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2012 DIGILAW 824 (PAT)

Girija Prasad Singh v. State of Bihar

2012-06-18

ASHWANI KUMAR SINGH

body2012
JUDGMENT ASHWANI KUMAR SINGH, J.:- Heard Mr. Amish Kumar, learned counsel appearing for the petitioners, Mr. Ashok Kumar Jha, learned counsel for the opposite party no. 2 and Mr. Rajesh Kumar, learned A.P.P for the State. 2. The petitioners have prayed for quashing the entire criminal proceeding including the order dated 12.6.2006 passed by the learned Chief Judicial Magistrate, Purnea by which finding a prima facie case to be made out under Section 395 of the Indian Penal Code, he has ordered for issuance of summons against the petitioners. 3. The instant case was instituted on the basis of a complaint registered by the Opposite Party No.2. In the complaint besides the two petitioners who are father and son respectively, one Rajesh Tiwari, a Sub-Inspector of K.Hat Sahaik Police Station was made named accused. It has been alleged that the complainant’s elder son Pawan Kumar Choudhary was married to Priyanka Devi and after the marriage, both of them were residing with the complainant Nawal Kishore Choudhary in Mohalla-Shivpuri, P.S.-K. Hat. The complainant’s wife had died two years ago and all the belongings, clothes and ornaments were in possession of Priyanka Devi. Priyanka Devi was also keeping cash regularly handed over to her by the complainant and her husband but she developed a habit of shifting the valuables and cash to her parent’s house in spite of repeated protest made by the complainant. 4. It is alleged that in the night of 11.10.2003, the petitioners and others being variously armed with pistol and gun came on two vehicles, barged into the house of the complainant, locked him and his sons in a room on the point of firearm collected Rs. 40,500/- in cash which was kept with Priyanka Devi, ornaments worth Rs. 2,50,000/- as well as valuable documents, utensils and costly clothes. The operation continued for the whole of the night and early in the morning. It is further alleged that petitioner no. 1 went out and came back along with the Officer-in-Charge of K. Hat Police Station. The complainant and his family members narrated about the occurrence to the co-accused Rajesh Tiwari, Officer-in-Charge of K. Hat Police Station but he paid no heed to their complain. At his instance, the accused persons carried the looted articles kept in 23 trunks, suit cases and bags on two vehicles. The complainant and his sons were also taken to the Police Station. At his instance, the accused persons carried the looted articles kept in 23 trunks, suit cases and bags on two vehicles. The complainant and his sons were also taken to the Police Station. The complainant and his sons were thereafter apprehended and remanded in connection with K. Hat P.S. Case No. 331 of 2003 instituted by Priyanka Devi, daughter of petitioner no.1. The complainant alleged that co-accused Rajesh Tiwari made no effort either to seize the un-licensed arms retained by the petitioners or to apprehend them. He claims that local people witnessed the occurrence. 5. The complaint was filed on 13.10.2003 while the complainant was in judicial custody. On 14.10.2003, the complainant was examined on solemn affirmation. In his statement on oath, he has supported the statement made in the complaint. In reply to the court’s question, he admits that his son is still in custody in connection with the case instituted by his daughter-in-law. 6. In course of inquiry some other witnesses were also examined. However, by order dated 20.5.2004, the learned C.J.M., Purnea held that cognizance in the case cannot be taken in absence of sanction order as co-accused Rajesh Tiwari was an Office-in-Charge of the police station at the relevant time and he had apprehended the complainant and his son in discharge of his official duty. 7. The complainant, thereafter, filed a petition in the court of learned C.J.M., Purnea and prayed to reconsider the matter and pass order afresh on the point of cognizance. However, the learned Chief Judicial Magistrate dismissed the said petition observing that the order dated 20.5.2004 was a reasoned order passed after considering the facts and circumstances of the case. The complainant, thereafter, filed two separate petitions on 8.7.2004 and 25.8.2004 along with case laws and prayed again to reconsider the matter afresh and pass necessary orders on the point of cognizance in the court of learned C.J.M., Purnea. The learned C.J.M., after hearing the complainant, dismissed both the petitions by order dated 31.8.2004 and directed the record to be placed again after producing sanction order by the complainant. 8. The learned C.J.M., after hearing the complainant, dismissed both the petitions by order dated 31.8.2004 and directed the record to be placed again after producing sanction order by the complainant. 8. The complainant, thereafter, filed a criminal revision against the order dated 31.8.2004 passed by the learned C.J.M., Purnea by which he had deferred to pass order on the point of cognizance till filing of sanction order by the complainant as one of the accused namely Rajesh Tiwari happened to be the Officer-in-Charge of K.Hat Sahaik Police Station in the district of Purnea at the time of alleged occurrence. The matter was heard by the learned 1st A.D.J., Purnea, who by his order dated 21.2.2006 allowed the revision application and set aside the order dated 31.8.2005 passed by the learned Chief Judicial Magistrate, Purnea. The revisional court after discussing the facts and circumstances of the case held that sanction order from the government was required to proceed against S.I. Rajesh Tiwari alone, who was at the relevant time posted at the police station but no sanction order was required to proceed against the petitioners. He, thus, directed the learned C.J.M., Purnea to consider the matter afresh and pass necessary orders. The learned C.J.M., thereafter, in the light of the order passed in Criminal Revision No. 301 of 2004 found a prima facie case under Section 395 of the Indian Penal Code to be made out against the petitioners and issued summons against them. The petitioners have challenged the aforesaid order of the learned Chief Judicial Magistrate, Purnea. 9. It is submitted on behalf of the petitioners that the present complaint petition is a counter blast to the case lodged by Priyanka Devi (the daughter of petitioner no.1 and sister of petitioner no. 2) bearing K. Hat P.S. Case No. 331 of 2003 instituted under Section 498A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act on 12.10.2003. The F.I.R. has been brought on record and marked as Annexure-2 to this petition. In the F.I.R., Priyanka Devi has alleged that she was married to Pawan Kumar Chaudhary, son of the complainant (opposite party no. 2) on 10.7.2000. After the marriage, when she came to her matrimonial home, she was being subjected to cruelty in various ways by her husband and in-laws including the complainant for non-fulfilment of demand of dowry. In the F.I.R., Priyanka Devi has alleged that she was married to Pawan Kumar Chaudhary, son of the complainant (opposite party no. 2) on 10.7.2000. After the marriage, when she came to her matrimonial home, she was being subjected to cruelty in various ways by her husband and in-laws including the complainant for non-fulfilment of demand of dowry. Her husband and in-laws were adamant on the demand of either a Bolero vehicle or Rs. 6,00,000/- in lieu thereof. Priyanka Devi narrated her plight to her parents. Her father (petitioner no. 1) came with folded hands and tried to persuade her husband and father-in-law (the complainant) not to harass her but she was assaulted in front of her father. In such circumstance, she came to the police station together with her father and submitted a written report to the Officer-in-Charge, K. Hat police station, Purnea on 12.10.2003 at 10 am. The F.I.R. being K.Hat P.S. Case No. 331 of 2003 dated 12.10.2003 was registered pursuant to her written statement at 11 a.m. on 12.10.2003 itself and the same was sent to the court promptly on the same day, i.e., on 12.10.2003 itself. 10. It has been submitted that on 12.10.2003 itself, the then Officer-in-Charge of K.Hat police station entrusted the investigation to Rajesh Kumar Tiwari, a Sub-Inspector of Police, who apprehended the complainant and his son from their house on the date of institution of F.I.R. itself and produced them before the court. They were remanded to judicial custody and subsequently in order to save their skin from criminal prosecution, the present complaint was maliciously instituted by the complainant on 13.10.2003. 11. It is further submitted on behalf of the petitioners that the allegations made in the complaint are so absurd and inherently improbable, on the basis of which, no prudent person would ever reach a just conclusion that there is sufficient ground for proceeding against the accused. He submits that the criminal proceeding has been initiated with an ulterior motive of wreaking vengeance on the accused with a view to spite them due to personal and private grudge. 12. It is pointed out that it cannot be believed that a father would commit dacoity together with his son in the house where his daughter is married. He submits that the criminal proceeding has been initiated with an ulterior motive of wreaking vengeance on the accused with a view to spite them due to personal and private grudge. 12. It is pointed out that it cannot be believed that a father would commit dacoity together with his son in the house where his daughter is married. It is beyond imagination that a married woman would actively participate in such nefarious act in her own matrimonial home and ruin her future as well as matrimonial relationship. 13. Learned counsel for the petitioners in support of his argument places reliance on paragraph 16 of the judgment of the Apex Court in R. Kalyani Vs. Janak C. Mehta since reported in 2009(1) SCC 516, which reads as under:- “16. It is furthermore well known that no hard-and-fast rule can be laid down. Each case has to be considered on its own merits. The Court, while exercising its inherent jurisdiction, although would not interfere with a genuine complaint keeping in view the purport and object for which the provisions of Sections 482 and 483 of the Code of Criminal Procedure had been introduced by Parliament but would not hesitate to exercise its jurisdiction in appropriate cases. One of paramount duties of the superior courts is to see that a person who is apparently innocent is not subjected to persecution and humiliation on the basis of a false and wholly untenable complaint.” 14. He further places reliance on the judgment of Apex Court in Priya Vrat Singh vs. Shyam Ji Sahai since reported in 2008(8) SCC 231 and refers to paragraph 11 of the judgment which reads as under:- 11. “19. 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. 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 recognises 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 id sine quo res ipas 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 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 amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. 20. As noted above, the powers possessed by the High Court under Section 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. 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.” 15. The principles relating to exercise of jurisdiction under Section 482 of the Code of Criminal Procedure to quash complaints and criminal proceedings have been stated and reiterated by the Supreme Court in several decisions. A few of them are Madhavrao v. Sambhajirao (1988) 1 SCC 692 ; State v. Bhajan Lal 1992 supp (1) SCC 335; Rupam Deol v. Kanwal Pal Singh Gill (1995) 6 SCC 194 ; C.B.I. v. Duncan Agro Industries (1996) 5 SCC 591 ; State v. Rajendra (1996) 8 SCC 164 ; Rajesh Bajaj v. State (1999) 3 SCC 259 ; Medchl Chemicals & Pharma Ltd. v. Biological E. Ltd. (2000) 3 SCC 269 ; Hriday Ranjan v. State (2000) 4 SCC 168 ; M. Krishnan v. Vijay Singh (2001) 8 SCC 645 ; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122 . 16. Taking into consideration the law laid down by the Apex Court in aforesaid cases when I look to the facts of the present case, I find that the complainant has instituted the present case against his own ‘Samdhi’ and brother of his daughter-in-law only after his daughter-in-law made a written complaint to the Officer-in-Charge of the police station pursuant to which an F.I.R. was registered under Sections 498A of the IPC as well as Sections 3 & 4 of the Dowry Prohibition Act against the complainant and his son. Both of them were arrested by the police on 12.10.2003. Both of them were arrested by the police on 12.10.2003. The complainant, thereafter, instituted the present complaint on 13.10.2003 making allegation against the petitioners as well as his daughter-in-law and the police officer who was appointed as the Investigating Officer and who arrested the complainant and his son in connection with the case instituted by Priyanka Devi, daughter-in-law of the complainant. Apparently, the allegation made appears to be malafide, frivolous, vexatious and oppresive. 17. In case of State of Haryana vs. Bhajan Lal (Supra) the Apex Court in para 102 formulated the following categories of cases by way of illustration wherein extraordinary powers under Article 226 or the inherent powers under Section 482 Cr. P.C. could be exercised to prevent abuse of the process of court or otherwise to secure the ends of Justice:- “102. (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. (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 malafide 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.” 18. The present case falls under category (5) and (7) indicated in the aforesaid case. In such a situation continuing the criminal proceeding against the accused will be, in my considered view, an abuse of the process of court. It is expedient in the interest of justice not to permit such a malicious and vexatious prosecution to continue, in order to maintain purity in the administration of justice. I, therefore, set aside the order dated 12.6.2006 passed in Complaint Case No. 1229 of 2003 by the learned C.J.M., Purnea and allow the present application. Application allowed.