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2023 DIGILAW 68 (JK)

Kuldip Krishan Kapoor (Dead) v. State of J&K

2023-02-22

M.A.CHOWDHARY

body2023
JUDGEMENT 1. Petitioners have invoked the inherent jurisdiction of this court in terms of section 561-A of since repealed J&K CrPC (akin to section 482 of the Central CrPC) for quashing the challan titled "State vs Ankur Kapoor & Ors.", pending before the Court of learned 3rd Additional Munsiff (Judicial Magistrate) Jammu, arising out of FIR No. 17/2006 dated 28.01.2006 registered at Police Station Women Cell, Gandhi Nagar Jammu (for short impugned FIR), wherein the petitioners are accused of being involved in the commission of offences punishable under Sections 498-A, 109, 504, 506 RPC (since repealed penal law of J&K). 2. Petitioner/accused pleaded following facts:- (a) That on a false and baseless complaint filed on 15.06.2006 by the father of Nandita Avasthi to the Senior Superintendent of Police, Jammu for registration of FIR against the petitioners and son of petitioner No.1 Ankur Kapoor alleging therein that marriage of Nandita Avasthi D/o Vijay Kumar Avasthi was arranged with Ankur Kapoor who had come from Canada to India to meet his parents and Roka ceremony took place on 19.06.2003; that Ankur Kapoor started delaying the marriage on one or the other pretext and was insisting for court marriage. Ankur Kapoor again came to India and on 04.11.2014 engagement/ring ceremony was solemnized, whereas the marriage was solemnized on 06.11.2004 at Jammu, which was also got registered with the Registrar of Marriages, Jammu on 08.11.2004. After one week of the marriage, Ankur Kapoor left for Canada i.e. on 12.11.2004 leaving Nandita Kapoor to stay behind for three months at Jammu and during this period she was appointed in Dental Hospital, Jammu and remained there till the completion of her visa formalities to Canada. The visa of Nandita Kapoor/Avasthi was approved for USA and she went to San Francisco USA on 14.02.2005. (b) That Ankur Kapoor and Nandita Kapoor/Avasthi, came to India on 18.012006 and on 26.01.2006 respectively to attend the marriage of his brother-in-law which was scheduled on 02.02.2006, they again left for USA on 25.02.2006. Vijay Kumar Avasthi S/o Hans Raj Avasthi lodged a complaint with SSP, Jammu on 15.06.2006 and on the said complaint an FIR No.17/2006 came to be registered against Ankur Kapoor and the petitioners herein. A divorce petition came to be filed by Ankur Kapoor for dissolution of marriage with Nandita Kapoor in the court of San Francisco County Superior Court USA. A divorce petition came to be filed by Ankur Kapoor for dissolution of marriage with Nandita Kapoor in the court of San Francisco County Superior Court USA. Accordingly, the court passed the judgment dissolving the marriage between Ankur Kapoor and Nandita Kapoor on 27.12.2006 awarding 6000 dollars to be paid to Nandita Avasthi in two installments i.e. 2000 dollars at first installment and 4000 dollars in second installment. Ankur Kapoor paid in compliance to the court order, thus Ankur Kapoor and Nandita Kapoor ceased to be husband and wife from 27.12.2006. (c) That on the basis of the said judgment, Nandita Kapoor filed a suit for declaration to the fact that Nandita Avasthi's marriage with Ankur Kapoor stands dissolved by virtue of judgment dated 27.12.2006 passed by San Francisco County Superior Court, USA, with consequential relief of permanent injunction restraining the petitioners from creating obstacles in getting the name of Ankur Kapoor deleted from the record of the Register of Marriages and record of Passport Office, Jammu. (d) That Nandita Avasthi filed Suit No. 286/Civil on 03.11.2006 against petitioners, Ankur Kapoor and Branch Manager Citizen Cooperative Bank, Jammu claiming therein that the Jewellery mentioned in the plaint lying in the bank i.e. Citizen Cooperative Bank Channi Himmat Branch, Jammu is her property in which suit preliminary decree was passed, a Commissioner was appointed and directed to get the property identified from the parties i.e. Nandita Kapoor Avasthi and the petitioners herein and accordingly handover the items which belong to the petitioners to the petitioners and those belong to Nandita Avasthi to Nandita Avasthi. Accordingly on submission of the report by the Commissioner, a final decree was passed on 28.03.2007. The petitioners never objected/raised any dispute regarding the property belonging to Nandita Avasthi. (e) That a complaint was also filed under Section 405 and 406 RPC by Nandita Avasthi against the petitioners on 17.07.2007 which complaint was withdrawn by Nandita Avasthi on 18.12.2007 and the same was dismissed and the petitioners being the accused stood discharged. The petitioners never objected/raised any dispute regarding the property belonging to Nandita Avasthi. (e) That a complaint was also filed under Section 405 and 406 RPC by Nandita Avasthi against the petitioners on 17.07.2007 which complaint was withdrawn by Nandita Avasthi on 18.12.2007 and the same was dismissed and the petitioners being the accused stood discharged. (f) That the petitioners provided all these documents to the SHO Police Station Women Cell, Jammu who was investigating the FIR No.17/2006 under Sections 498-A/109 RPC and requested the I.O to close the investigation, but the I.O under the influence of Vijay Kumar Avasthi continued the investigation and dragged the petitioners as well as Ankur Kapoor in the court of law; that on transfer of the earlier I.O the investigation was entrusted to the new incumbent who produced the Ikhthami in the court and prayed for closure of the case but the court of 3rd Additional Munsiff (Judicial Magistrate) vide its order dated 10.11.2008 directed to re-investigate the matter and submit the report on or before 15.12.2008. The I.O instead of submitting the report on 15.12.2008 a Challan was produced on 19.03.2009 against the petitioners and Ankur Kapoor on the basis of impugned FIR No.17/2006 under sections 498-A/109/504/506 RPC, which is pending before the Court of 3rd Additional Munsiff (Judicial Magistrate), Jammu and warrants u/s 512 Cr.P.C was issued against Ankur Kapoor whereas the petitioners are facing the trial. 3. Learned counsel for the respondent, instead of filing reply, despite several opportunities granted, has orally opposed the petition on the ground that the present petition is not maintainable as the petition involves factual disputes which can only be adjudicated by leading evidence and requires a full dressed trial by the trial Court. It is argued that on 15.06.2006 one Vijay Kumar Avasthi S/o Hans Raj Avasthi R/o 17-C/C Gandhi Nagar Jammu filed a written complaint with SSP Jammu, for registration of FIR against the petitioners. It is argued that on 15.06.2006 one Vijay Kumar Avasthi S/o Hans Raj Avasthi R/o 17-C/C Gandhi Nagar Jammu filed a written complaint with SSP Jammu, for registration of FIR against the petitioners. After receipt thereof, the respondent-SHO Police Station Women Cell Gandhi Nagar, Jammu registered a case vide FIR No. 17/2006 for the commission of offences punishable under Sections 498-A, 109, 504, 506 RPC and during investigation, a prima facie case has been made out against the accused/petitioners, as such, the accused have no legal right to seek indulgence of this Court for quashment of the challan titled "State vs. Ankur Kapoor & Ors.", pending before the Court of learned 3rd Additional Munsiff (Judicial Magistrate) Jammu, arising out of the impugned FIR, thus prayed for dismissal of the present petition. 4. Heard learned counsel for the parties and considered the matter. I have also perused the material available on record. 5. According to learned counsel for petitioners, the allegations leveled against the petitioners are totally baseless, malicious and do not disclose any offence. It is averred that allegations made in the FIR, even if are taken on their face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the petitioners and despite such facts, petitioners have been harassed by the complainant who has also now expired, by lodging the impugned FIR. It is averred that complainant abused the process of law, solely to wreck vengeance upon the petitioners and to victimize them, the same deserves to be quashed. Learned counsel for the petitioners has also apprised the Court with regard to the death of petitioner No. 1 as well as the complainant in the case and even petitioner No.2 is bedridden since long due to illness. In support of his arguments, learned counsel for the petitioners has relied upon the judgments of Supreme Court, in case titled "Mirza Iqbal @ Golu & Anr. Vs State of Uttar Pradesh & Anr.", reported as 2022 AIR (SC) 69, "Kahkashan Kausar @ Sonam & Ors. vs State of Bihar & Ors.", reported as 2022 AIR (SC) 820 and "Veena Mittal vs State of Uttar Pradesh & Ors.", reported as 2022 (1) R.C.R (Criminal) 818. 6. Vs State of Uttar Pradesh & Anr.", reported as 2022 AIR (SC) 69, "Kahkashan Kausar @ Sonam & Ors. vs State of Bihar & Ors.", reported as 2022 AIR (SC) 820 and "Veena Mittal vs State of Uttar Pradesh & Ors.", reported as 2022 (1) R.C.R (Criminal) 818. 6. The power under Section 482 of CrPC can be exercised by the High Court to prevent the abuse of process of the Court and otherwise to secure the ends of justice. The authority of the Court exists for advancement of justice and if any attempt is made to abuse the said authority, the Court has the power to prevent that abuse. These inherent powers of the High Court are wide in their scope. Wider the power, higher the degree of responsibility upon the authority vested with such power to exercise it with circumspection. These powers are generally exercised to secure the ends of justice. 7. The Supreme Court in the case of “Mirza Iqbal @ Golu & Anr. Vs State of Uttar Pradesh & Anr.”, reported as 2022 AIR (SC) 69, has held that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of process of law. Para 11 which is relevant, is extracted as under:- “11. The appellants are brother-in-law and mother-in law respectively of the deceased. A perusal of the complaint filed by the 2nd respondent, pursuant to which a crime was registered, does not indicate any specific allegations by disclosing the involvement of the appellants. It is the specific case of the 1st appellant that he was working as a cashier in ICICI Bank at Khalilabad branch, which is at about 40 kms from Gorakhpur. The alleged incident was on 24.07.2018 at about 8 p.m. When the investigation was pending, the 1st appellant has filed affidavit before Senior Superintendent of Police on 08.08.2018, giving his employment details and stated that he was falsely implicated.” 8. Learned counsel for the petitioners, however, restricted his arguments only to the legal issue that in absence of any specific allegations against the petitioner No. 2, disclosing her active involvement, the Magistrate has taken cognizance in a routine and mechanical manner. The Supreme Court in a case titled "Kahkashan Kausar @ Sonam & Ors. Learned counsel for the petitioners, however, restricted his arguments only to the legal issue that in absence of any specific allegations against the petitioner No. 2, disclosing her active involvement, the Magistrate has taken cognizance in a routine and mechanical manner. The Supreme Court in a case titled "Kahkashan Kausar @ Sonam & Ors. vs State of Bihar & Ors.", reported as 2022 AIR (SC) 820, has held that allowing prosecution, in the absence of clear allegations (Section 498-A IPC) against the in-laws, would simply result in an abuse of the process of law. 9. The Top Court of the Country in the judgment relied upon Kahkashan Kausar @ Sonam's case has concurred a view taken in its earlier judgment passed in " Preeti Gupta & Anr. V State of Jharkhand & Anr., reported as (2010) 7 SCC 667 . It will be profitable to re-produce Paras 32, 33, 34, 35 and 36 of the judgment relied upon as under:- “32. It is a matter of common experience that most of these complaints under section 498A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases. 34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations. 35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. 36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.” 10. The Supreme Court in the case of "Veena Mittal vs. State of Uttar Pradesh & Ors.", reported as 2022 (1) R.C.R (Criminal) 818, has also held that the allegations in FIR must be read as they stand and it is only if on face of allegations that no offence, made out, that Court may be justified in exercising its jurisdiction to quash. Relevant Para 6 is extracted as under:- "In this backdrop, the finding of the High Court to the effect that there is no specific allegation against the second and third respondents or that, as the mother and sister of the bridegroom, they would not be either beneficiaries or have a direct link with the perpetrators of the crime is not based on cogent material or a reading of the FIR. It is well settled that at the stage when the High Court considers a petition for quashing Criminal proceedings under Section 482 of the CrPC, 1973 the allegations in the FIR must be read as they stand and it is only if on the face of the allegations that no offence, as alleged, has been made out, that the Court may be justified in exercising its jurisdiction to quash. the parameters of the jurisdiction under Section 482 have been reiterated in a consistent line of authorities and, at this stage, it may be material to refer to the recent decision of this Court in Neeharika Infrastructure v. State of Maharashtra, 2021 SCC OnLine SC 315. Accordingly, we allow the appeal and set aside the impugned judgment and order of the High Court dated 15 April, 2019 in Criminal Miscellaneous Application No.27511 of 2018." 11. The Supreme Court in the case of State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors. reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC 1973 in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted as follows:- "102. vs. Ch. Bhajan Lal & Ors. reported as 1992 Suppl (1) SCC 335, has dealt with the scope of power of High Court under Section 482 CrPC 1973 in an elaborate manner. Paragraphs 102 and 103, which enumerates seven categories of cases, where power can be exercised under Section 482 CrPC, are extracted as follows:- "102. In the backdrop of the interpretation of the various relevant provisions of the Code 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 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of 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 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. (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 mala 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. 103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice." 12. From the foregoing survey of law on the subject, it is clear that in a case of the same do not disclose commission of any offence or make out a case against the accused, the High Court can exercise its powers under Section 482 of CrPC to quash the proceedings against an accused. The inherent powers cannot be, however, exercised to stifle or impinge upon the proceedings. 13. On a careful perusal of detailed complaint lodged by complainant Vijay Kumar Avasthi who happens to be father of Nandita Avasthi the daughter in-law of the petitioners, it transpires that marriage between the complainant's daughter and Ankur Kapoor son of the petitioners took place on 06.11.2004 in Jammu and soon after marriage the bridegroom left for USA/Canada where he was working, leaving behind the bride. There are no specific allegations against the petitioners herein except mentioned in the complaint that the daughter of the complainant while working in Government Dental College, Jammu, had asked her father-in-law-petitioner No.1 who has since expired to provide her a car for her use while attending her duties which was denied by him. In the considered opinion of this Court, this cannot be a ground to constitute an offence of subjecting the daughter-in-law to cruelty. Most of the allegations in the complaint are directed against the husband by the wife with regard to demand of dowry and subjecting her to cruelty/harassment by having relationship with another woman abroad. The husband is not before this Court in the petition as he stated to be absconding and not appearing before the Trial Court as well. 14. For the forgoing reasons and the observations made hereinabove, the instant petition is allowed and the challan titled "State of J&K vs. Ankur Kapoor & Ors.", pending before the Court of learned 3r Additional Munsiff (Judicial Magistrate) Jammu, arising out of FIR No. 17/2006 registered at Police Station Women Cell, Gandhi Nagar Jammu, against the accused for the commission of offences punishable under Sections 498-A, 109, 504, 506 RPC, qua the petitioner No. 2, namely, Savita Kapoor, is hereby quashed as the petition in view of the death of petitioner No.1-Kuldip Krishan Kapoor abates against him. Copy of this order be sent to Court below for compliance. 15. The petition along with pending application(s), is thus disposed of, accordingly.