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2014 DIGILAW 1787 (HP)

Naveen Sood v. State of Himachal Pradesh

2014-12-02

SURESHWAR THAKUR

body2014
JUDGMENT : SURESHWAR THAKUR, J. 1. In the instant petition instituted under the provisions of Section 482 Cr.P.C, a prayer is made by the petitioners to quash and set aside FIR No. 75 of 2014, registered in Police Station, Kangra, H.P., for theirs having allegedly committed offences under Sections 498-A/406/34 IPC. Before proceeding to record findings and arrive at conclusions in the instant petition, it is deemed apt and imperative to extract the provisions of 498-A IPC:- (a) any wilful 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; (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.” 2. The import of the term “cruelty” existing in the Section 498-A IPC, whose provisions, are extracted hereinabove, and which “cruelty” is alleged to have been perpetrated upon the complainant by the petitioners herein is of its being constituted by any willful conduct of such a nature as is likely to drive a woman to commit suicide or its likely to cause grave injury and danger to her life, limb or health, besides harassment of a woman where such harassment is with a view to coerce her to comply with 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. 3. Besides, the guiding principles encapsulated in a judgment of the Hon'ble apex Court for while construing the factum of the allegations set forth in the FIR lodged against the petitioner while being bereft of the ingredients constituting the offence alleged, in which event this Court being actuated to exercise the plenary jurisdiction vested in it under Section 482 Cr.P.C, is also required to be extracted. The decision of the Hon'ble Apex Court is reported in 1986 Cr.L.J 817, the relevant portion enshrining the guiding principles to be borne in mind by this Court while exercising jurisdiction in a petition under Section 482 Cr.P.C is extracted hereinbelow:- “7. The decision of the Hon'ble Apex Court is reported in 1986 Cr.L.J 817, the relevant portion enshrining the guiding principles to be borne in mind by this Court while exercising jurisdiction in a petition under Section 482 Cr.P.C is extracted hereinbelow:- “7. Insofar as Section 498-A, IPC is concerned, the relative of the husband of a woman, if he subjects the woman to harassment with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or the. harassment is on account of failure by her or any person related to her to meet such demand, could it be said that the woman had been subjected to cruelty and thereby an offence under Section 498-A, IPC have been committed. The harassment alleged in the present charge-sheet is not on account of any unlawful demand of properly or valuable security nor is it on account of failure by the second respondent or any person related to her to such a demand. There is no allegation in the charge-sheet that the petitioner herein demanded property or valuable security from the second respondent. On the other hand, it is the second respondent, who is seeking return of her "Stridhan" and her share in her husband's property from the petitioner herein. The ingredients of Section 498-A, IPC is clearly not attracted and the proceedings to the extent the petitioner is charged of an offence under Section 498-A, IPC is quashed. 8. Insofar as the petitioner is alleged to have been committed an offence under Section 406, IPC the Supreme Court in Pratibha Rani (1985 Cri LJ 817, Paras 20, 27 & 57) (supra), held thus: ...We are clearly of the opinion that the mere factum of the husband and wife living together does not entitle either of them to commit a breach of criminal law and if one does then he/she will be liable for all the Consequences of such breach, Criminal law and matrimonial home are not strangers. Crimes committed in matrimonial home are as much punishable as anywhere else, in the case of Stridhan property also, the title of which always remains with the wife though possession of the same may sometimes be with the husband or other members of his family, if the husband or any other member of his family commits such an offence, they, will be liable to punishment for the offence of criminal breach of trust under Sections 405 and 406, IPC.... ...To sum up, the position seems to be that a pure and simple entrustment of Stridhan without creating any rights in the husband excepting putting the articles in his possession does not entitle him to use the same to the detriment of his wife without her consent. The husband has no justification for not returning the same articles as and when demanded by the wife nor can he burden her with losses of business by using the said property which was never intended by her while entrusting possession of Stridhan. On the allegations in the complaint, the husband is no more and no less than a pure and simple custodian acting on behalf of his wife and if he diverts the entrusted property elsewhere or for different purposes he takes a clear risk of prosecution under Section 406 of the IPC. On a parity of reasoning, it is manifest that the husband, being only a custodian of the Stridhan of his wife, cannot be said to be in joint possession thereof and thus acquire a joint interest in the property.... ...We now come to the question as to whether or not a clear allegation of entrustment and misappropriation of properties was made by the appellant in her complaint and, if so, was the High Court Justified in quashing the complaint at that stage, It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482, Cr. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegation. P.C. to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegation. In case no offence is committed on the allegation and the ingredients of Sections 405 and 406, IPC are not made out, the High Court would be justified in quashing the proceedings. In the present case, we shall show that the allegations are both clear, specific and unambiguous and, therefore, the complainant should have been given a chance to prove her case. It is, of course, open to the accused at the trial to take whatever defences that were open to him but that stage had not yet come and therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings.” 4. Bearing in mind the hereinabove extracted provisions of Section 498-A IPC, whose ingredients have to be prima-facie at this stage established to have been accomplished as also bearing in mind the effulgence of light shed by the relevant paragraph of the apt decision of Hon'ble Apex Court qua the exercise of jurisdiction by this Court in a petition under Section 482 Cr.P.C, in as much , as its contemplating therein that only when the allegations comprised in the FIR taken in their entirety constitute an offence, as also when the allegations are specific and unambiguous allegations and theirs constitute an offence within the parameters of the penal provisions of law would the jurisdiction vested in this Court under Section 482 Cr.P.C be not available to be exercised by this Court. Contrarily in case the allegations elucidated in the FIR which purportedly constitute an offence under the relevant and apt provisions of penal laws do not satisfy the ingredients of the provisions of the penal laws under which the allegations purportedly constitute an offence or when the allegations are unspecific and ambiguous, in that event this court would be actuated to exercise jurisdiction vested in it under Section 482 Cr.P.C. Now with this Court having unraveled the ingredients which are to be accomplished or satiated for an offence being constituted under Section 498 IPC, as, also it having held that in case such allegations do not satisfy or accomplish the ingredients for constituting such allegations to be an offence under Section 498- A IPC, as, also when the allegations are unspecific and ambiguous, in that event this Court would proceed to quash the FIR. It is now imperative to incisively with circumspection traverse through the allegations comprised in the FIR. It is elucidated in the FIR that the complainant had entered into a wedlock in the year 2009. In the FIR she avers that after marriage the accused/petitioners herein behaved well with her for sometime and thereafter their attitude towards her started changing. Despite the intervention of the mediator, the accused/petitioners herein continued to harass her. Besides she alleges that the accused–petitioners herein physically and mentally harassed her, compelling her to commit suicide. She proceeds to allege that in September, 2011 she was thrown out from her matrimonial home and thereafter she started living separately with her husband in a quarter at Ghukari. She further alleges that at that place her husband threatened her with dire consequences. She continues to spell out in the FIR that at the instance of her husband she shifted to another quarter at some other place. She narrates that During November, 2013, she had gone to her parents and from there she called her husband to retrieve her to her matrimonial home. However he refused to bring her back on the score that he has no need for her. He further told her that he had no money to bear her expenses. She further narrates in the FIR that she had gone to her in-laws and asked for her jewellary, however her demand was not acceded to. However he refused to bring her back on the score that he has no need for her. He further told her that he had no money to bear her expenses. She further narrates in the FIR that she had gone to her in-laws and asked for her jewellary, however her demand was not acceded to. Prima-facie on a reading of allegations made by the complainant against the petitioners herein unfold the factum of hers living separately with her husband since 2009 to 2011, hers having been subjected to mental and physical cruelty. However, the acts constituting mental and physical cruelty remained un-complained, since 2011 till the institution of an FIR qua the acts purportedly constituting an offence under the provisions of Section 498-A IPC having been complained by the complainant on 10.4.2014. As such prima-facie the un-explained delay itself has a sequelling effect in rendering the allegations leveled by the complainant against the petitioners herein and theirs purportedly constituting an offence under Section 498 A IPC to be perse smeared with concoction as well as prevarication. Even otherwise dehors the unexplained delay in the lodging of the complaint by the complainant and its sequelling an adverse inference qua the truthfulness of the allegations comprised in it, a bare reading of the allegations comprised in the FIR unearth the factum of the allegations therein omitting to convey the magnitude and enormity of the physical and mental cruelty perpetrated on her person by the accused nor also hence when the enormity of the physical and mental cruelty has remained un-displayed in the FIR, it can not be hence concluded that it was of such a nature so as to drive her to commit suicide. Besides, in the absence of the enormity and magnitude of the cruelty having been spelt out in the FIR, it cannot be concluded that the physical and mental cruelty as purportedly meted to the complainant by the accused/ petitioners herein was intended to cause injury and danger to her life, limb or health. Besides, in the absence of the enormity and magnitude of the cruelty having been spelt out in the FIR, it cannot be concluded that the physical and mental cruelty as purportedly meted to the complainant by the accused/ petitioners herein was intended to cause injury and danger to her life, limb or health. Consequently, with the allegations leveled against the accused/petitioners herein having not satiated or accomplished the ingredients for constituting an offence under Section 498 A IPC nor as such obviously the attraction of the ingredients of the offence alleged against the petitioners herein in the FIR have been begotten or theirs having remained un-satiated for abysmal want of narration in the FIR qua the fact that the petitioners herein subjected the complainant to harassment with a view to coerce her to meet their unlawful demand, constrains this Court to aptly conclude that the ingredients enshrined in Section 498-B IPC remain unaccomplished or un-satiated. 5. At this stage, It is also imperative to advert to the factum of Naveen Sood petitioner/accused having in September, 2011 endorsed an application to the SHO with a narration therein of his having segregated both his son and daughter-in-law, the complainant, from his house and property. The said fact finds reflection in Annexure P-2, an affidavit sworn by Naveen Sood, the petitioner/accused, of his having disowned his son, on account of his unheeding to his guidance and advice. In pursuance thereto, a notice proclaiming the fact of the petitioner herein having disowned his son was published and printed in “Dainik Jagran” as reflected in Annexure P-3. It hence appears that at the time contemporaneous to the complainant having left her matrimonial home in the company of her husband in September, 2008, the petitioner herein namely Naveen Kumar Sood had disowned his son. Concomitantly, then the un-explained belated institution of an FIR at the instance of the complainant against the petitioner herein appears to have been triggered by a backlash on the part of the complainant to the act of the petitioner herein namely Naveen Sood having disowned his son as also hence his having deprived him from his share in the personal property of the petitioner herein namely Naveen Sood. Consequently, the FIR lodged as a backlash to Annexure P-3, when as such, it being borne out of vendetta or reprisal to Annexure P-3, renders it to perse smack of malafides as well as untruthfulness in addition to the fact that on its reading it omits to unfold allegations which satiate the ingredients of Section 498 IPC. 6. The complainant has averred in the FIR that she entrusted her jewellary to her in-laws/petitioners herein, which was demanded by her to be retrieved to her which demand was un-acceded to. As such, an offence under Section 406 IPC is alleged tobe made out. However, the allegations which constitute an offence against the accused under Section 406 IPC ought to have also precisely and unambiguously spelt out the fact of the day on which she entrusted her jewellary to her in laws as also the date on which her in-laws refused to comply with her demand. However, it is apparent on a reading of the FIR that she in the company of her husband left her matrimonial home in September, 2011. She omitted to disclose in the FIR of her then handing over her satridhan or her jewellery to her in-laws. The said omission is material as it impinges upon the veracity of hers having belatedly as narrated in the concluding part of the FIR having demanded from her in-laws the jewellery as purportedly entrusted to them. Moreover, when at the time prior to her departure from her matrimonial home, the petitioner had under Annexure P-3 disowned the husband of the complainant from his house as well as from his property, as such debarred him from claiming a right in his home as well as in his property, the reprisal on the part of the complainant appears to have been in the shape of hers belatedly in the year 2014 having nebulously, ambiguously and imprecisely in the FIR lodged at her instance, spelt therein the bare nebulous factum of hers having entrusted her jewelry to her in-laws/petitioners herein, and hers demand of it being retrieved to her having remained un complied with, hence an offence under Section 482 IPC having come to be constituted. However, for reiteration when neither there is a specific date of entrustment of her jewellery by her to her in-laws/petitioners herein, rather when the demand for its retrieval to her too is enigmatic hence renders the allegations to be ridden with the vice of inveracity. The imprecise date of its purported entrustment rather preponderantly conveys that she was driven by reprisal or vendetta to allege that she had entrusted her jewellery to her in laws who on its being demanded by her from them refused to accede to it. 7. The upshot of the above discussion is that the allegations comprised in the FIR against the complainant qua both offences under Section 498-A and 406 IPC are ambiguous. Consequently when in the relevant paragraph of the decision of the Hon'ble Apex Court it is mandated that where the allegations purportedly constituting an offence under the apt provisions of the penal laws do not satiate the ingredients thereof nor also when the allegations are not clear, precise or unambiguous, in that event the continuation of criminal proceedings against the petitioners would tantamount to abuse of process of law. In aftermath when the discussion aforesaid communicates the factum of the ingredients of Section 498-A IPC, prima-facie having remained not satiated, besides when the allegations against the accused/petitioners herein and theirs purportedly constituting an offence under Section 498 A IPC against the petitioners herein are nebulous and imprecise. Moreover the allegations are also imprecise and ambiguous qua the commission of the offence under Section 406 IPC. Therefore, this Court is constrained to exercise its jurisdiction vested under Section 482 Cr.P.C., as the continuation of criminal proceedings would tantamount to both abuse of process of law as also would sequel the harassment and humiliation of the petitioners. Accordingly the petition is allowed and the FIR No. 75 of 10.04.2014 registered at Police Station Kangra, under Sections 498A/406/34, IPC against the accused/petitioners herein is quashed and set aside. All pending applications, if any, are also disposed of.