of 2019 Advocate for the Petitioners : Mr. Apalak Basu, Mr. Sarosij Dasgupta, Ms. Sutapa Mitra Advocate for the opposite party no.2 : Mr. Anirban Tarafdar, Ms. Rumi Chakraborty Advocate for the State :Mr. Rana Mukherjee, Ld.A.P.P.

                                       Ms. Debjani Sahu


Judgment on                            : 22.05.2019


Madhumati Mitra, J. :

The petitioners have approached this Court by filing an application under Section 482 of the Code of Criminal Procedure praying for quashing of the proceedings being G.R. Case No. 1063 of 2018 arising out of Baranagar Police Station Case No. 123 of 2018 dated February 24, 2018 under Sections 498A/406/506/34 of the Indian Penal Code pending before the learned Additional Chief Judicial Magistrate, Barrackpore, North 24 Parganas.

The present petitioners are the parents-in-law of the present opposite party no.2. The opposite party no.2 is the defacto- complainant of the criminal proceedings pending before the learned Magistrate.

Brief facts of the case which led the present petitioners to file the present application for quashing of the criminal proceedings pending before the learned Magistrate may be narrated hereunder:-

The present opposite party no.2 being the daughter-in-law of the present petitioners lodged an FIR against the petitioners and their son on February 24, 2018 with Baranagar Police Station wherein the opposite party no.2 stated that she was married to Biprajit Sinha Roy, son of the present petitioners on May 3, 2015 under the provisions of Special Marriage Act. Their social marriage was solemnized on 18.11.2015 and since then she started to reside at her matrimonial home.

It has been stated by the complainant that at the time of marriage her father gave valuable articles as “stridhan” to her husband and FIR contained a separate list of “stridhan” articles. She has alleged that during her stay at her matrimonial home she was subjected to cruelty and torture. Being failed to bear physical/mental torture she left her matrimonial home on February 3, 2016. The complainant has further stated that she was suffering from trauma and she sought for assistance of SWAYAM, an NGO. She lodged a general diary at Belghoria Police Station on March 05, 2017. Thereafter she lodged a written complaint with the West Bengal Mahila Commission on February 20, 2017. It has been specifically alleged in the FIR that her husband made a conspiracy with his family members and married her with a view to grab her “stridhan” articles.

On the basis of the FIR lodged by the opposite party no.2, Baranagar Police Station Case No. 123 of 2018 dated February 24, 2018 under Sections 498A/406/506/34 of the Indian Penal Code was started against the FIR named accused persons. Investigation ended in submission of charge sheet against the FIR named accused persons, namely, the present petitioners along with their son for commission of alleged offences punishable under Sections 498A/406/506/34 of the Indian Penal Code.

The petitioners have prayed for quashing of the proceedings initiated on the basis of the FIR lodged by the opposite party no.2 on the ground that they have been falsely implicated in the instant case and no specific allegation has been made out against them in the FIR.

I have carefully gone through the materials placed on record. I have also perused the judgments as cited at the Bar. I have considered the rival submissions as made by learned Additional Public Prosecutor, learned advocate appearing for the petitioners as also learned advocate appearing for the opposite party no.2. I have also consulted with the case diary.

During the course of hearing learned advocate appearing for the petitioners has contended that the main purpose of lodging the FIR against the petitioners by the opposite party no.2 is to harass them unnecessarily. He has invited the attention of the Court to the date of lodging the FIR and contended that the FIR was lodged only on February 24, 2018 though as per her own statement made in the FIR the complainant left her matrimonial home on February 3, 2016. It has been strongly contended that the allegations contained in the FIR are not only false but also suppression of material facts. He has drawn the attention of the Court to the date of lodging the FIR and submitted that the FIR was lodged after filing of Matrimonial suit by the son of the petitioners on 30.01.2017 as reflected in the FIR. It has been specifically contended by Learned Advocate for the petitioners that the complainant made complaints before different forum after initiation of Matrimonial suit and those complaints also do not disclose any specific allegations against the petitioners.

It has been submitted on behalf of the petitioners that the complainant married their son by suppressing the fact that a criminal case is pending against her. Learned advocate has also drawn the attention of the Court to the statements made by the complainant before different forums regarding the alleged incident and submitted that the complainant did not make any specific allegation or aspersion against her parents-in-law either before the NGO, SWAYAM or West Bengal Mahila Commission. Moreover, in her written statement filed in connection with Matrimonial Suit initiated by her husband she has not made any allegation against her parents-in-law. According to the learned advocate for the petitioners even if, all the allegations contained in the FIR are accepted to be true, even then no offence could be made out against the petitioners. It has been specifically argued that there is no justification for continuation of the criminal proceedings against the present petitioners. In support of his contention learned advocate appearing for the petitioners has placed his reliance on several decisions. Learned Advocate for the petitioners has contended that the ingredients of the alleged offences as mentioned in the charge sheet are totally absent so far as the present petitioners are concerned. He has further contended that in matrimonial dispute the general tendency is to involve all the members of the family of the matrimonial home and to make exaggerated allegations in the FIR or complaint. He has submitted that in matrimonial dispute the Court should scrutinize the averments of the FIR with great care and circumspection especially against the relatives of the husband otherwise innocent may be victimized. Allegations of making derogatory remarks and behaving rudely do not come within the purview of Section 498A of the Indian Penal Code.

In support of his submissions Learned Advocate for the petitioners has placed his reliance on the following decisions:-

1) Resaual Islam and anr.Vs. State of West Bengal and anr. reported in (2010)2 CCLR (Cal) 121;

2) Preeti Gupta And Another Vs. State of Jharkhand And Another reported in (2010) 7 SCC 667;

3) Geeta Mehrotra and Another Vs. State of U.P. and another reported in (2013) 1 SCC(Cri) 120;

4) Ramesh and ors. Vs. The State of T.N. reported in (2005) 3 SCC 507;

   5) Rashmi Jain        Vs. State of Uttar Pradesh And

        another reported in (2014) 13 SCC 553;

   6) Madhavrao        Jiwajirao   Scindia    &      Others    Vs.

        Sambhajirao      Chandrojirao     Angre      &   Others.

        reported in (1988) ISCC 692 and

7) Vineet Kumar Vs. State of Uttar Pradesh reported in (2017) 13 SCC 369.

On the other hand Learned Additional Public Prosecutor appearing for the State of West Bengal has submitted that the allegations of facts as contained in the FIR clearly constitute prima facie case against the petitioners. In support of his contention, he has drawn the attention of the Court to the treatment sheet of the complainant of Peerless Hospitex Hospital and Research Center Limited, statements made by the complainant before the Chairman, West Bengal Mahila Commission, in the SWAYAM information sheet and submitted that those documents clearly indicate the commission of alleged offences.

Learned Advocate appearing for the opposite party no.2, that is, the complainant has strongly contended that the ingredients making out the prima facie case against the petitioners appear to be existing in the instant case. According to his contention the question of quashing of the proceedings in respect of the parents-in-law does not arise. He has further contended that the grounds to quash the proceedings as raised by the parents-in-law are the subject matter to be heard by the trial court for better appreciation after conducting full trial.

Now, I have to examine whether the facts as contained in the FIR constitute any prima facie case making out the offence against the parents-in-law of the complainant and whether there is at all any material to constitute the offence against the petitioners. Admittedly, charge sheet under Sections 498A/406/506/34 of the Indian Penal Code has been submitted against the petitioner and their son. From the materials placed on record, as well as from the submissions made by the learned advocates for the parties, it appears that the son of the petitioners and the complainant got acquainted with each other through social media, that is, Facebook. Their marriage was an outcome of their love affairs. They married under the provisions of Special Marriage Act on May 3, 2015. Thereafter on November 18, 2015 their social marriage was solemnized and since then the complainant started living with her husband at her matrimonial home. Admittedly, the complainant left her matrimonial home on February 03, 2016, that means the complainant stayed at her matrimonial home about three months only. From the contents of the FIR it appears that the complainant has specifically averred that her marriage with her husband was never consummated. It has been alleged in her FIR that the husband of the complainant had extra marital affairs and she was abused by her husband whenever she raised that issue and her husband threatened to throw acid on her face. Her husband started beating her for no reason and demanded huge money for the purpose of purchasing of furniture and gold ornaments.

If one goes through the entire FIR as a whole then it will be clear that the names of the petitioners, parents-in-law of the complainant have been mentioned in very cursory manner. No specific allegation has been made against them. Allegations contained in the FIR against them are not free from ambiguity. It suffers from vagueness, so far these petitioners are concerned. The opposite party no.2 has made statements before the different authorities regarding the alleged incident on different dates. In this connection the learned Additional Public Prosecutor submitted that the torture meted to the opposite party no.2 was of such a nature which compelled her to attempt to commit suicide as reflected in her statement made before the various authorities. In support of his contention, he has drawn the attention of the Court to the treatment sheet of the complainant at Peerless Hospitex and Hospital Private Limited. Plain reading of the FIR leaves no doubt that the complainant made specific allegations against her husband only. On one or two occasions the names of the petitioners were mentioned in the FIR and the said mentioning of their names was in very casual manner and without making any specific allegation against them. Those averments made in the FIR are not free from ambiguity. Moreover, in her statements as collected by the Investigating Officer during investigation before the different authorities the opposite party no.2 did not make any specific allegation against her parents-in- law. Only the parents of the complainant made statement against the petitioners under Section 161 of the Code of Criminal Procedure.

In this connection, it would not be out of place to mention the principles enunciated by our Apex Court in the case of R.P.Kapur Vs. State of Punjab reported in AIR 1960 SC 866. These principles are hereunder:

i) Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;

ii) Where the allegations in the First Information Report or the complaint, taken at their face value and accepted in their entirety, do not constitute the offence alleged;

iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. Again our Apex Court has laid down certain principles for quashing of the proceedings in the case of State of Haryana & Ors. -Vs.- Ch. Bhajan Lal & Ors. reported in AIR 1992 SC 604. In paragraph 108 of the said judgment the Hon’ble Supreme Court gave illustrations wherein the extraordinary power under Article 226 of the Constitution or the inherent power under Section 482 of the Code of Criminal Procedure can be exercised by the High Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

The illustrations are as follows:-

1. Where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused;

2. Where the allegations in the FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by Police Officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code;

3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out case against the accused;

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplate under Section 155 (2) of the Code;

5. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused;

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuation of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress, for the grievances of the aggrieved party;

7. Where a criminal proceeding is manifestly accompanied 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.

Previously I have observed that there is no specific allegation against the petitioners in the First Information Report except mentioning their names in the FIR in casual and cursory manner. Nowhere in the First Information Report it was alleged that there was demand of dowry at the time of marriage by the petitioners. In her First Information Report the complainant stated that several articles were given at the time of her marriage, that is, “stridhan” to her husband. That means as per the contents of the First Information Report the petitioners were not entrusted with the “stridhan” articles of the complainant. From the case diary it appears that “stridhan” articles were seized during investigation. On 1st April, 2018 the complainant took custody of the seized articles on executing zimmanama.

Contents of the FIR reveals that the complainant has specifically alleged that she was tortured by her husband, she was threatened to throw acid on her face by her husband when she raised the question regarding the extra marital affairs of her husband. The allegations in the FIR, if taken at their face value and accepted in their entirely do not constitute alleged offences under Sections 498A/406/506 of the Indian Penal Code against the present petitioners.

After considering all aspects, I am of the view that it is a fit case to exercise inherent power of the High Court under Section 482 of the Code of Criminal Procedure as continuation of the criminal proceedings against the present petitioners would be an abuse of the process of the Court.

Thus, the proceedings being G.R. Case No. 1063 of 2018 arising out of Baranagar Police Station Case No. 123 of 2018 dated February 24, 2018 under Sections 498A/406/506/34 of the Indian Penal Code pending before the Learned Additional Chief Judicial Magistrate, Barrackpore, North 24 Parganas in respect of the petitioners, namely, Biswajit Singha Roy and Rita Singha Roy, is hereby quashed. The revisional application being CRR 3472 of 2018 is, therefore, allowed.

Re: CRAN 1152 of 2019 In view of the order passed in connection with revisional application, no further order is required to be passed in respect of the application being (CRAN 1152 of 2019) and the same stands dismissed.

Copy of the case diary be handed over to the Learned Additional Public Prosecutor immediately.

Urgent Photostat certified copy of this judgment be supplied to the parties, if applied for, upon compliance with all formalities.

(Madhumati Mitra, J.)