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2020 DIGILAW 48 (GAU)

Madan Kalita v. State Of Assam

2020-01-10

AJIT BORTHAKUR

body2020
JUDGMENT 1. Heard Mr. B Deka, learned counsel for the petitioners and Mr. D Das, learned Additional Public Prosecutor for the State/respondent No.1 as well as Mr. B Haldar, learned counsel for the respondent No.2. 2. This petition under Section 482 Cr.P.C. is filed by the petitioners praying for quashing of the proceeding in CR Case No.30 of 2019 and all orders passed therein by the learned Sub- Divisional Judicial Magistrate (M), Biswanath Chariali, Assam (For short SDJM (M), Biswanath Chariali). 3. In the instant petition, the petitioner No.1 is the husband of the petitioner No.2 and petitioner Nos. 3 and 4 are the daughter and son respectively of the petitioner Nos. 1 and 2. On the other hand, the petitioner No.3 is the wife of the complainant and petitioner Nos. 1 and 2 are the parents in-law of the complainant/ respondent No.2 herein. The petitioners have contended that the complainant/respondent No.2 filed a complaint case being C.R. Case No.30/2019 in the court of learned SDJM (M), Biswanath Chariali, interalia, alleging that he got married to the petitioner No.3, on 01.07.2016, as per Hindu rites and rituals and thereafter, they consummated their marriage as husband and wife at his house. Out of their wedlock a still child was born to the petitioner No.3 at Pratiksha Hospital in the month of July, 2018 and since then, she developed abnormal behavior and insisted the respondent No.2 to live with her at Guwahati. However, the respondent No.2 refused to meet her said demand as he is required to look after his hotel business at Biswanath Chariali and his old parents. However, both of them visited Pune and Goa from 12.11.2018 to 05.01.2019 and thereafter, the respondent No.2 and his wife, the petitioner No.3 stayed at her parental home at Guwahati on 20.01.2019. In the meantime, dispute crept in between them and as a result, their relationship turned strained. On 09.03.2019 at about 11 am, without consent of the respondent No.2, the petitioner came down to his house with two vehicles and took away all stridhan along with cash amount of Rs.80,000/- only besides causing damage to his property approximately worth at Rs.2,51,000/- only. It has been further alleged in the complaint that the complainant/ respondent No.2 purchased one i10 car in the month of October, 2016 in exchange of old Maruti Alto car of the petitioner Nos. It has been further alleged in the complaint that the complainant/ respondent No.2 purchased one i10 car in the month of October, 2016 in exchange of old Maruti Alto car of the petitioner Nos. 1 and 2, that is, his parents-in-law and on loan from the bank, which is presently in the custody of the petitioner No.1, that is, the father of the petitioner No.3. 4. The petitioners have contended that based on the above complaint, and after due enquiry, having found prima facie evidence, the learned SDJM (M), Biswanath Chariali has taken cognizance of the offences under Sections 447/379/506/34 of the IPC against the petitioners. According to the petitioners, the petitioner No.3 had stayed for a considerable period of time at the matrimonial house and there continued constant physical and mental cruelty upon the petitioner No.3 just after months of their marriage, and as a result, she had to leave her matrimonial home on 20.01.2019. As there was no effort for reconciliation of their matrimonial differences from the side of the respondent No.2, the petitioner No.3 filed a case claiming maintenance under Section 125 Cr.P.C., which is registered as F.C. (Crl.) case No.174/2019, where filing a written statement, the respondent No. 2 admitted her as his legally married wife and development of mental differences with her in their temperament, attitude etc. The petitioners have stated that on 09.03.2019 at about 11 am, after informing the local police station, she has brought her stridhan only in presence of the respondent No.2 and his parents. Therefore, the petitioners have contended that the learned SDJM (M), Biswanath Chariali has committed grave error in law by taking cognizance of the offences aforementioned against the petitioners in the case warranting quashing of the case as prayed. 5. Mr. B Deka, learned counsel for the petitioners, during hearing, reiterates the above contentions made by the petitioners in the instant petition. 6. Per contra, Mr. D Das, learned Addl.P.P. appearing for the State/respondent No.1 submits that the petitioners have raised disputed questions of fact, which cannot be decided in a petition under section 482 Cr.P.C.. 7. Mr. 5. Mr. B Deka, learned counsel for the petitioners, during hearing, reiterates the above contentions made by the petitioners in the instant petition. 6. Per contra, Mr. D Das, learned Addl.P.P. appearing for the State/respondent No.1 submits that the petitioners have raised disputed questions of fact, which cannot be decided in a petition under section 482 Cr.P.C.. 7. Mr. RK Jain, learned counsel for the complainant/ respondent No.2, submits that in exercise of the inherent power under Section 482 Cr.P.C., the High Court cannot enquire into the disputed facts of a case, which is the domain left to the trial court as the power is intended to prevent the abuse of the process of court in case of grave and substantial injustice have been apparently done. 8. I have considered the above arguments advanced by the learned counsel of both sides and also the contentions made in the petition. 9. It needs to be mentioned that while exercising the powers under Section 482 Cr.P.C., the High Court does not function as court of appeal or revision. In such proceeding, the High Court is not empowered to decide any disputed questions resting on facts, which law specifically vests on the trial court only. The High Court cannot consider the defence of the accused or embark upon an enquiry in respect of merits of the accusations made against the accused in exercise of its inherent powers, when the Court takes cognizance of offences, after due inquiry. 10. Explaining the scope and ambit of the power of the High Court, this Court in Shamurailatpam Gopal Shrma -vs- Public Prosecutor (Districts), Manipur & anr. , reported in (2001) GLR 18 succinctly held as extracted hereinbelow:- '11. The power reposed on the High Court under Section 482 of the Cr. P.C. comprise a provision conferring a distinct and independent power on the High Court to pass order Ex debito justitae in matters where grave and substantial injustice have been done or in those cases where process of the Court has been abused. The power is intended to prevent the abuse of the process of the court and to secure ends of justice. This is an extra ordinary power which is to be used sparingly for the ends of justice. It is not like an ordinary revisional power exercised by a Higher Court. The High Court in exercising the discretion under Section 482 Cr. This is an extra ordinary power which is to be used sparingly for the ends of justice. It is not like an ordinary revisional power exercised by a Higher Court. The High Court in exercising the discretion under Section 482 Cr. P.C. is not to embark upon an enquiry as to whether the allegation in the complaint are likely to be succeeded in the trial which is the function of the Trial Court on evaluation of the evidence that will come before it. When continuance of a prosecution is challenged at the beginning of a trial the Court can look into allegation to find out as to whether allegation contained in the complaint taken on its face value has made out a prima facie case for trial or whether the proceeding is barred by any statute. Similarly an inherent power can be exercised to quash a proceeding where the complaint is frivolous, vicious, oppressive. It the allegation mentioned in the complaint do not disclose the offence of which cognizance is taken up by the trial court it will be open for the High Court to intervene and quash the proceeding in the aid of power under Section 482 Cr. P.C. It may however, be mentioned that at this stage, the High Court is not required to enter into a painstaking and detailed analysis of the case to ascertain as to whether the case would end any conviction or not. The complaint to be read as a whole.' 11. On reading of the complaint itself in its entirety and hearing the learned counsel of both sides, this court is of the considered opinion that as the complaint discloses prima facie commission of offences, this Court in exercise of inherent powers cannot examine the correctness of those disputed factual allegations in the light of the defence case, that is, the petitioners herein. 12. Accordingly, the criminal petition stands dismissed.