Research › Search › Judgment

Gauhati High Court · body

2017 DIGILAW 97 (GAU)

Shibanikar v. State of Assam

2017-01-20

PARAN KUMAR PHUKAN

body2017
JUDGMENT & ORDER : Paran Kumar Phukan, J. This application u/s 482 of the CrPC has been preferred for quashment of the proceedings of C.R. Case No.1455/2015 and the order dated 06.06.2015, passed by the learned Magistrate, Diphu, Karbi Anglong taking cognizance against the accused petitioners u/s 307/341/323/405/379/294/506 of the IPC and issuing process to them under the said sections. 2. Heard Mr. R. Dev, learned counsel appearing for the petitioners and Mr. A. J. Atia, learned counsel appearing for the respondent No.2. Also heard Mr. N. K. Kalita, learned Addl. PP, Assam. 3. The respondent No.2 herein filed a complaint before the court at Diphu on 29.04.2015 alleging therein that he is the husband of Smti. Shibani Kar, the accused No.1 in the complaint petition and their marriage was solemnized on 12.05.2003. As a result of their co-habitation a child was born. From the very beginning acrimony has started in their marital relationship and his wife started torturing him both mentally and physically on various pretexts. On 09.10.2011 at about 9 am the other co accused who are the close relatives of his wife came to his house and took his wife to the parental house and while leaving his house his wife took away some gold ornaments belonging to him. He tried his best to bring her back to his company but failed and they threatened him with his life if he makes any further attempt to bring back his wife to his company. One day when he visited her house he was assaulted and kept under confinement and he was released only after he threatened them with police action. 4. The case came up for trial before the learned Magistrate, Diphu and the learned court after receiving the written complaint proceeded to record statement of the complainant u/s 200 of the CrPC and having found a prima facie case issued process to the accused petitioners. 5. Aggrieved by the order, the accused petitioners have preferred this application u/s 482 CrPC for quahsment of the entire criminal proceedings filed by the respondent No.2 and consequential orders. 6. Mr. Dev, learned counsel appearing for the petitioners relied on the decision of Apex Court in the case of Kishan Singh(D) through L.Rs. 5. Aggrieved by the order, the accused petitioners have preferred this application u/s 482 CrPC for quahsment of the entire criminal proceedings filed by the respondent No.2 and consequential orders. 6. Mr. Dev, learned counsel appearing for the petitioners relied on the decision of Apex Court in the case of Kishan Singh(D) through L.Rs. v. Gurpal Singh and Ors., reported in AIR 2010 SC 3624 to project that there was enormous delay in lodging the complaint before the court and because of the cases field by the wife against the complainant u/s 498A IPC, Section 12 of the D.V. Act, 125 CrPC, claiming maintenance, the complainant of the present case i.e., respondent No.2 has falsely filed the complaint with a view to harass the petitioners with malafide intentions with ulterior motive of wrecking vengeance on the petitioners. It is submitted that although the alleged occurrence took place on 09.10.2011, the complaint was filed on 29.04.2015, that too without offering any explanation in the complaint regarding the enormous delay in filing the complaint and nothing has been stated by the complainant in his statement before the Magistrate regarding the delay in filing the complaint. It is further submitted that the learned Magistrate issued process against the petitioners without applying his judicial mind and without assigning any reason in his order dated 06.06.2015 for taking cognizance after such enormous delay in filing the complaint. 7. Mr. Dev, learned counsel submits that the complaint was filed with the sole intention of harassing the petitioners and enmeshing them in long and arduous criminal proceeding because of the matrimonial discord between the wife and the husband and filing of the cases by the wife against the husband accusing him of torturing her and claiming maintenance from him. 8. Learned counsel for the respondent No.2 on the other hand submits that although the occurrence of theft took place on 09.10.2011 the complainant visited the house of the petitioners several times thereafter to bring back his wife but he was ill treated and assaulted and kept under confinement. 9. The principle of law for quashment of FIR or complaint is well laid down by the Apex Court in a catena of decisions and these are no longer res integra. 9. The principle of law for quashment of FIR or complaint is well laid down by the Apex Court in a catena of decisions and these are no longer res integra. Right from the case of R.P. Kapoor v. State of Punjab reported in 1960 SC 866 the Supreme court has held that revisional or inherent powers for quashing the proceedings at the initial stage can be exercised where the allegations made in the complaint or the FIR, even if taken at their face value and accepted in their entirety do not prima facie disclose commission of an offence or where the uncontroverted allegations made in the FIR or complaint and the evidence relied in support of the same do not disclose the commission of any offence against the accused, or allegations are so absurd and inherently improbable on the basis of which no prudent person could have reached a just conclusion that there were sufficient ground in proceeding against the accused................ 10. Keeping in view the above principles of law laid down by the Apex Court in various cases while going through the complaint, it appears that the alleged occurrence took place on 09.10.2011 but the complaint before the court was lodged on 29.04.2015. No explanation whatsoever has been offered, neither in the complaint nor in his statement recorded u/s 200 CrPC regarding the enormous delay in filing the complaint before the court. Although it has been alleged that there was attempt to commit murder of the complainant but from the complaint no such case has been made out. Although the complainant claimed that his wife is forcefully taken away by the other co accused petitioners i.e., his brothers and parents but it seems that the wife herself is not willing to come back to his company due to the torture meted out to her by the accused and his other family members for which she filed cases us 498A IPC as well as under the Domestic Violence Act. She also claimed maintenance from him u/s 125 CrPC and it is submitted by Mr. Dev that the learned trial court has granted maintenance to the wife. The cases are yet to be disposed of but it appears that the wife filed a number of cases against the husband. 11. In the case of Kishan Singh (D) through L.Rs. She also claimed maintenance from him u/s 125 CrPC and it is submitted by Mr. Dev that the learned trial court has granted maintenance to the wife. The cases are yet to be disposed of but it appears that the wife filed a number of cases against the husband. 11. In the case of Kishan Singh (D) through L.Rs. (supra) the Apex Court in paragraph 22 has observed as follows:- "22. In cases where there is a delay in lodging a FIR, the Court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. The reason for quashing such proceedings may not be merely that the allegations were an afterthought or had given a coloured version of events. In such cases the court should carefully examine the facts before it for the reason that a frustrated litigant who failed to succeed before the Civil Court may initiate criminal proceedings just to harass the other side with mala fide intentions or the ulterior motive of wreaking vengeance on the other party. Chagrined and frustrated litigants should not be permitted to give vent to their frustrations by cheaply invoking the jurisdiction of the criminal court. The court proceedings ought not to be permitted to degenerate into a weapon of harassment and persecution. In such a case, where an FIR is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (vide : Chandrapal Singh & Ors. v. Maharaj Singh & Anr., AIR 1982 SC 1238 ; State of Haryana & Ors. v. Ch. Bhajan Lal & Ors., AIR 1992 SC 604 ; G. Sagar Suri & Anr. v. State of U.P. & Ors., AIR 2000 SC 754 ; and Gorige Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531 )." 12. In the present case also almost similar situation has arisen. The husband i.e., the respondent No.2 must have been frustrated because of the cases filed against him by his wife and he is even ordered to pay maintenance to her by the court. In the present case also almost similar situation has arisen. The husband i.e., the respondent No.2 must have been frustrated because of the cases filed against him by his wife and he is even ordered to pay maintenance to her by the court. There is nothing to show that soon after the occurrence he filed any criminal case against his wife and the other accused petitioners. Filing of the cases by his wife and order for maintenance passed against him must have frustrated him to such an extent that he also wanted to take revenge on the petitioners. For avoiding payment of maintenance also the possibility of filing the present case cannot also be ruled out. From the facts and circumstances of the case it is evident that the complaint was filed with the sole intention of harassing the petitioners and involve them in a long and arduous criminal proceeding. It is a settled propositions that the court proceeding should not be permitted to degenerate into weapon of harassment. From the conduct of the husband itself it is apparent that there is a clear abuse of process of law. 13. In the facts and circumstances discussed above and principles of law laid down by the Apex court, I am of the considered view that this is a fit case for quashment of the criminal proceeding vide C.R. Case No. 1455/2015 arising out of the complaint filed by the husband and accordingly the proceeding of C.R. Case No. 1455/2015 as well as all consequential orders flowing there from are quashed and set aside. The petition is accordingly allowed.