Gauhati High Court
Hari Modi vs The State Of Assam And Anr on 6 August, 2022
Author: Kalyan Rai Surana
Bench: Kalyan Rai Surana
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GAHC010152542022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./762/2022
HARI MODI
S/O LT. HARENDRA CHANDRA MODI, R/O KAHILIPARA DPI, JONAKPUR
ROAD, ANTARA PATH KANAK PROVA ENCLAVE, 1ST FLOOR, P.S. DISPUR
DIST. KAMRUP (M) GUWAHATI-19 ASSAM
VERSUS
THE STATE OF ASSAM AND ANR.
REP. BY THE PP, ASSAM
2:NISHA NANDA MODI
D/O VIJAY KR. NANDA
PRESENTLY RESIDING AT VILL-MAZGAON
NEAR B.ED COLLEGE P.S. TEZPUR PIN-784004 DIST. SONITPUR ASSA
Advocate for the Petitioner : MR. A BHATTACHARYA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE KALYAN RAI SURANA
ORDER
Date : 06-08-2022 Heard Mr. A. Bhattacharjee, learned counsel for the petitioner. Also heard Mr. Bhaskar Sarma, learned Addl. P.P. for the State respondent no.1.
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2. By this criminal petition filed under section 482 Cr.P.C., the petitioner has prayed for quashing of the charge-sheet no. 968/21 dated 28.12.2021 against the petitioner, submitted under sections 448/294/506 I.P.C. in connection with Tezpur P.S. Case No. 1572/2021 corresponding to PRC No. 197/2022 which is pending for trial before the Court of the learned Judicial Magistrate First Class, Tezpur. The said case was registered pursuant to an FIR dated 01.08.2021 lodged by the estranged wife of the petitioner. It was alleged by the informant in the FIR that previously she had lodged an FIR on 24.06.2021, which was registered as Tezpur PS Case No. 1296/2021 (GR Case No. 2120/2021). After that the petitioner visited her father's residence at around 1:30 pm and forcefully wanted to see their daughter and started abusing the informant and her family members and showed bad hand gesture and used slang language, and he cursed them repeatedly and threatened them of physical harm. It was also alleged by the informant that after 21.01.2021, she along with her daughter had taken shelter at her parental home due to the physical and verbal abuse by the petitioner. Accordingly, the informant informed the police that if in near future her family is physically or mentally harmed, it will be because of the petitioner and that the petitioner may kidnap her daughter.
3. The learned counsel for the petitioner has submitted that on the face of the contents of the FIR, there is total absence of ingredients of commission of offence under section 294 of the IPC. It is further submitted that the offence under section 448 of the IPC is a bailable offence. It is further submitted that independent of offence under sections 294/448 of the IPC, section 506 of the IPC cannot be taken as a stand-alone offence. It is submitted that the petitioner, in his capacity as a natural father of his minor daughter has Page No.# 3/9 a right to meet the minor daughter and therefore, visiting the residence of his father-in-law to meet the child who is residing there, cannot be equated to commission of an offence. It is submitted that offence under section 294 IPC cannot co-exist with offence committed under section 448 IPC. Accordingly, it was submitted that the investigation was carried out in a perfunctory manner. Lastly, it has been submitted that apart from his father-in-law, there is no independent witness to the alleged incident.
4. The learned Addl. P.P. has opposed the prayer made in this petition by submitting that the charge-sheet reveals sufficient materials to implicate the petitioner of the offences complained of and that the Court, upon examining the materials available on record has taken cognizance of the offences allegedly committed under sections 294/448/506 IPC. Therefore, no case has been made out for quashing the charge-sheet.
5. Considered the submissions made by the learned counsel for the petitioner as well as the learned Addl. P.P. appearing for the State. Also considered the materials available in this petition.
6. It can be noticed from the contents of the (i) FIR dated 01.08.2021 (Annexure-5), (ii) photocopy of the order dated 22.03.2022, passed by the Court of the learned Judicial Magistrate First Class, Kamrup (M), Guwahati in Misc. (DV) Case No. 6/2021 (Annexure-3), and (iii) order passed by this Court in Tr.P.(C) 59/2021 that there are several cases between the petitioner- husband and respondent no.2- wife. Therefore, from the statements made in this petition, there are sufficient materials to demonstrate that the relationship between the petitioner and the respondent no. 2 is far from congenial.
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7. It appears from the contents of the order passed in Tr.P.(C) 59/2021 that the female child was born to the respondent no. 2 on 04.10.2018 and therefore, she would be about 3 years 10 months of age as of now. In the said backdrop, there is no material on record to show that the respondent no. 2 could not lawfully have retained the custody of the minor girl child of the estranged couple.
8. On a perusal of the charge-sheet, it is seen that the I.O. has stated, inter alia, that "... On 01.08.2021, suddenly the husband of the complainant i.e. the accused person namely Sri Hari Modi appeared at the house of the father of the complainant and forced her to show their daughter. But while the complainant denied the accused person started abusing her with slang language and threatened her with dire consequences. Hence, the case was registered. ..."
9. In light of the facts presented before the Court, assuming for the time being that there is merit in the contention of the learned counsel for the petitioner that offence under section 294 IPC and section 448 IPC does not exist. However, the materials available in the case diary has to be examined and appreciated to see whether the charges under section 294 IPC can be sustained with alleged offence under section 448 IPC. This can be done at the time of explanation of charge as envisaged under section 239 Cr.P.C. and therefore, such an opportunity can be availed by the petitioner.
10. From the materials available in this instant petition, it does not appear that in connection with PRC No. 197/2022, the learned Court below had explained the charges to the petitioner as envisaged under section 239 Cr.P.C. and this inference is drawn because no such order of the Court has been Page No.# 5/9 annexed to this application.
11. At this stage, the case diary would be available before the Court of the learned Judicial Magistrate First Class, Guwahati where charge-sheet has been filed. At the stage of explanation of charges as envisaged under section 239 Cr.P.C., the same can conveniently be examined to see if legal evidence exists or not. There may be two circumstances, one where "there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made", and secondly "a case where there is legal evidence which, on appreciation, may or may not support the accusations". The learned counsel for the petitioner has submitted that the offence under section 294 IPC would not co-exist with offence under section 448 IPC. Nonetheless, it is well settled that a FIR need not be encyclopedic. Therefore, merely from the contents of the FIR, it is not possible to conclude that whatever incidents are referred in the FIR did not occur on the outside of the four walls of the house of the informant. Be that as it may, it is also quite possible that if charge for offence under section 294 IPC is not sustained, but the charge for offence committed under section 448 may be found sustainable against the petitioner. It may also happen that at the stage of explanation of charges, the trial Court may not find any material to proceed with the trial. However, to arrive at such conclusion, the learned trial Court would have to examine the legal evidence available in the case diary and then to satisfy itself as to whether such evidence supports the accusations against the petitioner.
12. The High Court in exercise of inherent power to quash a proceeding, has to exercise the said power with circumspection. In this regard, the Court is reminded of the case of R.P. Kapur v. State of Punjab, AIR 1960 SC Page No.# 6/9 866, where the Supreme Court of India had summarised some categories of cases where inherent power can and should be exercised to quash the proceedings, they are as under:
"(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 their 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."
13. We may also refer to the decision of the Supreme Court of India in the case of State of Orissa v. Saroj Kumar Sahoo, (2005) 13 SCC 540. Paragraphs 10-12 thereof is quoted below:-
"10. 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 CrPC, 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 should not be an instrument of oppression, or, needless harassment. The 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 CrPC 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 the rarest of rare cases. The illustrative categories indicated by this Court are as follows:
Page No.# 7/9 "102. (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 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 Act concerned (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 Act concerned, 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."
11. As noted above, the powers possessed by the High Court under Section 482 CrPC are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of Page No.# 8/9 quashing the proceeding at any stage. [See Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 and Raghubir Saran (Dr.) v. State of Bihar, AIR 1964 SC 1.] It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar, (1990) Supp SCC 686, State of Bihar v. P.P. Sharma, (1992) Supp (1) SCC 222, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194, State of Kerala v. O.C. Kuttan, (1999) 2 SCC 651, State of U.P v. O.P Sharma, (1996) 7 SCC 705, Rashmi Kumar v. Mahesh Kumar Bhada, (1997) 2 SCC 397, Satvinder Kaur v. State (Govt. of NCT of Delhi), (1999) 8 SCC 728 and Rajesh Bajaj v. State NCT of Delhi, (1999) 3 SCC 259.]
12. The above position was again reiterated in State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 and State of M.P. v. Awadh Kishore Gupta, (2004) 1 SCC 691."
14. Thus, in light of the discussions above, the Court is not inclined to exercise its inherent power under section 482 Cr.P.C. and to examine the contents of the charge-sheet and to give an opinion which touches upon the factual matrix, which ought to be left to the wisdom of the learned trial Court. In this regard, the Court is of the considered opinion that as the petitioner would get an opportunity to make submissions at the time of consideration of charges as envisaged under section 239 Cr.P.C., which would meet the ends of justice.
15. Therefore, the Court is not inclined to invoke its inherent jurisdiction under section 482 Cr.P.C. The petitioner may be well advised as to whether or not it would be in his interest to put forth his submissions before the Page No.# 9/9 learned trial Court at the stage of section 239 Cr.P.C.
16. With the above observation, this criminal petition is dismissed at the motion stage without issuance of notice on the respondents.
17. The Registry shall transmit a copy of this order to the Court of learned Judicial Magistrate First Class, Tezpur to bring the order to the notice of the said learned Court.
JUDGE Comparing Assistant