Tag Archives: FIR Quash

fake 498a with vague sweeping allegations 5 yrs aftr split, quashed by Guj HC !!

Wife files a 498A, 323, 506, 506(2) case approx. 5 years after separation. All she has are vague, general and sweeping allegations, specifying no instances of criminal conduct. The Police also seems to have recorded stereo-type statements of witnesses, who are none other than the parents and relatives of the wife and filed a charge-sheet !! Gujarat HC quashes the case !!

* marriage on 13th April 2006
* wife claims she was harassed etc. and has left matrimonial home on 2 Sep 2010
* then approx 5 years later, on 13 April 2015 she has lodged a complaint and police filed an FIR !!
* though she is angry with her husband she has accused many more relatives of the husband !!
* as mentioned above, the Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the wife and has filed a charge-sheet !!
* Gujarat HC quashes the case !!
* Honourable Justice Padriwala affirmatively quotes the Hon Apex courts dictum “….. Judicial process no doubt should not be an instrument of oppression, or, needless harassment…” and “…If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court..”
* The Honourable Judge also affirmatively quotes many relevant paragraphs from the Apex court’s judgement in Preeti Gupta Vs. State of Jharkhand and Arnesh Kumar Vs. State of Bihar
* The Hon. Judge quotes his own earlier judgement wherein he has observed “….26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing…..”

*****************************************
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (FOR QUASHING & SET ASIDE FIR/ORDER) NO. 15536 of 2015
**********************************************************
VISHALBHAI NIRANJANBHAI ADATIYA & 4….Applicant(s)
Versus
STATE OF GUJARAT & 1….Respondent(s)
**********************************************************
Appearance:
HARSHESH R KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
MR RC KAKKAD, ADVOCATE for the Applicant(s) No. 1 – 5
HCLS COMMITTEE, ADVOCATE for the Respondent(s) No. 2
MR NILESH I JANI, ADVOCATE for the Respondent(s) No. 2
PUBLIC PROSECUTOR for the Respondent(s) No. 1
**********************************************************

CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

Date : 09/12/2015

ORAL ORDER

1. By this application under Section 482 of the code of Criminal Procedure, 1973, the applicants-original accused seek to invoke the inherent powers of this Court praying for quashing of the First Information Report being C.R. No.II-194 of 2015 registered at Songadh Police Station, Tapi for the offence punishable under Sections 498A, 323, 506, 506(2) read with Section 114 of the Indian Penal Code.

2. The applicant No.2 is the mother-in-law, the appliciant No.3 is the brother-in-law, the applicant No.4 is sister-in-law and the applicant No.5 is the sister-in-law of the respondent No.2-original first informant.

3. The marriage of the first informant was solemnized on 13th April, 2006 with the applicant No.1. In the wedlock a daughter was born. It is the case of the first informant that soon after the marriage, the applicants herein started harassing her mentally as well as physically. On account of such harassment, she left the matrimonial home on 2nd September, 2010. Thereafter, on 13th April, 2015 she thought fit to lodge the First Information Report at the concerned Police Station.

4. Mr. Kakkad, the learned advocate appearing for the applicants would submit that even if the entire case of the first informant is accepted as true, none of the ingredients to constitute an offence of cruelty within the meaning of Section 498A of the Indian Penal Code are spelt out. He submitted that almost after a period of five years from the date the first informant left the matrimonial home, the FIR was lodged. He submitted that the allegations are quite general and vague in nature. He submitted that the FIR deserves to be quashed.

5. On the other hand, this application has been vehemently opposed by Mr. H.K. Patel, the learned APP appearing for the State of Gujarat. He submitted that the First Information Report although belated, yet prima facie discloses commission of a cognizable offence and the Police should be permitted to complete the investigation in accordance with law.

6. The respondent No.2 is being represented by Mr. Nilesh I. Jani, the learned advocate who has been appointed by the High Court Legal Services Authority. He is not present when the matter is called out and taken up for hearing.

7. Having heard the learned counsel appearing for the parties and having considered the allegations levelled in the FIR, the only question that falls for my consideration is whether the FIR should be quashed. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

8. As usual, on account of matrimonial disputes, the respondent No.2 has not only levelled allegations against the husband but all other members of the family of the in- laws including married sister-in-laws have been roped in. As stated above, it is not in dispute that she had left the matrimonial home on 2nd September, 2010. She lodged the FIR after a period of five years on 13th April, 2015. I had an occasion to deal with this type of issues at length in the case of Dipakbhai Ratilal Patel V. State of Gujarat, Criminal Misc. Application No.5819 of 2009, decided on 26th September, 2014. This Court observed as under:-

“16. It is now well settled that the power under Section 482 of the Code has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Code does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.

17. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Code. While exercising powers under Section 482 of the Code, the Court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

18. In R.P. Kapur v. State of Punjab (AIR 1960 SC 866) the apex Court summarized some categories of cases where inherent power can, and should be exercised to quash the proceedings.

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

19. The Supreme Court, in the case of State of A.P. Vs. Vangaveeti Nagaiah, reported in AIR 2009 SC 2646, interpreted clause (iii) referred to above, observing thus:

“6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp. (1) SCC 335].A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases.

The illustrative categories indicated by this Court are as follows:

“(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 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 F.I.R. 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 F.I.R. 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 private and personal grudge.

20. Bearing the aforesaid principles in mind, I need to consider whether the FIR deserves to be quashed so far as the applicants Nos. 2 to 6 are concerned. I have already set out the relations of the petitioners Nos. 2 to 6 with the petitioner No.1 i.e. the husband of the respondent No.2, the complainant.

21. A plain reading of the FIR and the charge-sheet papers reveal that the allegations levelled by the respondent No.2 are quite vague, general and sweeping, specifying no instances of criminal conduct. Although the respondent No.2 is much more annoyed with her husband, with an obvious motive, has arrayed all the close relatives of her husband in the FIR. The Police also seems to have recorded stereo-type statements of the witnesses who are none other than the parents and other relatives of the respondent No.2 and has filed a charge-sheet. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is nothing but abuse of process of the Court. The Court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out prima-facie whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge. To prevent abuse of process of the Court, and to save the innocent from false prosecutions at the hands of unscrupulous litigants, the criminal proceedings, even if they are at the stage of framing of the charge, if they appear to be frivolous and false, should be quashed at the threshold.

22. In Preeti Gupta Vs. State of Jharkhand, reported in 2010 Criminal Law Journal 4303(1), the Supreme Court observed the following:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from section 498-A of the Indian Penal Code which reads as under :

“498-A. 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 purposes 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.”

30. It is a matter of common experience that most of these complaints under section 498-A 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.

31.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 498-A 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 tranquillity of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

32. 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.

33. 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. 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.

34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law.It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon’ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.”

23. In the aforesaid context, it will also be profitable to quote a very recent pronouncement of the Supreme Court in the case of Arnesh Kumar Vs. State of Bihar, Criminal Appeal No. 1277 of 2014, decided on 2nd July, 2014. In the said case, the petitioner, apprehending arrest in a case under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act, 1961, prayed for anticipatory bail before the Supreme Court, having failed to obtain the same from the High Court. In that context, the observations made by the Supreme Court in paras 6, 7 and 8 are worth taking note of. They are reproduced below:-

“6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested. Crime in India 2012 Statistics published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

7. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the law makers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.PC. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.

8. Law Commissions, Police Commissions and this Court in a large number of judgments emphasized the need to maintain a balance between individual liberty and societal order while exercising the power of arrest. Police officers make arrest as they believe that they possess the power to do so. As the arrest curtails freedom, brings humiliation and casts scars forever, we feel differently. We believe that no arrest should be made only because the offence is non-bailable and cognizable and therefore, lawful for the police officers to do so. The existence of the power to arrest is one thing, the justification for the exercise of it is quite another. Apart from power to arrest, the police officers must be able to justify the reasons thereof. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent and wise for a police officer that no arrest is made without a reasonable satisfaction reached after some investigation as to the genuineness of the allegation. Despite this legal position, the Legislature did not find any improvement. Numbers of arrest have not decreased. Ultimately, the Parliament had to intervene and on the recommendation of the 177th Report of the Law Commission submitted in the year 2001, Section 41 of the Code of Criminal Procedure (for short Cr.PC), in the present form came to be enacted. It is interesting to note that such a recommendation was made by the Law Commission in its 152nd and 154th Report submitted as back in the year 1994. …. …..”

24. In the case of Geeta Mehrotra and anr. Vs. State of U.P. reported in AIR 2013, SC 181, the Supreme Court observed as under:-

“19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who 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.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 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:

there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, 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 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 reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the 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 this matter was that the courts would not encourage such disputes. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

21. In yet another case reported in AIR 2003 SC 1386 in the matter of B.S. Joshi & Ors. vs. State of Haryana & Anr. it was observed that there is no doubt that the object of introducing Chapter XXA containing Section 498A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498A was added with a view to punish the husband and his relatives who harass or torture the wife to coerce her relatives to satisfy unlawful demands of dowry. But if the proceedings are initiated by the wife under Section 498A against the husband and his relatives and subsequently she has settled her disputes with her husband and his relatives and the wife and husband agreed for mutual divorce, refusal to exercise inherent powers by the High Court would not be proper as it would prevent woman from settling earlier. Thus for the purpose of securing the ends of justice quashing of FIR becomes necessary, Section 320 Cr.P.C. would not be a bar to the exercise of power of quashing. It would however be a different matter depending upon the facts and circumstances of each case whether to exercise or not to exercise such a power.”

25. Thus, it could be seen from the above that the apex Court has noticed the tendency of the married women roping in all the relatives of her husband in such complaints only with a view to harass all of them, though they may not be even remotely involved in the offence alleged.

26. Once the FIR is lodged under Sections 498A/406/323 of the IPC and Sections 3 and 7 of the Dowry Prohibition Act, whether there are vague, unspecific or exaggerated allegations or there is no evidence of any physical or mental harm or injury inflicted upon woman that is likely to cause grave injury or danger to life, limb or health, it comes as an easy tool in the hands of Police and agencies like Crime Against Women Cell to hound them with the threat of arrest making them run helter skelter and force them to hide at their friends or relatives houses till they get anticipatory bail as the offence has been made cognizable and non-bailable. Thousands of such complaints and cases are pending and are being lodged day in and day out. There is a growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband and if one of them happens to be of higher status or of a vulnerable standing, he or she becomes an easy prey for better bargaining and blackmailing. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

27. Mr. Raval, the learned APP in his own way may be right in submitting that the Court, while exercising inherent power under Section 482 of the Code, should not embark upon an enquiry as regards the truthfulness of the allegations because, according to Mr. Raval, once there are allegations disclosing commission of a cognizable offence, then whether they are true or false, should be left for the trial Court to decide at the conclusion of the trial. According to Mr. Raval, at the best, the applicants Nos. 2 to 6 could plead in their defence the category No.7, as indicated by the Supreme Court in the case of State of Haryana (supra).

28. Since Mr. Raval has raised such issue, I must deal with it as it goes to the root of the matter. For the sake of convenience, category 7, as laid down by the Supreme Court in State of Haryana (supra) is reproduced hereinbelow:-

(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.”

29. I am of the view that the category 7 referred to above should be taken into consideration and applied in a case like the present one, a bit liberally. If the Court is convinced by the fact that the involvement by the complainant of all close relatives of the husband is with an oblique motive, then even if the FIR and the charge-sheet disclose commission of a cognizable offence on plain reading of the both, the Court, with a view to doing substantial justice, should read in between the lines the oblique motive of the complainant and take a pragmatic view of the matter. If the proposition of law as sought to be canvassed by Mr. Raval, the learned APP is applied mechanically to this type of cases, then in my opinion, the very inherent power conferred by the Code upon the High Court would be rendered otiose. I am saying so for the simple reason that if the wife, due to disputes with her husband, decides to not only harass her husband, but all other close relatives of the husband, then she would ensure that proper allegations are levelled against each and every such relative, although knowing fully well that they are in no way concerned with the matrimonial dispute between the husband and the wife. Many times the services of professionals are availed of and once the complaint is drafted by a legal mind, it would be very difficult thereafter to pick up any loopholes or other deficiencies in the same. However, that does not mean that the Court should shut its eyes and raise its hands in helplessness, saying that whether true or false, there are allegations in the first information report and the charge-sheet papers discloses the commission of a cognizable offence.

It is because of the growing tendency to involve innocent persons that the Supreme Court in the case of Pawan Kumar Vs. State of Haryana, AIR 1998 SC 958 has cautioned the Courts to act with circumspection. In the words of the Supreme Court

“often innocent persons are also trapped or brought in with ulterior motives and therefore this places an arduous duty on the Court to separate such individuals from the offenders. Hence, the Courts have to deal such cases with circumspection, sift through the evidence with caution, scrutinize the circumstances with utmost care.”

30. More importantly, the respondent No.2 has not explained as to why it took more than four years for her to register the FIR. Is it so because the husband initiated proceedings for divorce in the year 2006. My attention has been drawn by Mr. Patel, the learned Advocate appearing on behalf of the applicants to a notice dated 17th April, 2008, issued by the respondent No.2, through her advocate to the petitioner No.1, wherein there is not a whisper of any allegations against any of the relatives of the husband, which includes the applicants Nos. 2 to 6.

31. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatredness towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other’s fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why I am saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatredness for each other. There may be cases of genuine ill-treatment and harassment by the husband and his family members towards the wife. The degree of such ill-treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilized for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases where wife complains of harassment or ill-treatment, Section 498-A of the IPC cannot be applied mechanically. No F.I.R is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day today married life, may also not amount to cruelty.

32. Lord Denning, in Kaslefsky Vs. Kaslefsky (1950) 2 All ER 398 observed as under:-

“When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.”

When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health ……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not. The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must-be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.”

33. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page 206. It reads thus:-

“The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.”

9. Applying the ratio of the above referred judgment, I have no hesitation in coming to the conclusion that this petition deserves to be allowed. The First Information Report being C.R. No. II–194 of 2015 registered at Songadh Police Station, Tapi is hereby ordered to be quashed so far as the applicants Nos. 2, 3, 4 and 5 are concerned. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(J.B.PARDIWALA, J.)

Manoj

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

File 498a, 506 collect money & suddenly there is a VOLUNTARY compromise. “Voluntary” I say!. P&H HC

* modus operandi of VOLUNTARY compromises explained
* filing criminal cases on husband and in laws, threatening them with arrest etc NOT elaborated !!

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
*******************************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
*******************************************************************************

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
CRM-M-13878 of 2015
Date of Decision: August 21, 2015

*************************

Naveen ….Petitioner
Versus
State of Haryana and another …..Respondents

*************************

CORAM: HON’BLE MR.JUSTICE RAJAN GUPTA

*************************
Present: Mr. Sushil Bhardwaj, Advocate for the petitioner.
Mr.Vishal Kashyap, AAG, Haryana.
http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
*************************

Rajan Gupta, J (Oral)

Petitioner has filed this petition under Section 482 Cr.P.C seeking quashing of F.I.R No. 101 dated 5.4.2013 registered under Sections 498-A/506/323 IPC at Police Station, Bhawanikhera, District Bhiwani and all the subsequent proceedings arising therefrom on the basis of compromise.

Learned counsel for the parties submit that during the pendency of this petition a compromise has been arrived at between the parties and dispute has been amicably settled. Relying upon the judgment reported as Kulwinder Singh and others Vs. State of Punjab, 2007 (3) RCR (Crl.) 1052, learned counsel submit that in view of compromise, the impugned F.I.R deserves to be quashed.

Learned State counsel does not dispute the ratio of judgment in Kulwinder Singh’s case supra and submit that in case a compromise is arrived at between the parties the State shall not stand in the way of quashing of F.I.R.

Heard It appears that on 30.4.2015, a direction was issued by this court to record the statements of the parties with regard to validity or otherwise of the compromise. A report has been received from the trial court. Operative part thereof reads thus:-

“Consequently, both the parties i.e accused as well as the
complainant have appeared and accordingly, their separate statements
along with a joint statement on oath have been recorded, wherein,
complainant and accused namely, Sunita and Naveen have submitted that
a compromise has been effected with the accused. Complainant Sunita
has stated that she has received all alimony regarding her
maintenance and they both have filed a mutual divorce petition and
now she does not want any action against the accused and she has no
objection in cancellation of FIR Similarly the statement of mother of
complainant Ishwanti has also been recorded. Statement of accused
Naveen has also been recorded wherein he has stated that a compromise
has been effected and he has paid all alimony regarding maintenance
allowance of complainant Sunita and the compromise has been effected
out of their free will, consent and without any coercion or undue
influence. The aforesaid compromise effected between the parties is
for the welfare of both the parties and they have compromised the
matter with their own sweet will and without any pressure or
influence and thus they have no objection if the FIR is quashed.

In view of aforesaid circumstances a compromise has been voluntarily
effected between the parties to my belief and the aforesaid
compromise is genuine and outcome of free consent of both the parties.”

The compromise is in the interest of the parties and after the matter has been resolved by an amicable settlement, no useful purpose is likely to be served by continuance of the criminal proceedings. In view of above, the present FIR and the consequent proceedings arising therefrom deserve to be quashed in light of Full Bench judgment of this court in Kulwinder Singh’s case supra. http://evinayak.tumblr.com https://vinayak.wordpress.com http://fromvinayak.blogspot.com

Resultantly, the present petition is allowed. The F.I.R in question and the subsequent proceedings arising therefrom are quashed.

(Rajan Gupta) Judge

August 21, 2015

BB

Vexatious &malicious FIR on inlaws, to wreak vengeance. Disowned love mariage DIL files false 498a 406 on family

  • One of the sons marry a girl outside the caste without consent of the family “…….. inter-caste love marriage of Manoj Kumar Saini, younger brother of petitioner Sanjiv Kumar, was solemnized with complainant-Anju Saini, respondent No.2 (for brevity “the complainant”) on 06.07.2002 in Arya Samaj Mandir at Hisar, without the consent of family members…”
  • The Dad is furious about this intercaste marriage and “… When the father of Manoj Kumar Saini came to know that he is going to perform love marriage with the complainant, then he disowned him(Manoj Kumar) and got published the following public …”
  • The Dad is so shocked that “... he actually suffered serious ailments and ultimately, died due to the attitude of his son Manoj Kumar Saini…”
  • So the marriage completely cuts off this son, and they start living separately from the family !!
  • Living away from the family does NOT save the parents from false cases !! Six years later, the wife (yea..the same love marriage wife) files a 409a, 406 case “….six years after solemnization of marriage, the complainant lodged a complaint against petitioner- Sanjiv Kumar, brother-in-law(Jeth), his wife Suman, sister-in-law(Jethani) and Rani, mother-in-law, inter alia, with the allegations that they started pressurizing her, to bring more money from her parents. They did not give any share out of property and demanded Rs.2-3 lacs…”
  • And the Honourable court concludes “….if the crux of the allegations levelled against the petitioner, as discussed hereinabove, is put together and is perused, then, to my mind, no pointed offences are made out against the petitioner and the complainant has vexatiously and maliciously filed the FIR(Annexure P-5) against him, in order to wreak vengeance. In case, the complainant is permitted to prosecute her brother-in-law(Jeth), who is residing separately, then it will inculcate and perpetuate great injustice to him. In this manner, the complainant appears to have falsely involved the petitioner in the present case…”

Such is the fate of Marriages in India

**********************************************************************

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Misc.No.M-28371 of 2008
Date of Decision:21.05.2012
Sanjiv Kumar                                                          ……Petitioner
Versus
State of Haryana and another                                       …..Respondents

CORAM:         HON’BLE MR. JUSTICE MEHINDER SINGH SULLAR.

Present:
Mr.Pritam Saini, Advocate, for the petitioner.
Mr.Kartar Singh, Deputy Advocate General, Haryana, for respondent No.1-State.
Mr.Rakesh Nehra, Advocate, for respondent No.2.
********************

MEHINDER SINGH SULLAR, J.(oral)

Tersely, the facts and material, culminating in the commencement, relevant for disposal of the instant petition and emanating from the record are that, inter-caste love marriage of Manoj Kumar Saini, younger brother of petitioner Sanjiv Kumar, was solemnized with complainant-Anju Saini, respondent No.2 (for brevity “the complainant”) on 06.07.2002 in Arya Samaj Mandir at Hisar, without the consent of family members. When the father of Manoj Kumar Saini came to know that he is going to perform love marriage with the complainant, then he disowned him(Manoj Kumar) and got published the following public notice on 11.06.2002:-

       “I declare that my son, Manoj Saini, who is out of my control
       has no relation with me. I have disowned him from my movable and
       immovable property. Anyone having any type of dealing with him
       shall himself be responsible.”

2. As soon as, he came to know about the inter-caste marriage, in the meantime, he actually suffered serious ailments and ultimately, died due to the attitude of his son Manoj Kumar Saini. On 20.04.2008, i.e. six years after solemnization of marriage, the complainant lodged a complaint against petitioner- Sanjiv Kumar, brother-in-law(Jeth), his wife Suman, sister-in-law(Jethani) and Rani, mother-in-law, inter alia, with the allegations that they started pressurizing her, to bring more money from her parents. They did not give any share out of property and demanded Rs.2-3 lacs. According to the complainant that, she left her matrimonial home due to fear and started residing with her younger sister. She apprehended danger to her life, as she was unable to fulfill their demand of dowry. In the background of these allegations, a criminal case was registered against the petitioner and his other co-accused, by way of FIR No.258 dated 20.04.2008 (Annexure P-5), on accusation of having committed the offence punishable under Sections 498-A, 406 and 506/34 IPC, by the police of Police Station City, Rohtak.

3. Although, during the course of investigation, Rani(mother-in-law) and Suman, sister-in-law(Jethani) of the complainant, were found innocent, however, the police submitted the challan/final police report in the court against the petitioner in terms of Section 173 Cr.P.C., to face the trial for the commission of pointed offences.

4. The petitioner-accused did not feel satisfied with the initiation of the criminal prosecution against him and preferred the present petition, to quash the impugned FIR(Annexure P-5), invoking the provisions of Section 482 Cr.P.C.

5. The case set-up by the petitioner, in brief, insofar as relevant, is that the complainant performed inter-caste love marriage with Manoj Kumar Saini against the wishes of his father, who had disowned him. They were residing separately. Ultimately, his father died due to shock. After his death, the complainant and her husband started misbehaving with his family members. Manoj Kumar Saini tried to forcibly enter into the house with the help of miscreants, then the mother of the petitioner submitted an application to the police as well as to the higher authorities. It was alleged that the petitioner, who was a practicing Lawyer, had shifted from Rohtak and practiced from September 2001 to January 2004 at Chandigarh. After the death of his father, he has again shifted to Rohtak. His younger brother Manoj Kumar Saini and his wife(complainant) started harassing his family members. They wanted to forcibly occupy the house and illegally demanded share in the property. When the mother of the petitioner refused to give him the property, then Manoj Kumar Saini with the connivance of his wife(complainant), managed to lodge the FIR(Annexure P-5) against the petitioner, in order to take the revenge. It has been specifically pleaded in para 15 of the petition as under:-

“That from facts and circumstances narrated above, it is clear that registration of FIR against the petitioner is clear cut misuse of the provisions of Section 498-A/406 IPC. From the facts narrated above, it is clear that the complainant and Manoj Kumar had solemnized the love marriage without consent of the family of the petitioner. The petitioner actually being an elder brother of Manoj Kumar has been involved in the present case. Otherwise, question of harassment and raising a demand of dowry does not arise. The fact of the matter is that not only the petitioner but the entire family of the petitioner is being harassed by Manoj Kumar and the complainant with active connivance. When both the husband and wife failed to achieve the target to get share in the property, now they in concert with each other i.e. husband and wife, got registered the FIR and complaint under provisions of the Domestic Violence Act, 2005 so that the petitioner, his mother and sister get involved in the litigation and, ultimately, would agree to share the property with them. Thus, on this score alone, the FIR registered against the petitioner is totally baseless and the allegations levelled in the FIR cannot be taken against the petitioner at all.”

6. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the petitioner claimed that he has been falsely implicated, in order to take revenge and wreak vengeance by the complainant with the connivance of his younger brother Manoj Kumar Saini, with the intention to illegally get share in the property. On the strength of aforesaid grounds, the petitioner sought to quash the impugned FIR(Annexure P-5), in the manner depicted hereinabove.

7. The respondents refuted the prayer of the petitioner and filed their respective replies, inter alia, pleading certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioner. Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that, that the respondents have reiterated the allegations contained in the impugned FIR(Annexure P-5). However, it will not be out of place to mention here that they have stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how, I am seized of the matter.

8. After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, the instant petition deserves to be accepted in this context.

9. As is evident from the record that, the inter-caste love marriage of the complainant was solemnized with Manoj Kumar Saini on 06.07.2002, whereas the present FIR was lodged against the petitioner, his wife and mother on 20.04.2008(i.e., after a period of six years). During the course of investigation, the story of the complainant was disbelieved qua wife and mother of the petitioner and they were found innocent. Only petitioner, brother-in-law(Jeth) of the complainant was charged for the commission of the indicated offences.

10. Not only that, copy of the Ration Card(Annexure P-1) would go to show that complainant-Anju Saini was residing separately with her husband Manoj Kumar Saini and daugher Manvi. Manoj Kumar Saini was disowned by his father. Manoj Kumar and the complainant broke open the lock of the house and his mother Rani reported the matter to the police, to take action against them, vide complaint dated 15.07.2006(Annexure P-2). She moved another complaint dated 16.08.2007(Annexure P-3) to the SHO, Police Station City, Rohtak. The incident of trespassing by the complainant and her husband was published by virtue of publication(Annexure P-4).

11. This is not the end of the matter. Again, the complainant has also filed another separate complaint(Annexure P-6) against the accused under Sections 12, 17 to 20 and 22 of the Protection of Women from Domestic Violence Act, 2005 and Section 498-A IPC, to which, the petitioner filed the reply(Annexure P-7). The proceedings(Annexure P-8) were also initiated under Sections 107/151 Cr.P.C. between the parties. Manoj Kumar Saini, husband of the complainant, lodged another FIR No.680 dated 18.09.2009(Annexure P-9) under Sections 323, 324 and 34 IPC against the petitioner, his wife and two other unknown persons. In other words, it stands proved on record that the complainant and her husband were residing separately from the family of the petitioner, which falsifies the claim of the complainant contained in the FIR(Annexure P-5), wherein she stated that her mother-in-law started pressurizing her for bringing money. They tried to illegally trespass the house of his mother Rani and she reported the matter to the police. There is a long line of complaints between the parties.

12. The only allegations alleged against the petitioner, his wife and mother, were that they started pressurizing her for bringing more money. The wife and mother of the petitioner were found innocent by the police during the course of investigation. That means, the story of the complainant relatable to them has already been disbelieved even by the investigating agency. Once it is proved that the complainant and her husband were residing separately, whereas the petitioner was residing separately, in that eventuality, how, when, where, in what manner and in whose presence, the dowry articles were entrusted to him at the time of inter- caste love marriage or the petitioner has treated her(complainant) with cruelty and in what manner, he is remotely connected with the commission of the indicated offences, remains an unfolded mystery. The complainant with the connivance of her husband appears to have maliciously and vexatiously involved the petitioner in this case, in order to wreak vengeance and to take the revenge, after the expiry of period of six years from solemnization of their marriage.

13. Moreover, as indicated here-in-above, very very vague allegations are assigned to the petitioner in the FIR. The only allegations assigned to the present petitioner are that, he asked that they cannot bear their expenses and will not give anything out of their property, bring Rs.2-3 lacs from your mother, otherwise they will burn her alive. Thereafter due to fear, she left her matrimonial home. The allegations are as vague as anything and no specific role or overt-act is attributed to the petitioner. Above all, it is highly impossible to believe that the petitioner(who is brother-in-law(Jeth) of the complainant) would treat her with cruelty in connection with and on account of demand of dowry.

14. It is now well settled principle of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioner to indicate that the dowry articles were actually entrusted to him and he misappropriated the same. The in-laws and other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases, where such accusation is made, the overt acts attributed to such persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences relating to the demand of dowry, which are totally lacking in the present case. As the Bench mark, all the essential ingredients to constitute the offences and element of the complicity of petitioner, are totally missing, therefore, to me, no criminal prosecution can legally be permitted to continue against him, in view of the law laid down by the Hon’ble Supreme Court in cases Ramesh and others Versus State of Tamil Nadu, 2005 (2) R.C.R.(Criminal) 68, Sushil Kumar Sharma Versus Union of India and others, 2005(3) R.C.R.(Criminal) 745 and Kans Raj Versus State of Punjab and others, 2000(2) R.C.R.(Criminal) 695.

15. An identical question came to be decided by the Hon’ble Apex Court in case Preeti Gupta & Another v. State of Jharkhand & Another 2010(7) SCC 667. Having interpreted the provisions of Section 498-A IPC, it was ruled as under (paras 30 to 36) :-

“30. It is a matter of common experience that most of these
complaints under section 498-A 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.

31. 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 498-A 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.

32. 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.

33. 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. 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.

34. Before parting with this case, we would like to observe
that a serious relook of the entire provision is warranted by
the legislation. It is also a matter of common knowledge that
exaggerated versions of the incident are reflected in a large
number of complaints. The tendency of over implication is also
reflected in a very large number of cases.

35. The criminal trials lead to immense sufferings for all
concerned. Even ultimate acquittal in the trial may also not be
able to wipe out the deep scars of suffering of ignominy.
Unfortunately a large number of these complaints have not only
flooded the courts but also have led to enormous social unrest
affecting peace, harmony and happiness of the society. It is
high time that the legislature must take into consideration the
pragmatic realities and make suitable changes in the existing
law. It is imperative for the legislature to take into
consideration the informed public opinion and the pragmatic
realities in consideration and make necessary changes in the
relevant provisions of law. We direct the Registry to send a
copy of this judgment to the Law Commission and to the Union Law
Secretary, Government of India who may place it before the
Hon’ble Minister for Law & Justice to take appropriate steps in
the larger interest of the society.

36. 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. As a result, the impugned judgment of the High
Court is set aside. Consequently, this appeal is allowed.”

16. Again, this Court has also considered this aspect of the matter in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of Section 498-A IPC.”

17. In this manner, the argument of the learned counsel that the petitioner has been falsely implicated by the complainant and her husband in this case, has considerable force and the contrary contentions on behalf of learned counsel for the complainant-respondent pale into insignificance, “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances. The ratio of law laid down in the aforesaid judgments “mutatis mutandis” is fully attracted to the facts of the present case and is the complete answer to the problem in hand.

18. Therefore, if the crux of the allegations levelled against the petitioner, as discussed hereinabove, is put together and is perused, then, to my mind, no pointed offences are made out against the petitioner and the complainant has vexatiously and maliciously filed the FIR(Annexure P-5) against him, in order to wreak vengeance. In case, the complainant is permitted to prosecute her brother-in-law(Jeth), who is residing separately, then it will inculcate and perpetuate great injustice to him. In this manner, the complainant appears to have falsely involved the petitioner in the present case. Therefore, to me, the impugned FIR(Annexure P-5) and all other subsequent proceedings arising therefrom, deserve to be quashed in the obtaining circumstances of the case.

19. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.

20. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR(Annexure P-5) and all other subsequent proceedings arising therefrom, are hereby quashed. The petitioner is accordingly, discharged from the indicated criminal case registered against him.

May 21, 2012                                         (MEHINDER SINGH SULLAR)

seema                                                       JUDGE

*****************************disclaimer**********************************
This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.
******************************************************************
CASE FROM JUDIS / INDIAN KANOON WEB SITE
******************************************************************

Reckless Malafide FIR falsely implicating inlaws vexatiously& maliciously to blackmail &grab property

Classic case on FIR quash

Ablaa wife files FIR on In laws including brother – in law (Devar), but NO FIR on her own HUSBAND. She hides facts. The honourable High court concludes that “...if the crux of the allegations leveled against the petitioners as discussed herein-above, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others…”

The Hnourable court also states “…. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction….”

**********************************************

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

CRM No.M-18643 of 2008

Date of Decision:- 21.2.2012

Smt.Sunita Goyal & Ors.                                           …Petitioners

                                   Vs.

State of Punjab & Anr.                                            …Respondents

CORAM:       HON’BLE MR.JUSTICE MEHINDER SINGH SULLAR

Present:-        Mr.Akshay Bhan, Advocate for the petitioners.
Mr.Palwinder Singh, Senior DAG Punjab for respondent No.1.
Mr.Ashok Singla, Advocate for Mr.Ravish Bansal, Advocate for respondent No.2.

Mehinder Singh Sullar, J. (Oral)

Petitioners Smt.Sunita Goyal, Vijay Goyal, unfortunate parents-in- law and Abhishek Goyal, brother-in-law (Devar) of complainant Soni Goyal, wife of Mahavir Goyal respondent No.2 (for brevity “the complainant”), have directed the instant petition for quashing the impugned FIR, bearing No.246 dated 15.9.2007 (Annexure P5), registered against them, on accusation of having committed the offences punishable under Sections 406, 498-A, 323, 506 and 120- B IPC by the police of Police Station Division No.5, Ludhiana.

2. Concisely, the facts and material, which need a necessary mention, relevant for the limited purpose of deciding the core controversy, involved in the present petition and emanating from the record, are that the marriage of the complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery, weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. It was claimed that although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She and her husband also apprehend danger to their lives at the hands of the petitioners. On 30.8.2007 at 8 A.M., they were stated to have given severe and merciless beatings to the complainant and her husband Mahavir Goyal. The matter was reported to the police, where DDR No.12 dated 31.8.2007 was entered, but no action was taken by the police against them.

3. Levelling a variety of allegations and narrating the sequence of events, in all, the complainant claimed that the petitioners have harassed, treated her with cruelty in connection with and on account of demand of dowry and gave severe beatings to her as well as to her husband on 30.8.2007. In the background of these allegations and in the wake of complaint of the complainant, the present case was registered against the petitioners-accused, by virtue of FIR (Annexure P5) in the manner indicated hereinabove.

4. The petitioners did not feel satisfied with the initiation of criminal prosecution against them and preferred the instant petition, for quashing the FIR (Annexure P5) and all other subsequent proceedings arising therefrom, invoking the provisions of Section 482 Cr.PC inter-alia on the grounds (i) that the impugned FIR (Annexure P5) has been registered ostensibly on the complaint of Soni Goyal in furtherance to the oblique motive of aforesaid Mahavir Goyal, Soni Goyal and Chuhar Lal Garg by misusing the provisions of Sections 406 and 498-A of I.P.C. The impugned FIR was got registered as a counter-blast and in retaliation to the aforesaid complaint dated 30.08.2007 (Annexure P1) lodged by petitioner no.2 with P.S. Division No.5, Ludhiana under Section 384 read with section 120-B of I.P.C. against Mahavir Goyal, Soni Goyal and Chuhar Lal Goyal and also as a counter-blast to the disassociation and de-linking of Mahavir Goyal by petitioner no.2 from their property and the filing of the civil suit (Annexure P4) by petitioner no.1 against Mahavir Goyal and Soni Goyal; (ii) the criminal case was lodged by the complainant with the sole intention to pressurize and blackmail them to transfer their property in the name of her husband Mahavir Goyal; (iii) the allegations in the FIR are absolutely concocted, false, frivolous and evince the element of malafide, after thought and maliciously & vexatiously registered against the petitioners in order to wreak vengeance and the incident of 30.8.2007 and story of payment of Rs.2,50,000/- were concocted by the complainant party; (iv) the complainant has concealed the fact that the Zen car has already been transferred in the name of Soni Goyal (complainant) on 22.4.2008, as per the transfer report/documents (Annexure P9 colly); (v) the dowry articles given at the time of marriage have already been given to the complainant, vide letter (Annexure P10). She did not make any grievance against the petitioners during five years after her marriage. As soon as, petitioner No.2 refused to part and disowned the husband of the complainant from his property, then she filed the false criminal case against them in order to take the revenge and no offence whatsoever is made out against the petitioners. On the strength of aforesaid grounds, the petitioners sought to quash the criminal prosecution against them, as depicted hereinbefore.

5. The complainant-respondent No.2 did not file any reply to deny the specific personal allegations contained in the petition. However, the DSP Crime filed the reply on behalf of State of Punjab (respondent No.1), taking certain preliminary objections of, maintainability of the petition, cause of action and locus standi of the petitioners. According to the prosecution that as per the inquiry report (Annexure R1/T) and during the course of investigation, both the parties were called and the complainant’s father-in-law agreed to give the share of Rs.25 lacs from his property to Mahavir Goyal, husband of the complainant, out of which, Rs.10 lacs were already taken by him (husband) and the remaining amount was to be paid subsequently. Consequently, the complainant and her husband agreed to shift to residential HIG Flat No.11-FF, opposite Khalsa College, Ludhiana, as per report (Annexure P13). Instead of reproducing the entire contents of the reply and in order to avoid the repetition, suffice it to say that the State of Punjab has reiterated the allegations contained in the impugned FIR (Annexure P5). However, it will not be out of place to mention here that it has stoutly denied all other allegations contained in the main petition and prayed for its dismissal. That is how I am seized of the matter.

6. Having heard the learned counsel for the parties, having gone through the record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, the instant petition deserves to be accepted in this context. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

7. Ex facie, the celebrated argument of learned counsel that since there are direct allegations of cruelty, maltreatment and harassment to the complainant by the petitioners, so, no ground for quashing the criminal prosecution against them is made out, is neither tenable nor the observations of Hon’ble Supreme Court in case Central Bureau of Investigation v. K.M.Sharan 2008(4) S.C.C. 471, are at all applicable to the facts of the present case, wherein a criminal case was registered against the then Vice Chairman of the Delhi Development Authority and other senior officials for entering into conspiracy with Dharmbir Khattar and others to give undue favour to M/s DLF Universal Limited, New Delhi in the matter of allowing 300 Floor Area Ratio (FRA) in respect of one of the projects of DLF Universal by charging rates much below the prevailing rates and obtained or agreed to obtain illegal gratification from M/s DLF as quid pro quo. The total bribe amount was 1.10 crores. During the course of investigation and subsequent search conducted at the residence of son of one of the accused A.M.Sharan, who was at that time, Commissioner (Land Disposal, DDA), certain papers/documents relating to assets acquired/expenses incurred by him and his family members besides the cash amount of Rs.36 lacs were recovered and seized by the CBI. The CBI collected sufficient oral as well as documentary evidence constituting the grave offences. On the peculiar facts and in the special circumstances of that case, it was observed that “where there are direct allegations and evidence to support the criminal offence, the High Court was not justified in quashing the FIR/charge sheet while exercising its extraordinary jurisdiction under Section 482 Cr.PC.”

8. Possibly, no one can dispute with regard to the aforesaid observations, but to me, the same would not come to the rescue of the complainant in the present controversy, particularly when the Hon’ble Apex Court in cases Dhariwal Tobaco Products Limited and others v. State of Maharashtra and another, 2009(2) SCC 370; M/s Pepsi Foods Limited v. Special Judicial Magistrate 1998(5) SCC 749; Ashok Chaturvedi v. Shitul H.Chanchani 1998(7) SCC 698 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006)7 SCC 188 has ruled that “whenever the High Court comes to the conclusion that allowing the criminal prosecution to continue would be an abuse of the process of court and that, the ends of justice require that the proceedings should be quashed, it would not hesitate to do so, in exercise of inherent powers irrespective of other factors.”

9. Such thus being the legal position and material on record, now the short and significant question, though important that, arises for determination in this petition is, as to whether the criminal prosecution initiated against the petitioners deserves to be quashed or not under the present set of circumstances?

10. Having regard to the rival contentions of learned counsel for the parties, to my mind, the answer must obviously be in the affirmative and the criminal prosecution cannot be permitted to continue in this respect.

11. As is evident from the record, that the marriage of complainant was solemnized with Mahavir Goyal (husband non-accused) in the month of September, 2002, according to Hindu rites and ceremonies at Sangrur. The father of the complainant was stated to have given a Maruti Zen Car, jewellery,weighing 80 Tolas, cash and dowry beyond his capacity at the time of her marriage, but her in-laws were not satisfied with the (given) dowry articles. They started harassing, maltreating her and demanded more dowry articles. Although the cash amount of Rs.2,50,000/- was given, but her in-laws kept on harassing her. She is working as a teacher in National College, Dakhan. Petitioner Nos.1 and 2 are her parents-in-law, whereas petitioner No.3 is her brother-in-law (Devar). She has not intentionally arrayed her husband Mahavir Goyal in a dowry related case in the array of the accused. According to the petitioners that on 30.8.2007, Mahavir Goyal and his wife (complainant) created nuisance in the house, broke the crockery & centre table and threatened the petitioners that in case the half share of the property and the money were not given to them, they would falsely implicate them in some false criminal case. Petitioner No.2 objected to it, then his son Mahavir Goyal, husband of the complainant, slapped him (his father petitioner No.2). The matter was reported to the police by petitioner No.2, through the medium of complaint of same date (Annexure P1). So much so, he disowned his son Mahavir Goyal from his whole movable and immovable properties and published the notice dated 1.9.2007 (Annexure P2) in Hindustan Times, Chandigarh in this connection. At the same time, in order to avoid the possibility of false implication, Sunita Goyal (petitioner No.1) wrote a UPC letter dated 3.9.2007 (Annexure P3 colly), asking her daughter-in-law (complainant) to take all the dowry articles and her other belongings. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

12. Not only that, petitioner No.1 filed a civil suit for a decree of permanent injunction restraining the complainant and her husband Mahavir Goyal from interfering in the peaceful possession of their residential house, by way of plaint (Annexure P4 colly). Admittedly, in civil suit, bearing No.206 dated 13.9.2007 filed by petitioner No.1, counsel for the complainant and her husband (defendants therein) suffered a separate statement that they shall not interfere in the possession of the plaintiff in the suit property and they have no objection in case her (petitioner No.1) suit is decreed to that extent. In this manner, on the basis of statements of the parties, the suit of petitioner No.1 was decreed and the complainant and her husband were restrained from interfering in her possession over the suit property, vide order dated 28.7.2010 (copy taken on record as Annexure P14).

13. It is not a matter of dispute that neither the complainant nor her husband made any complaint, raising any accusing finger towards the petitioners at any point of time before lodging the FIR (Annexure P5) nor made any such averment/statement during the course of pendency of the civil suit between them. Therefore, the arguments of learned counsel that the petitioners have been falsely implicated to pressurize and blackmail them to transfer the property and the complainant has lodged the false criminal case against them (intentionally excluding her husband in dowry related matter) vexatiously and maliciously in order to wreak vengeance, have considerable force.

14. The matter did not rest there. Even as per the FIR (Annexure P5), the father of the complainant gave a Maruti Zen Car and gold jewellery, weighing 80 Tolas besides cash. It was also alleged that the petitioners demanded more dowry articles and her father gave Rs.2,50,000/- in cash to them. That means, very very vague allegations of demand of dowry and payment of indicated amount are assigned to the petitioners. Above-all, the mere fact that the complainant did not name her husband as accused that the dowry articles were entrusted to him at the time of marriage or he has also demanded the more dowry articles, is indicative of the fact that she colluded with her husband and lodged a false complaint, on the basis of which, the FIR (Annexure P5) was registered against the petitioners without any material/evidence muchless cogent in this behalf.

15. Moreover, the indicated Zen car has already been transferred in the name of complainant, by means of transfer of ownership report/documents (Annexure P9 colly). The petitioners have specifically mentioned in their petition that whatever dowry articles were given at the time of marriage of complainant, have already been given to her, vide Annexure P10 (colly). That is the only reason that the complainant intentionally did not file any reply to controvert all these vital personal aspects of the matter contained in the main petition, for the reasons best known to her. In this manner, no overt act or specific role, except one minor incident of 30.8.2007, which appear to have been concocted after the complaint (Annexure P1) of petitioner No.2 and notice (Annexure P2), are attributed to the petitioners. It is very highly impossible to believe that the petitioners would treat the complainant with cruelty or demand the dowry articles from her in the absence of her husband. She appears to have intentionally colluded with her husband in order to grab the property in this regard as discussed hereinabove.

16. It is now well settled proposition of law that, in order to attract the penal provisions of the offences punishable under Sections 406 and 498-A IPC, there must be specific allegations/overt acts and prima facie material against the petitioners to indicate that the dowry articles were actually entrusted to them and they have misappropriated the same or they further demanded any dowry articles and evidence in support thereof. All other relatives of the husband cannot, in all cases, be held to be involved in the demand of dowry, especially when in this case, the husband of the complainant is not an accused. In cases, where such accusation is made, the overt acts attributed to persons, other than husband, are required to be prima facie established. By mere conjectures and implications, such relations cannot be held to be involved for the offences related to demand of dowry. As all the essential ingredients to constitute the offences and complicity of petitioners are totally lacking, therefore, to me, no criminal prosecution can legally be permitted to continue against them.

17. As strange as it may appear, but strictly speaking, the tendency and frequency of the wives of involving and roping in all the relations of her in-laws in the matter of demand of dowry have been tremendously increasing day by day, which is adversely affecting social fabric of the society and leaving the Courts in lurch to decide such criminal prosecution. This tendency needs to be curbed and if not discouraged, it is likely to affect and weaken the case of the prosecution even against the real culprits in future in this relevant direction.

18. An identical question came to be decided by this Court in cases Harjinder Kaur and others v. State of Punjab 2004(4) RCR(Criminal) 332; Labh Singh and others v. State of Haryana 2006(2) RCR (Criminal) 296; Rakesh Kumar and others v. State of Punjab and others 2009(2) RCR (Criminal) 565; Mohinder Kaur & Others v. State of Punjab & Another 2010 (2) RCR(Criminal) 597, Paramjit Kaur v. State of Punjab 2011(5) RCR (Criminal) 686 and the judgment dated 17.1.2012 rendered in case Ritu Khurana and another v. Brij Lal Chopra CRM No.M-8227 of 2010; wherein it was held that “the allegations against the relatives of the husband were vague and there is growing tendency to come out with inflated and exaggerated allegations roping in each and every relation of the husband, things have now taken a reverse trend and the women are abusing beneficial provisions of section 498-A IPC.”

19. Sequelly, if the crux of the allegations levelled against the petitioners as discussed hereinabove, is clubbed together and is perused, then, to my mind, the conclusion is irresistible that the complainant has falsely implicated the petitioners vexatiously and maliciously, to put pressure and to blackmail them, to grab the property, in order to wreak vengeance and the criminal proceeding is manifestly attended with mala fide against them. Such reckless/malafide FIR deserves to be quashed, in view of law laid down by Hon’ble Supreme Court in case State of Haryana and others v. Ch.Bhajan Lal and others, AIR 1992 Supreme Court 604, which was again reiterated in case Som Mittal v. Government of Karnataka 2008 (2) R.C.R.(Criminal) 92. Such malafide prosecution if allowed to continue, it will inculcate and perpetuate injustice to the petitioners and is nothing else, but sheer and deep misuse/abuse of process of criminal law in this relevant connection, which is not legally permissible. Therefore, the contrary submissions of learned counsel for complainant “stricto sensu” deserve to be and are hereby repelled under the present set of circumstances, as the indicated Bench mark and the ratio of law laid down in the aforesaid judgments “mutatis mutandis” are applicable to the facts of this case and are the complete answer to the problem in hand. Thus, seen from any angle, to my mind, no offences whatsoever are made out against the petitioners, in the obtaining circumstances of the case.

20. No other legal point, worth consideration, has either been urged or pressed by the counsel for the parties.

21. In the light of aforesaid reasons, the instant petition is accepted. Consequently, the impugned FIR (Annexure P5) and all other subsequent proceedings arising therefrom are hereby quashed and the petitioners are discharged from the indicated criminal case registered against them.

(Mehinder Singh Sullar) Judge

21.2.2012

AS