Himachal Pradesh High Court
Rohit Kalia And Ors vs Sangita Sharma on 16 November, 2015
Author: Rajiv Sharma
Bench: Rajiv Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MMO No. 275 of 2015.
Reserved on 29.10.2015.
.
Decided on: 16.11.2015.
Rohit Kalia and ors. ......Petitioners.
Versus
Sangita Sharma .......Respondent.
Coram
The Hon'ble Mr. Justice Rajiv Sharma, Judge.
Whether approved for reporting? 1. Yes.
of
For the petitioners: Mr. Salil Bali and Mr. Ashok Thakur, Advocates.
For the respondent: Mr. Dheeraj K. Vashishta, Advocate.
----------------------------------------------------------------------------------------------
Justice Rajiv Sharma, J.
rt This petition under Section 482 Cr.P.C. has been filed for quashing of complaint No. 308 of 2015 under Section 12 of the Domestic Violence Act, 2005 (hereinafter referred to as the Act), pending before the learned Chief Judicial Magistrate, Una, H.P. and all subsequent proceedings arising thereto.
2. "Key facts" necessary for the adjudication of this petition are that the marriage between petitioner No. 1 and respondent was solemnized according to the Hindu rites and ceremonies on 25.4.2012 at Una. According to the averments contained in the petition, no demand was ever raised for dowry. The petitioner No. 1 alongwith the respondent went to Doha. Respondent came back to India. False allegations were levelled against petitioner No. 1 that he was impotent. The respondent left the matrimonial home on 4.6.2014. A child was born on 28.10.2014 at PGI, Chandigarh. Respondent was discharged from PGI, Chandigarh on 1.11.2014. The petitioner No. 1 filed an application under Section 9 of 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 2the Hindu Marriage Act, 1955 bearing No. 182 of 2014 on 4.11.2014.
Respondent was proceeded ex-parte. The order was passed by the .
learned Civil Judge (Jr. Divn.), Chandigarh on 24.8.2015. Respondent was directed to join the company of petitioner No. 1. Thereafter, respondent filed a complaint No. 308 of 2015 against the petitioners under Section 12 of the Act. The process was issued by the learned Chief of Judicial Magistrate, Una, H.P. Hence, this petition.
3. Mr. Dheeraj K. Vashishta, Advocate, for the respondent has drawn the attention of the Court to complaint Annexure P-3 filed under rt Section 12 of the Act. The factum of marriage between petitioner No. 1 and respondent on 25.4.2015 has been admitted. The parents of respondent have spent Rs. 15,00,000/- in the marriage. Petitioner No. 1 left India. Thereafter, petitioners No. 2 to 4 started maltreating respondent for bringing insufficient dowry. They used to make nasty remarks against her. Respondent No. 1 brought these facts to the notice of her parents.
The parents of respondent again gave double bed, dressing table, Almirah, Petti, trunk, Micro Oven and other utensils etc. The mother of petitioner No. 1 started taking the entire salary of the respondent. The ATM and PAN Card were also taken by her father-in-law. She was never paid any money for daily needs by her father-in-law and mother-in-law. The petitioner No. 1 was avoiding having sexual relations with respondent. He got himself treated. She was not permitted to meet her parents regularly after three months. She was admitted in the hospital. The petitioners did not look after her. The father of respondent spent around Rs. 70,000/- at ::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 3 the time of delivery. She was also given beatings by petitioner No. 1 at Doha. She was not permitted even to talk with her parents. Petitioner .
No. 1 also threatened that he would get the DNA test conducted to establish the parentage of the baby. Though petitioner No. 1 was earning Rs. 3,00,000/- per annum but respondent has not been paid any maintenance by him. She has lodged the complaint with the Police of Station, Una, but no steps were taken. It is, in these circumstances, the petition has been filed by the respondent under Section 12 of the Act.
4. What emerges from the facts enumerated hereinabove is that rt the marriage between the parties was solemnized on 25.4.2012. However, the relations between them were strained. The petitioners have been harassing the respondent for bringing insufficient dowry. She was not paid any money. Her ATM and PAN Card were also taken by the parents of petitioner No.1. The petitioner No. 1 did not look after respondent when she was admitted in the hospital and baby was born on 28.10.2014.
A sum of Rs. 15,00,000/- was spent by the parents of respondent in the marriage and thereafter also, respondent's family gave expensive gifts to the petitioners. Petitioner No. 1 has made false allegations against the respondent qua the parentage of child and has threatened her even to undertake DNA test of the baby. The petitioners were causing physical and mental cruelty to the respondent. The parents of the respondent have also tried to settle the matter amicably but to no avail. It is, in these circumstances, respondent was constrained to file petition under Section 12 of the Act against the petitioners before the Court of learned Chief ::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 4 Judicial Magistrate, Una. The learned trial Court, on the basis of the material placed on record, has correctly issued the process against the .
petitioners in complaint No. 308 of 2015. The issuance of process cannot be termed as misuse of the process of the Court. This Court is satisfied that a prima-facie case for commission of offence is disclosed, as per the averments made in the complaint and the proceedings cannot be stifled or of scuttled, at this stage, when the parties have yet to lead their evidence.
5. Their lordships of the Hon'ble Supreme Court in the case of Amit Kapoor vrs. Ramesh Chander and another, reported in (2012) 9 rt SCC 460, have laid down the following principles for quashing proceedings under Section 397 or Section 482 Cr.P.C., as follows:
"1) Though there are no limits of the powers of the Court under Section 482 of the Code 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 of the Code 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 a conclusion and where the basic ingredients of a 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.
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.::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 5
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 loathe 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 of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
of
7) The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
rt
8) The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
9) Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a 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 a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a 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 the evidence.
11) Another very significant caution that the courts have 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 a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 612) It is neither necessary nor is the court called upon to hold a full- fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a 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.
of
14) Quashing of a 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 a view to decide admissibility rt and reliability of the documents or records but is an opinion formed prima facie.
15) Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
16) Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that 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 exist.
17) These are all the principles which individually and preferably cumulatively (one or more) are to be taken into consideration."
6. Their lordships of the Hon'ble Supreme Court in the case of Rajiv Thapar and others vrs. Madan Lal Kapoor, reported in (2013) 3 SCC 330, have held that to determine the veracity of a prayer for quashing of proceedings raised by an accused by invoking the power vested in the High Court under Section 482 Cr.P.C., the following steps should be followed:
"(i) Step one: whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?::: Downloaded on - 15/04/2017 19:20:46 :::HCHP 7
(ii) Step two: whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and .
overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.
(iii) Step three: whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?
(iv) Step four: whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of of justice?
If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be rt wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."
7. Consequently, there is no merit in this petition, the same is dismissed.
November 16, 2015, ( Rajiv Sharma ),
)
(karan Judge.
::: Downloaded on - 15/04/2017 19:20:46 :::HCHP