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2012 DIGILAW 1725 (RAJ)

Dinesh v. State of Rajasthan

2012-08-07

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—Heard learned counsel for the parties. 2. The instant misc. petition has been preferred by the petitioners seeking quashing of F.I.R. No. 93/2011 registered against them at P.S. Mahila Thana, District Jodhpur, for the offences under Sections 498A and 323 IPC, at the instance of the respondent No. 2. 3. Succinctly stated the facts necessary for the disposal of the instant misc. petition are that the respondent No. 2 Renu Chouhan lodged an F.I.R. at the Police Station, Mahila Thana, Jodhpur alleging inter alia that she was married to petitioner No. 1 Dinesh on 4.11.2003. She further alleged that right from the date of marriage, her inlaws were harassing her on the count of bringing less dowry. She further alleged that on 20.4.2011, the accused crossed all limits and assaulted her and also tried to set fire to her but she managed to make good her escape and went to the Police Station, Nagaur where she became unconscious. The police officers took her to the hospital where she was provided treatment. Thereafter, her mother was called from Jodhpur to Nagaur and she brought her to Jodhpur and ultimately, the FIR No. 93/2011 was filed at P.S. Mahila Thana, Jodhpur with the aforesaid allegations. The petitioners, who are the accused in the FIR, have approached this Court by way of the instant misc. petition seeking quashing of the FIR impugned on the ground that the FIR filed by the complainant against the accused persons was absolutely frivolous and malafide. It has been submitted on the strength of certain documents filed along with the petition that the marriage of the complainant with the petitioner No. 1 Dinesh was solemnised on 4.11.2003 in a Community Marriage Ceremony (Samuhic Vivah Sammelan) which took place at Harni Mahadev Temple at Bhilwara. Counsel for the petitioner contended that the complainant established illicit relations with one Vinod and eloped with him. An FIR regarding her elopement was filed at P.S. Mahila Thana, Nagaur by the petitioner No. 1 Dinesh as being FIR No. 29/2010. The complainant was examined in connection with the said FIR under Section 164 Cr.P.C. by the learned Judicial Magistrate (First Class), Nagaur on 4.2.2011 and in the said statement, she has stated that she used to talk to Vinod who was a distant relative of her husband Dinesh. Her husband used to suspect her as having illicit relations with Vinod. The complainant was examined in connection with the said FIR under Section 164 Cr.P.C. by the learned Judicial Magistrate (First Class), Nagaur on 4.2.2011 and in the said statement, she has stated that she used to talk to Vinod who was a distant relative of her husband Dinesh. Her husband used to suspect her as having illicit relations with Vinod. She further stated that Vinod's sister requested her to find a suitable match for Vinod and accordingly, she found a match for Vinod. Thereafter, on the instructions of her parents, she terminated the relations by informing the girl's parents. On this Vinod and her family members started accusing her for having broken the ties. On 7.11.2010, Vinod met her in the market and requested her to take tea with him. There, while having tea, Vinod accused Smt. Renu of unsettling his proposed marriage without any justification. While she was talking with Vinod, her husband and brother-in-law (jeth) came to the hotel, on which Vinod ran away. She further alleged that Vinod was having a large debt on him. Her husband started accusing about her relations with Vinod and she unsuccessfully tried to appease her husband by trying to convince him that she was not having any illicit relations with Vinod. Thereafter, she alleged that her husband took out the sim of mobile phone and broke it and called her father to Nagaur and told him about the incident which happened at the hotel. He forbade her from carrying the mobile phone and she agreed that she would not retain the mobile. Thereafter, her father went back. On the same night, her husband saw her with a mobile on which she was assaulted. In the morning, she left her marital home along with her daughter for going to Jodhpur. When she reached Jodhpur bus stand, she saw Vinod waiting for her in a maruti van. She alleged that somebody had informed Vinod that she was coming to Jodhpur and thus Vinod devised a plan to take her away. Vinod allegedly took her forcibly to Surat in the maruti van. From Surat, Vinod took her to Shirdi in an Indica car. She was assaulted by Vinod and Vinod also snatched away her ornaments and money. They started living in a rented house at Shirdi. Vinod allegedly took her forcibly to Surat in the maruti van. From Surat, Vinod took her to Shirdi in an Indica car. She was assaulted by Vinod and Vinod also snatched away her ornaments and money. They started living in a rented house at Shirdi. Vinod's relative Deokaran informed him on telephone that a case had been registered against them at Nagaur, after that Vinod went away and did not return for two days. She approached the landlady in whose house, they were staying. Upon no information about Vinod being given to her, she called her father who instructed her to come back to Jodhpur. Since she was not having any money, she requested the landlady to lend her some money but the landlady did not provide her with any assistance on which she did the job of selling shawls in a concern named, Gangwal Wholesale for 15 days, earned some money and then came back to Jodhpur. On coming back to Jodhpur, her father scolded her. Her husband was called to Jodhpur but he did not turn up. The complainant further alleged that she became apprehensive and went back to Shirdi for searching the boy (Vinod) and for earning livelihood. There, her landlady advised her to go back to her father on which she came back. The petitioner No. 1 Dinesh in turn coming to know of these facts filed a Divorce Petition in the Court of the Additional District Judge, Nagaur on 16.3.2011 praying for dissolution of his marriage with Smt. Renu on the ground of adultery by impleading her and Vinod as respondents in the divorce application. Notice of the divorce application was issued to Smt. Renu and Vinod for showing cause on 27.4.2011. The specific fact averred by Dinesh in the divorce application was that his wife had eloped with Vinod after taking away some ornaments and Rs. 20,000/- cash and their daughter. The statements of the complainant recorded by the Magistrate under Section 164 Cr.P.C. were also quoted in the divorce application. After more than one month of the application for divorce, the complainant has lodged the impugned FIR involving the petitioners for the aforesaid offences. 4. The petitioners have now approached this Court seeking quashing of the impugned FIR. 5. The statements of the complainant recorded by the Magistrate under Section 164 Cr.P.C. were also quoted in the divorce application. After more than one month of the application for divorce, the complainant has lodged the impugned FIR involving the petitioners for the aforesaid offences. 4. The petitioners have now approached this Court seeking quashing of the impugned FIR. 5. Learned counsel for the petitioners submitted that the marriage between the petitioner No. 1 Dinesh and the complainant was solemnished in a community marriage ceremony and, therefore, there was no question of the petitioners demanding any dowry from the complainant. It was further submitted that the allegations of the first a informant regarding the incident of 20.4.2011 are that she was assaulted by her husband, father-in-law and elder brother-in-law (jeth) by sticks, fists, slaps etc. and that thereafter, she went to Mahila Thana, Nagaur from where her mother was called to Nagaur, were absolutely false. The further allegation that she was being harassed for demand of dowry right since her marriage and, thereby the accused committed the offences under Sections 498A and 323 IPC are also malicious. Learned counsel for the petitioners assailing the FIR submitted that admittedly the prosecutrix eloped with Vinod as stated above the petitioner No. 1 Dinesh filed the FIR No. 29/2010 in this regard. The prosecutrix could be located after great difficulty in February, 2011 and when her statements were recorded in relation to the said FIR, she did not make allegation whatsoever about the dowry having been demanded from her by the accused. It is further submitted that in the said statement, the fact of amorous relationship between the complainant and Vinod is writ large. It is further submitted that the petitioner No. 1 Dinesh had filed an application for divorce against the respondent and her paramour Vinod in the Court of Additional District Judge, Nagaur on 16.3.2011. In this background, the possibility of the complainant being in the house of the petitioners on 20.4.2011 was absolutely non-existent. It is further submitted that the FIR impugned is nothing but a tool of oppression and has been filed malafide and as a counter blast to the application of divorce filed by the petitioner No. 1 against the respondent No. 2 with the specific allegation that she was having an adulterous relations with Vinod. It is further submitted that the FIR impugned is nothing but a tool of oppression and has been filed malafide and as a counter blast to the application of divorce filed by the petitioner No. 1 against the respondent No. 2 with the specific allegation that she was having an adulterous relations with Vinod. It was thus submitted that the FIR is, therefore, nothing but an abuse of process of court and thus, the same deserves to be quashed. 6. Learned counsel for the respondent No. 2/complainant vehemently opposed the arguments advanced on behalf of the petitioners but he too is not in a position to controvert the fact that when the complainant was examined in the earlier FIR in relation to her elopement, she did not make any allegation that the petitioners ever treated her cruelly on account of bringing less dowry. He however, submits that as the complainant was abducted forcibly by Vinod, the contention of the counsel for the petitioner that the complainant was having an adulterous relationship, cannot be accepted. He thus submitted that the petition seeking quashing of FIR was not fit to be accepted. 7. Upon a consideration of the arguments advanced at the bar and after going through the material available on the record, particularly, the proceedings of the prior FIR filed by the petitioner regarding the elopement of the respondent No. 2 Smt. Renu and her statements recorded under Section 164 Cr.P.C. in relation to the said FIR, it is evident that there is ample material available on the record which shows that the complainant eloped with Vinod voluntarily. The relationship can be considered to be consenting and voluntary for the simple reason that the complainant has herself mentioned in her statement under Section 164 Cr.P.C. that once she had managed escape from the clutches of Vinod at Shirdi and came back to Jodhpur. Thereafter, she of her own accord went back to Shirdi in search of the boy (Vinod). If at all she had been forcibly taken away by Vinod, then there was no occasion or cause for her to have returned back all the way to Shirdi in search of the person who had allegedly abducted her against her wishes. It is thus obvious that she was herself a consenting party to the relation all along. 8. If at all she had been forcibly taken away by Vinod, then there was no occasion or cause for her to have returned back all the way to Shirdi in search of the person who had allegedly abducted her against her wishes. It is thus obvious that she was herself a consenting party to the relation all along. 8. That apart, admittedly, the marriage between the parties took place in a community marriage ceremony. In such marriage, the possibility of demand of dowry is generally non-existent. Furthermore, as has already been stated above, the petitioner No. 1 had already moved an application seeking divorce from the complainant on the ground of adultery in the month of March, 2011 itself. Therefore, the allegation of the complainant that the petitioners assaulted her in their house on 20.4.2011 is absolutely unbelievable. There is no reason as to why the petitioners would take her back in their house once a divorce application with a specific allegation of adulterous relations, had already been filed against the complainant. It is obvious that the FIR impugned is absolutely malafide and has been filed as an counter blast to the criminal case filed by the petitioners against the complainant as regards her elopement and as a counter blast to the divorce application filed on 16.3.2011. 9. The Hon'ble Apex Court in the case of Sunder Babu vs. State of Tamil Nadu reported in AIR 2009 (Suppl.) SC 2087, considering the scope of the powers of the High Court under Section 482 Cr.P.C., quashed the proceedings of an FIR filed by the wife against the husband under Section 498A and 406 IPC. The relevant portion of the said judgment is quoted herein below. "Background facts in short are as follows: Sukanya (hereinafter referred to as `the complainant') was married with Sunder Babu-appellant No. 1 Appellant No. 2- Mr. Venugopal and Mrs. Ramathilagam appellant No. 3 are the parents of Sunder Babu. A.4- Rajinishree is his sister and Andalammal is his maternal grandmother. The marriage took place on 25.11.1998. The appellant No. 1 left for USA on 1.7.1999. The complaint was filed on 6.2.2000 alleging commission of offence punishable under Sec. 498-A of the Indian Penal Code, 1860 (in short the `IPC') and Sec. 4 of the Dowry Prohibition Act, 1961 (in short `D.P. Act'). 3. The complaint was treated as First Information Report and investigation was undertaken. The appellant No. 1 left for USA on 1.7.1999. The complaint was filed on 6.2.2000 alleging commission of offence punishable under Sec. 498-A of the Indian Penal Code, 1860 (in short the `IPC') and Sec. 4 of the Dowry Prohibition Act, 1961 (in short `D.P. Act'). 3. The complaint was treated as First Information Report and investigation was undertaken. On completion of investigation charge-sheet was filed on 8.6.2000. A divorce petition was filed by the complainant which appears to have been granted ex parte on 12.7.2001. According to the appellants, complainant- Sukanya has remarried on 24.8.2002. It was a stand of the appellant that the complaint filed was nothing but an abuse of the process of law. The allegations were unfounded. There was no basis for making the allegations. The appellant No. 1 had left for USA after about six months of the marriage. Long thereafter on 6.2.2000, the complaint was filed. No explanation for the delayed lodging of the complaint was offered. In essence, it was submitted that the continuance of the proceedings will be an abuse of the process of law. The prosecuting agency before the High Court contesting the petition filed under Sec. 482, Cr.P.C. taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the stand of the respondent-State and dismissed the application. 4. In support of the appeal learned counsel for the appellant submitted that the factual scenario indicated above and even a cursory glance of the complaint petition shows that the same was nothing but an attempt to falsely implicate the accused persons. Learned counsel for the respondent State supported the judgment. 5. Though the scope for interference while exercising jurisdiction under Sec. 482, Cr.P.C. is limited, but it can be made in cases as spelt out in the case of Bhajan Lal, (1992 AIR SCW 237, Para 108). The illustrative examples laid down therein 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. The illustrative examples laid down therein 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 Sec. 156(1) of the Code except under an order of a Magistrate within the purview of Sec. 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 Sec. 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. (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." 6. Even a cursory perusal of the complaint shows that the case at hand falls within the category (7) of the illustrative parameters highlighted in Bhajan Lal's case, 1992 AIR SCW 237 (supra). 7. The parameters for exercise of power under Sec. 482 have been laid down by this Court in several cases. 8. The Section does not confer any new power on the High Court. 7. The parameters for exercise of power under Sec. 482 have been laid down by this Court in several cases. 8. The Section 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. 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 concedere videtur et id sine quo res ipsae esse non potest" (when thee 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 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. 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 amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice. 9. As noted above, the powers possessed by the High Court under Sec. 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest Court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal vs. H.S. Chowdhary ( 1992 (4) SCC 305 ): 1993 AIR SCW 248, Raghubir Saran (Dr.) vs. State of Bihar ( AIR 1964 SC 1 ) and Minu Kumari vs. State of Bihar ( 2006(4) SCC 359 ) : (2006 AIR SCW 2330). (See (2008) 11 SCALE 20): (2008 AIR SCW 5712). 10. Consequently, the appeal deserves to be allowed. The proceedings in Criminal Petition No. C.C. No. 385/2000 pending before the Judicial Magistrate, Palladam, are quashed. 11. The appeal is allowed." 10. The facts of the case at hand as have been discussed above are much graver and thus permitting the continuance of the FIR impugned would amount to nothing short of a gross abuse of process of law. 11. The upshot of the above discussion is that the instant misc. 11. The appeal is allowed." 10. The facts of the case at hand as have been discussed above are much graver and thus permitting the continuance of the FIR impugned would amount to nothing short of a gross abuse of process of law. 11. The upshot of the above discussion is that the instant misc. petition succeeds and the FIR No. 93/2011 registered against the petitioners at P.S. Mahila Thana, District Jodhpur, and all subsequent proceedings thereupon are hereby quashed. 12. Stay petition also stands disposed of.