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Madhya Pradesh High Court · body

2008 DIGILAW 468 (MP)

SHAKUNTALA SHARMA v. STATE OF M. P.

2008-03-26

A.K.SAXENA

body2008
Judgment A.K.Saxena, J. ( 1. ) The petitioners have filed this petition under Section 482 of Code of Criminal Procedure, 1973 (hereinafter referred to as the Code) and prayed that the order dated 18.2.2006 passed by Additional Chief Judicial Magistrate, Bhopal in Criminal Case No. 1234/05 in respect of framing of charge under Section 498-A of I.P.C. and the charge-sheet filed against the petitioners may be quashed and the petitioners may be discharged. ( 2. ) The facts for the disposal of this petition are shortly set out below. The petitioner No.5 Sanjay Sharma is husband of Smt. Tanu Sharma who is complainant of the case. Their marriage was solemnised on 20th April, 2003 and as per allegations, the dowry was given at the time of marriage. The petitioners were not satisfied with the dowry and they started harassing the complainant to fulfil their demand of a car. The complainant informed her brother on telephone through her neighbour about the harassment being caused by her husband. On 22.12.2003. the brother of the complainant informed the Helpline Service of Police Department on telephone about the harassment being caused to his sister. Thereafter, two lady constables were sent to the residence of petitioner No.5. where the complainant requested the lady constables to take her to police station and thereafter, she went to police station with those lady constables where, the matter was heard. The complainant submitted an application annexure P/4 before the in-charge, police station and it was informed by the complainant that she will take further action from Chhattarpur and she is going to home with her brother-in-law. Thereafter, on 23.12.03 the brother of the complainant submitted a letter to Mahila police station, Jahangirabau, Bhopal annexure P/5 informing that he is taking his sister to Chhattarpur from where he will proceed with the legal action. Then the complainant went to Chhattarpur, where she lodged a written report on 6.3.04 at police station. Civil Lines. Chhattarpur, where the crime was registered. The investigation was conducted by the Investigating Officer and after completion of investigation, the charge-sheet was filed in the concerned Court at Chhattarpur. ( 3. ) The matter came up before the High Court and it was held that the Court at Chhattarpur has no jurisdiction to entertain the charge-sheet and thereafter, it appears that the charge-sheet was taken back and it was filed before the competent Court at Bhopal. ( 3. ) The matter came up before the High Court and it was held that the Court at Chhattarpur has no jurisdiction to entertain the charge-sheet and thereafter, it appears that the charge-sheet was taken back and it was filed before the competent Court at Bhopal. ( 4. ) The trial Court framed the charge under Section 498-A of the Indian Penal Code vide order dated 18.2.2006 against which, according to this petition, the petitioners preferred a criminal revision before this Court, which was admitted on 10.4.2006, but dismissed as withdrawn vide order dated 2.12.2006 with liberty to file a petition under Section 482 of the Code. ( 5. ) This petition has been filed mainly on the grounds that the facts stated in reports dated 22.12.2003 recorded in rojnamcha-sahna Nos. 946 and 951, do not constitute the offence under Section 498-A of I.P.C. against the petitioners. The trial Court has illegally relied on the application dated 23.12.03 annexure P/5 of complainants brother because, this application is not a FIR in view of earlier rojnamcha-sahna reports. The ingredients which constitute the offence under Section 498-A of I.P.C, are totally missing in both the rojnamcha-sahna reports. The trial Court has totally failed to appreciate the material available on the record. The order impugned of framing the charge under Section 498-A of I.PC. is not sustainable. ( 6. ) The learned counsel for the petitioners has restricted his arguments on three points. Firstly, there cannot be a second FIR of any incident and if second FIR is lodged upon which the matter was investigated and charge-sheet is filed, it is liable to be quashed. Secondly, there is no material in rojnamcha-sahna reports for framing of charge under Section 498-A of I.P.C: against any of the petitioners and it is apparent from the order impugned that the trial Court has totally failed to apply its mind at the time of framing of charge. Lastly, it was contended that even if the revision petition was dismissed as withdrawn, the question of framing of charge can be taken into consideration at the time of disposal of petition filed under Section 482 of the Code. ( 7. ) This Court shall consider the last argument first. The learned counsel for the petitioners placed his reliance on the case of Raj Kapoor and others v. State (Delhi Administration) and others, AIR 1980 SC 258 . ( 7. ) This Court shall consider the last argument first. The learned counsel for the petitioners placed his reliance on the case of Raj Kapoor and others v. State (Delhi Administration) and others, AIR 1980 SC 258 . It has been held in this case that where a case clearly brings about a situation which is an abuse of process of the Court or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing is contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. In view of the principle laid down in this case, this Court is of the opinion that though the revision petition was dismissed as withdrawn, but it can be considered whether the proceedings can be quashed and the petitioners can be discharged. Therefore, it would not be proper to reject this petition only on this ground that the petitioners withdrew their revision petition. ( 8. ) In the case of T. T. Antony v. State of Kerala and others, AIR 2001 SC 2637 , it has been laid down that- thus there can be no second FIR and consequently there can be no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or the same occurrence or incident giving rise to one or more cognizable offence. It has been further held that - if the gravamen of the charges in the two FIRs - the first and the second - is in substance and truth the same, registering the second FIR and making fresh investigation and forwarding report under Section 173 of Cr.P.C. will be irregular and the Court cannot take cognizance on the same. It has also been held in this case in paragraph 18 that........apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information Report - FIR. postulated by Section 154 of Cr.P.C. ( 9. It has also been held in this case in paragraph 18 that........apart from a vague information by a phone call or cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer-in-charge of police station is the First Information Report - FIR. postulated by Section 154 of Cr.P.C. ( 9. ) The learned counsel for the petitioners relied on the cases of R.P Kapur v. State of Punjab, AIR 1960 SC 866 and State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335 and argued that in the case on hand, the FIR annexure P/2 was lodged earlier by the brother of complainant to Helpline Service and thereafter, second and third report annexure P/3 and P/4 and also the report annexure P/5 lodged by brother of the complainant, cannot be treated as FIRs and if on the basis of these subsequent reports, the charge-sheet has been filed, it is liable to be quashed because, acting upon the subsequent FIRs, is abuse of process. He has further contended with the help of principles laid down in the cases of Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijja and others, AIR 1990 SC 1962 and State ofM.P. v. S.B. Johari and others, (2000) 2 SCC 57 that since the documentary evidence available on the record was not properly appreciated by the trial Judge and even on accepting the prosecution case in its entirety, the charge would not be made out, therefore, the trial Judge committed a grave mistake in framing the charge under Section 498-A of I.P.C. against all the petitioners which resulted into a great prejudice and injustice to the petitioners. ( 10. ) In the case of R.P. Kapur (supra), the Apex Court indicated some of the categories of cases where the inherent jurisdiction to quash the proceedings can and should be exercised, which are as follows:- "If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Courts inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point." ( 11. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point." ( 11. ) The Apex Court also indicated the categories of cases by way of illustration wherein, the powers under Section 482 of the Code could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice in paragraph 102 of the case of State of Haryana (supra) and these illustrations are as follows :- "(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 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. (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. (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. (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." ( 12. ) Now, in the light of above principles and illustrations, the point involved in this case, can be considered. An information annexure P/2 was given on telephone by the brother of the complainant in which it was disclosed that Sanjay Sharma, the husband of his sister Tanu Sharma, is threatening and pressurising her to sign a blank paper. On receiving this information, two lady head constables reached at the residence of petitioner No.5 where, the complainant requested the police to go to police station and thereafter, she was accompanied by the lady constables to police station where the rojnamcha-sahna No.951 annexure P/3 was noted down. Thereafter, the complainant Tanu Sharma submitted an application annexure P/4 to the in-charge of concerned police station in which it was disclosed by her that she wants to go with her brother- in-law because she was afraid of this fact that she might be forced by her husband to sign the blank paper of divorce. It was also disclosed in this report that she will initiate the proceeding at Chhattarpur. On 23.12.03 at 12.45 AM, Sameer Goswami who is brother of the complainant, submitted an application annexure P/5 for information that his sister is going with, him and legal action against the family members will be taken from Chhattarpur. Thereafter, the complainant Tanu Sharma lodged the written report at police station Civil Lines, Chhattarpur upon which, the case was registered and after completion of investigation, the charge-sheet was filed in the Court at Chhattarpur. ( 13. ) On a perusal of information annexure P/2 given by the brother of the complainant on telephone to Helpline Service, this Court finds that there is only one allegation that the husband of the complainant was pressurising and harassing her to sign the blank paper. ( 13. ) On a perusal of information annexure P/2 given by the brother of the complainant on telephone to Helpline Service, this Court finds that there is only one allegation that the husband of the complainant was pressurising and harassing her to sign the blank paper. Apart from this allegation, in sum and substance, there is no other allegation in above mentioned complaint or even in reports annexures P/3 to P/5. It is apparent from these documents that the actual FIR in respect of only one fact that the husband of the complainant is pressurising and harassing her to sign a blank paper, is the rojnamcha-sahna report annexure P/2 and not the reports or complaints or information letters annexures P/3 to P/5. The rojnamcha-sahna report annexure P/2 is not cryptic or vague in nature. This report categorically states the allegation of an incident which occurred on 22.12.03. The reports or information letters annexures P/3 to P/5 are not FIRs of the incident which took place on 22.12.03 though these are the documents of further facts, which can be taken into consideration in accordance with law in appropriate proceedings but not in the case which is pending in the Bhopal Court. ( 14. ) On a perusal of written FIR, which was lodged at Chhattarpur and which is a part of the charge-sheet, discloses lot of facts about demand of dowry and causing harassment to the complainant by all the petitioners, but these allegations are not part of report annexure P/2 or other reports or written information annexures P3 to P/5. A detailed report was lodged by the complainant at Chhattarpur disclosing the details as to how the petitioners demanded dowry and how the complainant was harassed by these petitioners. The allegation that the husband of the complainant pressurised his wife to sign a blank paper, is not part of the report upon which the charge-sheet has been filed. It means that both die reports are on different footings. The report annexure P/2 discloses the fact of pressurising the complainant to sign the blank paper which is an independent offence whereas, the written report lodged at Chhattarpur discloses various facts in respect of demand of dowry and causing harassment by the petitioners to the complainant prior to 22.12.03. Therefore, it cannot be said that two FIRs were lodged of the same facts. Therefore, it cannot be said that two FIRs were lodged of the same facts. It may be a point for consideration of the trial Court as to why the complainant failed to disclose all the allegations which are part of the written report lodged at Chhattarpur when she reached at Mahila police station, Jahangirabad, Bhopal where the rojnamcha-sahna No.951 dated 22.10 03 was noted down. It is also a matter of consideration for the trial Court as to what is the effect of non-mentioning of all those facts to Mahila police station on 22.12.2003, but certainly, if certain facts, constituting the offence, were not disclosed at the first available opportunity by the complainant, it does not mean that the proceedings can be quashed. ( 15. ) On a perusal of reports annexure P/2 to P/5 and the report lodged at Chhattarpur, this Court is of the opinion that the report annexure P/2 and the FIR lodged at Chhattarpur, relate to distinct offences, which were said to have been committed at different stages. Where a report of an incident is lodged, the police officer is empowered to make an investigation in respect of further developments also relating to that offence but he cannot file the charge-sheet in respect of offences committed prior to that offence. He is authorised to investigate the facts relating to prior offences if any report was lodged in respect of those prior facts. This principle would also be applicable to the case on hand. The brother of the complainant and the complainant herself lodged two FIRs of different facts and, therefore, this petition cannot be allowed or the proceedings, pending in the Court below, cannot be quashed. But, if the reports annexure P/2 to P/5 have been filed with the charge-sheet, certainly these documents cannot be looked into because the FIR annexure P/2 in respect of offence committed on 22.12.03, was not investigated by Mahila police station, Jahangirabad, Bhopal or the charge-sheet was not filed on the basis of report annexure P/2. The FIR lodged at police station, Civil Lines, Chhattarpur discloses independent facts which took place prior to 22.12.03 and only the allegations of this FIR can be considered by the trial Court. ( 16. The FIR lodged at police station, Civil Lines, Chhattarpur discloses independent facts which took place prior to 22.12.03 and only the allegations of this FIR can be considered by the trial Court. ( 16. ) The Apex Court indicated several categories of cases in the cases of R.P. Kapur and State of Haryana (supra), but the facts of this case do not come under any of the categories. Apart from it, the facts of the case clearly indicate that there is no ground to quash the proceedings. The facts of this case are not such where the inherent jurisdiction can and should be exercised. The inherent powers under Section 482 of the Code can only be exercised sparingly and in very rare cases, but this case does not fall under that category because the trial Court has rightly took the cognizance on the basis of FIR lodged at police station Civil Lines, Chhattarpur. ( 17. ) As far as the point of framing of charge is concerned, the principle laid down in the case of State of M.P. (supra) is important, which applies in this case also. In this case, the Apex Court has laid down that :- "It is settled law that at the stage of framing the charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the court is satisfied that a prima facie case is made out for proceeding further-then a charge has to be framed." ( 18. ) There are specific allegations against all the petitioners in respect of demand of dowry and causing harassment to the complainant in her written report as well as in the statements of witnesses. The trial Court while framing the charge, has considered the entire evidence available before the Court and it was found that a prima facie offence under Section 498-A of I.P.C. is made out. The trial Court also considered the arguments of defence and thereafter, the charge was framed. On a perusal of charge-sheet papers, this Court is also of the opinion that a prima facie offence under Section 498-A of I.P.C. was made out against all the petitioners. The trial Court also considered the arguments of defence and thereafter, the charge was framed. On a perusal of charge-sheet papers, this Court is also of the opinion that a prima facie offence under Section 498-A of I.P.C. was made out against all the petitioners. If it appears from the order-sheet that the trial Court applied its mind and thereafter framed the charge on the basis of available material, the charge cannot be quashed. The trial Court has not committed any error in framing the charge against the petitioners and in these circumstances also, the petition cannot be allowed. ( 19. ) For the aforesaid reasons, the petition filed under Section 482 of the Code is dismissed. Petition dismissed.