Chattisgarh High Court
Thanuram Kashyap vs State Of Chhattisgarh on 14 August, 2024
Author: Ramesh Sinha
Bench: Ramesh Sinha
1 / 14
2024:CGHC:30761
Digitally
signed by
RAHUL
RAHUL JHA NAFR
JHA Date:
2024.08.16
17:57:39
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRMP No. 2385 of 2023
1. Gajendra Kashyap S/o Shri Thanuram Kashyap Aged About 32
Years R/o Vyapar Vihar, Near Income Tax Office, Bilaspur, Police
Station Civil Line, District : Bilaspur, Chhattisgarh
---- Petitioner
versus
1. State Of Chhattisgarh Through P.S. Pamgarh, District : Janjgir-
Champa, Chhattisgarh
2 - Smt. Sunita Kashyap D/o Shri Rooplal Kashyap Aged About 27
Years R/o Village Dongakohraud, Dharsapara Tehsil Pamgarh, P.S.
Pamgarh, District : Janjgir-Champa, Chhattisgarh
-- Respondents
CRMP No. 2610 of 2023
1. Thanuram Kashyap Aged About 75 Years R/o Sai Mandir, Shreikant Marg, Talapara Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh.
2. Kunjbihari Kashyap S/o Shri Thanuram Kashyap Aged About 42 Years R/o. Sakre Gali Ward No. 12, Vyapar Vihar Sharda, Nagar, Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh. 2 / 14
3. Rakesh Kashyap S/o Shri Thanuram Kashyap Aged About 35 Years R/o. Ward No. 12, Sharda Nagar, Talapara Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh.
4. Manish Kashyap S/o Thanuram Kashyap Aged About 30 Years R/o. Sakre, Gali Ward No. 12, Sharda Nagar, Vyapar Vihar, Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh.
5. Rama Kashyap W/o Shri Kunjbihari Kashyap Aged About 32 Years R/o Sakre Gali Sharda Nagar, Vyapar Vihar, Bilaspur Police Station Civil Line, District Bilaspur Chhattisgarh.
6. Pushpanjali Kashyap W/o Shri Rakesh Kashyap Aged About 31 Years R/o Ward No. 12, Sharda Nagar, Talapara Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh.
7. Khageshwari Kashyap W/o Shri Manish Kashyap Aged About 23 Years R/o. Sakre Gali Ward No. 12, Sharda Nagar, Vyapar Vihar, Bilaspur, Police Station Civil Line, District Bilaspur Chhattisgarh.
--Petitioners Versus
1. State Of Chhattisgarh Through P.S. Pamgarh, District Janjgir Champa Chhattisgarh.
2. Smt. Sunita Kashyap W/o Grajendra Kashyap, D/o Shri Rooplal Kashyap, Aged About 25 Years R/o Village Dongakohraud, Dharsapara Tehsil Pamgarh, P.S. Pamgarh District Janjgir Champa Chhattisgarh.
- Respondent For Petitioners : Mr. Chitendra Singh, Advocate For Respondent No.1 : Mr. Kamaljeet Singh, PL For Respondent No.2. : Mr. Aditya Sharma, Advocate 3 / 14 Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Bibhu Datta Guru, Judge Order on Board Per Ramesh Sinha, Chief Justice 14/08/2024
1. Since, both the CRMPs have been filed for quashment of Crime No. 284/2023, registered at Police Station- Pamgarh, therefore, they are being heard together and decided by this common order.
2. Heard Mr. Chitendra Singh, learned counsel for the petitioners. Also heard Mr. Kamaljeet Singh Saini, learned Panel Lawyer for respondent No.1/State and Mr. Aditya Sharma, Advocate for respondent No.2.
3. The petitioners have filed the instant petitions under Section 482 of Cr.P.C. being aggrieved by registration of offence under Sections 498A, 34 of the IPC in the FIR bearing Crime No. 284/2023, registered at Police Station- Pamgarh on dated 02/07/2023.
4. Case of the prosecution, in brief, is that Complainant- Sunita Kashyap (henceforth 'the Wife') lodged a written report alleging therein that the marriage between the complainant/Wife and petitioner namely Gajendra Kashyap (henceforth 'the Husband') was solemnized on 27/06/2020 as per Religious Custom and tradition of their caste at Village- Dongakohraud, Dharsapara. It is alleged that after four months of the marriage, the husband along with her in-laws used to harass the wife to bring Motorcycle and 4 / 14 other articles from her matrimonial home as a dowry. On refusal, the husband along with other petitioners started treating her with cruelty. It has been alleged that on 10/04/2023, the Wife was driven out of the house of the husband. On the basis of aforesaid allegation, offence under section 498A,34 of IPC was registered against the petitioners in connection with Crime No. 284/2023, registered at Police Station- Pamgarh on dated 02/07/2023.
5. Mr. Chitendra Singh, learned counsel for the petitioners submits that the Complainant herself is residing separate from the petitioners since 18/04/2023. He submits that the guidelines of Arnesh Kumar v. State of Bihar, 2014 (8) SCC 27 has not been followed in the present case. Without conducting preliminary inquiry, the FIR has been lodged against the petitioners. He submits that the investigation has completed, charge-sheet has been filed and in absence of any specific role attributed to the petitioners/accused, it would be unjust if the petitioners are forced to go through the tribulations of a trial i.e. general and omnibus allegations cannot manifest in a situation where the petitioner is forced to undergo the trial.
6. On the other hand, Mr. Kamaljeet Singh Saini, learned Panel Lawyer appearing for respondent No.1/State, would submit 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, therefore, registration of FIR was directed. He also submits that after registration of the FIR, the police recorded the 5 / 14 statement of the complainant / respondent No.2 under Section 161 of CrPC, as such, the petitions deserve to be dismissed.
7. Mr. Aditya Sharma, learned counsel for respondent Complainant/Wife, would submit that there is specific allegation against the petitioners that they have started harassing the complainant physically and mentally, saying that she did not bring ample dowry and her husband started abusing her as such she was thrown out from the maternal house for demand of dowry,and therefore, the petitions deserve to be dismissed.
8. We have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.
9. 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.
10. 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 1 (1998) 5 SCC 749 2 1992 Supp (1) SCC 335 6 / 14 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 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 7 / 14 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) 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."
11. 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 3 (2020) 4 SCC 162 4 (2020) 13 SCC 435 8 / 14 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.
12.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, four petitioners have been charged for offences under Sections 498- A/34 of the IPC.
13. 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."
5 (2019) 18 SCC 191 9 / 14
14. 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 by husband of the woman or by relative of her husband.
15. 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.
16. 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 6 (2008) 8 SCC 232 10 / 14 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 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."
17. 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.
18.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 7 (2009) 14 SCC 244 11 / 14 would not be justified as cognizance would result in abuse of judicial process.
19. 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.
20.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 8 (2018) 14 SCC 452 12 / 14 498A IPC is made out and quashed the charges for offence under Section 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....."
21.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/34 of the IPC is made out against the petitioners ?
22.It is the case of the prosecution that marriage of respondent No.2/complainant was solemnized with with Petitioner- Gajendra Kashyap on 27/07/2020 in accordance with Hindu rites and rituals 13 / 14 and on 02/07/2023 respondent No.2 lodged a written report at Police Station- Pamgarh alleging therein that she was subjected to cruelty by her husband and her in laws. 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 Sections 498A/34 of the IPC has been registered against the petitioners including the husband and investigation is going on.
23.In the complaint so made, the complainant has only made omnibus and general allegations against her in-laws without being full particulars about date and place that all the petitioners including the husband treated her with cruelty for not bringing sufficient dowry at the time of marriage. There is no specific allegation regarding anyone of the petitioners (in CRMP No. 2610/2023) except common and general allegations against them that they have demanded cash amount and household articles.
24.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 petitioners (in CRMP No. 2610/2023) and specific allegations have been made against the petitioner- Gajendra Kashyap, we are of the considered opinion that prima-facie no offence under Section 498A/34 of the IPC is made out for prosecuting petitioners in CRMP No. 2610/2023 i.e. Petitioner No.1 Thanuram Kashyap, Petitioner No.2, Kunjbihari 14 / 14 Kashyap, Petitioner No.3 Rakesh Kashyap, Petitioner No. 4 Manish Kashsyap, Petitioner No.5 Rama Kashyap, Petitioner No. 6- Pushpanjali Kashyap and Petitioner No. 7- Khageshwari Kashyap for the above-stated offences and the prosecution against them for the 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.
25.As a fallout and consequence of the above-stated legal analysis, FIR registered in bearing Crime No. 284/2023, registered at Police Station- Pamgarh for offence under Sections 498A/34 of the IPC is hereby quashed to the extent of Petitioner No.1 Thanuram Kashyap, Petitioner No.2, Kunjbihari Kashyap, Petitioner No.3 Rakesh Kashyap, Petitioner No. 4 Manish Kashsyap, Petitioner No.5 Rama Kashyap, Petitioner No. 6- Pushpanjali Kashyap and Petitioner No. 7- Khageshwari Kashyap. Prosecution against her husband i.e. Petitioner Gajendra shall continue. It is made clear that all the observations made in this order are for the purpose of deciding the petitions filed by the petitioners hereinabove and this Court has not expressed any opinion on merits of the matter.
26.Consequently, the CRMP No. 2610/2023 is allowed to the extent indicated above and the CRMP No. 2385/2023 is dismissed.
Sd/- Sd/-
(Bibhu Datta Guru) (Ramesh Sinha)
Judge Chief Justice
Rahul