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2024 DIGILAW 317 (RAJ)

Tushar Varshney v. State of Rajasthan

2024-02-20

SUDESH BANSAL

body2024
ORDER : Mr. Sudesh Bansal, J. - Petitioner-husband has filed instant criminal miscellaneous petition under Section 482 Cr.P.C. seeking to quash entire criminal proceedings in connection with FIR No. 375/2021, registered at Police Station Mahila Thana, Kota wherein Police after investigation submitted charge-sheet against petitioner for offence under Section 498A IPC and trial Court took cognizance for such offence vide order dated 24.02.2022 and criminal case No. 972/2021 State v. Tushar Varshney at the stage of arguments for framing charge, is pending before Judicial Magistrate No. 3 (North) Kota. 2. Heard counsel for petitioner-Husband, counsel for complainant-respondent No. 5-Wife, learned Public Prosecutor and perused the record. 3. Necessary and relevant facts of case, as culled out from the record, to consider the issue in the present petition are as under:- 3.1 Petitioner is stated to be working as Manager in a private company at Bangalore and resident of Ghaziabad, Uttar Pradesh and non-petitioner No.5- complainant is posted as Junior Engineer at Super Thermal Power Station, Saketpur Kulhadi, Kota and resident of Kota. Marriage between both parties have entered into on 14.12.2018 at Ghaziabad, Uttar Pradesh through "Jevansathi.com". 3.2 According to non-petitioner No. 5-complainant, after marriage, she stayed with petitioner at Bangalore from 23.01.2019 to 28.02.2019, it means only for a period of about 36 days. Thereafter, according to her version, she was sent by husband to reside at his father's home at Ghaziabad, Uttar Pradesh. 3.3 According to respondent No. 5-complainant, she was turned out from matrimonial home of Ghaziabad, Uttar Pradesh on 06.09.2020 by her husband after beating her badly with kicks and fist. 3.4 Non-petitioner No.5-complainant after more than a year, lodged a criminal complaint on 17.11.2021 before the Court of Judicial Magistrate No. 3, North Kota implicated petitioner and his father as accused persons in the complaint for offence under Section 498A, 406 and 120B IPC. In the complaint, she made allegations to demand Rs. 15 lacs cash, before the marriage and demand money of Rs. 5 lacs of her savings during service, by her husband, so also applied kicks and fist on her and she was turned out of flat for about more than 10-11 times, however, allowed to enter into flat, after assuring to bring 5 lacs. 15 lacs cash, before the marriage and demand money of Rs. 5 lacs of her savings during service, by her husband, so also applied kicks and fist on her and she was turned out of flat for about more than 10-11 times, however, allowed to enter into flat, after assuring to bring 5 lacs. Complainant also made allegations that her husband had illicit relationship with another lady, working in his office and during her stay at Gaziabad, Uttar Pradesh, her father-in-law also had bad eyes on her. She also stated that on 06.09.2020, her husband beat her immensely and her Nand-Nandoi made a demand of dowry, then she was turned out of matrimonial home from Gaziabad. Thereafter, her husband came at Kota and demand money. 3.5 The criminal complaint was sent by the Judicial Magistrate under Section 156(3) Cr.P.C. for investigation by Police, therefore, the complaint was registered as FIR No. 375/2021 at Police Station Mahila Thana, Kota City. 3.6 During the course of investigation, statements of complainant Ms. Priyanka Varshney, her mother Smt. Kumkum were recorded. From their statements and by other attending circumstances, Investigating Agency opined that the complainant-wife does not want to leave her service, similarly petitioner-husband also does not want to leave his job; husband-wife lived together at Bangalore only for a period of about one month and the main underlying dispute between both parties is in respect of leaving job by complainant-wife for which she was not agreeable. Allegations levelled by wife against husband to have extra-marital affairs, were not found prove by any evidence. Allegations in respect of offence under Section 406 IPC were also not found proved; allegations against father-in-law of complainant to have bad eyes on her and harassing her for dowry, were also not found proved, however, Investigation Agency opined that complainant-wife has been subjected to mental and physical cruelty by the petitioner-husband, hence charge-sheet for offence under Section 498A IPC has been filed against the petitioner. 3.7 On filing of charge-sheet the Judicial Magistrate has taken cognizance for offence under Section 498A IPC and criminal case has been registered on the file, which is pending at the stage of charge arguments. 3.8 It is admitted case of both parties that no child born out from the wedlock of parties. 4. 3.7 On filing of charge-sheet the Judicial Magistrate has taken cognizance for offence under Section 498A IPC and criminal case has been registered on the file, which is pending at the stage of charge arguments. 3.8 It is admitted case of both parties that no child born out from the wedlock of parties. 4. Counsel for petitioner contended that in the facts and circumstances of the present case, allegations levelled by the complainant in the impugned FIR are frivolous and vexatious, as no prudent person can believe about the genuineness/ trustworthiness of such allegations. Moreover, allegations are arbitrary and exaggerated involving the father of petitioner alleging that he had a bad eye on the complainant, during her stay at home of petitioner's father at Gaziabad, Uttar Pradesh. Similarly, the allegations against the petitioner for offence under Section 406 IPC are arbitrary and during investigation, such allegations have not been proved. He submits that essential elements to bring home charge against the petitioner for offence under Section 498A are absent, yet police filed charge-sheet against him and Judicial Magistrate also took cognizance that whole proceedings are in abuse of process of law, therefore, the FIR as well as criminal proceedings for offence under Section 498A IPC against the petitioner be quashed, to secure the ends of justice. 5. Per contra, counsel for complainant so also learned Public Prosecutor opposed the contention of counsel for petitioner and pointed out that the prosecution of petitioner for offence under Section 498A is lawful in view of allegations in the FIR and statements of complainant and her mother. The term "Criminal Cruelty" under Section 498A takes within its sweep, the harassment of wife for demand of dowry as well as subjecting her mental and physical harassment in other ways after marriage. As far as non filing of charge-sheet for offence under Section 406 IPC is concerned, the appropriate proceedings to take cognizance for such an offence against petitioner are pending under consideration. Hence, it has been prayed that at the stage of trial of criminal case, the High Court may not exercise its inherent powers to quash proceedings to prosecute the petitioner for offence under Section 498A IPC and petition be dismissed. Hence, it has been prayed that at the stage of trial of criminal case, the High Court may not exercise its inherent powers to quash proceedings to prosecute the petitioner for offence under Section 498A IPC and petition be dismissed. Counsel for complainant has relied upon the following judgments: (i) Sanapareddy Maheedhar Seshagiri v. State of Andhar Pradesh [ (2007) 13 SCC 165 ] (ii) State of Andhra Pradesh v. Bajjoori Kanthaiah [ (2009) 1 SCC 114 ] (iii) Nakkeeran @ Jeroanpandy v. State: Crl.R.C. No.333/2014 decided on 07.12.2021 (Madras High Court) (iv) Avinash Kumar Tripathi v. Smt. Priyanka Tripathi: First Appeal No.1664 and 165 of 2018 decided on 13.12.2023 (Madhya Pradesh High Court) 6. Heard. Considered. 7. A bare perusal of averments of FIR, on its face value, reveals that allegations for demand of dowry and harassment of complainant-wife mentally and physically by the petitioner are incorporated therein. In support of such allegations, the complainant and her mother has made statements. It is true that as per statements of complainant, she stayed only for a short period with petitioner at Banglore from 23.01.2019 to 28.02.2019, and dispute between parties is mainly on the point of leaving government job by the complainant, but taking into consideration the overall nature of accusations, it is difficult to hold by this Court, at this stage, that the petitioner has falsely been implicated in the present case to prosecute for offence under Section 498A. It would be appropriate to have a look on the provision of Section 498A IPC: "498A. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.- For the purpose of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 8. According to explanation (a) and (b) appended with the provision of Section 498A IPC, to bring home charge of cruelty in terms of Section 498A IPC, "Cruelty" includes any willful conduct of husband which is of such nature as is likely to drive a woman to commit suicide or to cause grave injury of health whether mental or physical so also harassment of the woman to made any unlawful demand for any property or valuable security. Thus, even if allegation of making a demand of cash money, before or after marriage by the husband, have not been substantiated by sufficient evidence. Nevertheless, there are allegations for sufferance of mental and physical cruelty by the wife on account of several other factors/ conduct of the petitioner husband. 9. This Court at the stage of deciding the petition under Section 482 Cr.P.C. to quash the FIR or criminal proceedings, is not required to enter into factual arena of adjudging correctness of allegations made in the complaint. 10. The contours of powers to quash the criminal proceedings by the High Court under Section 482 Cr.P.C. are well defined in various judgments passed by the Hon'ble Supreme Court. In case of V. Ravi Kumar v. State [ (2019)14 SCC 568 ], wherein it was held that in exercising of powers under Section 482 Cr.P.C., it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of allegations made in the complaint. In case of V. Ravi Kumar v. State [ (2019)14 SCC 568 ], wherein it was held that in exercising of powers under Section 482 Cr.P.C., it is wholly impermissible for the High Court to enter into the factual arena to adjudge the correctness of allegations made in the complaint. The Hon'ble Supreme Court, in the celebrated judgment in case of State of Haryana v. Choudhary Bhajan Lal [1992 Supp. (1) SCC 335] while discussing the powers and jurisdiction of the High Court to quash the FIR or complaint or criminal proceedings under Section 482 Cr.PC or under Article 226 of the Constitution of India, to secure ends of justice, held as under:- "The following categories of cases can be stated by way of illustration wherein the extraordinary power under Article 226 or the inherent powers under Section 482 CrPC can be exercised by the High Court 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 channelised 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 com-plaint, 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 Section 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. (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. (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 b private and personal grudge. 11. Having viewed allegations made by the complainant in the impugned FIR and the evidence, which has come on record during course of investigation, prima facie on their face value, it may not be said that such allegations do not constitute a cognizable offence or do not disclose the commission of any offence or do not make out even a prima facie case of Section 498A IPC against the petitioner. Further, the present criminal proceedings may not be assumed to be manifestly instituted with mala fides or have been initiated with an ulterior motive for wreaking vengeance. 12. The correctness/ truthfulness of allegations made by the complainant, subjecting her to criminal cruelty can be adjudicated after recording evidence of parties. At the stage of deciding the petition by the High Court under section 482 Cr.PC to quash the FIR or complaint or criminal proceedings, the allegations made by the complaint and the evidence collected during investigation, which goes in favour of complainant, cannot be brushed aside. 13. At the stage of deciding the petition by the High Court under section 482 Cr.PC to quash the FIR or complaint or criminal proceedings, the allegations made by the complaint and the evidence collected during investigation, which goes in favour of complainant, cannot be brushed aside. 13. In case of M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra, [2021 SCC Online SC 315], the Apex Court elaborately considered the scope and extent of powers under Section 482 Cr.P.C. It was observed that the power of quashing should be exercised sparingly, with circumspection and in the rarest of rare cases, such standard not being confused with the norm formulated in the context of the death penalty. It was further observed that while examining the FIR/ complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made therein, but if the Court thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, and more particularly, the parameters laid down by this Court in R.P. Kapur v. State of Punjab [ AIR 1960 SC 866 ] and Bhajan Lal (supra), the Court would have jurisdiction to quash the FIR/complaint. 14. It is settled proposition of law that powers of High Court to quash FIR or criminal proceedings should be exercised sparingly and with circumspection only in rarest of rare cases. Having discussed the factual matrix of the present case, this case does not fall in the category of rarest of rare case nor any category as expounded in case of Bhajan Lal (supra). Hence, this Court is not inclined to exercise its inherent jurisdiction to quash the impugned FIR against the petitioner so also charge-sheet submitted in pursuance thereof after investigation and the criminal proceedings pending against the petitioner before the trial Court. 15. However, this Court makes it clear that aforesaid findings/observations made in this order are confined to decide the present petition for quashing the FIR and criminal proceedings, and findings/observations recorded hereinabove will not affect the case of either of the parties on merits before the trial Court. 16. Since, in view of aforesaid discussion of factual matrix and legal position, this Court has decided not to quash the FIR or criminal proceedings, it is not required to deal with judgments referred by counsel for complainant. 17. 16. Since, in view of aforesaid discussion of factual matrix and legal position, this Court has decided not to quash the FIR or criminal proceedings, it is not required to deal with judgments referred by counsel for complainant. 17. With aforesaid observations/liberty, without quashing of impugned FIR and criminal proceedings pending against the petitioner, the instant criminal miscellaneous petition stands disposed of. 18. Stay application and other pending application(s), if any, stand(s) disposed of.