Jammu & Kashmir High Court
Sheetal Bhat And Ors. vs Winner Raina And Anr. on 16 November, 2018
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
CRMC No.782/2017, IA No. 01/2017 c/w
CRMC No.783/2017, IA No. 01/2018
Date of order :16.11.2018
Sheetal Bhat and ors. vs Winner Raina and anr.
c/w connected matter
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta, Judge
Appearing counsel:
For Petitioner(s) : Mr. Bhanu Partap Salathia, Advocate.
For respondent (s) : Mr. Ajay Vaid, Advocate.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.
1. Through the instant two petitions filed under Section 561-A of the Code of Criminal Procedure (hereinafter for short Cr.P.C), the petitioners seek quashing of complaints dated 23.03.2017 and 30.05.2017 filed by the complainant-Winner Raina (Respondent No.1 herein) against them, therefore, both these petitions are being disposed of by a common order.
2. In CRMC No. 782/2017, petitioners seek quashing of complaint dated 23.03.2017 titled Winner Raina vs. Sheetal Bhat and ors., filed against the petitioners for commission of offences under Sections 427, 448, 506, 120- B RPC and order dated 23.03.2017 passed by the Court of learned Sub- Registrar (JMIC) Jammu.
3. In CRMC No. 783/2017, petitioners seek quashing of complaint dated 30.05.2017 titled Winner Raina and anr. vs. Sheetal Bhat and ors., filed against the petitioners for commission of offences under Section 500 RPC and order dated 31.05.2017 passed by the Court of learned Sub-Registrar (JMIC) Jammu.
CRMC Nos.782/2017 & 783/2017 Page 1 of 134. Brief facts of the case are that in the year 1995, the petitioner No.I solemnized marriage with one Varinder Bhat at Faridabad, Haryana and out of the said wed-lock petitioner no.3 was born. Unfortunately the husband of the petitioner no.1 passed away in the year 2010 due to a Heart Attack. In the year 2012 the respondent sent a friend request to petitioner No.1 through social networking site i.e., Facebook, which was later on accepted by the petitioner No.I. After coming to know everything about the petitioner No.I including her lifestyle and source of income, by inducement and allurement, the respondent-Winner Raina with a promise to marry, started a relationship with petitioner No.1. It is stated that on trust, belief and conviction, the petitioner No.1 devoted herself to respondent and all his social, emotional and economic needs. The respondent on the pretext of marriage and good quality life ahead, started using the petitioner no.1 to fulfill his economic needs. Knowing fully well that the petitioner No l had received heavy amount on the death of her husband from his insurance claim, the respondent with a promise to return the money, coerced the petitioner No.1 to transfer Rs.60,000 into his account on the pretext that he wants to start business, thereafter Rs.4,00,000/- Rs.7,00,000/- were transferred into the account of respondents for purchase of land at Samba, and so forth, transactions amounting to Rs. 22-23 lacs in total stands already transferred into the account of respondent. It is stated that in the month of February-March 2015, the petitioner No.I inquired about the property in which she has invested. But the respondent was reluctant to answer and the petitioner No.1 got suspicious about the conduct of the respondent and his intentions towards her. The respondent induced the petitioner No.1 and by misrepresentation of facts got executed an Irrevocable Power of Attorney dated 12.03.2015 executed in her favour relating to landed property of 10 Marlas of land comprising under Khewat No. 190 Min. Khata No. 878 Min and Khasra No.1104 situated at Village Katli, Tehsil Samba, falling CRMC Nos.782/2017 & 783/2017 Page 2 of 13 outside the limits of NAC/MC, in her favour, which she wanted to sell but was shocked to know that the said property was not in existence. It is stated that when the petitioner No.1 came to know about the hostile conduct of the respondent that he is not willing to marry her and has been continuously misusing her on the pretext of promise to marry, she was left with no other option but to lodge an FIR No.436 dated 23.06.2016 for commission of offences under Sections 376, 406, 420, 506 IPC with Police Station Sector-7, Faridabad against respondent.
5. It is stated in the petitions that in order to escape the criminal proceedings and financial liabilities, respondent agreed to marry petitioner No.1. On the pretext of promise to marry her, respondent filed a petition under Section 482 of the Central Code of Criminal Procedure Code seeking quashing of FIR No.436 before the Hon'ble High Court of Punjab and Haryana at Chandigarh which came to be registered as CRM-M 31957 of 2016 titled Winner Raina Versus State & Anr. Thereafter, petitioner No.1 and respondent solemnized marriage on 19.10.2016 at Shiv Mandir, Faridabad in presence of the family members of both the parties. Thereafter, the respondent very cleverly made the petitioner No.I to submit an affidavit in this regard before the Hon'ble High Court of Punjab and Haryana and thus the said FIR was quashed by the said Hon'ble Court in terms of its order dated 25.10.2016 on this ground. It is stated that the sole ground on the basis of which the said FIR was quashed was the solemnization of marriage between the petitioner No.I and respondent. It is further stated that after passing of the order dated 25.10.2016 by the Hon'ble High Court of Punjab and Haryana, the respondent cohabited with the petitioner No.I at Faridabadand on the pretext of making arrangements for wedding reception and for arranging a residential house at Jammu, left the petitioner No.1's company and came to Jammu.
CRMC Nos.782/2017 & 783/2017 Page 3 of 13Thereafter, petitioner No.1 tried to contact the respondent a lot, but could not contact him because he had changed his contact numbers.
6. Learned counsel for the petitioners further submits that when petitioner No.1 reached at Jammu in December 2016, she was shocked to discover that the respondent refused to meet her at all and when she approached his home, the respondent and his family demanded for Rs.10 Lac from her in case she wants them to settle with respondent, to which she denied. On this, respondent and his family gave her a beating and told her that they do not accept her as his wife and daughter in law.
7. It is further contended that the petitioner No.1 made every possible attempt to make respondent accept his responsibility as husband towards her and a father to her daughter. She tried to contact respondent and make him understand her unfortunate situation. It is stated that in order to escape his matrimonial obligations and financial liabilities, the respondent lodged a complaint dated 23.03.2017 against her before the Court of leaned Chief Judicial Magistrate, Jammu, which came to be transferred to the Court of Learned Sub-Registrar, JMIC, Jammu. The learned Trial Court in terms of its order dated 23.03.2017 took cognizance of the complaint and proceeded against the petitioners without ascertaining the truth of the allegations leveled in the complaint, which is based on false, frivolous and concocted facts. It is stated that the alleged occurrences relate to February 2017 and 06.03.2017, but the complaint was lodged on 23.03.2017 after a delay of more than 15 days, which is corroborative of the fact that same is brain child of the respondent.
It is stated that petitioner No.1 has always tried her best to make her relationship cordial with the respondent and tried to meet him and even went to Srinagar looking for him but respondent totally denied to meet her. When she was at Bus Stand, B C Road, Jammu on 20.04.2017, the father of the respondent namely Sh. Chaman Lal misbehaved with her, CRMC Nos.782/2017 & 783/2017 Page 4 of 13 outraged her modesty and threatened her not to try and contact respondent or else she will be eliminated. In this regard the petitioner No.I was left with no option but to register an FIR against the Chaman Lal which came to be registered as FIR No. 39/2017 dated 20.04.2017 for commission of offences under Section 354 RPC by P/S Bus Stand, Jammu, and the same is pending investigation. It is further stated that petitioner No.1 served a legal notice dated 06/04/2017 upon the respondent for accepting her as his wife and returning her money up to the tune of Rs.22 lacs along with interest. It is further contended that petitioner No.1 has filed a petition under 125 Central Cr.P.C. for grant of maintenance and an application under Section 12 of the Protection of Women from Domestic Violence Act 2005, and the same are pending adjudication before the competent Court of law at Faridabad.
8. The petitioners seek quashing of complaints dated 23.03.2017 and 30.05.2017 and impugned orders dated 23.03.2017 and 31.05.2017, passed by the Court of learned Sub-Registrar (JMIC) Jammu on the following grounds:
i) That a perusal of the allegations made in the complaint, even if are taken at their face value and accepted in their entirety do not, prima facie, constitute any offence or makeout a case against the petitioners.
ii) That a bare perusal of annexures to the petition reveals that the petitioner No. I has always tried her level best to maintain peace and harmony between her and respondent and there is nothing incriminating against the petitioners on records to connect them to the omission of alleged offences in the complaint. Thus, the complaint and orders passed is the petition is result of connivance between the respondent and his family members, which has resulted into abuse of process of law and the same deserves to be quashed out rightly.
iii) That it is not understandable as to how the learned Trial Court has jumped to a conclusion that petitioners who are innocent persons, despite the fact that they have not committed any offence are surprisingly charged for alleged offences when there is nothing on record to connect the petitioners even prima-facie to the commission of alleged offences,.
iv) That the criminal proceedings initiated against the petitioners are manifestly instituted with an ulterior motive to malign the reputation of the petitioners and falsely drag them in the field of litigation.
CRMC Nos.782/2017 & 783/2017 Page 5 of 13
v) That the petitioner No 2 is a well-wisher of the petitioners No. 1 and 3,
petitioner No. 2 is daughter of petitioner No. 1.
The petitioner No 2 was not even present in Jammu when the commission of the alleged offences took place, and this fact corroborates that the complaint lodged by the respondent/complainant is based on false baseless fact which deserves to be set aside.
vi) That the respondent has made allegations regarding criminal intimidation against the petitioners in the complaint, whereas it is the respondent who has been threatening the petitioners and blackmailing them by mentally harassing each one of them. It is submitted that the respondent has been stalking the petitioner No. 3 and mentally agonizing her lot to pressurize the petitioner No. 1 to withdraw all proceedings against him. He has been sending obnoxious and offensive messages from his fake profile on Social networking site Facebook to friends of the petitioner No.3 also. Relevant print outs are enclosed as Annexure-R.
vii) That there is a delay of more than 15 days in moving the Trial Court for lodging of the impugned complaint, which is evident of the fact that the same is brain child of the respondent, thus, the same deserves to be quashed.
9. I have heard learned counsel for the parties and perused the record of both the petitions.
10. In support of his contention learned counsel for the petitioners relies upon a decision of the Hon'ble Supreme Court reported in 2015 AIR (SC) 1758, in case titled Priyanka Srivastava and anr. vs. State of U.P. and ors.
11. On the other hand, learned counsel for the respondents has relied upon the decisions of the Hon'ble Supreme Court reported in case titled, State of Bihar vs. Rajendra Agarwalla, reported in JT 1996 (1) 601 wherein it held that power under section 482 Cr.P.C. should be exercised sparingly; and 2011 (3) SCC 496 in case titled Mona Panwar vs. High Court of Judicature at Allahabad and ors, wherein appellant who was member of judicial service passed order under section 156(3) Cr.P.C and High Court set it aside and passed some stricture against officer and the Apex Court set it aside.
CRMC Nos.782/2017 & 783/2017 Page 6 of 1312. I have considered the rival contentions and gone through the law on the subject.
13. In AIR 2017 SC in case titled The State of Telangana vs Habib Abdullah Jeelani & Ors., on 6 January, 2017, the Apex Court has held as under:-
"11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482 CrPC or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of Haryana[9], Kurukshetra University v. State of Haryana[10], State of Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14], State of Bihar v. Murad Ali Khan[15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482 CrPC could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:-
"(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.CRMC Nos.782/2017 & 783/2017 Page 7 of 13
(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."
It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where court's inherent power can be exercised.
12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482 CrPC is very wide but it needs no special emphasis to state that conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the Court."
14. Applying the above principle of law, I am of considered opinion that both the complaints have been lodged by complainant against accused, in order to spite them due to private and personal grudge. Respondent is admittedly husband of petitioner no.1 and father of petitioner no.3 though she has been born out from previous marriage of petitioner no.1; marriage between petitioner No.1 and respondent has been performed on 19/10/2016 at Faridabad; prior to marriage an FIR No.436 u/s 376/420/406/506 RPC was lodged by petitioner no.1 against respondent on 23/6/2017; thereafter a petition u/s 482 Cr.P.C. was filed before Punjab & Haryana High Court for quashing FIR No.436 on account of compromise and the same was allowed; one FIR no.39/2017 u/s 354 RPC against father of complainant lodged by petitioner no.1 before P/S Bus CRMC Nos.782/2017 & 783/2017 Page 8 of 13 Stand, Jammu, is pending; matrimonial disputes are pending between petitioners no.1 & 3 and respondent (complainant); one case under section 12 of D.V. Act filed by petitioner nos.1 and 3 against respondent is pending before competent court at Faridabad; one case under section 125 Cr.P.C. has been filed by petitioner nos.1 and 3 against respondent and is pending before competent court at Faridabad.
15. From the perusal of complaint bearing no.196/Complaint; D.O.I.-
23.03.2017 u/s 427/448/506/120-B RPC would reveal that complainant has stated therein:
"6. That the height of the criminality was reached went on 15.02.2017 all the accused came to Jammu along with some musclemen criminals, unknown to the Complainant and criminally trespass out of the Complainant. The parents of the Complainant offered them a glass of water but they became furiated and furled the glass of water on the head of the uncle of the Complainant Sh. Rattan Lal Raina. Fortunately he did not receive serious injury. The parents of the Complainant tried to pacify the accused and offered them tea, but all the accused threw tea cups, cattle on the windows panes of the windows of the house which broke the window glass of the windows. Upon this the neighbors of the Complainant gathered on spot and started placating the accused persons and was great persuasion they left the house of the Complainant. While the accused no.1 was breaking the windows glass, she also hurt herself and received hurt on her hand.
7. That the accused criminally trespass of the Complainant and caused damage to the property of the Complainant. Aggrieved thereof, the father of the Complainant lodged a complaint of this episode to the police station Chinore, but no action was taken by the police. The accused on next day also sent some criminal musclemen to the house of the Complainant for causing him physical harm but fortunately the Complainant was not present, therefore they left the house threatening that in case the Complainant does not fulfill the demands of the accused no.1 they will physically eliminate the complainant.
8. That again on 6.3.2017 all the accused along with some unknown criminals came to the house of the Complainant but fortunately at that time, the then Corporator Smt. Sheela Hando was present in the house of the Complainant along with her CRMC Nos.782/2017 & 783/2017 Page 9 of 13 PSO. When the accused and their musclemen saw the PSO Wielding a gun, they left the house of the Complainant and went to police station Chinore and influence the police through some Senior Officers and pressurize the police to illegally recover some amount from the Complainant. The Complainant was summoned in the police station and told the police authorities that accused are pressurizing and blackmailing the Complainant and he has no legal liability to pay to the accused no.1. The complainant explained in the police station, that accused no.1 wanted to purchase a plot of land at Jammu and the Complainant introduced her with a land owner. The accused no.1 transacted with the landowner for purchasing of the land but was cheated by the land owner Sh. Rajan Dutta. The accused no.1 is demanding amount which has been duped due to the cheating by Sh. Rajan Dutta from the Complainant unwarrantedly. Thereupon, the police refuse to become a party to the illegal design of the accused persons and told the accused that father of the Complainant has already lodged a complaint with respect to the occurrence of 15.02.2017, whereupon they left police station as well."
In this case occurrences have been shown of 15.02.2017 and 06.03.2017.
16. Similarly in another complaint bearing No.23-A/Complaint; D.O.I.-
30.05.2017 u/s 500 RPC would reveal that complainant has stated therein:
"6. That the height of the criminality was reached went on 15.02.2017 all the accused came to Jammu along with some musclemen criminals, unknown to the Complainant no.1 and criminally trespass out of the Complainant no.1. The parents of the Complainant no.1 offered them a glass of water but they became furiated and furled the glass of water on the head of the uncle of the Complainant no.1 Sh. Rattan Lal Raina. Fortunately he did not receive serious injury. The parents of the Complainant no.1 tried to pacify the accused and offered them tea, but all the accused threw tea cups, cattle on the windows panes of the windows of the house which broke the window glass of the windows. Upon this the neighbors of the Complainant no.1 gathered on spot and started placating the accused persons and was great persuasion they left the house of the Complainant no.1. While the accused no.1 was breaking the CRMC Nos.782/2017 & 783/2017 Page 10 of 13 windows glass, she also hurt herself and received hurt on her hand.
7. That the accused criminally trespass of the Complainant no.1 and caused damage to the property of the Complainant no.2. Aggrieved thereof, Complainant no.2 as well as father of complainant no.1 lodged a complaint of this episode to the police station Chinore, but no action was taken by the police. The accused on next day also sent some criminal musclemen to the house of the Complainant no.1 for causing him physical harm, but fortunately the Complainant no.1 was not present, therefore, they left the house threatening that in case the Complainant no.1 does not fulfill the demands of the accused no.1 they will physically eliminate the Complainant no.1.
8. That again on 6.3.2017 all the accused along with some unknown criminals came to the house of the Complainant no.1 but fortunately at that time, the then corporator Smt. Sheela Hando was present in the house of the Complainant no.1 alongwith her PSO. When the accused and their musclemen saw the PSO Wielding a gun, they left the house of the Complainant no.1 and went to police station Chinore and influence the police through some Senior Officers and pressurize the police to illegally recover some amount from the Complainant no.1. The Complainant no.1 was summoned in the police station and told the police authorities that accused are pressurizing and blackmailing the Complainant no.1 and he has no legal liability to pay to the accused no.1. The complainant no.1 explained in the police station, that accused no.1 wanted to purchase a plot of land at Jammu and the Complainant no.1 introduced her with a land owner. The accused no.1 transacted with the land owner for purchasing of the land but was cheated by the land owner Sh. Rajan Dutta. The accused no.1 is demanding amount which has been duped due to the cheating by Sh. Rajan Dutta from the Complainant no.1 unwarrantedly. Thereupon, the police refuse to become a party to the illegal design of the accused persons and told the accused that father of the Complainant no.1 has already lodged a complaint with respect to the occurrence of 15.2.2017, whereupon they left police station as well.
9. That the aforesaid atrocities were not sufficient at the behest of accused. The accused have further committed offence of defamation by maligning the reputation of the complainant no.1 by written imputations, messages on social media and verbal CRMC Nos.782/2017 & 783/2017 Page 11 of 13 imputations. The spree of defaming the complainant no.1 and their family had started since last year. The complainant no.1 initially bear all the atrocities of the accused persons but now the height has been crossed.
10. That the accused committed offence of defamation firstly when by the written imputations of the accused person. The marriage of the complainant no.1 was got broken by the accused person. It is relevant to mention herein that the accused no.1 forged and fabricated an affidavit 13.7.2015 of the complainant no.1 wherein it was stated that complainant no.1 has solemnized marriage with the accused no.1. The said affidavit does not bear the genuine signatures of the complainant no.1 and have been forged by the accused no. 1. The photographs pasted on the said affidavits has been cropped by the accused no.1. Copy of the affidavit attested on 13.7.2015 is annexed herewith. On the same date the accused no 1 also executed an affidavit stating therein that she has married with the complainant no.1 on 10.5.2015. Copy of the affidavit is annexed herewith. When the accused persons came to know about the fixation of marriage of the complainant no.1 in the month of 28.11.2016 and the arrangement for marriage was made by making advance payment to the banquet hall and caterer. The accused with malafide intention and criminal intent posted the aforesaid affidavits to the relatives of the complainants and prospective in-laws of the complainant no.1. When the relatives and the prospective in-laws of the complainant no.1 came to know about the said affidavits they started enquiring about the said marriage and genuineness of the affidavits from the complainants. The complainants faced grave defamation, impairment of their reputation, agony and harassment while making explanations that the affidavit is fabricated and factum of marriage is also false. Not only the aforesaid acts of criminal intent, the accused also started defaming the complainants by making telephone calls to the relatives of the complainants and prospective in-laws of the complainant no.1 that the complainant no. 1 is already married and he is out to solemnize another marriage and branded the complainants as criminal thus defaming them the accused have telephonically and through social media defamed by aforesaid imputations before Shagun Raina W/o Kiran Raina R/o Muthi, Rattan Lal Raina S/o Govind Ram Raina R/o Durga Nagar and many others. Eventually the marriage of the complainant no.1 CRMC Nos.782/2017 & 783/2017 Page 12 of 13 was broken and this was very serious defamation of complainant and his entire family."
17. From bare perusal of both these complaints it is evident that these complaints contain same facts except offences. The Attendance-Sheet of petitioner no.3 clearly reveals that from 13-18 February, 2017 and from 1st March to 10th March, 2017, she was at Mumbai, in the Deptt. of Chemical Engineering , D.J. Sanghvi College of Engineering, Vile Parle ( Annexure J). There is delay of 15 days in lodging complaint no.196 and there is delay of about 3 months in lodging another complaint.
18. In both the complaints there is no averments that complainant has ever filed any complaint in terms of section 154 clauses 1 and 3 of Cr.P.C., which is mandatory as held in Priyanka Srivastava and another vs. State of U.P. & Ors., AIR 2015 1758. The laws cited by counsel for respondent is not applicable in present set of circumstances.
19. In view of what has been discussed above, I am of considered opinion that both complaints have been filed with mala fide intention and instituted maliciously with an ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge. The contents of complaints 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.
20. Hence both the complaints as well as process issued against the petitioners are quashed. These petitions stand allowed accordingly (Sanjay Kumar Gupta) Judge Jammu 16.11.2018 Bir CRMC Nos.782/2017 & 783/2017 Page 13 of 13