Jharkhand High Court
Tarun Kumar Basak vs The State Of Jharkhand on 18 October, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1455 of 2021
1. Tarun Kumar Basak
2. Chandana Basak ...... Petitioners
Versus
1.The State of Jharkhand
2. Soma Ghosh @ Soma Basak ...... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners : Mr. Kaushik Sarkhel, Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
For the O.P. No. 2 : Ms. Sharda Kumari, Advocate
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06/Dated: 18/10/2022
Heard Mr. Kaushik Sarkhel, learned counsel for the petitioners, Mrs. Priya Shrestha, learned counsel for the State and Ms. Sharda Kumari, learned counsel for the O.P. No.2.
2. This petition has been filed for quashing of F.I.R. being Mango P.S. Case No. 64 of 2021 pursuant to an order passed under section 156(3) Cr.P.C. dated 19.10.2020 in Complaint Case No. 1936 of 2020 registration of the instant First Information Report under sections 323/324/498-A of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act, pending in the Court of learned Judicial Magistrate, Jamshedpur. By way of I.A. No. 8695 of 2022 by which prayer has made for challenging cognizance order dated 25.08.2021 and order dated 19.10.2020 by which the complaint was referred under section 156(3) Cr.P.C. for registration of F.I.R, the said prayer was allowed. Thus, orders dated 25.08.2021 and 19.10.2020 are also under challenge.
3. Learned counsel for the petitioners at the outset confined his prayer only with regard to petitioner no. 1 as chargesheet has not been submitted against petitioner no. 2 and accordingly, he does not want to press 2 this petition so far as petitioner no. 2 is concerned.
4. The F.I.R. has been lodged alleging therein that the petitioner no. 1 and O.P. No. 2 are husband and wife and petitioner no. 2 is the sister-in-law (Bhabhi) of the accused petitioner and by virtue of the registered marriage, the marriage was solemnized between the O.P. No. 2 and petitioner no. 1 on 10.11.2017 and further social marriage was held on 30.11.2017 in accordance with Hindu rites and customs. In the marriage the petitioner's family gave Rs. 1 lakh as stridhan besides jewellery, gifts and household articles worth Rs. 7,00,000/-. The petitioner no. 1 did not tell the complainant and his family members that his left leg is suffering from polio since childhood. It is alleged that the petitioner no. 2 is the elder sister-in-law and she always used to tell the complainant that she is not worthy of petitioner no. 1 and she has brought insufficient dowry from her maternal home. Only after a few days the complainant realized that the petitioner no. 1 and petitioner no. 2 have immoral relationship and whenever she was very busy in work then both of them used to meet secretly. When the complainant opposed this act, the petitioner no. 1 used to beat her and told that if she will open her mouth she will be thrown out of the house and divorced. The accused persons always demanded flat from the uncle of the complainant. It is alleged that in the month of October, 2019, when the complainant was pregnant her husband and bhabhi were not happy with this nor did both of them take care of the complainant in any way during this time. On the contrary both of them harassed the complainant mentally and physically resulting in miscarriage of the complainant. Inspite of all the problems the complainant was living on this expectation in her inlaws house that in future everything will be fine. The mental and physical torture given to the complainant by the accused and co- accused was not decreasing and not only this both the accused persons always started roaming together in hiding and started living together in the house, the 3 complainant could not bear it all. When the accused petitioner no. 1 went out with her sister-in-law in the afternoon without informing on 02.07.2020 and they returned quite late in the night about 11.30 P.M. and when she questioned them, she was assaulted by them that night. The ugly treatment meted out by the accused persons shocked the complainant badly and she narrated the incident to her inlaws but they supported the accused petitioners exclusively. Later on, the accused persons called upon the maternal uncle of the complainant on 03.07.2020 and drove out the complainant from his house, since then the complainant is residing with her parents i.e. from 03.07.2020.
5. Mr. Kaushik Sarkhel, learned counsel for the petitioners submits that the petitioner no. 1 is husband of complainant and petitioner no. 2 is sister-in- law of the complainant. He submits that ingredients of sections 323/324/498-A of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act are not made out. There was love marriage between the petitioner no.1 and O.P. No. 2 and this took place on 10.11.2017 in accordance with Special Marriage Act, at Jamshedpur and they were living together. He further submits that social marriage was taken place on 30.11.2017 in presence of family members and well wishers. He submits that petitioner no. 1 is suffering from polio since childhood. He further submits that Original Matrimonial Suit No. 490 of 2020 dated 07.10.2020 for decree of divorce under section 24(1)(d) under the Special Marriage Act was filed by the O.P. N. 2 and subsequent thereto this complaint has been filed which is malicious in nature. He further submits that the petitioner has also filed a petition under section 22 of the Special Marriage Act, 1954 on 22.07.2020 which was registered as Matrimonial Case No. 311 of 2020 for restitution of conjugal rights. In these backgrounds, he submits that this is malicious prosecution against the petitioner particularly in view of the fact that chargesheet has not been submitted against the petitioner no. 2- sister-in-law in lack of evidence though the entire F.I.R. is with regard to illicit 4 relationship of the petitioner no.1 with petitioner no. 2. He further submits that once the order is passed under section 204 Cr.P.C. the learned Court is required to give proper reason applying judicial mind. He further submits that in a criminal case mens rea is one of the important aspect. He further submits that nature of cruelty has been explained in section 498(A) of I.P.C., which is not made out and the F.I.R. including impugned orders so far as petitioner no. 1 is concerned, is fit to be quashed. According to him the order dated 19.10.2020 which is passed under section 156(3) Cr.P.C. is not tenable as judicial mind has not been applied in passing the such order in the light of " Priyanka Srivastava & Another Vs. State of Uttar Pradesh & Others" reported in (2015) 6 SCC
287.
6. Peer contra, Ms. Sharda Kumari, learned counsel for the O.P. No. 2 submits that it is not true that the F.I.R. has been lodged as a counter-blast to the matrimonial suit filed by the petitioner no. 1 against her, on the contrary petitioner no. 1 was reasonably apprehending that his wife may file a criminal case against him as the informant was ousted by him after committing continuous torture both mentally and physically on her person since the day of marriage and he was pressuring her to ask her maternal uncle to purchase a flat for him otherwise he has threatened her not to come back and has filed a matrimonial suit being Matrimonial Case No. 311 of 2020 in the Court of Principal Judge, Family Court at Jamshedpur under section 22 of the Special Marriage Act for restitution of conjugal rights. She further submits that petitioner no. 1 forced the O.P. No. 2 to leave her matrimonial home on 03.07.2020 and just after 19 days this restitution petition has been filed only to save the skin by the petitioner. She further submits that learned court has already referred the matter under section 156(3) Cr.P.C and investigation has been completed and chargesheet has been submitted against the petitioner no.
1. She further submits that the bonafide of the O.P. No. 2 is crystal clear in 5 view of that fact that other relatives and family members have not been implicated in this case and in a given situation only the petitioner and sister-in- law have been implicated in this case. She further submits that cognizance order is well speaking order and there is no need of giving reason in a case where chargesheet is submitted. She submits that this aspect of the matter has been considered by the Hon'ble Supreme Court in the case of "State of Gujarat V. Afroz Mohammed Hasanfatta" (2019) 20 SCC 539 wherein para 23 the Hon'ble Supreme Court has held as under:-
"23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file."
7. Learned counsel for the O.P. No. 2 further submits that due to physical and mental torture, on 20.11.2019 the pregnancy of the O.P. No. 2 was terminated which also suggests cruelty upon O.P. No. 2.
8. Mrs. Priya Shrestha, learned counsel for the State submits that there are direct allegations so far as petitioner no. 1 is concerned and this Court may not quash the F.I.R. including impugned orders.
9. In the light of the submissions of the learned counsel for the parties the Court has gone through the materials on record and finds that admittedly 6 the petitioner no. 1 is husband of O.P. No. 2. There is allegation of illicit relationship with sister-in-law in the complaint petition. In the complaint petition there is also allegation of committing mental and physical torture upon the O.P. No. 2. Admittedly, the marriage was taken place with their own choice and subsequently, social marriage was conducted which has been discussed here-in-above in submissions of the learned counsel for the parties. Thus, there are allegation against the petitioner no. 1 who happens to be husband of O.P. No. 2 of torture against the O.P. No. 2. So far as grounds taken by Mr. Sarkhel with regard to transfer of the complaint under section 156 (3) Cr.P.C. is concerned, that is admittedly not in dispute that learned court is required to apply judicial mind. The order dated 19.10.2020 whereby the learned court has referred the complaint under section 156(3) Cr.P.C. for investigation, the said order is speaking order. In the said order, the learned court has applied judicial mind as he disclosed in that order after hearing the complainant and looking into the complaint he came to the conclusion that the matter is required to be investigated under section 156(3) Cr.P.C. Thus judicial mind has been applied by the sending the complaint under section 156 (3) Cr.P.C. Moreover seeing burden upon the learned Magistrate if he came to the conclusion that the matter is required to be investigated by the police and he referred the matter for investigation, he can do so. There is no illegality in that order. Reference may be made to the case of " HDFC Securities Limited & Others Vs. State of Maharashtra & Another" reported in (2017) 1 SCC 640, wherein in para 9, 10, 24 and 27 the Hon'ble Supreme Court has been held as under:-
"9. On the contrary, before the High Court it was submitted on behalf of Respondent 2 that an order under Section 156(3) of the Criminal Procedure Code requiring investigation by the police does not cause any injury of irreparable nature which requires quashing of the investigation. It is further stated that the stage of cognizance would arise after the investigation report is filed. Therefore, the application filed by the appellants before the High Court is nothing but premature and thus there is no need for exercising the powers of the High Court either under Article 227 of the Constitution of India or under Section 482 of the Code. Further contention of the respondent before the High Court was that the 7 inherent powers under Section 482 of the Code should be sparingly used.
10. The High Court held that the direction given to the police by the Magistrate under Section 156(3) of the Code for carrying out the investigation into the complaint and to submit a report, cannot give a right to the appellants for quashing the same since such an order would be based absolutely on speculations upon the report not filed. Further, it would result in prejudging the complaint. In these circumstances, the High Court dismissed the said application.
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24. Per contra, the learned counsel for Respondent submitted that the complaint has disclosed the commission of an offence which is cognizable in nature and in the light of Lalita Kumari case, registration of FIR becomes mandatory. We observe that it is clear from the use of the words "may take cognizance" in the context in which they occur, that the same cannot be equated with "must take cognizance". The word "may" gives discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and that the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter, which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself. It is settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, do not disclose the commission of an offence.
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27. It appears to us that the appellants approached the High Court even before the stage of issuance of process. In particular, the appellants challenged the order dated 4-1-2011 passed by the learned Magistrate under Section 156(3) CrPC. The learned counsel appearing on behalf of the appellants after summarising their arguments in the matter have emphasised also in the context of the fundamental rights of the appellants under the Constitution, that the order impugned has caused grave inequities to the appellants. In the circumstances, it was submitted that the order is illegal and is an abuse of the process of law. However, it appears to us that this order under Section 156(3) CrPC requiring investigation by the police, cannot be said to have caused an injury of irreparable nature which, at this stage, requires quashing of the investigation. We must keep in our mind that the stage of cognizance would arise only after the investigation report is filed before the Magistrate. Therefore, in our opinion, at this stage the High Court has correctly assessed the facts and the law in this situation and held that filing of the petitions under Article 227 of the Constitution of India or under Section 482 CrPC, at this stage are nothing but premature. Further, in our opinion, the High Court correctly came to the conclusion that the inherent powers of the Court under Section 482 CrPC should be sparingly used."
10. Moreover the order dated 19.10.2020 whereby complaint was sent under section 156(3) Cr.P.C was not initially challenged and the said order was later on challenged by way of filing interlocutory application. The investigation is already complete. Challenging the said order is afterthought. That order has already taken force in view of the fact that investigation is completed and chargehseet has been submitted.
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11. In the case in hand, learned court has not called upon the complainant to examine on S.A. and to enquire the enquiry witnesses. He has opted the next option of sending complaint to the police under section 156(3) Cr.P.C. There is no illegality in applying judicial mind in passing order dated 19.10.2020. The Court has perused the cognizance order dated 25.08.2021 and finds that learned court has taken cognizance after perusing the F.I.R., chargesheet and case diary. Sufficient material was before the learned court in form of chargesheet against the petitioner and considering these materials in the chargesheet, learned court has taken cognizance. When the prosecution relies on the materials, strict standard of proof is not be applied at the stage of issuance of summons nor to examine the probable defence which the accused may take. All that the court is required to do is to satisfy itself as to whether there are sufficient grounds for proceeding before summoning the accused and the facts stated will have to be accepted as they appear on the very face of it. It has to be seen only that there is sufficient ground for proceeding against the accused and the Court is not required to weigh the evidentiary value of the materials on record. Only thing is that the Court is required to apply judicial mind which is not in dispute In the case in hand, the learned Court after looking into the materials has taken cognizance. There is no illegality in the cognizance order. If the husband is having illicit relation with another woman that itself is cruelty and these are subject matter of trial.
12. In view of the above discussions, reasons and analysis, the Court comes to the conclusion that there is no illegality in the impugned orders as there are serious allegation against the petitioner no. 1 in the complaint which was investigated and chargesheet was submitted against the petitioner no.1.
13. Accordingly, this criminal miscellaneous application is dismissed. In view of dismissal of main petition, pending I.A., if any, stands dismissed. The trial court will proceed without being prejudiced by the observations made 9 here-in-above and will decide the case in accordance with law.
(Sanjay Kumar Dwivedi, J.) Satyarthi/