Allahabad High Court
Tarun Bansal And Another vs State Of U.P. And Another on 7 June, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:103004 Reserved on 28.05.2024 Delivered on 07.06.2024 Court No. - 78 Case :- APPLICATION U/S 482 No. - 18060 of 2020 Applicant :- Tarun Bansal And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Abhishek Kumar Jaiswal,Amit Daga Counsel for Opposite Party :- G.A.,Ramesh Chandra Agrahari Hon'ble Mayank Kumar Jain,J.
1. Heard Sri Amit Daga, learned counsel for the applicants, learned counsel for the opposite party no.2 and learned AGA for the State.
2. Present application u/s 482 Cr.P.C. is filed for quashing the charge sheet dated 17.11.2019, being C.S. No.282/19 as well as the entire proceedings registered in its pursuance as Criminal Case No.331 of 2020 (CNR No.UPME05001305-2020), 'State of U.P. Vs. Smt. Indu Bansal and another' under Sections 498-A, 323 IPC & Section 3/4 of Dowry Prohibition Act, Police Station-Daurala, District Meerut, including order of cognizance dated 29.01.2020 (arising out of Case Crime No.280 of 2019), registered at Police Station Daurala, District Meerut pending before the Court of Additional Chief Judicial Magistrate, VIIth, Meerut.
3. The brief facts summerised in the FIR lodged by opposite party no.2 are thus:-
3.1. Marriage of the informant was solemnized with accused applicant no. 1 on 02.04.2015, according to Hindu Custom and rites, and in said marriage informant's parents spent Rs. 48 Lacs but her husband and in-laws were not satisfied and on the pretext that her husband is an Engineer, started demanding Rs. 25 lacs as additional dowry and due to non fulfilment of said demand she was harassed and tortured by her husband and in-laws.
3.2. Her husband was so cruel that he used to commit unnatural sex with her during menses period. When she conceived baby then her husband, in-laws in connivance with her sister-in-law Meghna Agarwal, administered medicines to her consequently miscarriage took place. In the month of February, 2019 when she further conceived then at the instance of her sister-in-law Meghna Agarwal, applicant no. 2 pressurized her to terminate pregnancy and managed abortion of her child in the absence of her husband (applicant no.1) and thereafter she was threatened by her mother-in-law and sister-in-law for dire consequences.
3.3. She was sent to parental home on 25.03.2019 and her husband obtained her signatures on blank papers and some documents . It is also alleged that on 25.03.2019 informant's sister-in-law and brother-in-law (Nanad and Nandoi) were available at her nuptial home, on said day she quarrelled with her sister-in-law (Nanad) and felt that her life is in danger whereupon she called her parents and family persons and thereafter they took her to their home.
3.4. On efforts of her uncle M.S. Agarwal, she further joined the company of her husband and in-laws on 01.06.2019 but her husband and in-laws did not change their behaviour and on 16.06.2019 her husband, on the pretext of dinner in Hotel, took her in Car and after sometime Indu Bansal (applicant no. 2), sister-in-law Meghna Agarwal and brother-in-law Abhinna Agrawal had also come in car and started demanding Rs. 25 lacs as additional dowry. On making protest all forcibly gave milk to her and thereafter Tarun and Abhinnav Agarwal attempted to throttle her with a rope, which was already available in car, and thereafter she was caught hold by her mother-in-law and sister-in-law and on sustaining injuries got unconscious. She got senses in SDS Global Hospital, Meerut.
4. On the basis of aforesaid report one criminal case as Case Crime No. 280 of 2019, for the offence punishable under Sections 498-A, 313, 307, 506, 120-B, 377 I.P.C & Section 3/4 Dowry Prohibition Act, 1961 got register against applicants and two other persons at Police Station - Daurala, District - Meerut.
5. Sri Amit Daga, learned counsel for the applicants submitted that applicant no. 1 Tarun Bansal who was the husband of opposite party no.2 has expired on 22.04.2021 during the pendency of the present proceedings, therefore, proceedings are abated qua applicant no.1. Now application is required to be considered for applicant no..2 who is the mother in law of opposite party no.2.
6. It is submitted by learned counsel for the applicant that marriage of the son of applicant was solemnized with opposite party no.2 on 02.04.2015 as per Hindu rituals. The opposite party no. 2 is a modern and advanced lady and wanted to live a lavish life in her own style. Within two weeks of the marriage some disputes arose with her husband. In order to resolve the situation and to improve the behaviour of the opposite party no.2 a compromise arrived between the deceased-applicant and opposite party no. 2 which was reduced in writing on 31.05.2016. The opposite party no.2 reunited with her husband after this compromise and started living with him. But she did not change her behaviour.
7. On 25.05.2019 opposite party called her family members to the house of her husband and committed 'maarpeet' with him. The son of the present applicant was medically examined, who sustained injuries on his person. A report was submitted to the police station concerned Ranipur Kotwali, District Haridwar but no action was taken, therefore, an application under Section 156 (3) Cr.P.C. was filed before Additional Chief Judicial Magistrate Haridwar on 20.07.2019. The application was registered as complaint and primary evidence has been recorded. The matter was pending for summoning of the accused but under the circumstances that the only son of applicant has died, she moved an application to not press the aforesaid complaint. When the parents of the opposite party came to know about the incident dated 25.05.2019 the present F.I.R was lodged.
8. The investigation was set to motion. The statement of witnesses were recorded. The allegation of causing miscarriage were found to be falsified. The allegation of unnatural sex was also unfounded. The call detail report which was obtained during investigation did not prove against the applicant. The Investigating Officer submitted a charge-sheet against the present applicant and her deceased son under Sections 498-A, 506 of I.P.C. and Section 3/4 of Dowry Prohibition Act. No charge-sheet came to be filed against the daughter and son-in-law of the applicant.
9. The allegation was also made against the applicants that they threw the opposite party no.2 from their car near toll plaza at Meerut. Eye witnesses Rahimuddin and Arif did not support the version of the prosecution. Even they could not disclose the vehicle number, therefore, this allegation was also unfounded. The learned Magistrate vide order dated 29.01.2020 took cognizance against the applicant under Section 498-A , 323 of I.P.C and Section 3/4 of Dowry Prohibition Act on a printed proforma which indicates that no judicial mind was applied by the Magistrate at the time of taking cognizance. No charge-sheet under Section 323 was filed by the Investigating Officer but cognizance has also been taken under Section 323 of I.P.C. by the Magistrate. The charge-sheet was filed under Section 506 of I.P.C. but no cognizance has been taken by the Magistrate under Section 506 of IPC. It indicates that no judicial mind was applied by the Magistrate and the cognizance order was passed on a printed proforma.
10. It is submitted that at present the age of the applicant is 66 years. She is acute patient of Osteoarthritis and suffering with sciatica pain alognwith slip disk. She is hypertensiv and also suffering from various diseases. She is under treatment with several doctors and now she is unable to move and she is consistently on wheel chair. It is submitted that no purpose would be served to continue the proceedings against the applicant. Being husband of the opposite party allegations were made against Tarun Bansal, the son of the present applicant, who is no more. Against the applicant general allegations are made in the F.I.R.
11. Sri Amit Daga, learned counsel for the applicant vehemently argued that on one hand the applicant being a lady of 65-66 years is compelled to remain on a wheel chair since she is suffering with several old age related ailments while on the other hand the opposite party no.2 has performed her second marriage with one Harshit Gupta and she is having a son namely Ivaan Gupta. Certain photographs are also brought on record which indicates that opposite party no.2 is living a happy married life with her husband. This fact is not controverted by the opposite party no.2.
12. In support of his submission, learned counsel for the applicant placed reliance upon the judgment of this Court passed in (i) Rahul and others Vs. State of U.P. and another (Application u/s 482 No.238/2021 ) (ii) Sanjay and others Vs. State of U.P. and another (Application u/s 482 No.18422 of 2020) (iii) Vishnu Kumar Gupta and another Vs. State of U.P. and another (Application u/s 482 No. 41617 of 2019) and submitted that the cognizance is taken on a printed proforma is material irregularity committed by the Magistrate which indicates that the learned Magistrate did not apply its judicial mind.
13. To buttress his arguments, learned counsel for the applicant relied upon the judgment of Hon'ble Apex Court passed in (i) Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors., 2022 LiveLaw (SC) 141 (ii) Jayantilal Vadilal Shah and others Vs. State of Gujarat and others, 2023 SCC OnLine Guj 1831, (iii) Preeti Gupta & Anr. Vs. State of Jharkhand & Anr., passed in Criminal Appeal No.1512 of 2010 (Arising out of SLP (Crl.) No. 4684 of 2009 (iv) Neelu Chopra and Anr. Vs. Bharti, (2009) 10 SCC 184 and (v) Sushil Kumar Sharma Vs. Union of India and others, (2005) 6 SCC 281. Further, reliance is placed on the judgment of this Court passed in application under Section 482 No.23830 of 2021 (Smt. Shalini Kashyap and another Vs. State of U.P. and 4 others) while taking the cognizance the Magistrate is bound to take cognizance on the basis of the chargesheet. Reliance is also placed on Application u/s 482 No.12482 of 2015, Ashish Kumar and another Vs. State of U.P. and another.
14. Per-contra, learned counsel for the opposite party no.2 submitted that allegations made in the F.I.R. were duly supported during the statement recorded by Investigating Officer under Section 161 Cr.P.C. by opposite party no.2, her father, mother and brother. The medical report was also brought on record. The medical examination of opposite party no. 2 was conducted at Meerut.
15. The allegations made by opposite party no.2 against her husband and present applicant Indu Bansal in the F.I.R were unfounded by the Investigating Officer during investigation such as the allegation of committing unnatural sex with opposite party no. 2, causing miscarriage on two occasions, involvement of her sister-in-law and her husband. So far as the allegation against the present applicant is concerned, general allegations were levelled against her.
16. Perused the record.
17. The Hon'ble Supreme Court in Kahkashan Kausar @ Sonam & Ors. Vs. State of Bihar & Ors. (supra) observed that:
"19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 1-4-2019, it is revealed that general allegations are levelled against the appellants. The complainant alleged that "all accused harassed her mentally and threatened her of terminating her pregnancy". Furthermore, no specific and distinct allegations have been made against either of the appellants herein i.e. none of the appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are, therefore, general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High Court, we have not examined the veracity of allegations made against him. However, as far as the appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution.
20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR Respondent 1 i.e. the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the learned Principal Judge, Purnea, to not harass the respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 1-4-2019, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11-12-2017.
21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the respondent wife. Allowing prosecution in the absence of clear allegations against the appellant in-laws would simply result in an abuse of the process of law."
18. The Hon'ble Apex Court in Jayantilal Vadilal Shah (supra) also observed that:
"6. I have considered the rival submissions and perused the material on record. From the bare reading of the FIR, it transpires that the main allegations are pertaining to offences registered under Sections 498A, 323 and 114 of the IPC read with Section 4 of the Dowry Prohibition Act, which are prima facie not made out against the present applicant as general allegations are made against the applicant and main allegations are alleged against accused nos. 1 and 4. It also seems that the present applicant is wrongly dragged in the said FIR as she happens to be the mother-in-law of the complainant. The age of the applicant is also required to be seen, she was aged 80 years at the time of filing of this application in the year 2017 and at present, she must be of 86 years. Even looking to the age factor and the fact that general allegations are levelled in the FIR only to make sure that she is roped in the FIR, continuing these proceedings will amount to abuse of process of law and no fruitful purpose will be served in continuing the same.
7. In the case of Bhajanlal (supra), the Hon'ble Supreme Court has settled the guidelines when the Court can exercise powers under Section 482 of the Code, the relevant paragraph reads as under:
"In the backdrop of the interpretation of the various relevant provisions of the Code under Ch.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 Art. 226 or the inherent powers under sec. 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 sec. 156(1) of the Code except under an order of a Magistrate within the purview of sec. 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 sec. 156(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."
8. It is also relevant to refer to the judgment of the Hon'ble Apex Court in the case of Inder Mohan Goswami v. State of Uttaranchal reported in (2007) 12 SCC 1, more particularly para : 23 & 24 thereof, which read as under:
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Sec. 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Sec. 482 Cr.P.C.be exercised:
[(i) to give effect to an order under the Code;] [(ii) to prevent abuse of the process of court, and] [(iii) to otherwise secure the ends of justice.]
24. Inherent powers under Sec. 482 Cr.P.C though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself'. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute. Discussion of decided cases."
9. In view of above settled position of law and after considering the facts as alleged in the FIR and circumstances of the present case, it transpires that continuation of further proceedings pursuant to the said FIR will cause greater hardships to the applicant and no fruitful purpose would be served if such further proceedings are allowed to be continued. The Court must ensure that criminal prosecution is not used as instrument of harassment or for seeking private vendetta or with ulterior motive to pressurise accused or to settle the score."
19. The Hon'ble Supreme Court in Preeti Gupta & another Vs. State of Jharkhand and another (supra) observed that: paragraph 33,34,35 "33. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society."
20. The Hon'ble Apex Court, in Pramod Suryabhan Pawar vs. State of Maharashtra and another, (2019) 9 SCC 608, has considered the principles, scope and ambit of the powers of the Court under Section 482 of Cr PC and held that:
"7. Section 482 is an overriding section which saves the inherent powers of the court to advance the cause of justice. Under Section 482 the inherent jurisdiction of the court can be exercised
(i) to give effect to an order under the Cr PC;
(ii) to prevent the abuse of the process of the court; and
(iii) to otherwise secure the ends of justice.
The powers of the court under Section 482 are wide and the court is vested with a significant amount of discretion to decide whether or not to exercise them. The court should be guarded in the use of its extraordinary jurisdiction to quash an FIR or criminal proceeding as it denies the prosecution the opportunity to establish its case through investigation and evidence. These principles have been consistently followed and re-iterated by this Court. In Inder Mohan Goswami vs. State of Uttranchal, (2007) 12 SCC, this Court observed:
"23. This Court in a number of cases has laid down the scope and ambit of courts' powers under Section 482 CrPC. Every High Court has inherent powers to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent abuse of the process of the court. Inherent power under Section 482 CrPC can be exercised:
(i) to give effect to an order under the Code;
(ii) to prevent abuse of the process of the Court, and
(iii) to otherwise secure the ends of justice.
24. Inherent powers under Section 482 CrPC though wide have to be exercised sparingly, carefully and with great caution and only when exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
8. Given the varied nature of cases that come before the High Courts, any strict test as to when the court's extraordinary powers can be exercised is likely to tie the court's hands in the face of future injustices. This Court in State of Haryana vs. Bhajan Lal, 1992 Supp. (1) SCC 335 conducted a detailed study of the situations where the court may exercise its extraordinary jurisdiction and laid down a list of illustrative examples of where quashing may be appropriate. It is not necessary to discuss all the examples, but a few bear relevance to the present case. The court in Bhajan Lal noted that quashing may be appropriate where: (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) . ... ... ...
(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."
In deciding whether to exercise its jurisdiction under Section 482, the Court does not adjudicate upon the veracity of the facts alleged or enter into an appreciation of competing evidence presented. The limited question is whether on the face of the FIR, the allegations constitute a cognizable offence. As this Court noted in Dhruvaram Murlidhar Sonar v State of Maharashtra, (2019) 18 SCC 191:
"13. It is clear that for quashing proceedings, meticulous analysis of factum of taking cognizance of an offence by the Magistrate is not called for. Appreciation of evidence is also not permissible in exercise of inherent powers. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken, it is open to the High Court to quash the same in exercise of its inherent powers."
21. In the case in hand it is also to be born in mind that a complaint was lodged against opposite party no. 2 and her family member at Haridwar under Section 156(3) Cr.P.C. by the applicant on the basis of incident happened on 25.05.2019. The primary evidence has been recorded in that case and the case was pending for passing the summoning order. During the pendency of this petition an information is brought on record by the applicant that application under Section 257 Cr.P.C. has been moved before the Court concerned to withdraw the proceedings. This act shows the bona fide of the applicant in view of the circumstances that her only son has died. Conseqauent to it she does not want to proceed against opposite party no.2 and her family members. She is suffering with several serious ailments and she is confined to wheel chair. This Court cannot overlook this aspect that certain documents are brought on record by applicant which indicate that opposite party no.2 has performed second marriage with one Harshit Gupta and she is having a son out of this wedlock. Certain photographs are also brought on record which indicates that opposite party no. 2 is living happy life with her husband and son.
22. It is also to be noted that Tarun Bansal, the husband of opposite party no.2 died during the pendency of the present proceedings. He was the only son of present applicant. The pain of death of a child during the lifetime of the parents is unbearable. For the applicant, the death of her only son Tarun Bansal (husband of informant) during her life is excruciating.
23. Perusal of the FIR goes to show that certain allegations were made against her husband-Tarun Bansal by opposite party no.2 but they were not found to be proved during investigation. Suffice to say that specific allegations i.e. the allegation of committing unnatural sex, causing miscarriage and the allegation of dropping the informant from their car by her husband and family members etc. were made against Tarun Bansal while general allegations are made against applicant by informant in her FIR.
24. In view of observation made by Hon'ble Apex court in Pramod Suryabhan Pawar (supra), Kahkashan Kausar @ Sonam & Ors, Preeti Gupta & another Vs. State of Jharkhand and another (supra) and Jayantilal Vadilal Shah (supra) and considering the entirety of the matter, the present application deserves to be allowed. Accordingly, application is allowed.
25. The charge sheet dated 17.11.2019, being C.S. No.282/19 as well as the entire proceedings registered in its pursuance as Criminal Case No.331 of 2020 (CNR No.UPME05001305-2020), 'State of U.P. Vs. Smt. Indu Bansal and another' under Sections 498-A, 323 IPC & Section 3/4 of Dowry Prohibition Act, Police Station-Daurala, District Meerut, including order of cognizance dated 29.01.2020 (arising out of Case Crime No.280 of 2019), registered at Police Station Daurala, District Meerut pending before the Court of Additional Chief Judicial Magistrate, VIIth, Meerut, are hereby quashed.
(Mayank Kumar Jain, J.) Order date:-07.06.2024 Mohit