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2022 DIGILAW 710 (HP)

Vinay Agarwal, S/o Arvind Kumar Gupta v. State Of Himachal Pradesh

2022-11-16

SATYEN VAIDYA

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ORDER : By way of instant petition, a prayer has been made to quash FIR No. 2 of 2020, dated 05.01.2020, registered at Women Police Station, Solan, under Section 498-A read with Section 34 IPC (for short, “the FIR”). 2. The basis of FIR is written complaint dated 28.12.2019 submitted by Respondent No.2 inter-alia alleging her ill-treatment at the hands of her in laws including the petitioner. Respondent No.2 is the wife of Shri Raghav Aggarwal, who is brother of petitioner. 3. Petitioner has alleged false implication in the FIR. In is submitted that petitioner is working and residing in United States of America (USA). He had visited India for few days to attend the marriage of his brother Raghav Aggarwal, which was solemnised on 06.07.2018. On the date of marriage except for exchange of pleasantries, petitioner had no occasion to interact with respondent No.2. Petitioner had stayed at Hyderabad between 13.07.2018 to 27.07.2018 and during this period he had formal interaction with respondent No.2 as he had stayed at his brother's house. Petitioner thereafter left for USA on 29.07.2018 and thereafter has never visited India. It is further submitted that respondent No.2 has levelled allegations against the petitioner which are general and vague. The omnibus allegations made against the petitioner have no basis. Except for the bald allegations levelled by respondent No.2 against petitioner, no evidence has been found against him till date. The FIR against petitioner is alleged to be motivated. 4. Respondent No.1-State in its reply has submitted that the written complaint No. PC/1028/SP was received in Women Police Station, Solan on 30.12.2019. The complaint contained allegations of harassment of respondent No.2 at the hands of Shri Raghav Aggarwal (husband), Shri Arvind Gupta (father-in-law), Smt. Nisha Gupta (mother-in-law) and petitioner (brother-in-law). Resultantly, FIR No. 2/2020 was registered on 05.01.2020. Investigation is stated to be underway. It is alleged that despite various efforts, the investigating agency has not been able to associate the petitioner and other accused persons in investigation. 5. Respondent No.2 has filed her separate reply. It is submitted on behalf of said respondent that the FIR was registered after thorough examination of written complaint and recording her statement. It is further submitted that the petitioner and other accused in the FIR have not joined the investigation. The petition is alleged to be abuse of process of law. 5. Respondent No.2 has filed her separate reply. It is submitted on behalf of said respondent that the FIR was registered after thorough examination of written complaint and recording her statement. It is further submitted that the petitioner and other accused in the FIR have not joined the investigation. The petition is alleged to be abuse of process of law. Respondent No.2 has placed reliance on the allegations levelled by her in the complaint and consequent FIR. She has admitted that petitioner had left India for USA on 29.08.2018. As per respondent No.2, the petitioner is intentionally and deliberately avoiding the joining investigation and the instant petition is also step in such direction. 6. I have heard learned counsel for the parties and have also gone through the entire record. 7. Petitioner has invoked jurisdiction of this Court under Section 482 of the Code of Criminal Procedure. Though, this Court is vested with jurisdiction and powers under the aforesaid provisions of law to prevent the abuse of process of law or otherwise to secure the ends of justice but the same has to be used sparingly and only in appropriate cases. 8. Hon'ble Supreme Court in Dineshbhai Chandubhai Patel vs. State of Gujarat & Ors reported in (2018)3 SCC 104 has outlined the powers of this Court to quash the FIR in exercise of powers under Section 482 of the Code of Criminal Procedure in following manner: - “25. The law on the question as to when a registration of the FIR is challenged seeking its quashing by the accused under Article 226 of the Constitution or Section 482 of the Code and what are the powers of the High Court and how the High Court should deal with such question is fairly well settled. 26. This Court in State of West Bengal & Ors. vs. Swapan Kumar Guha & Ors. ( AIR 1982 SC 949 ) had the occasion to deal with this issue. Y.V. Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid down the following principle: “21......the condition precedent to the commencement of investigation under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a cognizable offence has been committed. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. It is wrong to suppose that the police have an unfettered discretion to commence investigation under S.157 of the Code. Their right of inquiry is conditioned by the existence of reason to suspect the commission of a cognizable offence and they cannot, reasonably, have reason so to suspect unless the F.I.R., prima facie, discloses the commission of such offence. If that condition is satisfied, the investigation must go on. The Court has then no power to stop the investigation, for to do so would be to trench upon the lawful power of the police to investigate into cognizable offences 66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. If on a consideration of the relevant materials, the Court is satisfied that an offence is disclosed, the Court will normally not interfere with the investigation into the offence and will generally allow the investigation in the offence to be completed for collecting materials for proving the offence.” 27. Keeping in view the aforesaid principle of law, which was consistently followed by this Court in later years and on perusing the impugned judgment, we are constrained to observe that the High Court without any justifiable reason devoted 89 pages judgment (see-paper book) to examine the aforesaid question and then came to a conclusion that some part of the FIR in question is bad in law because it does not disclose any cognizable offence against any of the accused persons whereas only a part of the FIR is good which discloses a prima facie case against the accused persons and hence it needs further investigation to that extent in accordance with law. 28. In doing so, the High Court, in our view, virtually decided all the issues arising out of the case like an investigating authority or/and appellate authority decides, by little realizing that it was exercising its inherent jurisdiction under Section 482 of the Code at this stage. 29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. 29. The High Court, in our view, failed to see the extent of its jurisdiction, which it possesses to exercise while examining the legality of any FIR complaining commission of several cognizable offences by accused persons. In order to examine as to whether the factual contents of the FIR disclose any prima facie cognizable offences or not, the High Court cannot act like an investigating agency and nor can exercise the powers like an appellate Court. The question, in our opinion, was required to be examined keeping in view the contents of the FIR and prima facie material, if any, requiring no proof. 30. At this stage, the High Court could not appreciate the evidence nor could draw its own inferences from the contents of the FIR and the material relied on. It was more so when the material relied on was disputed by the Complainants and vica-a-versa. In such a situation, it becomes the job of the investigating authority at such stage to probe and then of the Court to examine the questions once the charge sheet is filed along with such material as to how far and to what extent reliance can be placed on such material. 31. In our considered opinion, once the Court finds that the FIR does disclose prima facie commission of any cognizable offence, it should stay its hand and allow the investigating machinery to step in to initiate the probe to unearth the crime in accordance with the procedure prescribed in the Code. 32. The very fact that the High Court in this case went into the minutest details in relation to every aspect of the case and devoted 89 pages judgment to quash the FIR in part lead us to draw a conclusion that the High Court had exceeded its powers while exercising its inherent jurisdiction under Section 482 of the Code. We cannot concur with such approach of the High Court. 33. The inherent powers of the High Court, which are obviously not defined being inherent in its very nature, cannot be stretched to any extent and nor can such powers be equated with the appellate powers of the High Court defined in the Code. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here” 9. The parameters laid down by this Court while exercising inherent powers must always be kept in mind else it would lead to committing the jurisdictional error in deciding the case. Such is the case here” 9. Hon'ble Supreme Court has simultaneously come across situations with which this Court is confronted in the instant case. The dictum of law as pronounced from time to time is that the High Courts, in appropriate cases, can quash criminal proceedings under Section 498 of the IPC where allegations are vague, general and omnibus. This has been made applicable especially in the cases where the relatives of husband are also sought to be impleaded. In the landmark judgment of the Hon'ble Supreme Court in Arnesh Kumar vs. State of Bihar & Another, (2014)8 SCC 273 , it has been observed as under: - “4. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grandmothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.” 10. In K. Subba Rao and others vs. State of Telangana, (2018) 14 SCC 452 ), the Hon'ble Supreme Court has further observed as under: - “6. Criminal proceedings are not normally interdicted by us at the interlocutory stage unless there is an abuse of process of a Court. This Court, at the same time, does not hesitate to interfere to secure the ends of justice. See State of Haryana v. Bhajan Lal 1992 Supp. (1) SCC 335. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out. See Kans Raj v. State of Punjab & Ors. (2000) 5 SCC 207 and Kailash Chandra Agrawal and Anr. v. State of Uttar Pradesh & Ors. (2014) 16 SCC” 11. To similar effect is reiteration of law made by Hon'ble Supreme Court in Kahkashan Kausar alias Sonam and others vs. State of Bihar & Ors. (2022)6 SCC 599 . In paras 17 and 18 of above noticed judgment, it has been observed as under:- “17. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long-term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 18. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that ‘all accused harassed her mentally and threatened her of terminating her pregnancy’. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.” 12. Reverting to the facts of the case, it will be relevant to notice the allegations levelled by respondent No.2 against the petitioner in her complaint, which are as under: “I have been continuously harassed and shunted out from house for bringing less dowry and wrongful demands and under compulsion I have taken shelter in the house of my parents at Solan. Due to harassment, I am suffering mental torture even till date. For all these things, elder brother of my husband Shri Vinay Aggarwal, who is working in Seattle (USA) in Amazon Company is also equally responsible. He is at the back of entire conspiracy. My father-in-law, mother-inlaw and my husband acts on his advice after disclosing him all matters relating to me. He also instigates everyone against me on telephone........” 13. The FIR also carries the above noticed allegation verbatim. More than two years have elapsed since the registration of FIR and there is nothing on record to suggest that the investigating agency has found any other evidence against the petitioner save and except the allegations levelled against him in the complaint. 14. The FIR also carries the above noticed allegation verbatim. More than two years have elapsed since the registration of FIR and there is nothing on record to suggest that the investigating agency has found any other evidence against the petitioner save and except the allegations levelled against him in the complaint. 14. On analysis of the available facts at the touchstone of above noticed exposition of law, it can be clearly inferred that allegations levelled against petitioner are general, vague and omnibus in nature. No specific instance with approximate date or time has been alleged against the petitioner. 15. In such circumstances, it will be unjust if the investigation is allowed to proceed further against the petitioner. It has been observed in Kahkashan Kausar's case (supra) by the Hon'ble Apex Court that general and omnibus allegations cannot manifest in a situation where the relatives of complainant's husband are forced to undergo trial. It has further been observed that the criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, therefore, such an exercise may be discouraged. 16. Keeping in view of the facts and circumstances of the case, this Court of the view that the FIR No. 2 of 2020 dated 05.01.2020 registered at Women Police Station, Solan, under Section 498-A read with Section 34 of the IPC is abuse of process of law as against the petitioner. Thus, to secure the ends of justice, this will be an appropriate case to quash the FIR as against the petitioner. 17. Accordingly, the petition is allowed and FIR 2 of 2020 dated 05.01.2020 registered at Women Police Station, Solan, under Section 498-A read with Section 34 of the IPC is ordered to be quashed as against the petitioner only. Petition stands disposed of, so also, the pending applications, if any.