Bhushan Prasad Singh v. 1. The State of Jharkhand 2

Legal Reasoning

First Information Report was registered alleging therein that the informant as married to this petitioner in the year 1985 at Patna in Bihar; that the informant went to her in-laws house and resided as husband and wife; that out of wedlock, one son and a daughter were born; that initially the informant was being taken care of properly, but from the year 2005, this petitioner started assaulting and abusing the informant; that for the maintenance of the informant nothing is being given to her; that the petitioner which led to fleeing away the informant from her matrimonial house and started living in her parents’ home at Dumka and at Dumka also, she was threatened and even on phone, threatening is given. 4.

Legal Reasoning

Learned counsel for the petitioner submits that at the time of filing of the present petition the petitioner was aged about 59 years and this petition was filed in the year 2017 and now the petitioner almost attended the age of 66 years. He submits that after the said First Information Report the case was investigated by the police and the charge sheet was submitted. Pursuant to that learned court has been pleased to take Cr.M.P. No. 787 of 2017 cognizance under Section 498A of the Indian Penal Code. He submits that in the First Information Report itself it is stated that the marriage took place in the year 1985 and the alleged occurrence is said to be taken place in the year 2005 wherein the First Information Report was registered on 01.12.2015. he submits that after a much delay the present First Information Report was lodged and in view of the section 468 of Cr.P.C. he submits that punishment is under Section 498A of the Indian Penal Code is for three years and such section 468 of Cr.P.C. is attracted. 5. He further draws the attention of the Court to section 498 A of the Indian Penal Code and submits that explanation of (a) and (b) of the said Section is not being fulfilled in the case in hand and in spite of that the charge sheet has submitted and learned court has been pleased to take cognizance. 6. He submits that in such a stage of life the wife has implicated the petitioner only on the ground the petitioner is not willing to reside at Dumka where the parents of wife are residing and the petitioner is residing at Bhagalpur along with his old parents. 7. He submits that the abuse of section 498 A of the Indian Penal Code has been considered by the High Court as well as the Hon’ble Supreme Court in several judgments. He further submits that recently this aspect of the matter has been considered by the Hon’ble Supreme Court in the case of Achin Gupta Vs. State of Haryana and others reported in 2024 SCC Online SC 759 he refers to paragraph 19, 20, 22, 25, 30, 31, 32 which are reads as under: “19. It is also pertinent to note that the Respondent No. 2 lodged the FIR on 09.04.2021, i.e., nearly 2 years after the filing of the divorce petition by the Appellant and 6 months after the filing of the domestic violence case by her mother- in-law. Thus, the First Informant remained silent for nearly 2 years after the divorce petition was filed. With such an unexplained delay in filing the FIR, we find that the same was filed only to harass the Appellant and his family members. 20. It is now well settled that the power under Section 482 of the Cr.P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Page 15 Cr.M.P. No. 787 of 2017 of 36 Section 482 of the Cr.P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice. 22. Once the investigation is over and chargesheet is filed, the FIR pales into insignificance. The court, thereafter, owes a duty to look into all the materials collected by the investigating agency in the form of chargesheet. There is nothing in the words of Section 482 of the Cr.P.C. which restricts the exercise of the power of the court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It would be a travesty of justice to hold that the proceedings initiated against a person can be interfered with at the stage of FIR but not if it has materialized into a chargesheet. 25. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of the process of the court. The court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out, prima facie, whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge, more particularly when a prosecution arises from a matrimonial dispute. 30. In the aforesaid context, we should look into the category 7 as indicated by this Court in the case of Bhajan Lal (supra). The category 7 as laid reads thus: - “(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." 31. We are of the view that the category 7 referred to above should be taken into consideration and applied in a case like the one on hand a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of her husband and his close relatives is with an oblique motive then even if the FIR and the chargesheet disclose the commission of a cognizable offence the Court with a view to doing substantial justice should read in between the lines the Cr.M.P. No. 787 of 2017 oblique motive of the complainant and take a pragmatic view of the matter. If the submission canvassed by the counsel appearing for the Respondent No. 2 and the State is to be accepted mechanically then in our opinion the very conferment of the inherent power by the Cr.P.C. upon the High Court would be rendered otiose. We are saying so for the simple reason that if the wife on account of matrimonial disputes decides to harass her husband and his family members then the first thing, she would ensure is to see that proper allegations are levelled in the First Information Report. Many times the services of professionals are availed for the same and once the complaint is drafted by a legal mind, it would be very difficult thereafter to weed out any loopholes or Page 28 of 36 other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the First Information Report and the chargesheet papers disclose the commission of a cognizable offence. If the allegations alone as levelled, more particularly in the case like the one on hand, are to be looked into or considered then why the investigating agency thought fit to file a closure report against the other co- accused? There is no answer to this at the end of the learned counsel appearing for the State. We say so, because allegations have been levelled not only against the Appellant herein but even against his parents, brother & sister. If that be so, then why the police did not deem fit to file chargesheet against the other co-accused? It appears that even the investigating agency was convinced that the FIR was nothing but an outburst arising from a matrimonial dispute. 32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, Page 29 of 36 adjustment and respecting one another. Cr.M.P. No. 787 of 2017 Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In Page 30 of 36 all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to trivial the other, may not amount irritations, quarrels between spouses, which happen in day- to-day married life, may also not amount to cruelty.” Relying on the above judgment learned counsel for the petitioner to cruelty. Mere

8. further submits that this Court is having the ample power to quash such malicious proceedings against the petitioner. He submits that even the trial is proceeded further the Court is competent to quash the same with an appropriate order if a case of interference is made out. Cr.M.P. No. 787 of 2017

9. He submits that by order dated 10.01.2018 notice was issued upon the opposite party no. 2 and further proceeding was stayed by the Court and thereafter the proceeding has not proceeded. On these grounds he submits that entire criminal proceeding may kindly be quashed. 10. On the other hand, learned counsel for the respondent State submits that the final form was submitted the police have investigated the matter and as such this Court may not interfere at this stage. He submits that the learned court has taken a cognizance vide order date 15.07.2016 which is a cogent order. On this ground, he submits that this petition may kindly be dismissed as the High Court is very slow in quashing of the proceeding under Section 482 of Cr.P.C. 11. Learned counsel for the opposite party no. 2 draws the attention of the Court to the contents of the First Information Report and submits that there is a direct allegation of assault and the opposite party no. 2 was abandoned by the petitioner as such the case under Section 498 A of the Indian Penal Code is made out. He submits that the police has investigated the matter and submitted the charge sheet and thereafter the learned court has taken cognizance and the order taking cognizance is cogent one. He refers the section 498 A of the Indian Penal Code and submits that explanation (a) and (b) of the Said section is made out and this Court may not interfere at this stage this can be a subject matter of the trial. He further submits that the Hon’ble Supreme Court time and again deprecated the cases of quashing filed under Section 482 of Cr.P.C., if the trial is already proceeded. According to him charge has already been framed and two witnesses have already been examined. On this, he submits that at this stage this Court may not interfere. He refers to Kamal Kishore Gupta Vs State of M.P. reported in 2004(1) SCC 69 and submits that by way of this judgment the Hon’ble Supreme Court has held that it was impermissible to the High Courts to look into materials and the acceptability to those documents which are essential matter for trial. On this ground he submits that the entire criminal proceeding may not be quashed and the petitioner may take all the grounds in the trial. 12. In view of the above submissions of the learned counsel for the parties, this Court has gone through the materials on record and has gone Cr.M.P. No. 787 of 2017 through the contents of First Information Report including the order taking cognizance. In the First Information Report itself it is admitted that the marriage took place in the year 1985 the allegations are made of the year 2005 the petitioner has abandoned his wife and the present First Information Report was registered on 01.12.2015 in the district of Dumka and such delay has not been explained in the filing of the said application. Admittedly, at the time of lodging the case, the petitioner was aged about 59 years and now he has attended the age of 66 years. By way of the said wedlock the petitioner and the opposite party no. 2 has been blessed with a son and a daughter and at this belated stage this First Information Report was lodged. 13. For correct appreciation of the section 498 A of the Indian Penal Code the said section is quoted herein below: 498A. Husband or relative of husband of a woman subjecting her to cruelty.—Whoever, beingthe husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, “cruelty” means— (a) anywilful 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; (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.] Explanation (a) is clearly speaks that the wilful conduct must be of such nature which is likely to drive the women to commit suicide. Explanation (b) speaks of such coercion to meet any unlawful demand. These explanations are not disclosed in the First Information Report. Rather there is not a single word uttered about any unlawful demand. Thus, the ingredients of section 498 A of the Indian Penal Code is not made out. 14. There is no doubt that the object of introducing chapter XXA containing section 498 A of the Indian Penal Code was to prevent the torture to a woman by her husband or a relatives of her husband. Section 498A was added with a view to punishing husband and his relatives who Cr.M.P. No. 787 of 2017 harass or torture the wife to coerce her or her relatives to satisfy unlawful demand of dowry. The hyper technical view would be counter/ productive and would act against an interest of a woman and against the object for which this provision was added. In any event, the willful act or conduct ought to be proximate cause in order to bring home the charge under Section 498 A of the Indian Penal Code is not dehors the same. To have an event some time back cannot be termed to be a factum taken not of in the matter of charge under Section 498 A of the Indian Penal Code. The legislative intent is clear enough to indicate in particular reference in Explanation (b) that there shall have to be a series of Acts in order to be harassment within the meaning of Explanation (b). 15. Coming to the facts of the present case it is crystal clear that so far as the explanation (a) and (b) of the said section is concerned that is not made out. 16. Section 498 A of the Indian Penal Code was inserted in the statute with object the cruelty at the hands of husband or his relative against wife particularly when such cruelty has potential to result in suicide and murder of a women. But, now days it is rampant that the cases under Section 498 A the Indian Penal Code are being filed on the heat of the moment without considering the implications and consequences. The reference may be made to the Rajesh Sharma vs. State of U.P. and others reported in 2018(10) SCC 472. 17. In some of the cases even the bed ridden grand fathers are being implicated arising out of matrimonial dispute that was subject matter in the case of Arnesh Kumar Vs. State of Bihar and another reported in (2014)8 SCC 273. 18. Such cases are being lodged in the heat of the moment over trivial issues without proper deliberation. That was the subject matter in the case of Priti Gupta vs. State of Jharkhand and another reported in 2010 (7) SCC 667. 19. The above are some of the judgments on the subject matter of which was considered time and again and in the appropriate cases proceedings have been quashed. Cr.M.P. No. 787 of 2017

20. If maliciously a case is to be lodged every care is being taken in drafting of the First Information Report as well as the complaint so that the ingredients of those sections may be made out and if such a situation is there the High Court is having the more responsibility to examine the things minutely so that any innocent person may not be forced to face the trial. If such things are there the High Court is required to read the things in between the line as has been held by the Hon’ble Supreme Court in the case of Haji Iqbal @ Bala Vs. State of U.P. reported in 2023 SCC Online SC 946. 21. In view of the above facts and circumstances and including the judgment which are referred hereinabove, this Court finds that the case of the petitioner is further strengthen in the light of the judgment of the Hon’ble Supreme Court in the case of Achin Gupta (Supra) which was relied by the learned counsel for the petitioner. 22. It is further well settled if High Court at any stage comes to a conclusion that the case of interference is made out the High Court can interfere that has been dealt in the case of Anand Kumar Mohta vs. State of NCT Delhi reported in 2019 (11) SCC 706 paragraph 16 which reads as under: “16. There is nothing in the words of this section which restricts the exercise of the power of the Court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It is settled principle of law that the High Court can exercise jurisdiction under Section 482 CrPC even when the discharge application is pending with the trial court [G. Sagar Suri v. State of U.P., (2000) 2 SCC 636, para 7 : 2000 SCC (Cri) 513. Umesh Kumar v. State of A.P., (2013) 10 SCC 591, para 20 : (2014) 1 SCC (Cri) 338 : (2014) 2 SCC (L&S) 237]. Indeed, it would be a travesty to hold that proceedings initiated against a person can be interfered with at the stage of FIR but not if it has advanced and the allegations have materialised into a charge-sheet. On the contrary it could be said that the abuse of process caused by FIR stands aggravated if the FIR has taken the form of a charge-sheet after investigation. The power is undoubtedly conferred to prevent abuse of process of power of any court.” Cr.M.P. No. 787 of 2017

23. So far as the judgment of Kamal Kishroe Gupta (supra) relied upon by Mr. Anurag Kashyap, learned counsel for the opposite party no. 2, is concerned that is not in dispute. The High Court is not required to roam into to come to the conclusion that no case is made out. In the case relied by the learned counsel for the opposite party no. 2 which was before the Hon’ble Supreme Court in that case the High Court has looked into the several documents and thereafter quashed the proceedings. And the aspect in which that judgment was passed had arisen out of Prevention of Corruption Act, 1947 and other sections of the Indian Penal Code and thus that judgment is not helping the respondent. 24. Recently Hon’ble Supreme Court in the case Preeti Saraf v. State (NCT of Delhi), reported in (2021) 16 SCC 142 has further made out guidelines that how to interfere and pass appropriate order under Section 482 of Cr.P.C. In that judgment again the earlier judgment/view has been endorsed and there is no doubt that the High Court is required to move slowly in the proceeding under Section 482 of Cr.P.C. and with more caution and circumspection and if a case of interference is made out than only the High Court can quashed the proceeding. 25. In the case in hand what has been discussed herein above it is a fit case to exercise power under Section 482 Cr.P.C. Accordingly, the entire criminal proceeding including the order taking cognizance dated

15.07.2016 arising out of Dumka Town P.S. case No. 292 of 2015 G.R. Case No. 1535 of 2015, pending in the court of learned Chief Judicial Magistrate, Dumka is hereby quashed. This petition is allowed and

Decision

disposed of. MM/A.F.R. (Sanjay Kumar Dwivedi, J.) Cr.M.P. No. 787 of 2017