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2014 DIGILAW 290 (RAJ)

Gopal Krishana v. State of Raj.

2014-01-28

MAHESH CHANDRA SHARMA

body2014
Hon'ble SHARMA, J.—This criminal writ petition has been filed under Article 226 of the Constitution of India for quashing the FIR No. 365 of 2013 registered at Police Station Lalsot District Dausa for the offence under Sections 498A, 406, 323, 376, 511, 354 and 342 of IPC and Sections 3, 4 and 6 of Dowry Prohibition Act. 2. The brief and relevant facts giving rise to this criminal writ petition are that the petitioner No. 1 Gopal Krishana is an Electrical Engineer working in BSNL Department. He was initially appointed as JTO Bundi in BSNL and in Dec. 2008 promoted as Deputy Manager and transferred to Delhi. The marriage of the petitioner No. 1 was solemnized with the complainant, who is respondent No. 2 herein on 27.4.2003 as per Hindu rites. It has been alleged in the writ petition that there was no demand of dowry by the petitioners and petitioners 2 and 3 needed a good bride for their son. Due to wedlock one son Master Kushal born on 30.3.2004 and daughter was born on 4.10.2011. It is alleged in the writ petition that the petitioner No. 1 lost his valuable 11 years only in accommodation whereas behaviour of the complainant was deteriorated day to day. The complainant was taken by her father and brothers on 15.9.2013 in cheerful along with the daughter and at that time there was no controversy but she on misguidance left her matrimonial house and without considering the spirit of matrimonial life and only to make pressure upon petitioners for her unreasonable desire, lodged a false and concocted FIR No. 365/2013 at Police Station Lalsot District Dausa for the offence under section 498A, 406, 323, 376, 511, 354 and 342 of IPC and sections 3, 4, and 6 of Dowry Prohibition Act. It is further alleged in the writ petition that the complainant misused the beneficiary provisions of section 498A IPC, lodged the false FIR due to ulterior motive and false allegations levelled against the petitioners 2 and 3 who are senior citizens and suffering from several ailments. It is further alleged in the writ petition that the complainant misused the beneficiary provisions of section 498A IPC, lodged the false FIR due to ulterior motive and false allegations levelled against the petitioners 2 and 3 who are senior citizens and suffering from several ailments. The petitioner No. 2 is a reputed person of the area and running his cloth store and during the whole matrimonial period of 10-11 years only visited 3-4 times at posting place of petitioner No. 1 and behaved complainant as a daughter but she only due to ulterior motive cooked a false story and levelled false allegations even to the extent of sections 376/511 IPC. It is further alleged that all the false allegations levelled in the FIR are either taken place at Bundi or Delhi or Gangapurcity and no incident was taken place at Lalsot, District Dausa but complainant malafidely and only to influence local police lodged false fabricated and concocted FIR. 3. Mr. Pankaj Gupta, learned counsel appearing for the accused petitioners has contended that the FIR lodged by the complainant is false, frivolous and fabricated and hence it is liable to be quashed and set aside. It is alleged by the counsel that there was no demand of dowry by the petitioners and after the marriage the petitioner paid great respect to complainant and also she was subjected to good care. The petitioner kept the complainant with him on posting locations but she under misguidance of her family misbehaved with him and without informing him left matrimonial home. It is further argued that the complainant made a false and frivolous allegations of demand of payment of 3 lakhs. The petitioner got promotion in Dec. 2008 hence the whole story about the demand is Sept. 2008 is falsify. In relation to fixed deposit of Rs. 1,40,000/- it has been argued that the said FD was given in marriage to the complainant by her father and initially it was for 5-1/2 years, on maturity amount of FD was about 1.4 lakhs withdrew from post office and then a fresh fixed deposit was prepared by their own wishes in the name of complainant. No cause of action arose at Lalsot and as per FIR all false allegations were taken place at Bundi or Delhi or Gangapurcity but complainant malafidely lodged an FIR at Lalsot, which has no territorial jurisdiction to deal with the controversy. No cause of action arose at Lalsot and as per FIR all false allegations were taken place at Bundi or Delhi or Gangapurcity but complainant malafidely lodged an FIR at Lalsot, which has no territorial jurisdiction to deal with the controversy. Reliance has been placed on AIR 2004 SC 4286 Y. Abrahama Ajith vs. Inspector of Police, Chennai, AIR 2005 SC 1989 Ramesh vs. State of Tamil Nadu, AIR 2008 SC 2666 Bhura Ram vs. State of Rajasthan,. Reliance on AIR 2010 SC 3363 Preeti Gupta vs. State of Jharkhad in relation to the argument that the complaint has been filed only to create undue pressure upon the petitioner and falsely implicated the old parents of petitioner. Further reliance has been placed on the Apex Court judgments in 2012 Cr.L.R. (SC) 929 Geeta Mehtrotra and another vs. State of U.P. and Anr. and Chandralekha and others vs. State of Rajasthan and another (2013 Cr.L.R. (SC) 65. Lastly the learned counsel for the petitioners has argued that the FIR lodged against the petitioners may be quashed and set aside. 4. Mr. Rajneesh Gupta, learned counsel appearing for the complainant has argued that the contents of the FIR are not frivolous and due to harassment by the petitioners the complainant has lodged the FIR at Lalsot on account of the fact that she has been thrown from the matrimonial home and her all jewellary and articles given in dowry were taken away by the petitioners. Mr. Gupta has further argued that the nomination for the death cum retirement gratuity and nomination for BSNL Group saving Linked Insurance by the petitioner No. 1 in favour of the complainant are statutory compliance made by the petitioner. It has further been argued that the allegations levelled against the petitioners are to be investigated by the police. The FIR lodged against the petitioners cannot be quashed and set aside wherein serious allegations of dowry etc. have been levelled against the petitioners. Mr. Pradeep Shrimal, PP appearing for the State has also supported the arguments raised by the learned counsel for the complainant. • 5. I have heard learned counsel for the parties. Before proceeding further it would be necessary to have a look at the important rulings of the Apex Court. In Preeti Gupta vs. State of Jharkhand and another (supra) reliance on which the counsel for the petitioners has placed, may be looked into first. • 5. I have heard learned counsel for the parties. Before proceeding further it would be necessary to have a look at the important rulings of the Apex Court. In Preeti Gupta vs. State of Jharkhand and another (supra) reliance on which the counsel for the petitioners has placed, may be looked into first. In this matter Manisha Poddar filed a complaint on 8.7.2007 before the Chief Judicial Magistrate, Ranchi under Sections 498-A, 406, 341, 323 ad 120-B of the Indian Penal Code read with sections 3 and 4 of the Dowry Prohibition Act against all immediate relations of her husband, namely, Pyarelal Poddar (father-in-law), Kamal Poddar (husband), Sushila Devi (mother-in-law), Gaurav Poddar (unmarried brother-in-law) and Preeti Gupta @ Preeti Agarwal (married sister-in-law). The complaint was transferred to the court of the Judicial Magistrate, Ranchi. Statements of Respondent No 2 and other witnesses were recorded and on 10.10.2008 the Judicial Magistrate took cognizance and passed the summoning order of the appellants. In the instant matter the complainant filed an FIR against the petitioners and the police has to investigate the matter. The petitioners approached this court before investigation by the police for quashing the FIR. 6. In Chandralekha and others vs. State of Rajasthan and another (2013 Cr.L.R. (SC) 65) on which reliance has been placed by the counsel for the petitioners, the Apex Court in para 8 observed as under: 8. We must, at the outset, state that the High Court's view on juris-diction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1,2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9.7.2002 and respondent 2 left her matrimonial home on 15.2.2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9.7.2002 and respondent 2 left her matrimonial home on 15.2.2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3. 7. It is clear that in Chandralekha (supra) the FIR was filed after six years and the complainant left the matrimonial home in the year and looking to that circumstances quashed the FIR against mother and two sister in laws. The special leave petition filed by the husband Rajeev Bhandari was dismissed by the Apex Court on 9.12.2011. 8. In Geeta Mehrotra and another vs. State of Rajasthan (2012 Cr.L.R. SC 929) The appellants in spite of the liberty granted to them to move the trial Court, have filed this appeal for quashing the proceedings which had been initiated on the basis of a case lodged by the respondent No. 2 Smt. Shipra Mehrotra (earlier known as Shipra Seth) against her husband, father-in-law, mother-in-law, brother-in-law and sister-in-law. The special leave petition was preferred by the sister-in-law, who is appellant No. 1 and brother-in-law of the complainant, who is appellant No. 2, and not by the husband of the complainant. The Apex Court quashed the proceedings initiated against Geeta Mehtrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two. 9. The Apex Court quashed the proceedings initiated against Geeta Mehtrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two. 9. The petitioners filed the criminal writ petition before this court on 22.10.2013 immediately after lodging the FIR on 28.9.2013 at Police Station Lalsot (Dausa District). In support of the contents of the writ petition only the petitioner Gopal Krishna filed the affidavit. In the affidavit he has stated thus: "1. That I am the petitioner No. 1 therefore I am well conversant with the facts and circumstances of present case and competent to swear this affidavit. 2. That I have gone through and fully understood the averments made in the annexed petition, which has been drafted by my counsel in my presence and under my instructions. 3. That the contents of facts and grounds mentioned in the writ petition are true and correct to the best of my knowledge and the legal averments made therein are believed by me to be true and correct on the basis of legal advice tendered to me by my counsel." 10. It is true that under Article 226 of the Constitution and under Section 482 Cr.P.C. this Court has inherent power to quash and set aside the criminal proceedings, FIR etc. in order to avoid the abuse of the process of the court, or for the purpose of securing the ends of justice. Thus it is necessary to have a look at the rulings of the Apex Court n relation to exercise of powers by the High Court under Section 482 Cr.P.C. 11. In R.P. Kapur vs. State of Punjab AIR 1960 SC 866 , the Apex Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings: (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings; (ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. • 12. • 12. The Apex Court in State of Karnataka vs. L. Muniswamy & others (1977) 2 SCC 699 observed that the wholesome power under section 482 Cr.P.C. entitles the High Court to quash a proceeding when it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The High Courts have been invested with inherent powers, both in civil and criminal matters, to achieve a salutary public purpose. A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this Court and other courts. 13. In Madhu Limaye vs. The State of Maharashtra (1977) 4 SCC 551 , a three-Judge Bench of the Apex Court held as under:- "....In case the impugned order clearly brings out a situation which is an abuse of the process of the court, or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. Such cases would necessarily be few and far between. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. The present case would undoubtedly fall for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, that the invoking of the revisional power of the High Court s impermissible." 14. The Apex Court in Madhavrao Jiwajirao Scindia & Others vs. Sambhajirao Chandrojirao Angre & Others (1988) 1 SCC 692 observed in para 7 as under: "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage." 15. In State of Haryana & Others vs. Bhajan Lal & Others 1992 Supp. (1) SCC 335, the Apex Court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure, 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 Constitution of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. This, this Court made it clear that it may not be possible to lay down any precise, clearly defined any sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised: "(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. (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 male 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." 16. This Court in Zandu Pharmaceutical Works Ltd. & Others vs. Mohd. Sharaful Haque & Another (2005) 1 SCC 122 observed thus:- "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. When no offence is disclosed by the complaint, the court may examine the question of fact. 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. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto." 17. A three-Judge Bench of the Apex Court in Inder Mohan Goswami and Another vs.State of Uttaranchal & Others (2007) 12 SCC 1 comprehensively examined the legal position. The court came to a definite conclusion and the relevant observations of the court are reproduced in para 24 of the said judgment as under:- "Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the Court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the Statute." 18. In view of the rulings of the Apex Court, I have gone through the FIR and in my opinion it is very early to arrive at any conclusion but the FIR disclosed that allegations have been levelled against the petitioners and the same can only be investigated during investigation. At this stage, to make any comments in the matter, will prejudice the either case of the parties. It is also too early to make any comments in the matter of jurisdiction as has been raised in the instant matter. It may also be mentioned that on the request of the parties on 29.10.2013, the matter was sent for Mediation, but the mediation proceedings failed on 13.11.2013. Again on 20.11.2013 both the parties requested for amicable settlement and meeting at the place of advocate Mr. S.K. Gupta. The proceedings of meeting at the residence of Mr. S.K. Gupta has not been placed on the record of this case. It may be presumed that the matter could not be solved. 19. Again on 20.11.2013 both the parties requested for amicable settlement and meeting at the place of advocate Mr. S.K. Gupta. The proceedings of meeting at the residence of Mr. S.K. Gupta has not been placed on the record of this case. It may be presumed that the matter could not be solved. 19. For the reasons mentioned above, the criminal writ petition filed by the petitioners is rejected. The stay application also stands rejected. The interim orders passed from time to time also stand vacated.