Uttarakhand High Court
Sachin Singhal vs State Of Uttarakhand And Others on 13 December, 2022
Author: Ravindra Maithani
Bench: Ravindra Maithani
HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No. 1287 of 2019
Sachin Singhal ........... Petitioner
Vs.
State of Uttarakhand and others ........ Respondents
Present : Mr. Aditya Singh, Advocate for the petitioner.
Mr. V.S. Rathore, A.G.A. for the State.
Ms. Divya Jain, Advocate for the private respondent.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral) The challenge in this petition is made to the charge-sheet dated 02.09.2018 in FIR No.153 of 2018, under Sections 498-A, 323, 504 IPC, Police Station Nehru Colony, Dehradun as well as cognizance order dated 22.10.2018, passed in Criminal Case No.5348 of 2018, State vs. Sachin, by the court of IVth Additional Chief Judicial Magistrate, District Dehradun.
2. Heard learned counsel for the parties and perused the record.
3. The case is based on an FIR lodged by the respondent no.3 against the petitioner on 08.06.2018, under Sections 498-A, 323, 504 IPC. According to it, both the respondent no.3 and the petitioner were 2 married on 04.05.2003. After marriage, the petitioner would abuse the respondent no.3 and started maar peet with her. The petitioner was in relation with a woman called Neha Jain. The respondent no.3 did see the messages and other material on the mobile phone of the petitioner. When confronted, it is the case in the FIR that the petitioner further abused and did maar peet with her. He would not give her money, would not allow her to work. It is this FIR, in which, after investigation charge-sheet has been submitted and cognizance was taken, which is impugned herein.
4. Learned counsel appearing for the petitioner would submit that it is not the case under Section 498- A IPC; it is not a case of demand of dowry. The case does not fall within the definition of cruelty, as defined under Section 498-A IPC. The following points have also been raised by the learned counsel for the petitioner:-
(a) Except the statements of the respondent no.3 and her daughter, there is no independent evidence suggesting that the petitioner conducted in the manner, in which, it is alleged in the FIR.3
(b) The statement of a witness Subhodh does not help the prosecution. The only connection is the address, at which, according to the informant, she stayed with her husband in Dehradun.
(c) There is no evidence of any attempt of suicide except oral statement given to the Investigating Officer.
5. Learned counsel would also submit that the cruelty, as explained under Section 498-A IPC is not attracted in the instant case. In support of his submission, learned counsel would place reliance on the principle of law, as laid down in the case of Sushil Kumar Sharma vs. Union of India and others, (2005)6 SCC 281; Varala Bharath Kumar and another vs. State of Telangana and another, (2017)9 SCC 413 and Girdhar Shankar Tawade vs. State of Maharashtra, (2002)5 SCC 177.
6. In the case of Sushil Kumar Sharma (supra), the Hon'ble Supreme Court observed as hereunder:-
"10. The object for which Section 498-A IPC was introduced is amply reflected in the Statement of 4 Objects and Reasons while enacting the Criminal Law (Second Amendment) Act 46 of 1983. As clearly stated therein the increase in the number of dowry deaths is a matter of serious concern. The extent of the evil has been commented upon by the Joint Committee of the Houses to examine the work of the Dowry Prohibition Act, 1961. In some cases, cruelty of the husband and the relatives of the husband which culminate in suicide by or murder of the helpless woman concerned, constitute only a small fraction involving such cruelty. Therefore, it was proposed to amend IPC, the Code of Criminal Procedure, 1973 (in short "CrPC") and the Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of cruelty to married women by the husband, in-laws and relatives. The avowed object is to combat the menace of dowry death and cruelty."
7. In the case of Varala Bharath Kumar (supra), the Hon'ble Supreme Court further interpreted the provisions of Section 498-A IPC, particularly the object, with which it was inserted. Placing reliance in para 8 of the judgment in the case of Varala Bharath Kumar (supra), learned counsel would submit that in order to attract prima facie case, there should be material before the court which it is argued, is lacking in the instant case. Para 8 of the judgment is as hereunder:-
"8. We are conscious of the fact that, Section 498-A was added to the Code with a view to punish the husband or any of his relatives, who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. 5 Keeping the aforementioned object in mind, we have dealt with the matter. We do not find any allegation of subjecting the complainant to cruelty within the meaning of Section 498-A IPC. The records at hand could not disclose any wilful conduct which is of such a nature as is likely to drive the complainant to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the complainant. So also, there is nothing on record to show that there was a demand of dowry by the appellants or any of their relatives, either prior to the marriage, during the marriage or after the marriage. The record also does not disclose anywhere that the husband of the complainant acted, with a view to coerce her or any person related to her to meet any unlawful demand of any property or valuable security."
8. In the case of Girdhar Shankar Tawade (supra), the Hon'ble Supreme Court interpreted the word "cruelty" as understood under Section 498-A IPC and observed as hereunder:-
"3. The basic purport of the statutory provision is to avoid "cruelty" which stands defined by attributing a specific statutory meaning attached thereto as noticed hereinbefore. Two specific instances have been taken note of in order to ascribe a meaning to the word "cruelty" as is expressed by the legislatures: whereas Explanation (a) involves three specific situations viz. (i) to drive the woman to commit suicide or (ii) to cause grave injury or (iii) danger to life, limb or health, both mental and physical, and thus involving a physical torture or atrocity, in Explanation (b) there is absence of physical injury but the legislature thought it fit to include only coercive harassment which obviously as the legislative intent expressed is equally heinous to match the physical injury: whereas one is patent, the other one is latent 6 but equally serious in terms of the provisions of the statute since the same would also embrace the attributes of "cruelty"
in terms of Section 498-A."
9. On the other hand, on behalf of the respondent no.3, it is submitted that at this stage only prima facie case is to be seen. It is also submitted that, in fact, the respondent no.3 did submit her medical reports to the Investigation Officer suggesting poisoning in the year 2015.
10. Learned counsel for the petitioner would submit that no such medical reports are part of the counter affidavit filed by the respondent no.3. They are also not the part of the charge-sheet, which was filed by the Investigating Officer.
11. Learned State counsel would submit that the explanation to Section 498-A IPC includes two parts. In part (a), mental cruelty has wide ramification. It is nowhere defined. It has to be applied under the facts and circumstances of each case. It is argued that the object of Section 498-A IPC cannot be restricted to dowry only in view of explanation (a) to Section 498-A IPC.
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12. It is a petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, "the Code"). This is a jurisdiction, which is much wide in its application, but at the same time much guided by the principles of law as laid down by the Hon'ble Supreme Court in a catena of decisions. The principles have been culled up by the Hon'ble Supreme Court in the case of Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and others, 2021 SCC OnLine SC, 315. In paragraph no.80, the Hon'ble Supreme Court recorded the conclusion, as hereunder:-
"Conclusions:
80. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted"
during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:
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i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a cognizable offence;
ii) Courts would not thwart any investigation into the cognizable offences;
iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;
iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).
v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;
vi) Criminal proceedings ought not to be scuttled at the initial stage;
vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;
viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere;
ix) The functions of the judiciary and the police are complementary, not overlapping;
x) Save in exceptional cases where non-
interference would result in miscarriage of justice, the Court and the judicial process 9 should not interfere at the stage of investigation of offences;
xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;
xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;
xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;
xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; 10
xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;
xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with
circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while 11 dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India.
xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.
xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted"
within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."
13. In case, prima facie case is made out, generally, no interference is warranted in such matters, unless there are exceptional circumstances to do so.
14. It is also true that in order to appreciate the disclosure of prima facie case, the material is to be examined at this stage, but deeper scrutiny of the 12 matter is never expected of or a mini trial at this stage is not required.
15. Section 498-A IPC is as hereunder:-
"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 purposes of this section, "cruelty" means--
(a) anywilful 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."
16. Disclosure of prima facie case is one thing and prove of its case is something different. In fact, these aspects have been discussed in many decisions of the Hon'ble Supreme Court.
17. In the case of Laxman Ram Mane vs. State of Maharashtra, (2010)13 SCC 125, the Hon'ble Supreme 13 Court while discussing the scope of extra marital relations viz.-a-viz. application of Section 498-A IPC observed, "We are of the opinion that an illicit relationship of a married man with another woman would clearly amount to cruelty within the meaning of Section 498-A. Even assuming for a moment that this did not amount to cruelty within the meaning of Section 498-A, it could still be used as a piece of evidence of harassment and misbehaviour of the appellant towards the deceased."
18. Cruelty has been explained under Section 498-A IPC. The explanation (a) speaks of willful conduct which is of such a nature as is likely to drive the woman to commit suicide. It also speaks of danger to life, limb or health (whether mental or physical) of the woman. It is a categorical case in the FIR that the petitioner had extra-marital relations with a woman, due to which, he had been abusing and committing maar peet with the respondent no.3.
19. In her statement, the respondent no.3 would reiterate the version of the FIR and would also tell that, in fact, she had attempted suicide once. Not only she, 14 but her daughter also revealed about extra marital relations of the petitioner to the Investigating Officer. One of their landlord Subhodh Kumar Dondiyal has also stated that in the year 2015, the respondent no.3 had consumed poison. Does it mean that the petitioner committed such willful misconduct which drove the respondent no.3 to commit suicide? If so, definitely prima facie case under Section 498-A IPC is made out. That is what the informant had told to the Investigating Officer and the witnesses supported it. How it is to be proved? That is another aspect of the matter.
20. Although, during the course of arguments, on behalf of the respondent no.3, it is being told that the medical reports of the year 2015 suggesting poisoning of the respondent no.3 were given to the Investigating Officer, but the fact remains that the charge-sheet did not find mention of it. But, there are various provisions under the Code, which empowers the Presiding Judge to take such evidence, which has not been submitted by the Investigating Officer. There are provisions under Section 311 of the Code and under Section 165 of the Indian Evidence Act, 1872. This Court, at this stage, avoids making deeper scrutiny beyond it. 15
21. In view of the foregoing discussion, this Court is of the view that prima facie offence under Section 498A IPC is also made out in the instant case. There is no ground to make any interference in the petition. Accordingly, the petition deserves to be dismissed.
22. The petition is dismissed.
(Ravindra Maithani, J.) 13.12.2022 Sanjay