Jharkhand High Court
Shikandar Chouhan vs State Of Jharkhand And Anr. on 5 March, 2003
Equivalent citations: II(2003)DMC753
Author: Amareshwar Sahay
Bench: Amareshwar Sahay
ORDER Amareshwar Sahay, J.
1. Heard the learned Counsels for the parties.
2. In the instant application, the petitioner has prayed for quashing the order taking cognizance dated 6.11.1999 for the offence Under Section 498A of the Indian Penal Code, and also the charge framed on 19.8.2000 against the accused-petitioner Under Section 498A of the Indian Penal Code, by the Judicial Magistrate, 1st Class, Dhanbad in G.R. Case No. 4301 of 1998.
3. The facts in short of the case are that the opposite party No. 2 filed a complaint being C.P. Case No. 1196 of 1998, which was sent to the police Under Section 156(3) of Cr.P.C, and the police registered the same as Nirsa P.S. Case No. 261 of 1998.
4. The case of the prosecution as would appear from the original complaint petition is that the informant was legally married wife of the accused, Shikandar Chouhan who was an employee of BCCL and working as Pay Loader Operator at Chapapur Colliery. Out of their wedlock two daughters and one son aged about 9 years, 6 years and 4 years respectively were born. It is said that subsequently, the attitude of the husband towards wife became unkind and aggressive and since June 1998, the accused started abusing the wife openly even without any provocation after taking excessive drink. He even sold the ornaments of his wife. It is further alleged that in the month of September, 1998, the accused-husband asked the informant-wife to bring a sum of Rs. 30,000/- from her father. On refusal by the wife, the accused-husband threw her on the ground and assaulted her with fists and slaps. Thereafter, the torture by the accused-husband became a routine feature and even she was not allowed to take food for days together. It was alleged that the accused Nos. 2 and 3 i.e. mother-in-law and sister-in-law of the informant-wife, used to drive her out of the house to spend the night outside the house without food and water.
5. It is further said that on 25.9.1998, the accused-husband in a drunken state after abusing the informant-wife assaulted her with lathi, causing serious injury on her left hand and on other parts of the body and drove her out with. children and told her that if she comes again, she would be killed. Finding no way, the informant-wife left her matrimonial home and took shelter in the house of her parents at Loyabad.
6. It is stated that, despite of requests made by the father of the informant to, take his daughter back the request of the father was not accepted by the accused. persons, on the ground that the demand of dowry was not fulfilled the complainant, then filed the complaint in Court which was converted into an FIR and investigation was taken up by the police.
7. On completion of the investigation, the police submitted that charge-sheet against the petitioner and three others, on the basis of which learned CJM, Dhanbad took cognizance on 6.11.1995 of the offence Under Section 498A of the Indian Penal Code, against all the four accused and issued summons for their appearance.
8. On 19.8.2000 the Judicial Magistrate, 1st Class, Dhanbad to whom, the case was transferred, framed charge against the accused persons Under Section 498A of I.P.C.
9. The petitioner, who is the husband of the informant, by filing this application has prayed for quashing of the order taking cognizance and framing of the charge against him.
10. By order dated 5.3.2002, this Court issued notice to the opposite party No. 2 i.e. wife who on receipt of the notice appeared through her Counsel Mr. P.K. Mukhopadhaya.
11. By order dated 6.1.2003 this Court called for the case diary of case i.e. Nirsa P.S. Case No. 261 of 1998 which has been received.
12. Mr. Mahesh Tiwari, learned Counsel for the petitioner has submitted that the petitioner, Shikandar Chouhan, filed petition Under Section 13(1)(ia) of the Hindu Marriage Act, 1955, for a decree for divorce against his wife, Urmila Devi before the Principal Judge, Family Court, Dhanbad, which was registered as T (Matrimonial) Suit No. 208 of 1999. In the said petition the petitioner made allegations against his wife that she was having illicit relationship with one Amar Chouhan and thereby the wife was living in adultery. It is further submitted by Mr. Tiwary that from the judgment of the Principal Judge, Family Court, Dhanbad dated 17.5.2000 (Annexure-4) it would appear that learned Principle Judge has held in para 5 of his judgment that even the eldest daughter and other two kids of the petitioner were totally against their mother and they also wanted that there should be divorce as their mother was not a good lady.
13. On the basis of the evidence on record, and after considering the facts and circumstances of the case, the Principal Judge held that the petitioner has prima facie established that his wife was living in adultery and, therefore, decree for divorce was granted. It was argued by the petitioner that only to save her skin, the wife had filed the complaint case against him in Court and, therefore, the continuance of the criminal prosecution against him is totally an abuse of the process of the Court and, therefore, the same is liable to be quashed.
14. On the other hand, the learned Counsel for the opposite party No. 2 has submitted that it is not correct to say that original complaint was filed by the wife only to save her skin but as matter of fact the complaint was lodged prior to the filing of the matrimonial suit before the Principal Judge, Family Court, Dhanbad by the husband. Therefore, it cannot be said that only by retaliation, the wife has filed a case against husband and her in-laws.
15. The police after completion of the investigation, came to the conclusion that the allegations made in the FIR against the husband, Under Section 498A, for committing offence was found to be true. The police opined that marriage between parties were solemnised according to the Hindu rites and out of their wedlock children were born but since last few years, the husband started torturing his wife and was forcing her to bring Rs. 35,000/- and T.V. etc. by way of dowry from her parents. But since demands of dowry were not fulfilled, the wife was tortured and assaulted and thereafter driven out of the house.
16. The Supreme Court in the case of State of Haryana v. Bhajan Lal, reported in AIR 1992 SC 604, by way of illustration, categorised some of the cases in which the Court can at the initial stage quash the prosecution. However, in the said judgment, the Supreme Court held, that even if any of the ground exists for quashing the prosecution, the power should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases. The Court should not embark upon an inquiry as to the reliability or genuinesses or otherwise of the allegation made in the FIR or the complaint.
17. In the case of the State of H.P. v. Pirthi Chand, reported in I (1996) CCR 89 (SC)=(1996) 2 SCC 37. The Supreme Court has held as follows :
"It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint in deciding whether the case is rarest of rare cases to scuttle the prosecution in its inception. It first has to get into the grip of the matter whether the allegation constitutes the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is concluded (sic. concluded) and the charge-sheet is laid, the prosecution produces the statements of the witnesses recorded Under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the Court to weigh the pros and cons of the prosecution case or to consider necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance, it would be done after the trial is concluded. The Court has to prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it reached a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. rarest of rare cases of mala fide initiation of the proceedings of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence - the Court may embark upon the consideration thereof and exercise the power."
18. In view of the decisions of the Supreme Court that at the stage of cognizance or of the framing of the charge the Court cannot not look into the document filed by the accused with a view to test the reliability or truthfulness of the allegation made in FIR or in the complaint. The Court will confine itself to the allegations made in the FIR/complaint petition and on the materials collected during the investigation/inquiry, to find out as to whether a primary case is made out or not.
19. Therefore, in my view Annexure-4 i.e. judgment of the Principal Judge, Family, court, decreeing the suit for divorce in favour of the husband cannot be looked into for the purpose of examining the veracity or truthfulness of the allegations made against the accused persons and for the purpose of quashing the order taking cognizance and framing of charge, Only on the basis of the Annexure-4 i.e. judgment of the Principal Judge, Family Court, it cannot be said that the present case comes under the category of rarest of rare cases for quashing the prosecution.
20. From perusal of the case diary which was called for by this Court, it appears that there are materials in the case diary so as to make out a prima facie case against the accused persons for committing offence Under Section 498A of the Indian Penal Code and, therefore, the policy rightly submitted charge-sheet against the accused person and on the basis thereof, the Trial Court rightly took cognizance and thereafter framed charge against the accused persons.
21. In that view of the matter, I do not find any illegality in the order taking cognizance and framing of charge against the petitioner.
22. In the result, this application is dismissed.