Category Archives: false 498a

Allowing trial to proceed against innocent relatives, outsiders is a travesty of justice & abuse of law. 498a cocktail quashed

////15. It may be seen from the aforesaid judgments that the Supreme Court has expressed its concerned with regard to false implication of husband and his relatives in the cases under section 498-A of the Indian Penal Code by disgruntled wives. It has also been held that the tendency of falsely implicating even those relatives of husband, who lived separately and in different cities is also growing. It has been held that if there are no specific and credible allegations against, with necessary particulars against the relatives of the husband, they should not be made to suffer the ignominy of a criminal trial.

In the instant case, as we have already seen that there are specific allegations against husband Shrikant and his father Sudama Prasad who lived together in the matrimonial home of the complainant along with her. Thus, the power under section 482 of the Code of Criminal Procedure cannot be used to stifle their prosecution. However, so far as remaining applicants/accused persons are concerned, none of them lived together with the husband and father-in-law in the matrimonial home of the complainant. Moreover, there are no specific and credible allegations with necessary particulars, against them. Only omnibus allegations shorn of even basic details, have been leveled; therefore, in the opinion of this Court, they should not be made to undergo the rigmarole of a criminal trial. Allowing trial to proceed against the aforesaid relatives would be travesty of justice and abuse of process of law. As such, exercise of extra-ordinary powers of the High Court reserved under section 482 of the Code of Criminal Procedure, is called for.
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10-12-2015

HIGH COURT OF MADHYA PRADESH : AT JABALPUR

Miscellaneous Criminal Case No.2112/2015

Shrikant Tamrakar and others
Vs.
State of Madhya Pradesh and another

Present:- Hon’ble Shri Justice C.V. Sirpurkar

Dr.Anuvad Shrivastava, counsel for the applicant.
Shri Amit Pandey, Panel Lawyer for the respondent/State.

ORDER

(10-12-2015)

  1. This miscellaneous criminal case has been instituted on an application under section 482 of the Code of Criminal Procedure filed on behalf of applicants/accused persons in Crime No.32/2015 registered by P.S. City Kotwali, Chhindwara, under section 498-A read with section 34 of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act, 1961.
  2. The facts giving rise to this miscellaneous criminal case may briefly be stated thus: Complainant Harshna Paigwar filed a written report with the police to the effect that she was married to applicant/accused No.1 Shrikant Paigwar/Tamrakar by Hindu Rites in a Group Marriage Ceremony under the Chief Minister’s Scheme at Chhindwara, on 06-06-2014. In the marriage, her mother spent about Rs.4,00,000/- and gave gold and silver ornaments and house- hold items to the complainant. In addition thereto, she had also given Rs.2,00,000/- in cash and clothes at the time of engagement ceremony. Applicants/accused Sudama Prasad Tamrakar is father, Amarlal Tamrakar is father’s brother-in- law, Uma Tamrakar is father’s sister, Anoop Tamrakar is brother-in-law, Eshwari Tamrakar is sister, Sachin Chandravanshi is brother-in-law and Jaishri Chandravanshi is sister of applicant No.1 Shrikant Tamrakar. Applicant No.9 Krishna Tamrakar is not in relation with applicant No.1 Shrikant Tamrakar. When the complainant went to matrimonial home at Chhindwara, from her maternal home at Chichli, Gadarwara, her two sisters-in-law Eshwari and Jaishri and their husbands Anoop and Sachin as also her father-in- law’s sister Uma and her husband Amarlal Tamrakar as well as Krishna Tamrakar started saying that her mother had given nothing in dowry. She ought to have given at least Rs.5,00,000/-. Krishna Tamrakar said that at Chhindwara people evem spent 10,00,000/- in marriages. The aforesaid relatives of her husband started taunting and mentally harassing her. Sudama, her father-in-law also mentally harassed her for dowry. Her husband Shrikant called his friends, to consume liquor in her matrimonial home. Shrikant told the complainant to do everything she does with him, with his friends as well. Her husband and father-in-law pressurized her to ask her mother on telephone to give a shop in dowry. Her husband and her father-in-law also forcibly administered intoxicating tablets and on one occasion, an injection to her. Once her husband and father-in-law tried to pour kerosene on her; whereon she ran away to her neighbours’ place and called her mother on telephone. Thereafter her mother came and took her to her maternal home. Her husband and father- in-law say that they would take her to her maternal home only after her mother would make arrangement for more dowry. The FIR was lodged on 14-01-2015. After investigation, charge-sheet was filed in the Court on 26-09-2015.
  3. The applicants have prayed for quashing the first information report and the proceedings arising therefrom on the ground that applicant No.1 Shrikant married complainant Harshna in Group Marriage Ceremony under the Chief Minister’s Scheme. The family of applicant Shrikant lived below poverty line. The complainant lived at her matrimonial home with applicant Shrikant only after a brief period of 10-12 days. Thereafter, her mother took her to her matrimonial home leveling false allegations against applicant Shrikant and other family members. Since, the complainant refused to live with applicant No.1 Shrikant, he served a notice dated 25-08-2014 upon her through his advocate by registered post but the complainant did not pay any heed to the aforesaid notice. Consequently applicant No.1 Shrikant Tamrakar filed an application under section 9 of the Hindu Marriage Act in the Court of Principal Judge, Family Court, Chhindwara on 18-11-2014, for restitution of conjugal rights which has been registered as Hindu Marriage Petition No.418/2014. As a counter blast to the said application, the complainant filed present first information report on 15-01-2015, wherein false allegations have been leveled not only against applicant Shrikant and father Sudama Prasad but also against Krishna Tamrakar, who is not related to applicant Shrikant as also other relatives, who lived in other towns separate from applicant Shrikant on omnibus allegations. Therefore, it has been prayed that the first information report and the criminal proceedings arising therefrom be quashed.
  4. A notice was directed to be issued against the complainant (respondent No.2 Harshna); however, a perusal of the Court order dated 06-08-2015 reveals that no one had appeared on behalf of the respondent No.2 even after due service upon her. Thus, complainant was not represented before the Court at the time of arguments.
  5. On due consideration of the contentions of learned counsel for the applicants and respondent No.1/State as also after perusal of the case diary, this Court is of the view that this application under section 482 of the Code of Criminal Procedure must succeed in part.
  6. It is admitted that charge sheet in the matter has been filed. However, it has been held by the Apex Court in the case of Satish Mehra Vs. State (NCT of Delhi) and another, AIR 2013 SC 506 that the power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as the case may be, prima facie do not disclose a triable offence, there can be no reason as to why the accused should be made to suffer the agony of legal proceeding. Thus, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of charge against the accused. Thus, the High Court can certainly exercise power under section 482 of the Code of Criminal Procedure after filing of the charge sheet or even after framing of charge.
  7. It has also been held by the Supreme Court in the case of Harshendra Kumar D. Vs. Rebatilata Koley AIR 2011 SC 1090 that uncontroverted documents or material of unimpeachable or sterling character may be considered while exercising jurisdiction under section 482 of the Code of Criminal Procedure. The same view has been taken by the Supreme Court in the cases of State of Orissa vs. Devendra Nath Padhi, 2005(1) SCC 568, Rukmani vs. Vijaya, AIR 2009 SC 1013 and Rajiv Thapar vs. Madan Lal Kapoor, AIR 2013 SC (supp.) 1056.
  8. Reverting back to the facts and circumstances of the case at hand, it is found that there is nothing on record to suggest that applicant Krishna Tamrakar (accused No.7) is, in any manner related to husband Shrikant Paigwar. Thus, the observation alleged to have been made by him that some people at Chhindwara spent even Rs.10,00,000/- in marriage, is inconsequential and does not make him liable to be implicated in a case under section 498-A of the Indian Penal Code.
  9. So far as accused persons other than Shrikant, Sudama and Krishna are concerned, Amarlal Tamrakar is brother-in- law of Sudama Prasad. Uma Tamrakar is Amarlal’s wife and Sudama Prasad’s sister. Anoop Kumar is Eshwari’s husband and Shrikant’s brother-in-law. Likewise, Sachin is husband of Jaishri and brother-in-law of Shrikant. Eshwari and Jaishri are married sisters of Shrikant. Sister Eshwari and her husband Anoop Jasathi lived at Cheechli, Tahsil Gadarwara, District Narsinghpur. Other sister Jaishri and her husband Sachin lived at House No.43 Patwari Colony, Khargaon. Sudama’s sister Uma Tamrakar and her husband Amarlal lived at Bhairoganj Seoni. Krishna Tamrakar lived separately from Shrikant and his father Sudama, at Chhota Talab, Chhindwara. Only Shrikant and his father lived together at 23 Nice Chowk Chhindwara. Aforesaid addresses of the applicants have been recorded after investigation, in the charge sheet. Thus, it is admitted position that apart from Shrikant and Sudama no one else has ever resided with the complainant in the same house at Chhindwara.
  10. In the first information report, which was recorded on the basis of a written report, specific allegations have been made against husband Shrikant and his father Sudama Prasad regarding harassment and cruelty for dowry; however, the allegations against the remaining applicants are omnibus in nature and no time and date of the incidents have been given. Moreover, in her statement recorded under section 161 of the Code of Criminal Procedure on 25-01-2015, complainant Harshna has simply stated at the end, probably by way of after-thought that other accused persons had said that more money ought to have been given in the marriage and applicants could deserved a better girl. In the end, a general statement was made that all persons had beaten her for dowry. However, no specific role in this regard has been ascribed to any of them nor time and date of the assault has been given. In any case, complainant is said to have stayed in her matrimonial home for not more than 10 or 12 days.
  11. It may be noted in this regard that the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, 2014(8) SCC 273, observed that: “… There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A 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 IPC 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, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.
  12. It has been observed by the Supreme Court in Preeti Gupta v. State of Jharkhand , AIR 2010 SC 3363 that:“..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. 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.â? â??When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants.â?
  13. Likewise, in the case of Neelu Chopra & anr. v. Bharti, AIR 2009 SC(Supp) 2950, Supreme Court held as follows: â??It does not show as to which accused has committed what offence and what is the exact role played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants.â?
  14. A three judge bench of Supreme Court in the case of Kans Raj vs. State of Punjab, AIR 2000 SC 2324 observed that: â??For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusation are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in- laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case.â?
  15. It may be seen from the aforesaid judgments that the Supreme Court has expressed its concerned with regard to false implication of husband and his relatives in the cases under section 498-A of the Indian Penal Code by disgruntled wives. It has also been held that the tendency of falsely implicating even those relatives of husband, who lived separately and in different cities is also growing. It has been held that if there are no specific and credible allegations against, with necessary particulars against the relatives of the husband, they should not be made to suffer the ignominy of a criminal trial.
  16. In the instant case, as we have already seen that there are specific allegations against husband Shrikant and his father Sudama Prasad who lived together in the matrimonial home of the complainant along with her. Thus, the power under section 482 of the Code of Criminal Procedure cannot be used to stifle their prosecution. However, so far as remaining applicants/accused persons are concerned, none of them lived together with the husband and father-in-law in the matrimonial home of the complainant. Moreover, there are no specific and credible allegations with necessary particulars, against them. Only omnibus allegations shorn of even basic details, have been leveled; therefore, in the opinion of this Court, they should not be made to undergo the rigmarole of a criminal trial. Allowing trial to proceed against the aforesaid relatives would be travesty of justice and abuse of process of law. As such, exercise of extra-ordinary powers of the High Court reserved under section 482 of the Code of Criminal Procedure, is called for.
  17. Consequently, this application under section 482 of the Code of Criminal Procedure is allowed in part.
  18. The first information report registered by P.S. City Kotwali, Chhindwara, in Crime No.32/2015 under section 498-A read with section 34 of the Indian Penal Code and section 3/4 of the Dowry Prohibition Act and the criminal proceedings arising therefrom pending in the Court of Judicial Magistrate First Class, Chhindwara, so far as they relate to applicants Eshwari, Anoop, Jaishri, Sachin, Uma, Amarlal and Krishna are quashed. The trial arising from aforesaid first information report against husband Shrikant and father-in-law Sudama Prasad, shall continue in accordance with law.

(C V SIRPURKAR) JUDGE

Absurd and #Fake #498a counter blast to husband’s #RCR quashed by #MPHC

Whether prosecution U/S 498A and S 294 of IPC can be quashed?

Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

 

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev … vs State Of M.P on 2 December, 2016

(02.12.2016 )

  1. 1. Applicants, vide instant application under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) seek quashing of FIR bearing Crime No.614/2013 dated 18.12.2013 for commission of offences punishable under Sections 323, 294, 498-A and 506 of the Indian Penal Code (in short ‘IPC’) registered at police Station Kotwali District Bhind (M.P.). Further, the quashing of Criminal Case No.183/2014 has also been sought, which has been registered in furtherance to the said FIR.
  2. 2. The facts leading to filing of instant application are that a marriage was solemnized between the applicant No.1 and respondent No.2 on 21.11.2007 and a son has born out of the wedlock. According to the complaint made by respondent No.2, the present applicants were harassing her since the date of marriage for demand of Indica Car, however, she tolerated the harassment with a hope that one day the applicants will mend their ways and will treat the respondent No.2 properly. Although, the situation did not improve and one day the respondent No.2 was thrown out of the matrimonial home along with her son, whereafter, she started living with her parents at Madho Ganj, Bhind. Respondent No.2 did not have any means to maintain herself and she did not want to burden her parents, an application for maintenance by her and the son was filed, in which the notices were issued, however the applicants did not accept the summons issued by the Court and on 8.9.2013 the applicants are alleged to have visited the house of parents of respondent No.2. During their visit, the applicants pressurized respondent No.2 to withdraw the case filed by her, failing which it was threatened that she will face dire consequences.
  3. 3. Due to the incident dated 8.9.2013 the respondent No.2 submitted a complaint before the police and requested to register the FIR against the applicants. Although, the police did not take any action prompting the respondent No.2 to file complaint case before the concerned Magistrate under Section 200 of the Code of Criminal Procedure, 1973, who, in turn, instructed police to submit report under Section 156(3) CrPC. The police informed the Magistrate that it is taking cognizance of the matter and will record the FIR for commission of offences punishable underSections 323, 294, 506 and 498-A read with Section 34 of IPC. Consequently, on 18.11.2013, an FIR for the said incident was registered bearing Crime No.614/2013 at police Station City Kotwali District Bhind.
  4. 4. After completion of investigation, the police has filed charge-sheet against all the applicants on 6.2.2014 before the concerned Magistrate for the offences mentioned in the FIR. In order to seek quashing of criminal proceedings, the instant application has been filed.
  5. 5. It has been stated before this Court that in respect to instant case, no other matter has been pending for similar relief. Further, it has been stated that the applicants have preferred instant application rather than invoking the revisional jurisdiction citing the reason that this Court underSection 482 CrPC has wider jurisdiction.
  6. 6. According to learned counsel for the applicants, the plain reading of the content of the FIR does not reveal commission of offences levelled against the applicants. Moreover, the FIR has been lodged in order to defeat the proceedings initiated by the applicant No.1 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. It has also been contended that the respondent No.2 herself has violated the law by siphoning the gold of the present applicants and fleeing away to her parental home. In support of the contention, learned counsel for the applicants placed reliance on the complaint (Annexure P/4) submitted before the police. Accordingly, it is contended that the prosecution has been launched to misuse the criminal justice system and it is a fit case for interference. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  7. 7. Per contra, learned counsel appearing on behalf of respondent No.1-State has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the application deserves to be dismissed. According to learned counsel for respondent No.2, she had already moved application for maintenance and the application under Section 9 of HMA has been filed subsequently by the applicant No.1 which itself shows the intention of the applicants to cause delay in decision of application for maintenance filed by her. As per learned counsel for respondent No.2, the Supreme Court in the case of Taramani Parakh vs State of M.P., 2015 (2) JLJ 1 (SC), has held that legitimate prosecution cannot be stifled by resorting to petition underSection 482 CrPC as there has to be a trial conducted to arrive at a conclusion about the participation of accused persons in the crime. Therefore, the application merits no consideration and liable to be dismissed.
  8. 8. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  9. 9. The parameters on which the indulgence can be shown for exercising powers available underSection 482 CrPC with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra vs State of U.P. (2012) 10 SCC 741 in the following manner : “20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: (SCC p. 698, para 12) “12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their ‘young’ days in chasing their ‘cases’ in different courts.” The view taken by the Judges in that matter was that the courts would not encourage such disputes.”
  10. 10. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal v. Devi Polymers (P) Ltd., (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner :-  “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234] , this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  11. 11. In the context of the law laid down by the Apex Court, the plain reading of the complaint submitted by respondent No.2, which has been reproduced in the FIR dated 18.12.2013, goes to show that the allegations relating to commission of offence punishable under Section 498-A of IPC are omnibus and do not refer to any specific act of the applicants. According to the complaint, the respondent No.2 was subjected to cruelty due to non- fulfillment of demand of Indica Car in dowry by the applicants. It is undisputed in the instant case that the marriage was solemnized on 21.11.2007. Although the complaint is silent about the fact as to when she left the matrimonial house. Further, with respect to this allegation, the applicants have brought on record the registration certificate issued by transport department on 10.1.2008 with respect to Indica Car. Moreover, the documents reflecting TATA Sumo in the name of applicant No.2 and other four-wheeler have also been brought on record. On cumulative consideration of these circumstances, it is revealed that the accusations regarding cruelty and harassment for demand of Indica Car are absurd and improbable. At this stage, it is important to note that the documents tantamount to material filed by the applicants in their defence and as per the judicial pronouncement by the Supreme Court on consideration of defence material at a preliminary stage in a criminal prosecution, such documents cannot be made basis for taking any decision. But, the Apex Court in the case of Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, has held as under: “21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula [vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887 : JT (2008) 8 SC 621] ]. As observed by this Court in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani(2004) 8 SCC 579 : AIR 2004 SC 4778, observations of courts are neither to be read as Euclid’s formula nor as provisions of the statute. 22. Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”
  12. 12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.
  13. 13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.
  14. 14. In this view of the matter, the present application under Section 482 CrPC is partly allowed. Accordingly, the FIR and the consequent proceedings so far as they relate to the offences punishable under Sections 498-A and 294 of the IPC are quashed. However, with regard to remaining offences, the proceedings shall continue.
  15. 15. It is made clear that the trial Court shall decide the case without being influenced by the observations made by this Court.

(S.K.Awasthi) Judge.

Filing #False498a on husband is #Cruelty. #Divorce affirmed. #MadrasHC

/////a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498A I.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce./////
******
Madras High Court
Author: M Chockalingam
Bench: N Balasubramanian, M Chockalingam

JUDGMENT M. Chockalingam, J.

1. This appeal has arisen from the order of the I Additional Family Court, Chennai, granting divorce in favour of the respondent husband under Sec. 13(1)(1a) of the Hindu Marriage Act.

2. The respondent husband sought a decree of divorce before the lower Court alleging that the marriage between himself and the appellant herein took place on 5.9.1991; that they have been living happily for a short while; that thereafter, she created problem and went over from the matrimonial house to her parents’ house; that she lodged a false complaint against him, on the basis of which a case was registered by the police for dowry harassment; that he was arrested and later, let on bail; that the criminal proceedings also went on, and thus, all along, he has been harassed by her; that because of that, he had mental cruelty, and hence, it was a fit case for granting the relief of divorce.

3. The O.P. was contested by the appellant wife stating that it is true that there was a marriage between the parties, but, she was driven away; that there was a child born; that he has not even cared to maintain her or her child; that the allegation that there was mental cruelty caused by the wife against the husband, is utterly false; that he having failed to maintain his wife and child, has come with this false case; that within a short time from the time of marriage, namely a week, there was a dowry harassment by the husband and his sister; that a complaint was lodged by her father in that regard; that pursuant to the same, a case came to be registered under Sec. 498A I.P.C., and criminal proceedings went on; that he was also found guilty in the said case by the trial Court; that the allegation now made by him is an invention; that in order to wriggle out of the marriage tie, he has filed this false case, and hence, the relief was to be denied. https://twitter.com/ATMwithDick/status/1021441313613459456

4. The trial Court recorded the evidence. On the appraisal of the entire evidence, the Court below has found that it was a fit case for divorce and accordingly, granted the relief, what is being challenged in this C.M.A.

5. The learned Counsel appearing for the appellant wife, would submit that in the criminal case, both the lower Courts have found that there was a dowry harassment; that though the judgments of the lower Courts were set aside by this Court, there was sufficient evidence let in to substantiate the dowry harassment, and apart from that, having harassed his wife by demanding dowry, he has come forward with the false case for divorce; that he has not even cared to maintain the wife and child; and that it is pertinent to note that the wife has also filed a O.P. for restitution of conjugal rights, which shows the intention of the appellant to live with him. Added further the learned Counsel that the husband has not produced any iota of evidence to show that there was any cruelty made against him; that the petition should have been dismissed by the lower Court, and hence, the order of the lower Court has got to be set aside.

6. After careful consideration of the submission made by the learned Counsel for the appellant and on scrutiny of the available materials, this Court is of the considered opinion that it is not a fit case warranting for admission or for notice to the respondent. https://twitter.com/ATMwithDick/status/1021441313613459456

7. Admittedly, the appellant married the respondent on 5.9.1991, and out of the said wedlock, there was a male born. It is also not in dispute that she lived with him only for a short time. The only contention put forth by the appellant’s side, is that she was driven away from her matrimonial house, and thus, there was a necessity to live with her parents. On the contrary, the respondent husband came with the case of divorce stating that there was mental cruelty, exerted by her by lodging a false complaint under Sec. 498A I.P.C.; that a case came to be registered, and he was also arrested in that regard; that the same would constitute a cruelty, and hence, divorce has to be given. It is an admitted position that the appellant herein lodged a complaint against her husband, and criminal proceedings were initiated; that the said complaint was taken on file by the learned Chief Metropolitan Magistrate, Chennai, in C.C.No.11007 of 1992, and the trial went on. It is pertinent to point out that after the initiation of the criminal proceedings, the respondent herein was arrested, and subsequently, he was let on bail. Though the case ended in conviction, he took it on appeal in C.A.No.91 of 1998, which was taken up by the Sessions Court, Madras, which also confirmed the conviction and sentence imposed on him. In such circumstances, the husband took it on revision before this Court in Crl.R.C.No.941 of 2000. This Court had an occasion to consider the rival submissions made and to scrutinise the materials. This Court allowed the revision case and acquitted the respondent husband. At this juncture, it has to be pointed out that on the complaint given by the appellant wife against her husband for dowry harassment, a case came to be registered by the police, and he was arrested and let on bail. He faced the trial before the Chief Metropolitan Magistrate’s Court, Chennai in a Calendar Case, and he was convicted and sentenced. That apart, the appeal in C.A.91/98 preferred by him, has also met the same fate at the hands of the Sessions Court. Finally, he was acquitted by this Court.

8. It would be more appropriate and advantageous to reproduce the order of this Court in Crl.R.C.941 of 2000 as follows: “The facts narrated above indicate that the allegations in the complaint to P.W.8 on 26.5.92 should only be considered as an after thought and that the said complaint was given by P.W.1 only to harass the petitioners to subjugate the first petitioner to her wish to stay at Madras. I am unable to accept the prosecution version that the petitioners, joining with the other accused, made a demand for dowry.” Thus, from the wordings found in the judgment of this Court in the revision, it would be clear that it was a false complaint.

9. The case of the appellant was that there was no cruelty exerted, cannot be accepted or countenanced for the simple reason that a fase complaint was lodged against her husband, and the case came to be registered under Sec. 498AI.P.C., and criminal proceedings were initiated, and the husband was also arrested. It remains to be stated that the mental cruelty faced by the husband has to be assessed having regard to his status in his life, educational background and the environment, in which he lived. The husband could have suffered traumatic experience because of the police complaint and the consequent loss of reputation and prestige in the society. This Court is of the considered view that the facts and circumstances in the instant case would clearly speak of volume of the false complaint given by the appellant wife against her husband, which resulted in the criminal proceedings, which he had to face. It is true that he was arrested, and then, he was let on bail. No doubt, it is a clear case, wherein the reputation and prestige of the husband in the society has been spoiled. In such circumstances, lodging of the police complaint by the appellant wife has got to be necessarily termed as mental cruelty. In view of these reasons, it would be suffice to sustain the finding of the lower Court that there was sufficient ground of mental cruelty, which would necessitate for grant of divorce.

10. The learned Counsel for the appellant would submit that the respondent husband has not even made any arrangement for the maintenance of the appellant wife and the minor child also. In such circumstances, while confirming the order of the lower Court, it is made clear that the observations made herein, will not in any way impede the appellant to take necessary proceedings in respect of maintenance for herself and for the child. https://twitter.com/ATMwithDick/status/1021441313613459456

11. With the above observation, this civil miscellaneous appeal is dismissed. No costs. Consequently, connected C.M.Ps. are also dismissed.

Fake #498a wife’s #transfer petition on HMOP #dismissed by #Madras #HighCourt

Aunt and uncle arrested in wee hours by police, on the basis of a fake #498a file MUCH after matirmonial discord started

US based NRI husband & relatives accused

HC refuses wife’s transfer petition !!


 

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 20.01.2009

CORAM

THE HONOURABLE MR. JUSTICE M.VENUGOPAL

Tr.C.M.P.No.361 of 2008

Nivashini Mohan .. Petitioner

Versus

R.Nivendran .. Respondent

Transfer Civil Miscellaneous Petition is filed to withdraw and transfer the H.M.O.P.No.311 of 2008 from the file of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with H.M.O.P.No.201/2008.

For Petitioner : Mr.T.R.Senthil Kumar

For Respondent : Mr.Thomas T.Jacob

ORDER

The petitioner/wife has filed this Transfer C.M.P.361/2008 praying for issuance of an order by this Court, directing the transfer of HMOP.311/2008 from the fire of the II Additional Family Court, Chennai to the file of the Sub-Court, Chengalpattu to be tried along with HMOP.201/2008.

  1. The petitioner/wife in her affidavit in the Transfer Petition has averred that her marriage with the respondent/husband has taken place on 2.7.2006 according to Hindu Rites and Customs at Vemubuli Amman Temple, Aminjikarai, Chennai, though the marriage has been formally registered on 28.06.2006 and later by the threat and compulsion of the respondent/husband registered the marriage at Sub-Registrar Office, Pammal on 26.09.2005 and because of the continuous harassment and demand of dowry by the respondent/husband and his family members, she has faced cruelty and mental agony and that after her marriage, within a short span of three months. She has been driven out of the matrimonial house three times by the family members of the respondent/husband and that she has been compelled to give up her job and that she has been threatened to abort even at the very early stage of her pregnancy and that she has been forced to locate a rented house near her office at Perungudi on intimation to the respondent/husband, as per the advise of the Doctor and that she shifted her residence on 1.12.2006 and that having waited for two months, she sent E-mails to the respondent/husband narrating all the ill-treatments and cruelty meted out to her. The respondent/husband filed HMOP.352/2007 before the Principal Family Court, Chennai under Section 9 of the Hindu Marriage Act alleging as if the petitioner/wife has refused to join with him and on 18.4.2007, the said HMOP has been dismissed based on the endorsement made by the parties and the respondent/husband has come to Perungudi after three days on 21.04.2007 and that during the said stay of the respondent/husband from 21.04.2007, he has threatened the petitioner/wife to give consent for divorce or comply with the demand of his family members and after the birth of the male child, the respondent/husband with his family members identified a rented house, an unfinished one near his parents residence at Arumbakkam and that she has been asked to vacate the house at Perungudi on 31.07.2007 and that the respondent/husband has brought her and the child to Vandalur at the residence of her parents etc.
  2. It is the further case of the petitioner/wife that she has been required to come with the 40 days infant child to Arumbakkam on 8.8.2007 to the newly rented house in the second floor at Arumbakkam and on believing the assurance of the respondent/husband, when she went there on 8.8.2007, the respondent/husband has not taken care of her and her child and used to go to his parents house even without providing food etc and that the child’s eyes were affected and that the respondent/husband sent her out from the matrimonial house on 11.08.2007, on the ill advise of his family members.

  3. Eversince the time she has been driven out by her husband, she has been living at Vandalur with the help of her parents and that she made frequent efforts to contact the respondent/husband to take clothes and medicines for the child etc and later she shifted her house to Tharamani near her office after intimating the same to the respondent/husband and she came to know that the respondent/husband was in abroad in U.S.A during that time. But her efforts to contact him has ended in vain and later she gave a complaint before the Protection Officer, Teynampet, Chennai requesting for arranging a reunion with the respondent/husband, but he participated in the enquiry on 31.1.2007, but failed to yield the advise of the Protection Officer and subsequently, she has been perforced to file a criminal complaint before the Chief Metropolitan Magistrate Court, Egmore, Chennai and the same being forwarded to the Inspector of Police, W7-All Women Police Station, Anna Nagar, Chennai which culminated in filing of charge sheet in C.C.10989/2008 against the respondent and his family members and prior to that she has filed HMOP.201/2008 before the Sub-Court, Chengalpattu under Section 9 of the Hindu Marriage Act praying for restitution of conjugal rights and that the respondent has entered appearance through his counsel and later, she has been informed by her friend that a Paper Publication, dated 5.7.2008 has been effected by the respondent as a public notice for her appearance on 2.9.2008 in a case before the II Additional Family Court, Chennai in O.P.311/2008.

  4. With this background, the learned counsel for the petitioner/wife submits that the petitioner/wife has to spend a minimum of 4 hours for her travel from Chengalpattu to the court at Chennai for her appearance and further that as per the Family Court proceedings, the personal appearance of the parties on the date of hearing is mandatory and as such, the wife may not be able to appear before the II Additional Family Court on every hearing date, since she has a child and living near Chengalpattu and therefore prays for allowing the Transfer Original Petition in the interest of justice.

  5. The respondent/husband has filed a detailed counter inter alia stating that he sent a mail on 16.01.2007, requesting the petitioner/wife to sort out differences if any by going before the marital counselling. But the same has been shunted with retaliatory mails abusing him and his parents and that he filed O.P.352/2007 before the Principal Family Court for restitution of conjugal rights and after the disposal of the complaint, the petitioner/wife has refused to live in his house stating many allegations against his parents and sister that they would be ill treating her etc. and when there were vast difference of opinion at the end of the counselling both have agreed to start a new life forgetting the past and also with an agreement to accept each others parents etc. and that because of the attitude of the petitioner/wife, the marriage has ultimately broken and that the petitioner/wife has filed a complaint under the Domestic Violence Act before the Protection Officer, Teynampet, Chennai against him, his parents, sister, uncle and aunt and he has been in USA during this period and since he returned to Chennai, he informed the Protection Officer who has taken part in the enquiry and later he filed O.P.311/2008 on the file of the II Additional Family Court, Chennai on 1.12.2008 and in the meanwhile, the petitioner/wife has filed a false complaint before the learned Chief Metropolitan Magistrate, Egmore, Chennai under the Dowry Prohibition Act and the Domestic Violence Act and a First Information Report has been registered on the evening of 15.04.2008 and that his parents, sister, uncle and aunt have been taken into custody on 16.4.2008 early morning and that a charge sheet has been filed in C.C.10981/2008 before the Chief Metropolitan Magistrate Court and that complaint has been filed against the suspended Inspector of Police Mrs.Rajalakshmi for her partial attitude and non-investigation of the case as per the Criminal Procedure Code and the same is pending enquiry by the Directorate of Prosecution.

  6. Continuing further, with a view to harass the respondent/husband and his family another case C.C.356/2008 has been filed before the Judicial Magistrate No.II, Chengalpattu by the petitioner/wife in a different jurisdiction upon the same cause of action. When a complaint has been preferred to the Protection Officer, Chennai under the same act is pending and that the petitioner has subjected herself to the jurisdiction of Chennai in the marital case earlier when she has been residing in a residence outside the jurisdiction of the Court and that she has also sought the relief before the Protection Officer, Chennai, when she has been residing outside the jurisdiction and in C.C.10981/2008 pending before the Chief Metropolitan Magistrate Court, she has sought the relief, while she has been outside the jurisdiction and that the restitution of conjugal rights proceedings instituted in Chengalpattu and therefore, the respondent/husband prays for dismissing the transfer petition.

  7. It is true that in transfer of matrimonial petitions, convenience of the wife must be given the prime importance. The important principle for exercising of the powers under Section 24 of the C.P.C. is the convenience and inconvenience of the parties. The question of expediency will depend upon the facts and circumstances of each case. However, the paramount consideration for exercise of the power must be to meet the ends of justice. For the purpose of transfer, the balance of convenience of the parties should be considered. Moreover, the petition under Section 24 of C.P.C. is not to be dealt with lightly and the transfer of a case from one court to another should not be granted readily for any fancied notion of the petitioning party. For the purpose of transfer, a court of law is required to find out whether a particular party has chosen a forum in utter disregard to the convenience of the parties for some ulterior object and in abuse of her position as a arbiter litus. The basic principle is for exercise of power under Section 24 of the CPC. is the convenience and the inconvenience of the parties.

  8. The prayer of the petitioner/wife is that she was residing at Guduvancherry and OP.201/2008 is pending on the file of the Sub-Court, Chengalpattu and that her husband, namely, the respondent has filed O.P.311/2008 on the file of the II Additional Family Court, Chennai and that she has not been in a position to appear before the Family Court, Chennai inasmuch as the Court at Chennai is very near to her residence and that she has to spend a minimum of 4 hours for travel from Chengalpattu to Chennai to appear before the II Additional Family Court, Chennai in connection with the hearing of O.P.311/2008 and therefore, the application for transfer may be allowed by this Court to promote the substantial cause of justice.

  9. Admittedly, the respondent/husband is facing some cases C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu, C.C.10981/2008 on the file of the Chief Metropolitan Magistrate Court, Chennai and in between the parties, matrimonial Original Petitions are pending. The fact that the petitioner/wife has earlier subjected herself to the jurisdiction of Chennai in a matrimonial case, when she has been residing in a residence outside the Court jurisdiction cannot be disputed. Furthermore, she has also sought the relief of Protection Officer in Chennai, while she has been residing outside the jurisdiction. The case in C.C.10981/2008 pending on the file of the Chief Metropolitan Magistrate Court has been initiated, when the petitioner’s residence has been outside the courts jurisdiction. The petitioner/wife has also filed C.C.356/2008 on the file of the Judicial Magistrate No.II, Chengalpattu under the provisions of the Domestic Violence Act. One cannot brush aside an important fact that the HMOP.201/2008 filed by the petitioner/wife before the Sub-Court, Chengalpattu is only after the filing of the two criminal cases.

  10. Be that as it may, on a careful consideration of the respective contentions, this Court is of the considered view that it is not possible for this court to allow the Transfer Civil Miscellaneous Petition inasmuch as the balance of convenience is not in favour of the petitioner and in that view of the matter, the petition fails and the same is hereby dismissed. No costs. However liberty is given to the petitioner/wife to file necessary application before the II Additional Family Court, Chennai, where O.P.311/2008 is pending and seek exemption of her personal appearance and on such application is being filed by the petitioner/wife, the II Additional Family Court, Chennai is directed to consider the same on merits, after providing due opportunity to the respondent/husband to file his counter in the manner known to law. The II Additional Family Court, Chennai is directed to dispose of the HMOP.311/2008 within a period of four months from the date of receipt of a copy of this Order. Moreover, the parties are directed to co-operate with the II Additional Family Court with regard to the completion of the proceedings.

.01.2009 Index : Yes/No.

Internet: Yes/No.

M.VENUGOPAL, J.

 

tsi

To

  1. The II Additional Family Judge, Chennai.
  • The Section Officer, V.R.Section, High Court, Madras.

  • Tr.C.M.P.No.361 of 2008

     

    tsi

    Unconsummated marriage as wife refused access and left 16 years ago but 498a lingering on !! Good jurisdictional quash @ Patna HC

    • Marriage approx 20 years ago but unconsummated !! “…it is also submitted that petitioner no.1 was married to Manisha Sah on 30th May, 1997, but Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 the marriage was never consummated, as she never allowed the petitioner no.1 to share her bed. ….”
    • Allegations of beating etc etc. Allegations of second marriage etc
    • Finally Ablaa’s dad files complaint case u/s 498A, 420 and 406 IPC
    • ablaa goes away and gets re married to some one else and the father who gave complaint is dead
    • prosecution also agrees that the woman is NOT co-operating on the investigations !! (why will she when she has got married and gone away ) !!
    • finally husband and party go for quash on jurisdiction !!! and get it quashed on jurisdiction as the offences happened at Varnasi while case was filed in Mothari / Bihar
      * while this case highlights the fate of lingering cases where women fire a 498a, make money or get divorce, go away to get married the state is left with the sh!t !! and your tax money and my tax money is wasted on such nonsense, it is STILL this is a good case to use for jurisdictional quash

    ~~~~~~~~~~~~~~~~~~~~~~~~~

    IN THE HIGH COURT OF JUDICATURE AT PATNA

    Criminal Writ Jurisdiction Case No.383 of 2015

    Arising Out of PS.Case No. -null Year- null Thana -null District- EASTCHAMPARAN(MOTIHARI)

    ===========================================================

    1. Pradeep Kumar Jaiswal son of Prakash Chand Gupta

    2. Prakash Chand Gupta @ Prakash Chand son of Late Baldeo Prasad

    3. Champa Devi wife of Prakash Chand Gupta

    4. Sanjay Jaiswal @ Sanjan Kumar Jaiswal son of Prakash Chand Gupta.

    5. Praveen Kumar Jaiswal son of Prakash Chand Gupta

    6. Rekha Gupta @ Rekha Jaiswal wife of Sanjay Kumar Jaiswal All residents of 131, Station Road, P.S.- Kotwali Nagar, Town Pratapgarh, District – Pratapgarh, U.P. …. …. Petitioner/s

    Versus

    1. The State of Bihar through Director General of Police, Bihar, Patna, Old Secretariat, Patna.

    2. Superintendent of Police, Motihari, District – East Champaran.

    3. The Officer-in-charge, Motihari Town Police Station, At Motihari, District – East Champaran.

    4. Manisha Sah daughter of Late Vishwanath Prasad Sah, Sah Bagicha, Mangal Prasad Sah Marg, P.S.-Nagar, P.S.-Motihari, District- East Champaran …. …. Respondent/s

    ===========================================================

    Appearance :

    For the Petitioner/s : Mr. Anil Jaiswal, Advocate
    For the Respondent/s : Mr. N.H.Khan, S.C.-1 : Mr. Md. Naushaduzzoha, A.C. to S.C.-1

    ===========================================================

    CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH

    ORAL JUDGMENT

    Date: 29-08-2016

    1. Be it noted that vide order dated 29.1.2016, this Court had issued notice to respondent no.4 Vishwanath Prasad Sah. Since the process server reported that Vishwanath Prasad Sah had already died, his name was deleted from the cause title and by order dated 5.5.2016, the victim Manisha Sah, the daughter of the informant, was permitted to be impleaded as respondent no.4 in the case. Despite valid service of notice upon Manisha Sah, she has chosen not to appear either in Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 person or through counsel.
    2. Heard Mr. Anil Jaiswal, learned counsel for the petitioners and Mr. Naushad Hussain Khan, Standing Counsel No.1, for the State.
    3. In the present application preferred under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for quashing of Motihari Town P.S. Case No.76 of 2000 dated 28.3.2000, as contained in Annexure-1 to the present application, and the entire police investigation made upon it after institution of the police case lodged by Vishwanath Prasad Sah. <SMALL>http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick </SMALL>
    4. Initially, a complaint case being Complaint Case No.251 of 2000 was instituted by the aforesaid Vishwanath Prasad Sah in the court of Chief Judicial Magistrate, Motihari, East Champaran on 1st March, 2000. The aforesaid complaint was referred to the police under Section 156(3) of the Code of Criminal Procedure for investigation pursuant to which East Champran Town P.S. Case No.76 of 2000 was registered on 28th March, 2000 under Sections 498A, 420 and 406 of the Indian Penal Code as also under Sections 3 and 4 of the Dowry Prohibition Act, 1961.
    5. The prosecution case, in short, is that marriage of the informant’s daughter Manisha Sah was performed on 30th May, 1997 with petitioner no.1 at Varanasi in Uttar Pradesh in which the informant and his relatives gave cash, ornaments and other articles Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 mentioned in the FIR. After marriage, the informant’s daughter went to her ‘Sasural? at Pratapgarh (U.P.) and lived there for twenty days. Then, she came to her „Maikey? at Motihari in Bihar and after a month’s stay over there she again went to her ‘Sasural? with her husband. On the second visit to her ‘Sasural?, she, without any reason, was abused by the accused persons, who also pressurized her to bring rupees two lakhs as dowry.
    6. It is further alleged that in March, 1998, the informant’s daughter came to know that her husband had married another girl named Purnima and he also had a son from her. The informant’s daughter informed about this fact to the informant and on coming to know about this, the informant went to his daughter’s ‘Sasural? with his son and scolded the accused persons. Then, the informant, after staying at his daugher’s ‘Sasural? for a week, returned to his home at Motihari in Bihar.
    7. It is further alleged that in June, 1998 the petitioner no.1 told the informant’s daughter that he would keep his beloved Purnima throughout his life and when it was protested by the informant’s daughter she was beaten up by the accused persons with fists, slaps and Danda. Thereafter, on getting opportunity, Manisha Sah informed the informant, who again went to her ‘Sasural? on 8th June, 1998 with his son Ravi Kumar and got her treated in the Hospital at Pratapgarh (U.P.) and also got her X-Ray done on the advice of the doctor. It is Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 also alleged that while coming to her ‘Maikey’, the accused persons coerced Manisha Sah and got it written by her that she is taking away all her ornaments and belongings. It has been alleged that all her belongings were retained by the accused persons. The informant went to his daughter’s ‘Sasural? several times and asked the accused persons to return her daughter’s ornaments and belongings, but they declined to return the same.
    8. It is submitted by the learned counsel for the petitioners that petitioner no.1 is husband, petitioners no.2 and 3 are father-in-law and mother-in-law respectively, petitioners no.4 and 5 are brothers-in- law of the victim Manisha Sah and petitioner no.6 is wife of petitioner no.4 of the present case.
    9. It is submitted that taking the entire allegations in the FIR to be true, from the FIR it would be obvious that all the cause of action, whatever they may be, took place either at Varanasi (U.P.) or at Pratapgarh (U.P.) and no cause of action of any kind occurred in Bihar; much less, at Motihari within the territorial jurisdiction of the court at Motihari. As such, the officers of the Town Police Station at Motihari have got no jurisdiction to investigate the case and, on this ground alone, the entire investigation in the police case is fit to be quashed.
    10. Advancing the argument, it is also submitted that petitioner no.1 was married to Manisha Sah on 30th May, 1997, but Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 the marriage was never consummated, as she never allowed the petitioner no.1 to share her bed. Then, in the year 1998 itself petitioner no.1 filed a divorce case bearing Original Case No.179 of 1998, in the court of Additional Civil Judge, Pratapgrah (U.P.) for decree of divorce under Section 13 of the Hindu Marriage Act on the ground of mental cruelty for having refused to cohabit with him without any reason. In that case, even after due service of court’s summons, Manisha Sah did not appear. Thereafter, that case was decided ex-parte in favour of petitioner no.1 on 1.5.2012 and he was granted decree of divorce.
    11. It is also urged that during pendency of the divorce case, Manisha Sah has married another person and petitioner no.1 has also remarried after his divorce.
    12. Per contra, learned counsel for the State has submitted that the petitioners are not co-operating with the investigation of the case and because of their non-co-operation, the investigation of the case could not be completed till date. He has submitted that steps are being taken to arrest the accused persons so that charge-sheet may be filed before the court. However, he concedes that no part of cause of action ever took place in Bihar.
    13. Having heard learned counsel for the parties and perused the records, I find substance in the arguments advanced by the learned counsel for the petitioners. The facts stated in the FIR arising out of Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 complaint would clearly show that all the alleged acts, as per the informant, had taken place in the State of Uttar Pradesh.
    14. It appears that the informant has lodged the complaint at Motihari because of his residence at Motihari and his daughter Manisha Sah resided together with him after she left her matrimonial home.
    15. In a criminal case, the territorial jurisdiction is not decided on the basis of place of residence. It is on the basis of place where the alleged offence occurred.
    16. Section 177 of the Code of Criminal Procedure (for short (‘CrPC’) clearly lays down that every offence shall ordinarily be inquired into and tried by a court within whose local jurisdiction it was committed.
    17. Section 178 of the CrPC further lays down:
      • (a) when it is uncertain in which of several local areas an offence was committed, or
      • (b) where an offence is committed partly in one local area and partly in another, or
      • (c) where an offence is a continuing one, and continues to be committed in more local areas than one, or
      • (d) where it consists of several acts done in different local areas, then such offence may be inquired into or tried by a court having jurisdiction over any of such local areas.
    18. Thus, it would be evident from a reading of Sections 177 and 178 of the CrPC that there are certain rules with regard to where the FIR for an offence may be registered and the trial for such an Patna High Court Cr. WJC No.383 of 2015 dt.29-08-2016 offence may be conducted. The FIR has to be registered where the offence took place or where at least a part of the offence took place. The place of residence of the complainant or of the accused is irrelevant in this regard.
    19. In an identical case, in the matter of Bhura Ram and Ors. vs. State of Rajasthan and Anr., since reported in AIR 2008 SC 2666, the Supreme Court had quashed the entire criminal proceedings, which was instituted at Sri Ganganagar, Rajasthan; whereas all the alleged acts, as per the complaint giving rise to FIR, had taken place in the State of Punjab. The operative part of the order of the Supreme Court in Bhura Ram and others (supra) reads as under:
      • “4. The facts stated in the complaint disclose that the
        complainant left the place where she was residing with her
        husband and in- laws and came to the city of Sri Ganganagar,
        State of Rajasthan and that all the alleged acts as per the
        complaint had taken place in the State of Punjab. The Court at
        Rajasthan does not have the jurisdiction to deal with the
        matter. On the basis of the factual scenario disclosed by the
        complainant in the complaint, the inevitable conclusion is that
        no part of cause of action arose in Rajasthan and, therefore,
        the Magistrate concerned has no jurisdiction to deal with the
        matter. As a consequence thereof, the proceedings before the
        Additional Chief Judicial Magistrate, Sri Ganganagar are
        quashed. The complaint be returned to the complainant and if she
        so wishes she may file the same in the appropriate court to be
        dealt with in accordance with law. 
      • The appeal is accordingly allowed.”
    20. Keeping in mind the facts and circumstances of the present case and the ratio laid down by the Supreme Court in the matter of Bhura Ram and others (supra), the first information report of Motihari Town P.S. Case No.76 of 2000 dated 28.3.2000 and the consequential ongoing investigation of the said case are hereby quashed.
    21. The application stands allowed.
    22. The victim Manisha Sah would be at liberty to take steps in accordance with law at the place where the alleged offence is said to have taken place or where at least a part of the offence is alleged to have taken place.

      (Ashwani Kumar Singh, J) Md.S./-

      AFR/NAFR          AFR

      CAV DATE         N/A

      Uploading Date   4.9.2016

      Transmission     4.9.2016

      Date