Patna High Court
Bharat Lal And Ors. vs Mohan Lal Barnawal on 24 April, 1987
Equivalent citations: 1988CRILJ1405
ORDER S.N. Jha, J.
1. This application has been filed for quashing an order dated 30-4-1984 passed by the Chief Judicial Magistrate, Aurangabad in Complaint Case No. 585/83 whereby cognizance has been taken against the petitioners under Section 406, Indian Penal Code, (in short 'the Penal Code').
2. The complainant-opposite party had filed a complaint on 29-12-1983 in the court of Chief Judicial Magistrate, Aurangabad alleging, inter alia, that his sister Ambika Devi alias Rani was married on 30-6-1982 with Ramesh Kumar, petitioner No. 2 son of Bharat Lal, petitioner 1. According to the complainant his sister was living in her Sasural for several months and thereafter the complainant brought her to his house where she was living. It is alleged in the complaint that the accused petitioners along with petitioner 6 came to the complainant's house on 25-11-1983 in a private car bearing No. BRW 1782 belonging to petitioner 6 and informed that they were coming from Varanasi and would go to Jharia to see the girl with whom the marriage of petitioner 3, another son of petitioner 1, has been settled. From the complaint, it appears that the petitioners wanted to stay in the house of the complainant in the night and they expressed their desire to proceed for Jharia next morning where upon the complainant hosted all the petitioners and made all possible efforts for their contorts at his place. The further allegation is that petitioner 4, Smt. Damyanti Devi, wife of petitioner 1 asked the complainant's sister to give her entire ornaments so that they may be kept in a bank-locker at Varanasi and the complainant and his sister realising the danger of keeping the ornaments in their house, agreed with the proposal of the petitioners and in pursuance thereof, handed over the entire ornaments under good faith to the accused persons.
3. It is further alleged that after a month, the complainant went to Varanasi in connection with his personal work and during that visit, he went to the residence of the petitioners and enquired about the Rukhsaji of his sister whereupon it is said that, petitioners 1 to 4, who were present there, misbehaved with the complainant and asked him to go back. It is alleged that they said that neither anybody would go to bring the complainant's sister nor her ornaments will be returned as the complainant had not given Television and other costly goods as per his promise and they would realise the price of Television and other goods from the ornaments. It is also said that now no relationship would exist between the petitioners and his sister. The complainant also learnt that the petitioners have settled the marriage of petitioner 2, Ramesh Kumar at some other place. A true copy of the complaint petition is Annexure-1 appended to this application.
4. The complainant was examined on solemn affirmation on 29-12-1983 and the learned Additional Chief Judicial Magistrate after examining the complainant, referred the matter to the Principal Probation Officer, Aurangabad for enquiry and report.
5. It transpires that the enquiry officer examined two prosecution witnesses and after examining the aforesaid two witnesses, submitted his report stating therein that a prima facie case has been made out. After perusing the report, cognizance Was taken against the petitioners under Section 406, Penal Code, which has been challenged in this application.
6. Mr. J.P. Shukla, learned Counsel appearing on behalf of the petitioners has contended that no case has been made out against the petitioners under Section 406, Penal Code, as the complaint petition does not disclose any offeace under Section 406, Penal Code. It was further contended that the complainant's sister whose ornaments are' alleged to have been misappropriated by the accused persons, has neither made any complaint nor she was examined before the enquiring officer in support of the complaint case. According to Mr. Shukla, this case has been filed on frivolous ground only as a retaliation to a divorce case bearing Hindu Marriage Petition No. 87 of 1983 filed by petitioner 2, Ramesh Kumar on 18-8-1983 praying therein for grant of permission of judicial separation between the petitioner Ramesh Kumar and his wife Ambika Devi Rani. A true copy of the divorce petition is Annexure-2 appended to this application. As a matter of fact, neither the petitioners visited the complainant's house, as alleged in the complaint petition, nor any ornament has been entrusted to the petitioners. This concocted case has been filed just to harass the entire family members of petitioner 1 Bharat Lal including his wife and sons."
7. It is stated in this petition that the complainant's sister appeared in the above mentioned divorce case in the court of Civil Judge, Varanasi and filed a petition dated 26-5-1984 stating therein that she has been living at Bokaro and not with the complainant, which according to Mr. Shukla itself indicates that the complainant wrongly stated on oath that his sister was living with him on the relevant date. It was vehemently argued that from the evidence available on the record, it appears that the complainant had failed to prove the prosecution case regarding entrustment of ornaments to the accused-petitioners which is one of essential ingredients of an offence under Section 406, Penal Code.
8. It was vehemently argued that the facts and circumstances of this case clearly show that the. complainant wanted to harass the petitioners by bringing a complaint with false allegations and if the complaint case is allowed to continue, it will be sheer misuse of the process of the Court at the cost of harassment and humiliation of the petitioners. Reliance was placed in the case of J.C. Tondon v. Munna Lal 1980 All LJ 947. In the aforesaid case, the complainant filed a complaint against the accused persons with false allegations of extortion after six months of the incident when, in fact, he could have taken steps against them immediately. The Magistrate recorded the statement of some witnesses under Sections 200 and 202, Cr.P.C. (in short 'the Code') and then passed orders summoning the applicants under Section 386, Penal Code. A grievance was raised on behalf of the applicants that the complainant had filed a wholly false complaint case against them with a view to harass them and the Magistrate's order issuing process against them was illegal and arbitrary and there was no sufficient ground for issuing the process. His Lordship while considering the question whether the learned Magistrate was justified in issuing process on the materials before him held that the facts and circumstances of the case clearly show that the complainant wanted to harass the applicant by bringing a complaint with a false allegations and, thus, it was a fit case for exercise of inherent powers under Section 482 of the Code by this Court. On the basis of this decision, Mr. Shukla contended that the cognizance taken in the instant case is illegal and fit to be quashed as it has been filed only to harass and humiliate the petitioners.
9. On the other hand, Mr. Rajendra Prasad Singh, learned Counsel appearing on behalf of the complainant submitted that the proceeding against an accused can be quashed in the initial stages only if on the face of the complaint or the papers accompanying the same, no offence is constituted. But if the facts are otherwise and in course of enquiry, the Magistrate has found a prima facie case against the petitioners, this Court will not quash the proceeding on the ground whether the investigation is objective or not objective. This Court will not go into that question at this stage.
10. It is, no doubt, true that the inherent jurisdiction of the High Court under Section 482 of the Code cannot be exercised in regard to the matters specially covered by other provisions of the Code, but it can be exercised to quash a proceeding in appropriate cases either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice.
11. "Inherent jurisdiction" to prevent abuse of "process" and to "secure ends of justice" are terms incapable of definition. The framers of the Code could not contemplate, so could not have provided what are the cases of abuse of process of Court. It all depends upon the facts of each case. Some of the categories of cases where the inherent jurisdiction to quash the proceeding can be exercised are cases where it manifestly appears that there is a legal bar against the institution or continuance of a proceeding in respect of an alleged offence or where the allegation in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged.
12. In the instant case, the complainant has stated that while petitioner and others were proceeding to Jharia in connection with the marriage of his second son, they stayed in the night at his place and the petitioners made a proposal to hand over all the ornaments to them. It is not stated who handed over the ornaments, either the sister of the complainant or the complainant himself or his father. It is not in dispute that a divorce case was filed by petitioner 2 in the Court of Civil Judge, Varanasi on 16-8-1983 for judicial separation and this complaint has been filed on 29-12-1983 after more than four months of the filing of the divorce case. I have already indicated above that to constitute an offence under Section 406, Penal Code, the entrustment of the property must be specific and there must be an act of dishonest misappropriation of the said property. These facts have not been considered by the learned Magistrate. It is well known that if no prima facie case has been made out against the accused, the proceeding may be quashed to prevent abuse of the process of the Court. It can be quashed in the initial stage if on the face, of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaints as they are, without adding or subtracting therefrom if no offence is made out, then in my view, this Court would be justified in quashing the proceeding in exercise of its powers under Section 482 of the Code. In this connection, reference may be made to the case of Dr. Sharda Prasad Sinha v. State of Bihar 1977 Cri LJ 1146, where the Supreme Court has held:
It is now settled law that where the allegations set out in the complaint or the charge-sheet do not constitute any offence, it is competent to the High Court exercising its inherent jurisdiction under Section 482, Criminal P.C. to quash the order passed by the Magistrate taking cognizance of the offence. The question which, therefore, arises for consideration is whether the allegations set out in the complaint constitute any offence against the appellant.
13. Thus, the instant case, in my view, is clearly a case where the allegations contained in the complaint did not constitute any specific offence against the petitioners and the learned Magistrate was in error in taking the cognizance against the petitioners.
14. For the reasons stated above, I quash the impugned order and allow this application.