Chattisgarh High Court
Smt. Saroj Sao vs State Of Chhattisgarh on 21 October, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
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2024:CGHC:41362-DB
NAFR
RAHUL HIGH COURT OF CHHATTISGARH AT BILASPUR
JHA
Digitally signed
by RAHUL JHA CRMP No. 873 of 2024
Date: 2024.10.22
15:30:50 +0530
1 - Smt. Saroj Sao W/o Shri Dwarika Prasad Sao Aged About 58 Years
R/o House No. 444, Sanvara Gali, Ward No. 08, Pusaur, District
Raigarh, Chhattisgarh
2 - Jaimini Sao S/o Dwarka Prasad Sao Aged About 44 Years R/o
House No. 444, Sanvara Gali, Ward No. 08, Pusaur, District Raigarh,
Chhattisgarh
3 - Smt. Shanta Sao W/o Jaimini Sao Aged About 35 Years R/o House
No. 444, Sanvara Gali, Ward No. 08, Pusaur, District Raigarh,
Chhattisgarh
4 - Dr. Anup Sao S/o Dwarka Prasad Sao Aged About 37 Years R/o
House No. 444, Sanvara Gali, Ward No. 08, Pusaur, District Raigarh,
Chhattisgarh
. Petitioners
versus
1 - State Of Chhattisgarh Through Station House Officer,
Chakradharnagar Police Station, Raigarh, District Raigarh, Chhattisgarh
2 - Smt. Kiran Sao W/o Dr. Anup Sao Aged About 28 Years R/o
Chakradharnagar, Kaserpara, Ward No. 26, Tehsil And District Raigarh,
Chhattisgarh,...(Complainant)
Respondents
For Petitioners : Mr. Mayank Kumar, Advocate For Respondent : Mr. Sakib Ahmed, PL For Respondent No. 2 : Mr. Narendra Mehar, Advocate Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board 2 / 14 Per Ramesh Sinha, Chief Justice 21/10/2024
1. Heard Mr. Mayank Kumar, learned counsel for the Applicants. Also heard Mr. Sakib Ahmed, learned Panel Lawyer for respondent No.1/State and Mr. Narendra Mehar, learned counsel for respondent No.2.
2. The Applicants have filed the instant petition under Section 482 of Cr.P.C. for quashment of criminal proceedings pending before the learned Judicial Magistrate First Class, Raigarh in Criminal Case NO. 253/2024 along with FIR and charge-sheet arising out of Crime no. 15/2024.
3. Case of the prosecution, in brief, is that the Petitioner No.1 is the mother-in-law of the complainant and resides at Pusaur, Raigarh (C.G.) while Petitioner No.2 Jamini Sao and Petitioner No. 3 Smt. Shanta Sao (wife of Petitioner No. 2) are brother- in-law and sister-in-law of the complainant. Petitioner no. 4 Dr. Anup Sao married Respondent no. 2 Smt. Kiran Sao in the year 2021 and are husband and wife. From the wedlock of the petitioner no. 4 and respondent no. 2 a child was born in the year 2022 namely Moksh. Petitioner no. 4 is Bachelor of Ayurvedic Medicine and Surgery (BAMS) and currently helping his elder brother Petitioner no. 2 who is having small retail of paints and hardware in Pusaur. 3 / 14 The Complainant/respondent No. 2 made a written complaint on 06/01/2024 on the allegations that the marriage of the complainant and petitioner no. 4 Dr. Anup Kumar Sao was solemnized on 07.02.2021 at Hotel Red Queen as per Hindu Rites and Customs. During ceremony her parents had given Streedhan in access of their capacity, in the last minute of marriage ceremony, the mother-in-law and husband also demanded a diamond ring. After the marriage, the complainant stayed with the in laws at Pusaur, Raigarh (C.G.). It is alleged that after seven days of marriage her mother-in-law, elder brother-in-law and sister-in-law started harassing her on small things and they used to provoke her husband to find fault in her work. She further alleged that mother-in- law forced her to bring a car from her father as a dowry. She also alleged that her husband is of bad character and used to go to Thailand as well as other places for enjoyment and in order to torture her he sent obscene photos with prostitutes so that she remain mentally tortured despite that she remained calm thinking that after a child is born things would become normal. However, her mother-in- law and sister-in-law used to harass her continuously. She further alleged that on 09.05.2021 her husband, mother-in-law, brother-in-law and sister- in-law all the accused persons abused or assaulted her throughout the day demanding a car and in fear she also alleged that she locked herself in the room or threaten her to burn with a kerosene on the same day. When everyone was sleeping on the 4 / 14 same night, she quietly left the house at around 3:00 A.M and went to Maternal-uncle home who stays in Pusaur. Subsequently, the Maternal-uncle of the complainant took her paternal home on the next day.
Based on the Complaint of the respondent no. 2, FIR has been registered at Police Station Chakradharnagar, Raigarh (C.G.) on 06/01/2024 for offence under Section 498A, 323 R/w 34 of the IPC. After investigation, the police filed the charged sheet before the concerned Trial Court.
4. Admittedly, the dispute between the parties is matrimonial dispute and the mediation proceedings in the present case has failed.
5. Learned counsel for the applicants submits that applicant No. 1 to 3 are parents of applicant No.4 and omnibus allegations have been leveled against them. He prays for quashment of proceedings against the applicants. He submits that the police authority has not complied with the provisions of Sections 41, 41- A of the Cr.P.C. which is in violation of the direction of Arnesh Kumar v. State of Bihar, 2014 (8) SCC 273.
6. Mr. Narendra Mehar, learned counsel for respondent No.2/complainant, would submit that there is specific allegation against the applicants that they have started harassing the complainant physically and mentally, as such, petition deserves to be dismissed.
5 / 14
7. We have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
8. In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others1, the Supreme Court has held that the accused can approach the High Court either under Section 482 of the CrPC or under Article 227 of the Constitution of India to have the proceeding quashed against him when the complaint does not make out any case against him.
9. The Supreme Court in the mater of State of Haryana and others v. Bhajan Lal and others2 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: -
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have 1 (1998) 5 SCC 749 2 1992 Supp (1) SCC 335 6 / 14 extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(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 concerned Act (under which a criminal proceeding is instituted) 7 / 14 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.
103. We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."
10. The principle of law laid down in Bhajan Lal's case (supra) has been followed recently by the Supreme Court in the matters of Google India Private Limited v. Visaka Industries 3, Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another 4 and Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others5. The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal's case (supra) that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and "that too in the rarest of rare cases" as indicated in paragraph 103 therein of the report.
3 (2020) 4 SCC 162 4 (2020) 13 SCC 435 5 (2019) 18 SCC 191 8 / 14
11. Having noticed the scope of interference by this Court in the petition relating to quashment of FIR, reverting to the facts of the present case, it is quite vivid that in the impugned FIR, applicants have been charged for offences under Sections 498-A & 323/34 of the IPC.
12. Chapter XXA of the IPC deals with offence of cruelty by husband or relatives of husband. Section 498A of the IPC defines the offence of cruelty 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 purpose of this section, "cruelty"
means--
(a) any wilful 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."
13. A careful perusal of the aforesaid provision would show that in order to establish offence under Section 498A of the IPC, the prosecution must establish,
(i) That, woman must be married;
(ii) She has been subjected to cruelty or harassment and
(iii) Such cruelty or harassment must have been shown either 9 / 14 by husband of the woman or by relative of her husband.
14. The word 'cruelty' within the meaning of Section 498A of the IPC has been explained in Explanation appended to Section 498A of the IPC. It consists of two clauses namely clause (a) and clause
(b). To attract Section 498A of the IPC, it must be established that cruelty or harassment to the wife to coerce her or cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract Section 498A of the IPC. Explanation (b) to Section 498A of the IPC contemplates harassment of woman to coerce or any relation of her to meet any unlawful demand for any property or valuable security. The complainant if wants to come within the ambit of Explanation (b) to Section 498A of the IPC, she can succeed if it is proved that there was an unlawful demand by the husband or any of his relatives with respect to money or of some valuable security.
15. The Supreme Court in the matter of Priya Vrat Singh and others v. Shyam Ji Sahai6 considered the issue of delay in lodging the complaint as well as role that has been ascribed to the accused therein and quashed the complaint holding the delay of two years in lodging FIR to be fatal and further held that no role has been ascribed to the petitioner/accused therein. It was observed as under:-
"8. Further it is pointed out that the allegation of alleged 6 (2008) 8 SCC 232 10 / 14 demand for dowry was made for the first time in December, 1994. In the complaint filed, the allegation is that the dowry torture was made some times in 1992. It has not been explained as to why for more than two years no action was taken.
9. Further, it appears that in the complaint petition apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother in law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6.12.1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent No.1."
16. Similarly, in the matter of Sunder Babu and others v. State of Tamil Nadu7 delay in filing complaint against accused therein was taken note of by their Lordships of the Supreme Court holding the case to be covered by Category Seven of para-102 highlighted in Bhajan Lal's case (supra), the prosecution for offence under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act was quashed.
17. Similarly, in the matter of Geeta Mehrotra (supra), the Supreme Court held that casual reference to the family member of the husband in FIR as co-accused particularly when there is no specific allegation and complaint did not disclose their active involvement. It was held that cognizance of matter against them for offence under Sections 498-A, 323, 504 and 506 of the IPC would not be justified as cognizance would result in abuse of judicial process.
7 (2009) 14 SCC 244 11 / 14
18. In the matter of K. Subba Rao and others v. State of Telangana represented by its Secretary, Department of Home and others8 their Lordships of the Supreme Court delineated the duty of the criminal Courts while proceeding against relatives of victim's husband and held that the Court should be careful in proceeding against distant relatives in crime pertaining to matrimonial disputes and dowry deaths and further held that relatives of husband should not be roped in on the basis of omnibus allegations, unless specific instances of their involvement in offences are made out.
19. In the matter of Rashmi Chopra (supra) it has been held by their Lordships of the Supreme Court relying upon the principle of law laid down in Bhajan Lal's case (supra) that criminal proceedings can be allowed to proceed only when a prima facie offence is disclosed and further held that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment and the High Court should not hesitate in exercising the jurisdiction to quash the proceedings if the proceedings deserve to be quashed in line of parameters laid down by the Supreme Court in Bhajan Lal's case (supra) and further held that in absence of specific allegation regarding anyone of the accused except common and general allegations against everyone, no offence under Section 498A IPC is made out and quashed the charges for offence under Section 8 (2018) 14 SCC 452 12 / 14 498A of the IPC being covered by category seven as enumerated in Bhajan Lal's case (supra) by holding as under:-
"24. Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by Nayan Chopra.
25. There being no specific allegation regarding any one of the applicants except common general allegation against everyone i.e. "they started harassing the daughter of the applicant demanding additional dowry of one crore" and the fact that all relatives of the husband, namely, father, mother, brother, mother's sister and husband of mother's sister have been roped in clearly indicate that application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants....."
20. Having noticed the legal position qua quashing the FIR, the question would be whether taking the contents of the FIR as it is, offence under Sections 498A & 323 R/w 34 of the IPC is made out against the petitioners ?
21. It is the case of the prosecution that marriage of respondent No.2 was solemnized with applicant No.4 on 07/09/2021 in accordance with Hindu rites and rituals and on 06/01/2024 respondent No.2 13 / 14 lodged a written report in the police station that she was subjected to cruelty by her husband and her in laws for demand of dowry. Prior to registration of the FIR a preliminary enquiry has been conducted and in the preliminary enquiry, it was found that there is prima facie cognizable case is made out against the petitioners, thus on the basis of said written report, offence under the aforementioned sections has been registered against the applicants including the husband and investigation is going on.
22. In the complaint so made, the complainant has only made omnibus and general allegations against her inlaws without being full particulars about date and place that all the applicants including the husband. There is no specific allegation regarding anyone of the applicant No. 1 to 3 except common and general allegations against them.
23. Considering the submissions of the learned counsel for the parties, material available on record, perusing the FIR in which no specific allegations have been made and only bald and omnibus allegations have been made against the applicant Nos. 1 to 3 and specific allegations have been made against the applicant No.4 / husband, we are of the considered opinion that prima-facie no offence under Section 498A and 323/34 of the IPC is made out for prosecuting applicant No. 1- Smt. Saroj Sao and Applicant No. 2 Jaimini Sao and Applicant No.3- Smt. Shanta Sao for the above- stated offences and the prosecution against them for the 14 / 14 aforesaid offence is covered by Category 1, 3 & 7 of para-102 of the judgment rendered by the Supreme Court in Bhajan Lal's case (supra) and as such, liable to be quashed.
24. As a fallout and consequence of the above-stated legal analysis, Criminal Case No. 253/2024 pending before the learned Judicial magistrate First Class, Raigarh and charge-sheet arising out of Crime No. 15/2024 for offence under Sections 498A & 323/34 of the IPC are hereby quashed to the extent of applicant No. 1- Smt. Saroj Sao and Applicant No. 2 Jaimini Sao and Applicant No.3- Smt. Shanta Sao. Prosecution against her husband i.e. applicant No. 4- Dr. Anup Sao shall continue and be concluded expeditiously. It is made clear that all the observations made in this order are for the purpose of deciding the petition filed by the petitioners hereinabove and this Court has not expressed any opinion on merits of the matter.
25. The petition under Section 482 CrPC is partly allowed to the extent indicated hereinabove. No cost(s).
Sd/- Sd/-
(Bibhu Datta Guru) (Ramesh Sinha)
Judge Chief Justice
Rahul