Jammu & Kashmir High Court
Dhanvir Singh vs State And Anr. on 4 August, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
561-A Cr.P.C. No. 351/2014 & MP No. 406/2014
Date of decision:04.08.2017
Dhanvir Singh Vs. State of J&K and anr.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing Counsel:
For the petitioner(s) : Mr. A. A. Khan, Advocate.
For the respondent(s) : Mr. S.S.Nanda, Sr. AAG.
i. Whether approved for reporting in Press/Media : Yes/No/Optional ii. Whether to be reported in Digest/Journal : Yes/No
1. Petitioner has filed the instant petition under Section 561-A of the Code of Criminal Procedure seeking quashment of FIR No. 35/2014 registered at Police Station, Women Cell, Jammu for commission of offence under Section 498-A RPC.
2. The brief facts of the case are that respondent No.2 is the legally wedded wife of the petitioner and their marriage was solemnised at Village Ambaran, Tehsil Akhnoor, District Jammu on 16.01.2013 according to Hindu Rites and Rituals. After the solemnization of marriage, petitioner and respondent No.2 started living as husband and wife in village, Jandial, Tehsil and District Jammu. It is stated that petitioner kept respondent No. 2 with love and affection and provide her all amenities and necessities of life. It is further stated that at the time of solemnization of marriage, the petitioner 561-A Cr.P.C No. 351/2014 Page 1 of 9 had provided all valuable things including golden ornaments to respondent No.2, which were required to be given according to the Hindu Rites and Rituals. It is stated that respondent No.2 is a head strong lady and her behaviour was very rude towards him and his family members from the very beginning and she was always using abusing language. It is further stated that the petitioner has tried his level best to persuade respondent No.2 to change her uncalled behaviour and attitude towards him and his family members but after trying several times, she had not taken any care of the attempts made by him regarding changing of her behaviour and attitude. It is stated that on one pretext or the other, she was abusing and insulting the petitioner in front of his neighbours, relatives and friends but it is a matter of great regret that on 05.11.2013, father of respondent No.2 came to the house of the petitioner and went to her parental house to meet her relatives with assurance that she will come back to her matrimonial house after spending 15 days but respondent No.2 instead of coming back at her matrimonial house, started residing at her parental house without any reason and justifiable cause. In this regard, the petitioner approached several times to respondent No.2 and her parents for sending her back to her matrimonial house but neither respondent No.2 had accepted his request nor her parents had taken any care of the request of petitioner and after approaching several times, the parents of respondent No.2 have straightway refuse to send 561-A Cr.P.C No. 351/2014 Page 2 of 9 back respondent No.2 at her matrimonial house. It is further stated that from the date from which respondent No.2 had left her matrimonial house, had filed a false and frivolous petition under Section 488 Cr.P.C seeking maintenance from the petitioner. The said petition had been filed by the respondent No.2 on 13.05.2014 on several false and frivolous grounds before the court of learned Additional District Judge (Matrimonial Cases), Jammu. It is further stated that after filing of the petition by respondent No.2, notice was also issued to the petitioner for causing his appearance before the learned Matrimonial Court and in compliance to the said notice had caused his appearance. It is stated that after filing of the said petition by respondent No.2 seeking maintenance in her favour under section 488 Cr.P.C, the petitioner had also filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights. When the factum regarding filing of the aforesaid petition by the petitioner came into the knowledge of respondent No.2, she became hostile and feeling aggrieved of the same, she filed an application before the Court of learned Chief Judicial Magistrate, Jammu seeking direction to the SHO, Police Station, Women Cell, Jammu for registration of FIR against the petitioner under Section 498-A RPC on the same grounds which she had already taken in her petition which she had filed before the matrimonial court, which is still pending for final disposal. It is further submitted that on the direction of the learned Chief Judicial Magistrate, 561-A Cr.P.C No. 351/2014 Page 3 of 9 Jammu an FIR No. 35/2014 was registered against the petitioner on 30.05.2014 under Section 498-A RPC. It is further submitted that the grounds taken by the respondent No. 2 in her application on the basis of which a direction was given by the learned CJM, Jammu to SHO Police Station Women Cell, Jammu for registration of FIR, are similar to that of her petition which she had filed under Section 488 Cr.P.C for seeking maintenance and there is no difference of even a single word in her application on the basis of which FIR was registered against the petitioner. It is further stated that respondent No.2 how and under what circumstances can file two different cases against the petitioner on same ground. In one case she is seeking maintenance and in the other case she is alleging against the petitioner that he is demanding dowry from her and that too after a period of more than 8 months as she herself is admitting in her petition under Section 488 Cr.P.C that she had left the house of the petitioner on 04.11.2013, as such the FIR registered against the petitioner is palpably bad, as the same has been registered by levelling false and frivolous allegations against the petitioner and the same is required to be set aside.
3. State-respondent has not filed the objections/status report.
4. I have heard learned counsel for the petitioner and learned Senior Addl. AG appearing for the State.
561-A Cr.P.C No. 351/2014 Page 4 of 95. In AIR 2017 SUPREME COURT 37 in case titled State of Telangana v Habib Abdullah Jeelani & ors., it is held as under:-
"11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
"(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.561-A Cr.P.C No. 351/2014 Page 5 of 9
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power 561-A Cr.P.C No. 351/2014 Page 6 of 9 under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court."
6. In view of above law, an FIR can be quashed if allegations leveled against the accused, do not disclose cognizable offence or allegations are so absurd or FIR has been filed with ulterior motive of wreaking vengeance on the accused. In present case, from the perusal of FIR, it is evident that it has been lodged on the direction of JMIC Jammu in terms of 156 (3) Cr.P.C.
7. In complaint filed by respondent No.2 against the petitioner, it has been stated that she is legally wedded wife of accused/petitioner as the marriage of the applicant with the accused was solemnized under Hindu Rites and customs on 16.01.2013 at village Ambaran, Tehsil Akhnoor. That on the demand of the accused and his parents, the parents of the applicant gave sufficient dowry. That within fifteen days of the marriage, the accused put another demand i.e. maruti car. Upon this, father of the applicant has paid Rs.1 lac after drawing the same from his bank account. That the accused is a Government Teacher and is a dead drinker, which fact came to know to their knowledge only after the marriage. That prior to the marriage the accused was having physical relation with one girl namely Nitika and even after the marriage he is involved with the said girl. The accused along with said girl stayed in Himachal Pradesh for five days and on 08.03.2013 on report 561-A Cr.P.C No. 351/2014 Page 7 of 9 of parents of said girl, the girl was recovered from the custody of the accused. A case in this regard under Section 364/376 RPC was filed against the accused and he remained behind the bars. In the month of May, 2013, the accused was released on bail. That in the month of May, 2013 the accused gave severe beating to the complainant/wife as he never wanted her to be in her matrimonial home. That father of the applicant had paid Rs.50,000/- to the father of the accused to pursue the above case. That accused had sold out the bracelet given by the parents of the applicant at the time of marriage. That the accused continued to give beating to the applicant. The matter of referred to the Panchayat, but the accused and his parents were not ready to attend the said Panchayat and changed their attitude towards the applicant. The parents of the applicant tried their level best to protect the married life of the applicant with the accused, even they bowed down before the parents of the accused.
8. Bare perusal of these allegations, it is evident that a case for cognizable offence has been made out which requires investigation. Allegations are so serious and do not suffer from any mala fide. It is not the case of the petitioner that FIR is barred under any provision of law or Special Act. No special case is thus, made out which requires the quashment of FIR at threshold. The ground taken that the petitioner has filed a petition under Section 9 of the Hindu Marriage Act before the 561-A Cr.P.C No. 351/2014 Page 8 of 9 Family Court, for restitution of conjugal right, is not tenable because this petition has been filed after lodging of FIR. Further, there is no bar that once a petition under Section 488 Cr.P.C. is filed, then a complaint under Section 498-A cannot be filed.
9. Hence, this petition seeking quashment of FIR No. 35/2014 registered at Police Station, Women Cell, Jammu, is dismissed. Copy of this order be transmitted to Court below.
( Sanjay Kumar Gupta ) Judge Jammu 04.08.2017 Pawan Chopra 561-A Cr.P.C No. 351/2014 Page 9 of 9