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2013 DIGILAW 1116 (PAT)

Renu Devi v. State of Bihar

2013-09-12

GOPAL PRASAD

body2013
ORDER Heard. 2. This is a petition for quashing the order taking cognizance dated 02. 04. 2012 passed by the Judicial Magistrate, 1st Class, Patna, in Complasint-cum-Protest Case No. 2728 (C) of 2010 (arising out of Budha Colony P.S. Case No. 275 of 2009, by which cognizance has been taken under Sections 498A, 341, 323 and 504 of the Indian Penal Code. 3. The prosecution case as alleged in the First Information Report by the complainant Sima Singh that her marriage was solemnised with Sunil Chandra Singh, son of Sia Charan Singh on 13th February, 2006 according to Hindu rites and she is leaving since 14. 02. 2006 at Flat No. 204, East Boring Canal Road. It is further alleged that his father-in-law Sia Charan Singh aged about 65 years who lives at Daltanganj. It is further alleged under conspiracy Renu Singh who is subject her to cruelty along with her parents and always demand heavy amount. It is further alleged that accused persons subjected her to cruelty and threatened. It is further alleged that on 06. 02. 2009 at about 5 P.M. Renu Singh entered into the house forcibly and abused and assaulted the complainant as well as threatened her and then she informed the Officer-in-Charge,Budha Colony.The accused persons however assured her they will not repeat the occurrence so the information given kept in cold storage. It is further alleged that Renu Singh in August, 2009, came to Patna from England and on 06. 02. 2009 and she again subjected her to cruelty by abusing and threatened and demand of dowry. It is further alleged that again third time Renu Singh for subjecting her to cruelty came to Patna from England on December, 2009 and on 24. 12. 2009 at about 5 P.M. all the accused persons came at the darwaja of flat of the complainant at Boring Road and abused and threatened. The complainant heard the abuses from inside and peeped through peeping glass. It is further alleged that Mahendra Singh stated to break open the door and tried to kill Shima Devi and her mother. Thereafter, Renu Devi locked the door of the flat of the complainant from outside and disconnected the electric line. The complainant heard the abuses from inside and peeped through peeping glass. It is further alleged that Mahendra Singh stated to break open the door and tried to kill Shima Devi and her mother. Thereafter, Renu Devi locked the door of the flat of the complainant from outside and disconnected the electric line. It is further alleged that Shima Devi, the complainant informed the Budha Colony police on mobile then Budha Colony police came and unbolted the door and she disclosed the fact the police and they assured to take action. It is further alleged that on 26. 12. 2009 at about 10 A.M. Mahendra Singh came and met the father and mother of the complainant demanded ransom of Rs. 25,000/ from her otherwise she will face consequence. It is further alleged that her father-in-law, namely, Sia Charan Singh is owner of huge property worth crores of rupees and Renu Singh wants to grab the property of her father-in-law for which reason Renu Singh wants to remove her. It is further alleged that Renu Singh disclosed herself that she is eldest sister-in-law of her father-in-law, though, Dr. Satish Chandra Singh is eldest son of Sia Charan Singh who married with one Manju Devi and lives at the house constructed by his father-in-law. 4. On the written report of Shima Singh, F.I.R. was lodged bearing Budha Colony P.S. Case No. 275 of 2009, dated 09. 12. 2009. The police after investigation submitted Final Form. However, the case proceeded on protest-cum-complaint petition. Thereafter, statement on Solemn Affirmation of the complainant and witnesses were recorded and cognizance was taken by the Judicial Magistrate by the impugned order. 5. Learned counsel for the petitioners however challenged the order impugned on the allegation made in the complaint even accepted on the face value is apparently absurd and inherently improbable and manifestly absurd, , though, there is allegation of subject her to cruelty against Renu Singh. It is further submitted that allegation made in the complaint, though specific against Renu Singh but other accused persons who have been made accused, there is general and omnibus allegation that they are under conspiracy with Renu Singh. These allegations are general without any specific allegation attributed to father-in-law, Sia Chandra Singh except Renu Singh. It has further been contended that some of the accused persons i.e. petitioner no. 5 is married sister-in-law living at Delhi, petitioner no. These allegations are general without any specific allegation attributed to father-in-law, Sia Chandra Singh except Renu Singh. It has further been contended that some of the accused persons i.e. petitioner no. 5 is married sister-in-law living at Delhi, petitioner no. 6, Vidya Devi is mother-in-law of the brother-in-law of the complainant who is petitioner no. 2 also accused and petitioner no. 7 is cousin Sali of the brother-in-law of the complainant is also accused in this case. It has further been contended that Renu Singh is wife of Satish Chandra Singh, who is Gotini of the complainant and they live at England. The petitioner no. 3 and 4 are father-in-law and mother-in-law who resides at Daltanganj and aged about more than 75 years and no role has been attributed either father-in-law or mother-in-law and petitioner nos. 5 and 7 are married Nanad of the complainant. There is no specific allegation against the petitioners except Renu Singh. It has further been contended that in the complaint itself it is apparent that all the petitioners are living quite a separate distance place. It is further contended that police after investigation submitted Final Form and while submitting Final Form he has mentioned that allegation made in the F.I.R. was found to be untrue and relation of the complainant with her father-in-law, mother-in-law and husband is not good and Gotini Renu Singh lives with her husband in England seldom to use to come and Flat No. 204, which stands in the name of Renu Singh which has been purchased by brother-in-law, Satish Chandra Singh out of his own money in the name of her wife, Renu Devi and the complainant wants to grab the said Flat in her name and so this false case has been filed and hence it is contended that allegation made in the complaint itself which is absurd general and omnibus against other co-accused except Renu Singh and complaint petition has been filed with ill motive to grab the flat standing in the name of Renu singh with ulterior motive to wreck vengeance. Hence order taking cognizance and criminal prosecution against the petitioner is abuse of process of the court which requires to be quashed. 6. Learned counsel for the complainant however, not disputed with the fact that F.I.R. was lodged on the written report of the complainant and case was instituted and after investigation, police submission Final Form. Hence order taking cognizance and criminal prosecution against the petitioner is abuse of process of the court which requires to be quashed. 6. Learned counsel for the complainant however, not disputed with the fact that F.I.R. was lodged on the written report of the complainant and case was instituted and after investigation, police submission Final Form. However, after submission of Final Form, the case was proceeded on protest-cum-complaint petition and after statement of the complainant on Solemn Affirmation and statement of witnesses under Section 200 and 202 of Cr.P.C. cognizance was taken. Hence it is submitted that once cognizance has been taken on the basis of protest- cum-complaint petition after due enquiry and order taking cognizance is valid and in this connection relied upon Division Bench decision reported in 1978 BBCJ 400 of this Hon’ble Court (Kuli Singh Vs. State). It is further submitted that allegations made in the complaint as well as statement of the complainant and witnesses under Sections 200 and 202 of Cr.P.C. prima facie makes out an offence and order taking cognizance is sustainable in eye of law and order taking cognizance by the learned Magistrate is not sustainable. It has further been contended that this while exercising jurisdiction under Section 482 of Cr.P.C. neither go into the question about enquiry conducted by the Learned Magistrate under Section 200 and 202 of Cr.P.C. nor can go into the question whether allegations made in the complaint is true of false as question of truthfulness or falsity of the allegation can look into at the stage of trial. Learned Magistrate at the stage of taking cognizance cannot go into the question whether allegation made in the complaint is true or false and hence if the allegation made in the complaint and statement of witnesses during enquiry on the face value, allegation made out an offence and cognizance order cannot assail on the ground that allegations made in the complaint are true or false and it can only look at the stage of trial and not at this stage. 7. 7. However taking into consideration the respective submissions made by the learned counsel for the petitioners and learned counsel for the complainant here question for consideration whether allegations made in the complaint even taken true on face value in the complaint petition makes out an offence or whether allegations are inherently improbable and manifestly absurd and further whether allegation made by the complainant is suffer from malice with ulterior motive to wreck vengeance. 8. However, in exercising jurisdiction under Section 482 of Cr.P.C. seven sets of principle have been tested in Bhajan Lal reported in AIR 1992 SC 604 . 9. Reverting back to the allegation made in the complaint and statement of the witness. It is apparent that there is allegation of demand and subjecting cruelty. However the admitted fact that the complainant in living in a flat in Boring Road. The other petitioners, petitioner no. 2 is resides at England with her husband. The petitioner no. 3 and 4 are father-in-law and mother-in-law who lives at Daltanganj in State of Jharkhand and petitioner no. 6, married nanad lives at Dwarkia in Delhi and petitioner no. 5 and 7 who are Sali and mother-in-law of the Bhasur of the complainant are not relative of the complainant living at far off place in Budha Colony. Except Renu Singh, there is general and omnibus allegation against all the accused that accused persons under a conspiracy subject the complainant and her parents to cruelty and time and again demand heavy amount. It is further alleged that on 06. 02. 2009 at 5 P.M. Renu Devi enter into her flat at Vishnu Bhawan Complex and assaulted her by slap and fist. It is further alleged that it was compromised. It is further alleged that in December, 2009, Renu Devi again landed at Patna from England for subjecting her to cruelty in her flat abused and one Mahendra Singh command to break the door but she locked the door and disconnected the electricity. It is further alleged on 26. 12. 2009 Mahendra Singh to pay the money demanded by Renu Devi either in one lump sum or one installment of Rs.25,000/- per month else will face consequence. It is further alleged that Renu Devi wants to grab the property of her father-in-law and she incites against her and has proceed forged passport. 10. It is further alleged on 26. 12. 2009 Mahendra Singh to pay the money demanded by Renu Devi either in one lump sum or one installment of Rs.25,000/- per month else will face consequence. It is further alleged that Renu Devi wants to grab the property of her father-in-law and she incites against her and has proceed forged passport. 10. However from the allegation it is apparent that Mahendra Singh is father of Renu Devi has no concern with the family of the complainant and not even petitioners. However, except Renu Devi with regard to other petitioners, there is no allegation except that they abate or cooperate and in conspiracy with Renu devi. There is no allegation that what act of commission or omission made by them to constitute an offence of conspiracy or cooperate. There is no allegation whatsoever against the petitioners other than Renu Devi they are not living with the complainant and are living at far off place. Hence even accepting the allegation made in the complaint on face value of the complaint no offence at all made out against the petitioners except Renu Devi. 11. However in the docket of the Court from district level to the Apex Court are flooded with case of matrimonial dispute and it is pertinent to quote para 32 and 34 of the decision reported in 2010 (7) SCC 667 .– “32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bonafide are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concer. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.” 12. In this background it is also relevant to quote para 20 of the decision reported in AIR 2013 SC 181 (Geeta Mehrotra and Anr. Vs. In this background it is also relevant to quote para 20 of the decision reported in AIR 2013 SC 181 (Geeta Mehrotra and Anr. Vs. State of U.P.) which is as follows;– “It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation.” 13. However para 109 decision reported in AIR.1992 SC. 604 (State of Harayana Vs. Bhanjan Lal) has given a note of caution of quashing criminal prosecution for exercising jurisdiction under Section 482 of Cr.P.C. for quashing the criminal prosecution. – “109. ……………to the effect that the power of quashing a criminal proceeding should be exercising very sparingly and with circumspection and that too in the rarest of rare cases; that the Court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.” 14. However having regard to the fact that allegations made are absurd even taken on face value does not make out an offence against the petitioners other than Renu Devi, petitioner no. 1 and they are admittedly residing at far off place and if the criminal prosecution is allowed to continue then they have to attend the court regularly and this would lead to harass and inconvenience and no useful purpose is going to be served. 15. So far allegation against Renu Devi is concern, it is alleged that the complainant was subjected to cruelty for non-fulfillment of demand. It is admitted that Renu Devi lives with her husband at England. She seldom used to come to India. It is alleged that on 06. 02. 2009 and in December, 2009, she came from England to Patna at flat of the complainant and abuse and assaulted. However, it is quite absurd and inherently improbable that Renu Devi on 06. 02. It is admitted that Renu Devi lives with her husband at England. She seldom used to come to India. It is alleged that on 06. 02. 2009 and in December, 2009, she came from England to Patna at flat of the complainant and abuse and assaulted. However, it is quite absurd and inherently improbable that Renu Devi on 06. 02. 2009 came from England to Patna to demand and subjecting cruelty and after assaulted and subjecting cruelty she went back to England and again she came from England to Patna in December and abuse and assaulted locked her in flat and disconnect the electric line and went to England. The story propounded by the complainant is as such that no prudent person will believe that story that a person living in England will come from England to Patna to demand and subjecting cruelty. 16. Hence the allegation made apparently appears to be manifestly absurd and inherently improbable that no reasonable person will believe the story. It is absurd to think that person will come from England to demand and subjecting cruelty, the very look of the complaint to convince once about the absurdity of allegation and this astray instance cannot come under Section 498A. It is apparent that implication lacks bonafide. However the allegation is not only absurd and improbable but also vexatious and one can well imagine to the harassment and inconvenience to the petitioners if the criminal prosecution is allowed to stand compelling Renu Devi to attend the Court in India when her husband is working and living in England It is well infer that from the nature of allegation that matter concern with the dispute regarding the property with complainant and the father-in-law and Renu Devi, the case has been lodged to exert pressure to yield to the demand of the complainant to bargain for property. Hence apparently the case has been filed maliciously with ill motive to wreck vengeance to spit on the face of the accused. Hence allowing the prosecution to continue is great injustice to Renu Devi and the other petitioners and is abuse of the process of the Court. 17. However in matrimonial dispute, there is general tendency to implicate as many as family members and involvement of the petitioners. There is no reference of their participation either in the complaint or statement of witnesses in similar situation. 17. However in matrimonial dispute, there is general tendency to implicate as many as family members and involvement of the petitioners. There is no reference of their participation either in the complaint or statement of witnesses in similar situation. It has been observed in decision reported 2013 S.C. page 26 as quoted below (Geeta Mehrotra and Anr. Vs. State of U.P.) which is as follows;– “ 26. The Hi the trial court Court in our considered opinion appear to have missed that assuming had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the F.I.R. failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contends of the F.I.R. does not disclose specific allegation against the brother and sister of the complainant’s husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Section 498A/323/504/506, IPC and Section 3/4 of the Dowry Prohibition Act.” 18. However it is well settled that inherent power under Section 482 of Cr.P.C. is to act exdebitio justice to do real of substantial justice. 19. In decision reported in 2011 (1) PLJR (SC)23 it has been observed as follows;– “……..but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice………” 20. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice………” 20. Hence having regard to the fact and circumstance when the allegation made against petitioners other than Renu Devi does not make out a case for an offence and are resident of distant place and allegation made are against Renu Devi is manifestly absurd and inherently improbable then the complaint lack bonafide and will ulterior motive which is vexatious to wreck vengeance and allowing the order taking cognizance and criminal prosecution to continue caused great injustice to the petitioners amount to abuse of the process of the court and hence in the interest of justice the impugned order is set aside and petition is allowed.