Research › Search › Judgment

Gauhati High Court · body

2008 DIGILAW 581 (GAU)

Gopa Deb v. State of Tripura

2008-08-07

B.D.AGARWAL

body2008
JUDGMENT B.D. Agarwal, J. 1. In Hindu mythology, it is believed that marriages are decided in the heaven but only performed on the earth. It is also said that marriages are not only union of brides and grooms but melting of their hearts and souls. However, going by the increasing graph of divorces and that too within a short span or marriage life, the aforesaid belief and saying have become myth and no longer stand true in these days. The case is hand can be cited as a classic example of disproving the old adages. 2. The Respondent No. 2 Smt. Sangeeta Dev's marriage was solemnized with the accused Siddhartha Dev on 19.9.2006 at Agartala as per Hindu rites and customs. After staying for few days at the in-law's house at Udaipur, the couple went to Delhi where the husband had a job. In the last part of November 2006, i.e., within a period of two months, the prosecutrix came to her parents house at Agartala on the pretext of seeing her father who was hospitalized due to fracture on his hip. From the complaint petition, it does not appear that complainant ever returned to Delhi, where her in-laws also went to stay with her husband. However, she went to stay in her in-law's house at Udaipur. 3. From the complaint dated 12.1.2008, which was allegedly submitted by the same complainant at Jadavpur Police Station, Kolkata, it appears that on her insistence, the husband gave up his job at Delhi and arranged a new job at Kolkata where the complainant resumed her marital relationship, although this relationship came under cloud within Weeks of its take off. The final separation took place in the first week of April, 2008. 4. The prosecutrix returned to her parents' house in the first week of April, 2008 and a written complaint running in 20 pages was lodged at Women's Police Station, Agartala on 7.4.2008. In this complaint, the prosecutrix has impleaded her husband, parents-in-laws and 2 married sisters of the husband as accused persons. The FIR has been registered as Women's PS case No. 49 of 2008 under Section 498A read with 34, IPC. Except the husband, the remaining accused persons have filed the criminal petitions seeking quashing of the aforesaid FIR. In this complaint, the prosecutrix has impleaded her husband, parents-in-laws and 2 married sisters of the husband as accused persons. The FIR has been registered as Women's PS case No. 49 of 2008 under Section 498A read with 34, IPC. Except the husband, the remaining accused persons have filed the criminal petitions seeking quashing of the aforesaid FIR. Since both criminal petitions are arising out of the same FIR arid being assailed on identical grounds, I am disposing of these petitions by this common judgment. 5. Heard the arguments of Sri Rana Mukhopadhaya and Sri Somik Deb, learned Counsels appearing for the Petitioners and Sri P.K. Biswas, learned Counsel for the complainant. The State was represented by the learned Counsel Sri B.R. Das Roy. I have also perused the complaint petition and other documents filed by the Petitioners. 6. The Petitioners arc seeking quashing of the criminal proceeding basically on the following grounds: (i) That the averments made in the complaint petition do not constitute the purported offence under Section 498A, IPC; (ii) That the Petitioners have been arrayed in the complaint petition with ulterior motive; (iii) That Agartala Police has no jurisdiction to take cognizance of the FIR. 7. After the conclusion of the oral submissions, the parties were given liberty to submit their written arguments. The Petitioners have taken the privilege by filing their respective written submissions whereas the Respondents did not feel it necessary to do so. Besides these, I also find from the record that the investigation of the case was stayed by another co-ordinated Bench of this Court on 23.4.2008 with liberty to the Respondents to approach the court for modification of the interim stay order. But the Respondents also did not choose to file any application for vacating the stay order. However, when the case was listed for admission on 30.7.2008, parties made lengthy arguments and as such it was considered as final arguments and hearing was concluded. 8. Learned Counsel for the Petitioners submitted that a criminal proceeding casts a stigma in the life of the accused persons and as such any frivolous complaint should not, therefore, be permitted. It was also submitted that the accused persons have a legal right to challenge their criminal prosecution at any stage since Code of Criminal Procedure (in brief 'Code of Criminal Procedure') has not put any embargo in this regard. It was also submitted that the accused persons have a legal right to challenge their criminal prosecution at any stage since Code of Criminal Procedure (in brief 'Code of Criminal Procedure') has not put any embargo in this regard. Besides this, referring to several decisions from the Hon'ble Supreme Court, learned Counsel for the Petitioners submitted that the High Courts have inherent jurisdiction and powers under Section 482, Code of Criminal Procedure to prevent abuse of the process of law by way of quashing criminal proceedings at any stage. It was contended that not only the statements made in the complaint petition do not make out any case of torture or cruelty against the Petitioners, but the names of the Petitioner's in-laws have been incorporated at different places in the FIR with oblique motive for giving mental harassment. The second limb of the argument was that since the alleged offence of cruelty by the husband had taken place at Kolkata, the case should not be investigated by the Police agency at Agartala. 9. On the other hand, Sri Biswas, learned Counsel for the prosecutrix contended that the bowers conferred under Section 482, Code of Criminal Procedure should not be exercised during the investigation stage. In support of this submission, the, learned Counsel relied upon the judgment of the Apex Court rendered in the case of Pratibha v. Rameshwari Devi (2008) Cri. LJ 329; Soma Mitta v. Government of Karnataka AIR 2008 SCW 1640 and Baldev Krishan v. State of Punjab (1997) 4 SCC 486 . On the point of jurisdiction, learned Counsel for the Respondents submitted that if any part of the cause of action takes place in a particular territory of a Police Station then that Police station can take cognizance of the offence. In other words it was the submission of the learned Counsel that it is not a sine qua non that the entire offence must have been committed within the territorial jurisdiction of the Police station to take cognizance of the FIR. It was also contended that under Section 156(2), Code of Criminal Procedure the accused persons cannot challenge the powers of the investigating agency. 10. Contours of the inherent power of the High Courts to quash criminal proceedings was initially discussed by the Hon'ble Supreme Court in the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 . It was also contended that under Section 156(2), Code of Criminal Procedure the accused persons cannot challenge the powers of the investigating agency. 10. Contours of the inherent power of the High Courts to quash criminal proceedings was initially discussed by the Hon'ble Supreme Court in the case of R.P. Kapoor v. State of Punjab AIR 1960 SC 866 . This case can be considered as the leading judgment on the issue. The guidelines laid down by the Apex Court for quashing a criminal proceeding can be summarized as below: (i) Whether it manifestly appears that there is a legal bar against the institution or continuance of a criminal proceeding; (ii) Whether the allegations in the First Information Report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; (iii) Whether the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. 11. The judgment of the Hon'ble Supreme Court rendered in the case of State of Haryana v. Bhajan Lal and Ors. (1992) Supp (1) SCC 335 can be said to be the leading judgment of the post-1973 Code of Criminal Procedure. After threadbare discussion of various provisions of Code of Criminal Procedure vis-a-vis Article 226 of the Constitution of India, the Hon'ble Supreme Court has laid down the following criteria for interference in a criminal proceeding: 102. In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of Illustration wherein such power could be exercised, either to present abuse of the process of any court or otherwise to secure the ends of justice, though it may net be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (i) 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. (ii) 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. (iii) 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. (iv) 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. (v) 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. (vi) 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. (vii) 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. The aforesaid guidelines, although illustrative and not exhaustive, has taken a firm root in the criminal jurisprudence in India. In scores of various authorities from the Hon'ble Supreme Court, it has been reiterated that if the allegations set out in the complaint do not constitute the offences alleged therein, it is open to the High Court to quash the criminal proceeding. In scores of various authorities from the Hon'ble Supreme Court, it has been reiterated that if the allegations set out in the complaint do not constitute the offences alleged therein, it is open to the High Court to quash the criminal proceeding. Besides these, the High Courts can also exercise, its inherent power under Section 482, Code of Criminal Procedure to drop the criminal proceedings after the complaint is found to have been lodged with mala fide intention with frivolous and vexatious allegations. At the same time, the courts should be slow and circumspect in analyzing the allegations meticulously. In other words, the scale to allow continuance of criminal proceeding is to ascertain if prima facie the allegations make out any case sans a definite possibility of conviction of the accused persons. 13. In the case of Manjula Sinha v. State of U.P. and Ors. (2007) 5 SCC 503, the Apex Court was confronted with quashing of an FIR under Sections 498A and 406, IPC. The relevant observation of the Hon'ble Supreme Court can be fruitfully reproduced below: 8. Section 482, Code of Criminal Procedure does not confer any new power on the High Court. It only saves the inherent power which the court possessed before the enactment of the Code. It envisages 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. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the Section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle quando lex aliquid alicui concedit, concederevidetur idsineauores imsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as, a court of appeal or revision. Inherent jurisdiction under the Section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amount to abuse of the process of court or quashing or these proceedings would otherwise serve the ends of justice. 14. The aforesaid principle of law has been re-instated by the Hon'ble Supreme Court in the cases of Trisuns Chemical Industries v. Rajesh Agarwal (1999) 8 SCC 686 , Pratibha (supra) and Som Mittal (supra) relied upon by the learned Counsel for the complainant. Thematic content of all the authorities from the Hon'ble Supreme Court is that maintaining the judicial principle of cautious approach, the High Court should see that neither the victim's right to prosecute an offender should be vetoed nor the judicial process should be allowed to be misused or abused with ulterior motive. Thematic content of all the authorities from the Hon'ble Supreme Court is that maintaining the judicial principle of cautious approach, the High Court should see that neither the victim's right to prosecute an offender should be vetoed nor the judicial process should be allowed to be misused or abused with ulterior motive. In my considered opinion, the criminal prosecution even at the stage of investigation casts a stigma in the personal life and dignity of the accused persons and such action also infringes human rights of the alleged offenders, to some extent. Hence, in appropriate cases High Courts cannot remain a mute spectator if the criminal proceeding apparently attracts any of the guidelines formulated in the case of Bhajan Lal (supra). 15. With the aforesaid guidelines I shall now briefly discuss the nature of the allegations made against the Petitioners. I make it clear that the allegations are not being discussed at length since the husband-of the prosecutrix has not come for quashing of the FIR. Any elaborate discussion may also prejudice the investigating agency, the court and the accused who, is not before me. 16. After reading the complaint meticulously, I notice that the prosecutrix has made the allegation of financial exploitation by the husband from the very next date of the marriage. The complaint continues to describe as to how the husband allegedly asked for money for purchase of sweets, defraying taxi fares, air fares, etc. Sri Biswas, learned Counsel for the complainant failed to point out any allegation of unlawful demand of dowry. Apparently, I also did not find any allegation of unlawful demand of dowry. 17. With regard to the involvement of the Petitioners, I find that their names have been incorporated in the FIR sporadically. Basically the married sisters-in-law, namely, Soma Deb and Gopa Deb have been implicated for instigating her husband without disclosing the nature of instigation clearly. It has been alleged that the complainant was abused and misbehaved by the husband the moment he received a telephone call from his sisters and parents. The most serious part of the allegations is extracted below for instant examination: Somadi and mother in law within my hearing remarked that my father in law had given high education to his children and made them self sufficient and given away two daughters in marriages so richly. The most serious part of the allegations is extracted below for instant examination: Somadi and mother in law within my hearing remarked that my father in law had given high education to his children and made them self sufficient and given away two daughters in marriages so richly. Details of the articles given in their marriage were discussed for my hearing. Somadi remarked that single child has to be given diamond set and luxury car land so she was preparing herself for her daughter. They talked over phone with my husband as to what he had got in his marriage and the AC was a luxury for wife. In turn my husband threatened me frequently slaying 'what have been given'. My first anniversary fell while at Udaipur. My husband wanted to visit Udaipur but it was obstructed by my both in aws and Somadi along with Gopadi over phone on the ground that it would be expansive as I over heard the telephonic talk. Unfortunately he received injury the night before put on my anniversary night he went for dinner with and Gopadi and Shekhar da in hotel in Kolkata as my husband informed me over phone. My parents for this occasion visited me at Udaipur with some gifts for both and sweets, etc. At night my father in law talked to my husband informing him that my father had come with big talks and his attempts to capture jamai had failed. 18. The aforesaid part of the complaint and the remaining statements clearly indicate that the in-laws have been framed in the case on assumption, presumption and suspension without any authentic allegation of torture. It has been mentioned at the outset of the judgment that the couple had hardly lived together for few months, in the total period of nearly one and a half years. The FIR is stoically silent as to what could have been the motive for instigating the husband to coerce his newly wedded wife. Had there been any incident of unlawful demand of dowry, an inference could have been drawn that the in laws were not happy which could have provoked them to instigate their son/brother to mentally torture his wife. However, no such instance has been given in the FIR. 19. Had there been any incident of unlawful demand of dowry, an inference could have been drawn that the in laws were not happy which could have provoked them to instigate their son/brother to mentally torture his wife. However, no such instance has been given in the FIR. 19. Learned Counsel for the Petitioners heavily relied upon the judgment of the Apex Court rendered in the case of Ramesh v. State of T.N. 2005 SCC 735 . This case was carried by the accused to the Apex Court having been unsuccessful to get the criminal proceeding quashed under Section 482, Code of Criminal Procedure. In this case also, the offence was registered under Sections 498A and406, IPC read with Section 4 of the Dowry Prohibition Act. Whether stray incidents of taunting and ill treatment would constitute an offence under Section 498A, IPC, the Apex Court has given the following answer: 6. Before we proceed to deal with the two contentions relating to limitation and territorial jurisdiction, we would like to consider first the contention advanced on behalf of the Appellant Gowri Ramaswamy. Looking at the allegations in the FIR and the contents of chargesheet, we hold that none of the alleged offences, viz., Sections 498A and 406 IPC and Section 4 of the Dowry Prohibition Act are made out against her. She is the married sister of the informant's husband who is undisputedly living in Delhi with her family. Assuming that during the relevant time, i.e., between March and October 1997, when the 6th Respondent (informant) lived in Mumbai in her marital home, the said lady stayed with them for some days, there is nothing in the complaint which connects her with an offence under Section 498A or any other offence of which cognizance was taken. Certain acts of taunting and ill-treatment of the information by her sister-in-law (the Appellant) were alleged but they do not pertain to dowry demand or entrustment and misappropriation of property belonging to the informant. What was said against her in the FIR is that on some occasions, she directed the complainant to wash WC and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are out slave". What was said against her in the FIR is that on some occasions, she directed the complainant to wash WC and she used to abuse her and used to pass remarks such as "even if you have got much jewellery, you are out slave". It is further stated in the report that Gowri would make wrong imputations to provoke her husband and would warn her that nobody could do anything to her family. These allegations, even if true, do not amount to harassment with a view to coercing the informant or her relation to meet an unlawful demand for any property or valuable security. At the most, the allegations reveal that her sister-in-law Gowri was insulting and making derogatory remarks against her and behaving rudely against her. Even acts of abetment in connection with unlawful demand for property/dowry are not alleged against her. The bald allegations made against her sister-in-law seem to suggest the anxiety of the informant to rope in as many of the husband's relations as possible. Neither the FIR nor the chargesheet furnished the legal basis to the Magistrate to take cognizance of the offences alleged against the Appellant Gowri Ramaswamy. The High Court ought not to have relegated her to the ordeal of trial. Accordingly, the proceedings against the Appellant Gowri Ramaswamy are hereby quashed and her appeal stands allowed. 20. At this stage, it is necessary to look at the provisions of Section 498A, IPC which are as follows: 498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the 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 purpose of this section, "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 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. 21. 21. As noted earlier there is no allegation of illegal demand of dowry. Hence, the cruelty within the meaning of Explanation (b) is apparently not attracted. The only allegation of the complainant is of mental torture. The law is clear that mental torture should be of such degree which may drive the woman, to commit suicide or to cause grave injury or danger to life, limb or health. The serious most allegations made in the complaint and extracted in this judgment are far away from constituting the aforesaid ingredients offence enumerated in Explanation (a). Strangely, the marriage was solemnized socially and with preliminary queries regarding the family of the husband and this process naturally involves neutral and related members, from both the sides. Despite this, the complaint is totally silent that any such neutral or relative was ever informed about the mental torture, far less making any attempt of reconciliation. Hence, apart from the ground that the allegations do not constitute the offence under Section 498A, IPC against the in-laws/Petitioners, the submission of the learned Counsels that the Petitioners have been roped in the case with ulterior motive also has sufficient force. 22. Although I have found sufficient grounds to quash the impugned FIR on the premise that no case under Section 498A, IPC has been made out against the present set of Petitioners and also that the allegations are vague and absurd, I can also consider the statements made by the prosecutrix Smt. Sangeeta Deb in her complaint to the Jadavpur Police station on 12.1.2008. I make it clear that this document is a disputed one and as such the averments made therein are taken only as a corroborative material and not a substantive ground to quash the FIR. The reason to take into consideration the complaint, dated 12.1.2008 is that the Petitioners have submitted certificates from Jadavpur Police station that the aforesaid complaint was lodged and the complainant was also interviewed by the Investigating Officer. 23. In the earlier complaint dated 12.1.2008, the prosecutrix had indicated Jadavpur Police station that her father, who is a Judicial officer in Tripura was contemplating initiating of some criminal cases against her husband and in-laws. The prosecutrix requested the Police not to register any case on any complaint by her father. 23. In the earlier complaint dated 12.1.2008, the prosecutrix had indicated Jadavpur Police station that her father, who is a Judicial officer in Tripura was contemplating initiating of some criminal cases against her husband and in-laws. The prosecutrix requested the Police not to register any case on any complaint by her father. From this statement made nearly 3 months prior to the impugned FIR at Agartala, possibility of lodging the impugned FIR at the behest of complainant's father with oblique motive cannot be totally discarded. 24. Sri Biswas, learned Counsel for the prosecutrix cited the judgment of Baldev Krishan (supra). This case arose out of conviction of the Appellant under Section 302 read with Section 34, IPC. In this case the prosecution witnesses led evidence to prove that since the victim could not satisfy the demand of dowry she was killed by the accused person. After critical analysis, the Hon'ble Supreme Court has held that the expression of poor quality of gifts or of meager value assuming to be true would not and could not amount to a demand of dowry. Be that as, it may, the aforesaid observations were made, in the context of drawing an inference for committing the offence of murder. In other words, the aforesaid authority has not laid down any criteria for constituting an offence under Section 498A of IPC on the basis of casual taunting about quality of gifts brought by the woman in the marriage. Hence, the decision is distinguishable on facts. 25. The criminal prosecution has also been assailed on the ground of jurisdiction of Police station at Agartala. Since I have decided to quash the impugned FIR on merit and also its unsustainability in law. I do not, deem it necessary to answer the question of jurisdiction of Agartala Police. Besides this, it would not be proper for me to dwell upon the question of jurisdiction since the investigation against the husband is pending. Any observation in this regard would influence the investigation against the husband. Hence, this issue is left open. 26. In the result, the impugned FIR dated 7.4.2008 lodged by Smt. Sangeeta Deb which has been registered as Agartala Women's PS case No. 49 of 2008 under Section 498A read with 34 of IPC is, quashed so far as these Petitioners in this criminal petitions are concerned. 27. Accordingly, both the criminal petitions stand allowed. 26. In the result, the impugned FIR dated 7.4.2008 lodged by Smt. Sangeeta Deb which has been registered as Agartala Women's PS case No. 49 of 2008 under Section 498A read with 34 of IPC is, quashed so far as these Petitioners in this criminal petitions are concerned. 27. Accordingly, both the criminal petitions stand allowed. Interim order stands vacated. Petition allowed.