Research › Search › Judgment

Manipur High Court · body

2019 DIGILAW 27 (MAN)

Rungshing Kharay v. Tuising Shatsang

2019-04-26

M.V.MURALIDARAN

body2019
JUDGMENT : M.V. MURALIDARAN, J. 1. The petitioners have come forward with this petition to quash the proceedings in Criminal (C) Case No. 1 of 2017 pending on the file of the Chief Judicial Magistrate, Ukhrul for the offence under Sections 403, 404, 406, 409, 419, 420, 424, 465 and 120-B of IPC. 2. The respondent had filed Criminal (C) Case No. 1 of 2017 before the learned Chief Judicial Magistrate, Ukhrul under Section 190 read with 156(3) of Cr.P.C. seeking to take cognizance of the case and issue warrant of arrest against the petitioners alleging that the petitioners had fraudulently withdrawn and misappropriated a sum of Rs. 9,13,674.80 from the respondent's deceased wife account bearing Account No. 20011268402 maintained in State Bank of India, Somsai, Ukhrul. The learned Chief Judicial Magistrate, Ukhrul has taken cognizance of the offence under Sections 403, 404, 406, 409, 419, 420, 424, 465 and 120-B of IPC and issued summons to the petitioners. 3. The petitioners have filed objections seeking to dismiss the complaint as not maintainable and discharge them from the case stating that the respondent has neither approached the Station House Officer as required under Section 154(1) Cr.P.C. nor has approached the Superintendent of Police as provided under Section 154(3) of the Code and prayed for dismissal of the complaint preferred by the respondent. By an order dated 05.02.2018, the learned Chief Judicial Magistrate framed charges against the petitioners under Sections 404 and 406 read with Section 120-B of IPC. Challenging the same, the petitioners have come up with the present petition seeking to quash the entire proceedings in Criminal (C) Case No. 1 of 2017. 4. Heard Mr. Kharay Sira, the learned counsel for the petitioners and none appears for the respondent. 5. Assailing the order of the learned Chief Judicial Magistrate taking cognizance of the offence and framing charges against the petitioners under Sections 404 and 406 read with Section 120-B of IPC, the learned counsel for the petitioners submitted that the proceedings in Criminal (C) No. 1 of 2017 is liable to be quashed on the ground that the complaint is not in conformity with the guidelines issued by the Hon'ble Supreme Court in the case of Priyanka Srivastava and Another vs. State of U.P. and Others, (2015) 6 SCC 287 and the mandatory requirements stipulated in the said decision have not been complied with by the respondent. He would submit that the learned Chief Judicial Magistrate while taking cognizance of the offence has failed to consider the guidelines issued by the Hon'ble Supreme Court in Priyanka Srivastava, supra. 6. On the other hand, it is the case of the respondent that the respondent had preferred the complaint under Section 190 of Cr.P.C. and the learned Chief Judicial Magistrate has also proceeded with the complaint petition under Section 190 of Cr.P.C. and therefore, there is no necessity to file prior application under Section 154(1) and 154(3) of Cr.P.C. as alleged by the petitioners. It is also the further case that the learned Chief Judicial Magistrate after satisfying the allegations set out in the complaint has rightly taken cognizance of the offence and accordingly, framed charges against the petitioners and, therefore, prayed for dismissal of the present petition. 7. I have considered the submissions made by the learned counsel appearing for the petitioner and none appeared for the respondent and also perused the materials available on record. 8. The allegation against the petitioners is that on sudden demise of the complainant's wife on 28.02.2016 while giving birth to their second child, the petitioners, being the younger brothers of the deceased wife, have misappropriated a total amount of Rs. 9,13,674.80 from the bank account bearing No. 20011268402 of the deceased wife without the knowledge and consent of the complainant. 9. The learned Chief Judicial Magistrate, by an order dated 18.01.2017, issued summons to the petitioners to show cause. Pursuant to the order dated 18.01.2017, the petitioners entered appearance and filed their written submission on framing of charges against them, inter-alia, contending that before preferring a complaint, the respondent has neither approached the police officer under Section 154(1), nor has the complainant approached the Superintendent of Police under Section 154(3) of Cr.P.C. It is also contended that the issue raised by the complainant is purely civil in nature and the present criminal proceedings is nothing but an absolute abuse of the process of law. However, by an order dated 05.02.2018, the learned Chief Judicial Magistrate framed charges against the petitioners under Sections 404 and 406 of IPC, which is challenged in the present petition. 10. However, by an order dated 05.02.2018, the learned Chief Judicial Magistrate framed charges against the petitioners under Sections 404 and 406 of IPC, which is challenged in the present petition. 10. On a reading of the averments set out in the complaint, it is seen that the dispute between the respondent and the petitioners revolves around the question as to whether the complainant's wife is solely entitled to the funds in the Bank account or whether it is family corpus fund, which issue can only be gone into by a competent Civil Court. 11. According to the petitioners, the respondent married the sister of the petitioners and she died on 28.02.2016 at the time of delivery of her second baby and the account bearing No. 20011268402 in question is a family account for creating a corpus of family fund in the nature of Fixed Deposits with the first petitioner as the sole Nominee. The said account in question was opened at Konkan Bhavan Branch, Mumbai by the petitioners' family in the name of their deceased sister Smt. Lakngamla Kharay as she being the eldest in the family for the sole purpose of creating a corpus of family fund and the same was subsequently, transferred to Ukhrul Branch and after transfer, the said account in question being a corpus of family fund was always in the custody and possession of the petitioners' parents and the same was solely owned and operated by them. 12. The case of the petitioners is that though the account in question was opened in the name of the petitioners' deceased sister, the same was never in her possession or custody even before, during or at the time of their marriage and the respondent was not even aware of the existence of the said account and he came to know about the account on enquiry being made by him before the State of Bank of India, Somasai, Ukhrul only after the death of his deceased wife, which was admitted by the complainant in his complaint itself. The said fact was not denied by the respondent. Thus, it is clear that the issue involved in the present case is purely civil in nature and therefore, the same cannot be allowed to become a subject matter of criminal proceedings. 13. It is settled that the family disputes are not criminal in nature. The said fact was not denied by the respondent. Thus, it is clear that the issue involved in the present case is purely civil in nature and therefore, the same cannot be allowed to become a subject matter of criminal proceedings. 13. It is settled that the family disputes are not criminal in nature. The sole question for determination in the present case, i.e., whether the alleged Bank account is a movable property of the complainant, cannot be gone into in the present criminal proceedings. 14. The main contention of the petitioners is that the complaint preferred by the respondent is liable to be dismissed on the threshold as not maintainable as the complainant has not complied with the mandatory procedure as prescribed under Sections 154(1) and 154(3) of Cr.P.C. There is some force in the contention of the learned counsel for the petitioners. 15. As rightly argued by the learned counsel for the petitioners, a person should first invoke the provisions of Section 154 of Cr.P.C. before he invokes the powers of the Magistrate under Section 156(3) of Cr.P.C. An intimation to the police is a condition precedent for invocation of powers of the Magistrate under Section 156(3) of Cr.P.C. 16. The respondent has filed the complaint under Section 190 read with Section 156(3) of Cr.P.C. Nowhere else the respondent has made the mandatory averment that before approaching the Court, he had given complaint to the police and the police had failed to take action. Thus, it is clear that the respondent has chosen to approach the learned Chief Judicial Magistrate directly without exhausting the remedies under Sections 154(1) and 154(3) of Cr.P.C. available to him, which is contrary to the settled principles of law. 17. It is settled law that in an application filed under Section 156(3) of Cr.P.C., it is necessary for the complainant to aver the fact that the police has failed to act despite intimation. The present complaint is not supported by any affidavit, which is mandatory as per the direction given by the Hon'ble Supreme Court in Priyanka Srivastava, supra, indicating the dates therein as to when the complaint was given to the police under Sections 154(1) and 154(3) of Cr.P.C. respectively with supporting proof. 18. In Priyanka Srivastava, supra, the Hon'ble Supreme Court held as under: “The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C. cannot be marginalised. 18. In Priyanka Srivastava, supra, the Hon'ble Supreme Court held as under: “The duty cast on the learned Magistrate, while exercising power under Section 156(3) Cr.P.C. cannot be marginalised. ...it needs to be reiterated that the learned Magistrate has to remain vigilant with regard to the allegations made and the nature of allegations and not to issue directions without proper application of mind. He has also to bear in mind that sending the matter would be conducive to justice and then he may pass the requisite order. ...power under Section 156(3) warrants application of judicial mind. A court of law is involved. It is not the police taking steps at the stage of Section 154 of the Code. A litigant at his own whim cannot invoke the authority of the Magistrate. A principled and really grieved citizen with clean hands must have free access to invoke the said power. It protects the citizens but when pervert litigations takes this route to harass their fellow citizens, efforts are to be made to scuttle and curb the same. ...a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of the said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. ...there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores. ...there has to be prior applications under Sections 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an application under Section 156(3) be supported by an affidavit is so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari (2014) 2 SCC 1 are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR.” 19. Thus, it is clear that a litigant at his own whims cannot invoke the authority of the Magistrate. As stated supra, the complainant ought to have first invoked the provisions of Section 154 of Cr.P.C. before invoking the powers of the Magistrate. Therefore, on this ground, the complainant cannot maintain his complaint before the learned Chief Judicial Magistrate. 20. It is pertinent to point out that pending Criminal Petition No. 3 of 2018, the complainant has filed application seeking withdrawal of the complaint against the petitioners stating that the complainant is no longer willing and interested in further pursuing the present complaint and is accordingly desirous of withdrawing the same out of his own free accord and the said petition has been taken on file by the learned Chief Judicial Magistrate in Criminal Miscellaneous Petition No. 33 of 2018. 21. By an order dated 20.09.2018, the learned Judicial Magistrate, rejected the Criminal Miscellaneous Petition No. 33 of 2018. 21. By an order dated 20.09.2018, the learned Judicial Magistrate, rejected the Criminal Miscellaneous Petition No. 33 of 2018. The operative portion of the order reads thus: “12. Perhaps, the complainant after cooling down the matter and for the sake of maintaining good relationship with the family of his deceased wife might have desired to withdraw the present complaint case. Howbeit, the present complaint case being a warrant triable case and the same being proceeded under Section 204 of Cr.P.C. this Court lack the inherent power to grant permission for withdrawal of the case. The complainant may approach the appropriate Court for seeking relief for withdrawal of the present complaint case.” 22. The respondent has not disputed the factum of filing withdrawal petition and the order passed by the Court in an earlier occasion. It is pertinent to mention that by an order dated 9.5.2018 passed in the present petition, the proceedings before the learned Chief Judicial Magistrate was kept in abeyance. Further, as against the rejection of withdrawal petition, the respondent has not filed any appeal before the higher forum. 23. As stated supra, the dispute between the parties is purely civil in nature and the complaint of the respondent cannot be allowed to become a subject matter of criminal proceedings and, thus, the learned Chief Judicial Magistrate erred in taking the cognizance of the offence without looking into the fact that the complaint revolves around the question of ownership of the alleged bank account, which can be decided only by the Civil Court. Further, from the materials produced, it is clear that the complainant has approached the learned Chief Judicial Magistrate with unclean hands by withholding and concealing all the material facts of the case to deliberately mislead and defraud the Court. Further, the present complaint preferred by the respondent is hit by the principles laid down by the Hon'ble Supreme Court in Priyanka Srivatsava, supra, and the continuance of the criminal proceedings against the petitioners is nothing but an absolute abuse of process of law. It is apposite to mention that the learned Chief Judicial Magistrate before taking cognizance of the offence has failed to order investigation under Section 156(3) of Cr.P.C. 24. It is settled that criminal proceedings should not be encouraged, when it is found to be mala-fide or otherwise an abuse of the process of the Court. It is apposite to mention that the learned Chief Judicial Magistrate before taking cognizance of the offence has failed to order investigation under Section 156(3) of Cr.P.C. 24. It is settled that criminal proceedings should not be encouraged, when it is found to be mala-fide or otherwise an abuse of the process of the Court. This is a fit case to hold that continuation of the criminal proceedings initiated against the petitioners is clear abuse of the process of the Court. 25. It is also settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482 Cr.P.C. to quash the order passed by the Magistrate taking cognizance of the offence and its further proceedings. This was clearly held by the Hon'ble Apex Court in the case of State of Haryana vs. Bhajan Lal, 1992 Supp (1) SCC 335. 26. For the foregoing reasons, I am of the view that the continuation of the present criminal proceedings against the petitioners is clear abuse of process of law and, therefore, the same is liable to the quashed. 27. In Fine, the Criminal Petition filed by the petitioners is allowed and the entire criminal proceedings in Criminal (C) Case No. 1 of 2017 pending on the file of the Learned Chief Judicial Magistrate, Ukhrul is quashed as far as the petitioners are concerned. 28. Before parting, I am inclined to pass the following directions:- (a) the Learned Magistrates in the State of Manipur is hereby directed not to entertain any complaint filed under Sections 190 and 156(3) of Cr.P.C. unless the complainant invoke the Jurisdiction under Sections 154(1) and 154 (3) of Cr.P.C. as mandated by the Hon'ble Supreme Court of India in the case of Priyanka Srivastava and Another vs. State of U.P. and Others, (2015) 6 SCC 287 . (b) the Learned Registrar General of this Court is directed to circulate this order to all the Learned District Judges and the Learned Chief Judicial Magistrates in the State of Manipur for compliance of this order.