Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.28573 of 2013 ======================================================= 1. Abinash Kumar Rai, son of Krishnadeo Rai 2. Krishnadeo Rai, son of Late Babulal Rai 3. Shanti Devi, wife of Krishnadeo Rai 4. Manish Kumar Rai, son of Krishnadeo Rai 5. Sinku Kumari, Daughter of Krishnadeo Rai All are resident of village Simara, P.S.-Mahnar, District Vaishali. .... .... Petitioner/s Versus 1. The State of Bihar 2. Bishwanath Choudhary, son of Late Rudal Choudhary Resident of village- Bishunpatti, P.S. Jandaha District Vaishali .... .... Opposite Party/s ======================================================= Appearance : For the Petitioner/s : Mr. For the Opposite Party/s : Mr. ====================================================== CORAM: AMANULLAH HONOURABLE MR. JUSTICE AHSANUDDIN 3 09-10-2013 Heard learned counsel for the petitioners, learned APP ORAL ORDER for the State and learned counsel for the opposite party no. 2. A show cause has been filed on behalf of the opposite party no. 2. The present application under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘Code) seeks quashing of the order dated 23.12.2009 passed in Complaint Case No. C1-1983 of 2009/ Tr. No. 1191 of 2013 passed by the S.D.J.M, Vaishali at Hajipur by which cognizance has been taken 2 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 2 / 15 under Sections 498A/323 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act against the petitioners. Learned counsel for the petitioners submits that the application was originally filed for quashing of the entire criminal proceeding including the order taking cognizance dated 23.12.2009 but the words ‘entire proceeding’ was deleted due to office objection. He however, reiterates that he is pressing the application with regard to quashing of the entire criminal proceeding also. The petitioner no. 1 is the husband of the complainant whereas the others are his relatives. It is alleged that after marriage, initially for two years there was harmony but later on the complainant was ill treated and also assaulted and Rs. 2 lakhs was demanded by way of dowry. It is further alleged that the petitioner no. 1, had inflicted ‘lathi’ blow on the knee of the complainant resulting in her knee bone being broken and due to lack of proper treatment, the same became serious and later on she was turned out of the matrimonial home and also her father was forced to put signature on blank papers. It is further stated that on 23.06.2009, at the intervention of the police and other villagers, the complainant was allowed to go to her father’s place. Learned counsel for the petitioners submits that the 3
Legal Reasoning
Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 3 / 15 complaint is totally false, fabricated and clearly vexatious. It is submitted that the same suffers from suppression of vital facts which exposes the malafide intention behind filing of the
Legal Reasoning
complaint. Learned counsel refers to Annexure 2, which is copy of Mahnar P.S. Case No. 95 of 2005 dated 26.06.2005 filed by the petitioner no. 2 against the father of the complainant and others under Sections 365/34 of the Indian Penal Code in which it was alleged that petitioner no. 1 was forcibly abducted and made to marry the complainant. It is further submitted that during the course of investigation the statement of the petitioner no. 1 was also recorded under Section 164 of the Code in which she has also supported the case and later on the police has submitted charge sheet and the trial is pending. Learned counsel submits that later on due to the intervention of the villagers from both sides, the petitioners accepted the complainant as the wife of the petitioner no. 1 and had kept her with full dignity and honour. Learned counsel submits that the same is also admitted in the complaint. It is submitted that the complainant was suffering on account of some unknown ailment in her knee which was later on diagnosed as cancer and for which the petitioners had expended huge amount of money on her treatment. In support of the same, copies of some of the medical prescriptions/reports have been annexed as 4 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 4 / 15 Annexure 3 in this application. Learned counsel submits that on 23.06.2009, that is, the day on which it is alleged that the father of the complainant came and rescued the complainant, the fact is that complainant was taken by her father at his own risk fully knowing that she was suffering from cancer. Since her condition was not good, the petitioners initially were reluctant to send her in view of the treatment she was getting in their house but the father of the complainant insisted on taking her and accordingly, in front of various ‘Panches’ including the Mukhiya, Sarpanch and Officer in-charge of the local Police Station, the father of the complainant had taken the complainant to his house after writing such fact and the document was duly signed by him as well as by the complainant and other persons including the Mukhiya, Sarpanch and Officer-in-Charge. Learned counsel submits that on 23.06.2009, the complainant going to her father’s place, pursuant to the undertaking by the father and also herself, is tacitly admitted in the complaint inasmuch as it has been said that at the intervention of the police she was allowed to go to her father’s place. Learned counsel submits that the Officer in-Charge of the local police station was a signatory to the document which proves that going to the father’s place by the complainant was on her own volition. He further submits that had the police found that the 5 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 5 / 15 complainant was being kept in the house of the petitioners against her wishes then there would have been a police case against them or the complainant/her father should have instituted such a case; but the same neither being done nor objected to by the complainant/her family members, goes to show that the ‘Panchanama’, copy of which has been made Annexure 4, is genuine and its contents are also true. Learned counsel submits that later on the petitioner no. 1 had also filed Complaint Case No. 2314 of 2010 against the family members of the complainant alleging that he was assaulted and his gold chain worth Rs. 20,000/- was snatched from the neck when he had gone to the house of the complainant to take her with him to the matrimonial home, pursuant to the undertaking given before the Court while praying for anticipatory bail in connection with the present complaint case. Learned counsel has also referred to Annexure 6, which is copy of the death certificate of the complainant which shows that she had died on 14.07.2011 at her father’s place. Learned counsel also points out to Annexure 7, which is copy of Complaint Case No. 2245 of 2011 which has been filed by the father of the complainant (opposite party no. 2 in the present case) against the petitioners under Sections 304B/34 of the Indian Penal Code. Learned counsel submits that the Court concerned had 6 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 6 / 15 asked for report from the police which has been submitted and copy of which has been made as Annexure 8 in the present application. It is submitted that the police have also found that the petitioners are innocent and the facts stated in the complaint are not correct. It is submitted that it was the complainant’s father (opposite party no. 2) and her relatives who had cremated her body without either informing the police or getting postmortem examination done which clearly exposes the falsity of the allegation. Learned counsel submits that in view of the sequence of events and the admitted position that vital and relevant facts were totally not mentioned in the complaint, clearly establish that the same has been filed with ulterior motive and malafide intention for wreaking vengeance and settling of personal grudge. It is thus submitted that the entire criminal proceeding is an abuse of the process of the Court. Learned counsel submits that the Courts have held that it is the social responsibility and obligation of the Bar and the Bench to maintain the social fibre of family life and further that though genuine cases of dowry harassment are of serious concern but exaggerated versions of small incidents should not be reflected in criminal complaints. The Courts have also held that allegations need to be scrutinized with great care and circumspection, especially against the husband’s relatives. 7 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 7 / 15 Learned counsel submits that where there is no specific allegation made against the accused especially the relatives of the husband or no specific role has been attributed to them, it is obvious that their implication was meant to harass and humiliate the husband’s relatives and permitting such complaint to continue would be an abuse of the process of the Court. For such proposition learned counsel has relied upon the decision of the Hon’ble Supreme Court in the case of Preeti Gupta vs. State of Jharkhand reported in 2010 (4) PLJR 36 (SC), the relevant being at paragraphs 31, 33 and 35. Learned counsel submits that similar view has also been taken by the Hon’ble Supreme Court in the case of Geeta Mehrotra vs. State of U.P. reported in 2013 (1) PLJR 10 (SC) 11. Learned APP for the Sate opposes the application and submits that during enquiry under Section 202 of the Code, material has come which warrants that the petitioners face trial. Learned counsel for the opposite party no. 2 opposes the application and raises a preliminary objection by submitting that the application is based on suppression of material facts which amounts to fraud and on this ground alone it should be dismissed. He submits that the petitioner no. 1 had moved for anticipatory bail in Cr. Misc. No. 13420 of 2010 in which, by order dated 8 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 8 / 15 23.07.2010, a coordinate Bench of this Court had granted him anticipatory bail in view of the undertaking given by him to keep the complainant as his wife with full dignity and honour. Learned counsel submits that the said order was never complied with by the petitioner no. 1 which forced the complainant to file Cr. Misc. No. 42495 of 2010 for cancellation of his bail and the Court by order dated 28.04.2011 had cancelled the anticipatory bail granted to the petitioner no. 1. Learned counsel submits that this fact ought to have been disclosed in the application and suppression of the same amounts to playing fraud with the Court. For such proposition, learned counsel has relied upon the decisions of the Hon’ble Supreme Court in Meghmala v. G. Narasimha Reddy reported in (2010) 8 SCC 383, the relevant being at paragraphs 28 and 36 and Venture Global Engineering v. Satyam Computer Services reported in 2011 (3) SCCD 1665 (SC). Learned counsel submits that the fact of torture for dowry and also assault having been alleged in the complaint as well as supported during enquiry under Section 202 before the Court, the present application is fit to be dismissed. He further submits that the Courts have also held that the inherent power of the Court under Section 482 of the Code should be exercised sparingly with circumspection and in the rarest of rare cases and setting aside of cognizance taken at the 9 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 9 / 15 threshold leads to miscarriage of justice. For such proposition he has relied upon a decision of the Hon’ble Supreme Court in the case of Som Mittal v. Government of Karnataka reported in 2008 (2) CCSC 693 (SC), the relevant being at paragraph 19. Upon considering the rival contentions, this Court finds substance in the submissions of learned counsel for the petitioners. The complaint case and the averments made in the same, in the background of materials brought on record disclosing various events/incidents which have taken place between the two families in relation to the manner of marriage followed by the treatment of the complainant as well as the way in which she ultimately went to her parents place and also died, leaves no doubt in the mind of the Court that the complaint case is not bonafide and rather has been filed with ulterior motive and malafide intention and also to wreak vengeance due to personal grudge. Crucial and vital facts which have been totally not mentioned in the complaint case relating to the very inception of the relationship between the parties, that is, the way marriage took place between the petitioner no. 1 and the complainant; the fact that an FIR was lodged by the petitioner no. 2 against the father and other family members of the complainant alleging that petitioner no. 1 was kidnapped to marry (in which chargesheet has also been submitted and trial is going on); was 10 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 10 / 15 necessarily required to be stated. The same could have been explained, but not disclosing the same, in the opinion of this Court, cannot be just ignored as inadvertence or oversight. Further, in the complaint it has not been mentioned that when the father of the complainant came to take her with him on 23.06.2009, he or the complainant was forced to sign on any paper, but from Annexure 4 it is clear that ‘Panchanama’ was made on 26.03.2009 on non-judicial stamp paper of Rs. 100/- on which many persons have signed including the complainant, her father, the Mukhiya, the Sarpanch and the Officer-in-Charge of the local police station. The existence of the same besides not being stated in the complaint has also not been denied in the show cause filed on behalf of the opposite party no. 2 (father of the complainant). Thus testing the case on the parameters of concealment of relevant material facts amounting to fraud as per the ratio laid down by the Hon’ble Supreme Court in the case of Meghmala (supra) and Som Mittal (supra), this Court finds that it is more aptly applicable against the complainant and in favour of the petitioners. Further, the allegation in the complaint that the petitioner no. 1 had assaulted the complainant with ‘lathi’ on the knee due to which her bone was broken and which was not properly treated from a very long time resulting in the injury 11 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 11 / 15 becoming serious, is also not believable since there is no explanation as to why she had waited for more than one and half years and did not inform either her parents or her relatives that she was not getting proper treatment. This Court also finds that against petitioners no. 2 to 5, the allegation is totally general and omnibus besides being vague as nothing specific has been stated against them and clearly this would come in the category of cases in which the Hon’ble Supreme Court has interfered namely, Preeti Gupta (supra) and Geeta Mehrotra (supra). Further, the complainant being no more alive and the thrust of the allegation relating to her maltreatment in the matrimonial home as well as the assault on her, in the absence of any of her relatives, clearly cannot now be corroborated or put to judicial test and scrutiny by deposition before a Court of law where the defence has a right to cross-examine, moreso since in the entire complaint case, there is not even a whisper that the treatment or assault was witnessed by any person other than the petitioners. Though this aspect may not be strictly relevant but in the background of the sequence of events and the documentary evidence with regard to incidents having been reported before the authority concerned, which have gone unrebutted, this Court feels that this is one of the cases in which the prosecution appears to be malafide and in which this Court 12 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 12 / 15 should interfere in exercise of its inherent powers. This Court would also like to indicate that the opposite party no. 2, who is father of the complainant, upon notice, has filed an affidavit but has not denied the existence of the ‘Panchanama’, the report of the doctors showing treatment of the complainant as well as the complaint case filed by the petitioner no. 2, would clearly lead to the unescapable presumption in law that the same stand admitted. As far as the contention of learned counsel for the opposite party no. 2 with regard to fraud on account of suppression of fact, inasmuch as the orders in connection with the bail application of petitioner no. 1 not being brought on record, this Court does not feel that the same has any material relevance in deciding the issue at hand primarily for the reason that it relates to the conduct of the party later on, in a different proceeding, for a different reason, and also which has been explained by the concerned by filing of a complaint case showing how he was prevented in complying with the order of the Court, cannot be held to be so serious and grave so as to warrant dismissing the present application on that point. Further, as far as the order of the Hon’ble Supreme Court in the case of Som Mittal (supra), relied upon by the learned counsel for the opposite party no. 2, in which it has been held that the power of the Court under Section 482 of the Code should be sparingly 13 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 13 / 15 exercised, this Court cannot dispute the proposition of law. However, from the facts and circumstances of the instant case and materials brought on record, this Court feels that this is a fit case where the Court should exercise such power. This Court is conscious of the fact that normally criminal proceedings at the threshold should not be set aside in exercise of inherent powers under Section 482 of the Code but it is equally settled that the superior Court while exercising this power should also strive to serve the ends of justice where criminal proceedings should not be encouraged when it is found to be malafide or otherwise an abuse of the process of the Court. The Court in the present case has taken into consideration the admitted facts and also looked into the admitted documents which is not impermissible. The said view finds support in the judgments of the Hon’ble Supreme Court in the following cases: (i) Harshendra Kumar D. v. Rebatilata Koley reported in AIR 2011 SC 1090, the relevant being paragraph 21 where it has been held : issuance of summons or “21. in our judgment, the above observations cannot be read to mean that in a criminal case where trial is yet to take place and the matter is at the stage of taking cognizance, materials relied upon by the accused which are in the nature of public documents or the materials which are beyond suspicion or doubt, in no circumstance, can be looked into by the High Court in exercise of its 14 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 14 / 15 jurisdiction under Section 482 or for that matter in exercise of revisional jurisdiction under Section 397 of the Code. It is fairly settled now that while exercising inherent jurisdiction under Section 482 or revisional jurisdiction under Section 397 of the Code in a case where complaint is sought to be quashed, it is not proper for the High Court to consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations. However, in an appropriate case, if on the face of the documents-which are beyond suspicion or doubt-placed by accused, the accusations against him cannot stand, it would be travesty of justice if accused is relegated to trial and he is asked to prove his defence before the trial court. In such a matter, for promotion of justice or to prevent injustice or abuse of process, the High Court may look into the materials which have significant bearing on the matter at prima facie stage.” (ii) Rajiv Thapar v. Madan Lal Kapoor reported in 2013 3 SCC 330, the relevant being paragraph 29 where it has been held : “29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 CrPC, if it chooses to quash the initiation of the prosecution against an accused at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 CrPC, at the stages referred to hereinabove, would have far-reaching consequences inasmuch the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 CrPC the High Court has to be fully satisfied that the material produced by the accused is such that would lead to the conclusion that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such as negate would as it 15 Patna High Court Cr.Misc. No.28573 of 2013 (3) dt.09-10-2013 15 / 15 by leveled accusations would rule out and displace the assertions contained in the charges leveled against the accused; and the material produced is such as would clearly reject and overrule the veracity of the allegations contained in the the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations leveled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 CrPC to quash such criminal proceedings, for that would prevent abuse of process of the Court, and secure the ends of justice.” In view of the aforesaid discussions, this Court, in exercise of its inherent powers under Section 482 of the Code, quashes the entire criminal proceeding arising out of Complaint Case No. C1-1983 of 2009/Tr. No. 1191 of 2013 as well as the order dated 23.12.2009. The application stands allowed. Prakash/- (Ahsanuddin Amanullah, J)