The instant application u/s 482 Cr.P.C. has been filed for quashing the order dated 16.9.2009 passed by the learned Judicial Magistrate-II, Varanasi whereby rejecting the discharge application and the entire proceedings of Criminal Complaint Case No. 4191 of 2007 (Govind Singh vs. Bahadur Singh Rautela and others) u/s 498-A, 406, 504, 506 I.P.C. and u/s 3/4 Dowry Prohibition Act, P.S. Lanka, District Varanasi, pending in the Court of the Judicial Magistrate-II, Varanasi.
The facts shorn of unnecessary details are that the opposite party No.2 lodged a complaint before the learned Magistrate on 12.10.2007 alleging therein that the applicant No.1 Bahadur Singh Rautela is the husband of his daughter Sunita, while the applicants No. 2 & 3 are the father-in-law and mother-in-law, respectively. The marriage of the daughter of the O.P. No.2 took place on 22.4.2004. At the time of marriage, the daughter Sunita was employed in Kota (Rajasthan). In the marriage of his daughter, the O.P. No.2 gave articles to the applicants much more than his means and the list of the articles are attached to the complaint. Soon after marriage the applicants began to demand more and insisted for a car, washing machine and entire salary of the daughter. The applicants harassed the daughter both mentally and physically for bringing insufficient dowry. The applicant No.1 also served a legal notice. The O.P. No.2, his wife and daughter were summoned by the applicants at Vishwanath Temple, Varanasi, BHU on 8.9.2007 at 10:00 AM on which date they threatened the O.P. No.2, his wife and daughter that the applicant No.1 is going to enter into another marriage as they have failed to give adequate dowry. The applicants also abused and extended life threatening threats. It is also alleged in the complaint that the O.P. No.2 sent a detailed representation at 26.9.2007 to the S.S.P., Varanasi apprising him of the entire conduct of the applicants and when nothing was done, instituted the complaint giving rise to the present proceedings.
It is vehemently contended on behalf of the counsel for the applicants that the allegations made in the complaint giving rise to the present proceedings are completely false and have been made against the applicants with a view to harass them. The correct facts are that the marriage of the applicant No.1 with the daughter of the O.P. No.2 was solemnized on 22.4.2004 at Mumbai, Maharashtra. The marriage was a love marriage and was performed with the consent of the parents of both the sides. There is no issue out of the wedlock. Both the applicant No.1 and the daughter of the O.P. No.2 were serving in the same undertaking namely the Nuclear Power Corporation of India Ltd. while the applicant No.1 was working at Tarapur Atomic Power Station, Maharashtra and the daughter of the O.P. No.2 was working at Kota (Rajasthan). It had been agreed that the daughter would get her transfer from Kota to Tarapur, which was not done and in fact the daughter of the O.P. No.2 expressed her reluctance to leave Kota and come to Tarapur and cohabit with the applicant No.1. The daughter was continuously torturing, harassing and insulting the applicant No.1 which resulted in tremendous mental tension and he was compelled to institute proceedings for annulment of the marriage u/s 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955. The applicant No.1 accordingly instituted the divorce petition before the Civil Judge (Sr. Division), Palghar which was registered as M.P. No. 86 of 2006 on 31.10.2006. The case proceeded ex-parte after recording the factum of service upon the daughter and the marriage dated 22.4.2004 stood dissolved by decree of divorce as per provisions of Sections 13(1) (ia) and (ib) of the Hindu Marriage Act, 1955 by the order dated 29.9.2007 from the date of order. The order dated 29.9.2007 has been filed as Annexure-9 to the affidavit filed in support of the application u/s 482 Cr.P.C. It is also contended on behalf of the applicants that the daughter of O.P. No.2 also instituted a case for dissolution of the marriage dated 22.4.2004 before the Principal Judge, Family Court, Varanasi which was registered as Case No. 664 of 2007. The plaint of the Case No. 664 of 2007 has been filed as Annexure No.10 to the affidavit filed in support of the application u/s 482 Cr.P.C., which reveals that the case was instituted on 26.9.2007.
The counsel for the applicants submits that the divorce decree was granted in favour of the applicant No.1 on 29.9.2007 while the complaint was lodged on 12.10.2007 subsequent to the Divorce Decree and as such the offences u/s 498-A, 406, 504, 506 I.P.C. and 3/4 Dowry Prohibition Act cannot be said to be made out against the applicants. Consequently the entire proceedings are liable to be quashed. He further submits that the applicants had preferred an application dated 23.1.2009 seeking discharge apprising the learned Judicial Magistrate-II, Varanasi, of the factual position but the said application was erroneously rejected by the impugned order dated 16.9.2009. He places reliance upon a decision of the Apex Court dated 21.8.2018 passed in Criminal Appeal No.1048 of 2018 arising out of SLP (Crl.) No.4122 of 2016 (Mohammad Niyan and others vs. The State of U.P. and another) to buttress the point argued by him.
In order to appreciate the submissions of the learned counsel for the applicants, it is apt to refer to section 498-A I.P.C. which is reproduced as under:-
"498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purposes of this section, "cruelty" means--
(a) any willful 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. "
A plain reading of section 498-A I.P.C. reveals that it relates to husband or relative of husband of a woman subjecting her to cruelty and opens with the words "whoever, being the husband or the relative of the husband of a woman ............". Thus, where a complaint has been filed subsequent to the divorce and the decree of divorce has attained finality, the section 498-A of I.P.C. in terms would not stand attracted. In the case at hand the complaint was lodged subsequent to the Divorce Decree in the Matrimonial Petition No.86 of 2006 filed by the applicant No.1. The decree of divorce has attained finality. In fact, the daughter of the O.P. No.2 herself also filed for divorce but its status has not been informed to the Court. There is no dispute that on the date of the institution of the complaint there was no relationship of husband and wife between the applicant No.1 and the daughter of the O.P. No.2. Consequently, the provisions of Section 498-A I.P.C. and 3/4 Dowry Prohibition Act are not attracted against the applicants and they cannot be prosecuted under the aforesaid sections.
Accordingly, the prosecution against the applicants Bahadur Singh Rautela s/o Shri Kundan Singh Rautela, Sri Kundan Singh Rautela and Smt. Hanshi Devi Rautela w/o Kundan Singh Rautela under Section 498-A of I.P.C. and Sections 3/4 of the Dowry Prohibition Act, 1961 stands quashed.
Now coming to the prosecution of the applicants under Section 406, 504 and 506 I.P.C., the learned counsel for the applicants submits that the allegations of criminal breach of trust, intentional insult and criminal intimidation contained in the complaint of the O.P. No.2 are completely false and have no legs to stand. He submits that the very essential pre-requisits and core ingredients of the offence u/s 406 I.P.C. would be lacking in a charge of criminal breach of trust of property by one spouse against the other. Likewise, as against the close relations of the husband, no presumption of entrustment and domain over the dowry can be raised prima facie and this inevitably has to be by a subsequent conscious act of volition which must be specifically alleged and established by evidence. He places reliance upon 1985 AIR 628 (SC) (Pratibha Rani vs. Suraj Kumar and another) to emphasize the submission advanced.
I have gone through the aforesaid decision of the Apex Court and find that the counsel for the applicants has canvassed the minority view in the aforesaid judgment. By the majority view the judgment of the High Court was set aside and the complaint was restored. The decision relied upon by the counsel for the applicants does not help the applicants. The Court finds that from the allegations made and facts stated in the complaint dated 12.10.2007 (Annexure-1) prima facie the offence under the aforesaid sections are made out against the applicants. The Apex Court in its numerous decisions has time and again laid down that a High Court while exercising powers under Section 482 Cr.P.C. to quash a complaint or an F.I.R. for that matter is required to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same. The High Court does not have the jurisdiction to examine the correctness or otherwise of the allegations. In case no offence is committed on the allegations and the ingredients of Sections 406, 504 and 506 I.P.C. are not made out the High Court would be justified in quashing the proceedings.
In the case at hand on the plain reading of the complaint, the ingredients of Sections 406, 504 and 506 I.P.C. in the opinion of the Court are made out against the applicants.
Recently, the Apex Court in the case of M/S Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, Criminal Appeal No. 330 of 2021, AIR 2021 SC 1918 vide its decision dated 13.4.2021 while dealing with the powers of the High Court under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/F.I.R., after considering its various decisions right from the decision of the Privy Council in the case of Khwaja Nazir Ahmad upto the decision in the case of Skoda Auto Volkswagen India Private Limited vs. State of Uttar Pradesh reported in 2020 SCC online SC 958 has concluded as under:-
"i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the ''rarest of rare cases' (not to be confused with the formation in the context of death penalty);
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not . The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/ police to investigate the allegations in the FIR.
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
The learned A.G.A. in opposition to the application under Section 482 Cr.P.C. submits that at a pre-trial stage the factual issues cannot be gone into and no roving enquiry can be made at this stage in exercise of the inherent jurisdiction u/s 482 Cr.P.C. to establish that no offence u/s 406, 504 and 506 I.P.C. are made out against the applicants. He submits that the factual issues sought to be canvassed by the counsel for the applicants is to be considered at the stage of trial. The submissions of the learned counsel for the applicants on the factual aspects to contend that no cognizable offence is made out from the bare perusal of the complaint does not merit consideration. From the evidence collected by the prosecution, prima facie, offence under Sections 406, 504 and 506 of I.P.C. is made out and the same cannot be quashed.
Consequently, the court is of the view that the applicants i.e. Bahadur Singh Rautela, Kundan Singh Rautela and Smt. Hanshi Devi Rautela must face prosecution under Sections 406, 504 and 506 I.P.C. in accordance with law.
Accordingly, the application u/s 482 Cr.P.C. is allowed in part. The prosecution of the applicants under Section 498-A I.P.C. and 3/4 Dowry Prohibition Act, 1961, is quashed and the order dated 16.9.2009 stands set aside to that extent. The learned Magistrate shall now proceed to set the trial of the applicants u/s 406, 504 and 506 I.P.C. in motion. Since the matter is fairly old, the learned Magistrate is expected to proceed with the trial and conclude the same expeditiously preferably within six months from today.
The trial court is further directed to take appropriate steps for early disposal of the case and, if required, may give dates on short intervals.
Order Date :-20.12.2021 Vandana/pks