C482/99/2008 of RAMESH KUMAR and OTHERS Vs STATE and ANR.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 99 of 2008

Ramesh Kumar and others

…………. Applicants

versus

State of Uttarakhand and another …………. Respondents

Mr. Sandeep Tandon, Advocate alongwith Ms. Deepa Arya, Advocate for the applicants. Ms. Mamta Bisht, AGA for the respondent State. Mr. R.K.S. Verma, Advocate for respondent no. 2.

Hon’ble U.C. Dhyani, J. (oral)

The applicants, by means of present application / petition under Section 482 of Cr.P.C., seek to set aside the impugned order dated 07.07.2007, passed by Special Judicial Magistrate II, Dehradun, in complaint case no. 2678 of 2007, captioned as Smt. Deepa vs Banti and others, under Sections 498A, 323, 354 of IPC and under Section ¾ of Dowry Prohibition Act, whereby the learned Magistrate took cognizance of the offence against the applicants and issued summons directing them to appear before the Court to face the trial. The applicants also seek to quash the entire proceedings of complaint case no. 2678 of 2007, pending in the court of Special Judicial Magistrate II, Dehradun, in this behalf.

2) Complainant / respondent no. 2 filed criminalcomplaintcase against Banti, Ramesh Kumar and Raj Kumari (applicants) and three others in the court of Special Judicial Magistrate II, Dehradun, complaining of offences punishable under Sections 498A, 323, 354, 506 of IPC and under Section ¾ of Dowry Prohibition Act against them

(accused persons). After the statement of Smt. Deepa under Section 200 of Cr.P.C. and statements of PW1 Smt. Kanta Devi, PW2 Sukh Lal and PW3 Bindra under Section 202 of Cr.P.C. were recorded, the accused persons were summoned to face the trial. Learned Magistrate having found prima facie case against the accused persons summoned them to face the trial for the selfsame offences. Aggrieved against the said order dated 07.07.2007, present application under Section 482 of Cr.P.C. was filed.

3) Respondent No. 2, in her complaint, stated that she was married to applicant no. 3 Banti on 20.02.2006 according to Hindu religion and rites in Muzaffarnagar. Though the parents of respondent no. 2 gave dowry in the marriage but her husband and family members of the husband were not satisfied with the dowry and therefore, they started harassing respondent no. 2 for bringing insufficient dowry. Banti (husband) took his wife Deepa alongwith him at the residence of applicant no. 1 Ramesh Kumar, jija (brother-in-law). Banti was supplying medicines in Ghaziabad. Deepa’s mother came to visit her during Holi festival and took her to the parental home at Dehradun. On 17.03.2006, Banti came to Dehradun and lived with Deepa. Banti demanded sum of Rs. 50,000/- from the mother of Deepa, which she fulfilled. In other wards, Deepa’s mother paid Rs. 50,000/- to Banti. Banti took Deepa alongwith him on 19.03.2006. It appeared that everything was going on well for sometime. Once Deepa was alone in her house, Ramesh Kumar accused no. 2 / applicant no. 1 entered into her house. Ramesh Kumar (RajKumari’s husband and brother-in-law of Banti) outraged the modesty of Smt. Deepa. When Deepa protested, then only she got herself released from the clutches of Ramesh Kumar. Ramesh Kumar said that he had given Rs. 2,00,000/- to Banti and the same is to be realized from him. Banti, Ramesh Kumar and Raj Kumari told Smt. Deepa to provide them Rs. 2,00,000/-. When Deepa refused to do so, Banti slapped Deepa on her face and pressed her neck. Raj Kumari twisted her arm and threatened her with dire consequences, if she uttered single word. On 14.04.2006, Banti sent Deepa to Dehradun and since then, she was residing with her parents. On 12.05.2007, at 07:00 P.M., Banti, Ramesh Kumar, Raj Kumari, Janki, Ghasita Ram and Ram Avtar came to the parental house of Deepa and demanded Rs. 2,00,000/-. They asked the parents of Deepa to fulfill their demand or else they will take Deepak forcibly. Thereafter, they started assaulting the parents of Deepa. Sukhlal and Bindra, the people residing in the locality invertened. Thereafter, Banti, Ramesh Kumar, Raj Kumari, Ghasita Ram and Ram Avtar fled away.

4) Learned counsel for the applicants submitted that applicant no. 1 Ramesh Kumar is the nandoi (brother-in-law), applicant no. 2 Raj Kumari is the nanad (sister-in-law) and applicant no. 3 Banti is the husband of respondent no. 2. The marriage of respondent no. 2 was solemnized with applicant no. 3 on 20.02.2006. Applicant No. 3 and respondent no. 2 started living separately since 06.04.2006. This fact was admitted in the complaint of respondent no. 2. Learned counsel also contended that complaint case

no. 3336 of 2007 was filed by applicant no. 1 against respondent no. 2 and her family members on 05.05.2006 in respect of offence punishable under Section 406 of IPC. The cognizance on the said complaint was taken on 05.09.2006.

5) Applicant No. 3 filed petition under Section 9 of the Hindu Marriage Act on 08.05.2006 in which compromise took place on 16.05.2006. The compromise between the parties is enclosed as Annexure 4 to the petition. The compromise took place between Smt. Deepa (wife) and Banti (husband) in the presence of parents and brother of Smt Deepa. Deepa and Banti agreed to live separately. It was mentioned in the compromise deed that the bridegroom has returned the gifts to the bride. The ornaments were also returned to the bride. Deepa also agreed that she would not file any application for maintenance. It was also agreed between the parties that petition for divorce by mutual consent would be instituted in the family court. Annexure 5 to the petition contains the list of gift items, which were given by Banti to Deepa on 21.05.2006. The recipients of articles were Rajesh, brother of Deepa; Kanta, mother of Deepa and Sohan Lal, father of Deepa and Chote Lal. Learned counsel for the applicants further submitted that the compromise dated 16.05.2006 was agreed upon from the side of the applicants and therefore, nothing was left to be returned by them to Deepa or her parents. Whereas the husband of respondent no. 2 was residing in Muzaffarnagar, applicants no. 1 and 2, who happened to be the brother-in-law and sister-in-law of

respondent no. 2, resided separately in Ghaziabad. The complaint under Section 406 of IPC was filed by applicant no. 1 Ramesh Kumar on 05.05.2006 and the complaint under Sections 498A, 354, 323 of IPC and under Section ¾ of Dowry Prohibition Act was filed by respondent no. 2 on 18.05.2007, after about year of institution of complaint by applicant no. 1.

6) Learned counsel for respondent no. 2, on the other hand, drew attention of this Court towards paragraph no. 9 of the complaint and submitted that the offences for which the accused persons were summoned to face the trial, were prima facie, made out against them. Learned counsel for the respondent no. 2 also submitted that there was no occasion for interference in the impugned order.

7) It was stated in paragraph no. 9 of the complaint filed by respondent no. 2 that accused no. 1 Banti told the complainant that he had taken loan of Rs. 2,00,000/- from Ramesh Kumar. Banti, Ramesh Kumar and Smt. Raj Kumari told the complainant to provide them Rs. 2,00,000/-. When the complainant refused to do so, Banti slapped on her face and pressed her neck. Raj Kumari twisted her arm. When Deepa (respondent no. 2) cried, Ramesh Kumar gagged her mouth and said that she will not be spared if she raised an alarm. The complainant started feeling unconscious. Although the allegations of demand and assault were also levelled against the accused persons in relation to an incident which allegedly took place on 12.05.2007, but the learned Special Judicial

Magistrate did not believe the same in its order dated 07.07.2007. Learned Magistrate found the incident said to have taken place on 12.05.2007 has no probability. Learned Magistrate summoned the accused-applicants largely on the basis of what happened between the complainant / respondent no. 2 and the applicants before the said date. It cannot therefore be said that no offences punishable under Sections 498A, 323 of IPC and one under Section ¾ of the Dowry Prohibition Act were not made out sansagainst the applicants Raj Kumari, in as much as the allegations against Raj Kumari were general and sweeping in nature. Although, prima facie, an offence punishable under Section 354 of IPC was also made out against accused Ramesh Kumar but the cognizance of said offence cannot be taken at Dehradun, in as much as the said incident took place at Ghaziabad. The complainant may be granted liberty to approach proper court at the proper place in respect of the offence punishable under Section 354 of IPC against accused Ramesh Kumar.

8) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in relation to exercise of jurisdiction under Section 482 of Cr.P.C. Those principles can be summarised as follows:

1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised

very sparingly and with circumspection and that too in the rarest of rare cases.

2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basis ingredients of criminal offence are not satisfied then the court may interfere. uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basis ingredients of criminal offence are not satisfied then the court may interfere.

3. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

4. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

5. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

6. Where there is an express legal bar enacted in any provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such

criminal proceedings, such bar is intended to provide specific protection to an accused.

7. The court has duty to balance the freedom of person and the right of the complainant or prosecution to investigate and prosecute the offender. person and the right of the complainant or prosecution to investigate and prosecute the offender. 8. The process of the court cannot be permitted to be used for an oblique or ultimate / ulterior purpose. used for an oblique or ultimate / ulterior purpose.

9. Where allegations give rise to civil claim and also amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained. It may be purely civil wrong or purely criminal offence or civil wrong as also criminal offence constituting both on the same set of facts. But if the records disclose commission of criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because civil wrong has also been committed. The power cannot be invoked to stifle or scuttle legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss complaint or quash such proceedings in exercise of its inherent or original jurisdiction. amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained. It may be purely civil wrong or purely criminal offence or civil wrong as also criminal offence constituting both on the same set of facts. But if the records disclose commission of criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because civil wrong has also been committed. The power cannot be invoked to stifle or scuttle legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence. from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence.

11. Another very significant caution that the courts have to observe is that it cannot examine the facts, to observe is that it cannot examine the facts,

evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in conviction; the court is concerned primarily with the allegations taken as whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

12. It is neither necessary nor is the court called upon to hold full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is case of acquittal or conviction. hold full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is case of acquittal or conviction.

13. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution. and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution.

14. Quashing of charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

15. Where the charge-sheet, report under Section 173(2) CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame charge. CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame charge.

16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise

it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists.

9) Guidance may also be taken from the ruling of Preeti Gupta and another vs State of Jharkhand and another, (2010) 7 SCC 667, wherein Hon’ble Supreme Court observed that to find out the truth is Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the 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. Hon’ble Apex Court cautioned that the allegations of such complaints are required to be scrutinized with great care and circumspection.

10) If any abuse of process leading to injustice is brought to the notice of the Court, then the Court would be justified in preventing injustice by invoking inherent powers. The allegations made as against the husband Banti and brother-in-law Ramesh Kumar, prima facie, appear to be true on bare reading of the complaint, but the same cannot be said in respect of Smt. Raj Kumari. No prudent person can reach to conclusion that there is sufficient ground for proceedings against Smt. Raj Kumari. Summoning of accused Ramesh Kumar for the offence punishable under Section 354 of IPC also suffers from

patent lack of jurisdiction. It is pertinent to mention here that whereas Section 498A of IPC is continuing offence, Section 354 of IPC is not. Summoning of Ramesh Kumar under Section 354 IPC is therefore set aside. Liberty is therefore granted to the complainant to move before the appropriate court at appropriate place for taking cognizance of Section 354 of IPC against accused Ramesh Kumar.

11) In view of the discussion made in the foregoing paragraphs of this judgment, the application / petition under Section 482 of Cr.P.C. is allowed in part. The proceedings of complaint case no. 2678 of 2007, pending in the court of Special Judicial Magistrate II, Dehradun as against applicant no. 2 Smt. Raj Kumari are quashed. The application under Section 482 of Cr.P.C. moved on behalf of applicants no. 1 and 3, viz., Ramesh Kumar and Banti is dismissed.

12) With the observations made as above, criminal misc. application (C-482) no. 99 of 2008 is finally disposed of.

(U.C. Dhyani, J.)