Jammu & Kashmir High Court
Pardeep Sirohi & Ors. vs State And Ors. on 12 October, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case: 561-A Cr.P.C. No.164/2016 & MP No.01/2016
Date of Decision:12.10.2017
Pardeep Sirohi & ors. Vs. State & ors.
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the petitioner(s) : None.
For the respondent(s) : Mr. Amit Chopra, Govt. Advocate for respondent No.1
& 2.
Mr. Shamas-Ud-Din Shaaz, Advocate for respondent No.3.
i. Whether approved for
reporting in Press/Media : Yes/No/Optional
ii. Whether to be reported in
Digest/Journal : Yes/No
1. Through the medium of instant petition filed under Section 561-A Cr.P.C., petitioners seek quashing of the FIR No.55/2016 dated 29.01.2016 registered at Police Station Rajouri under Section 498-A/109 RPC against the petitioner.
2. It is stated in the petition that the police of Police Station Rajouri registered an FIR against the petitioners on the false complaint filed by respondent No.3. The petitioners have been falsely implicated in the case as they have not done anything as alleged by the police in the FIR which has been registered on a vague and false complaint.
3. It is further stated in the petition that the marriage of petitioner No.1 was solemnized with respondent No.3 in the month of April, 2009 according to Hindu Rites and ceremonies, and out of wedlock one child was born. Petitioner No.2 is the father of petitioner No.1, petitioner No.3 is the sister 561-A Cr.P.C. No.164/2016 Page 1 of 7 of petitioner No.1 and petitioner No.4 is the brother-in-law of petitioner No.1. Immediately after the marriage, respondent No.3 showed her high headedness and arrogant behavior towards the petitioner No.1 and his parents. Respondent No.3 never showed love and affection towards petitioner No.1 and his family members. Respondent No.3 has left her matrimonial home in 2012 and refused to live with petitioner No.1 without any cause and reason, and started living in her parental house at Rajouri. The petitioners made best efforts to bring her back and would do all possible but respondent No.3 refused to come back to her matrimonial home. Respondent No.3 instead of coming back to her matrimonial house, she has filed a petition under Section 488 Cr.P.C. in the Court of learned Chief Judicial Magistrate, Rajouri, against petitioner No.1 for the maintenance on 29.11.2012 and same has been decided ex-parte on 28.03.2014 in which direction was passed to pay maintenance of Rs.3,000/- per month to respondent No.3 and Rs.2,000/- per month to her child. Respondent No.3 has been residing separately for the last four years and in order to harass the petitioner and his family members she has filed a complaint against petitioner No.1 and his family members at Police Station Rajouri for the offence under Section 498-A/109 RPC. Respondent No.3 has also filed a petition under Section 498 Cr.P.C. for enhancement of monthly maintenance granted by the Court of learned Chief Judicial Magistrate, Rajouri, which is still pending.
4. In the petition, it is stated that petitioner No.1 solemnized the marriage with respondent No.3 in the year 2009 and now after the lapse of seven years, respondent No.3 has been leveling false and frivolous allegation of dowry on the petitioners which cannot sustain the test of law having no legs to stand upon. The police of Police Station Rajouri registered an FIR against the petitioners on a false complaint filed by respondent no.3. The said FIR is being challenged stating that the allegations in the FIR, if taken at their face value and accepted in their entirety, do not prima facie constitute any 561-A Cr.P.C. No.164/2016 Page 2 of 7 offence or make out the case alleged against the petitioners. The allegations by respondent No.3 regarding dowry are untenable in the eye of law and petitioner No.1 and his family members never demanded any dowry at the time of marriage nor received any amount by way of dowry and never forced respondent No.3 to check her pregnancy test. The SHO Police Station Rajouri never bothered to ascertain these facts and just started harassing the petitioners. In view of the facts stated hereinabove, it would be an abuse of process of the Court, if the FIR impugned is allowed to sustain and the same is required to be set aside and quashed.
5. With the afore mentioned averments made in the petition, petitioners have prayed that the instant petition be allowed and the FIR impugned be quashed.
6. Objections stand filed on behalf of respondent No.3 stating therein that in the instant case, FIR has been lodged which discloses prima facie commission of offence against the petitioners which requires a thorough and detailed investigation. That heavy cash amount as detailed in the complaint has been received by the petitioners on one or the other pretext which they have not returned despite persistent demands and genuine need of respondent No.3 to meet out her medical expenses. Petitioners forced respondent No.3 to leave the matrimonial house after constant torture and harassment on account of her first pregnancy when it was detected that she is bearing a female fetus. Petitioner No.1 along with his family were forcing respondent No.3 for termination of pregnancy which she refused and as a result of her refusal she was kicked out from the matrimonial house. Respondent was forced to file petition under Section 488 Cr.P.C. after delivery of child as she had no source. It is incorrect that petitioner No.1 made any genuine effort for return of respondent No.3 in his matrimonial fold. This fact is false in view of filing of petition under Section 13 of Hindu Marriage Act whereby petitioner No.1 is seeking dissolution of marriage. As petitioners are not interested to face any 561-A Cr.P.C. No.164/2016 Page 3 of 7 investigation where they can prove their innocence, hence this petition has been filed so that respondent No.3 is left high and dry. Allowing this petition at this initial stage would perpetuate injustice, which is against the clarion call given by the Apex Court to protect the women from Domestic Violence, Mental and Physical Harassment. On that score alone this petition deserved to be dismissed with heavy costs. The petitioners have completely wrecked the mental and physical health of respondent No.3 by constant harassment and torture. As a result of this inhumane treated meted out to respondent No.3 at the hands of petitioners, respondent No.3 is facing multiple ailments including an attack of Facial Palasy. She is undergoing treatment right now where petitioners have not even expressed a work of sympathy for respondent No.3 so as to console her at a stage where is facing acute distress and mental trauma. Not only this, petitioner No.1 has filed a petition under Section 13 of Hindu Marriage Act seeking dissolution of marriage in the Family Court Gaziabad under No.2902/2012. The law is well settled in respect of registration of FIR and carrying out investigation i.e. where an FIR is registered on the direction of the Magistrate and where investigation is directed to be carried out in the light of the guidelines of the Apex Court, no petition under Section 561-A Cr.P.C. would lie unless the investigation is carried out and concluded in either way. The aggrieved party after the conclusion of investigation can take recourse to remedy but not at the initial stage. This petition, otherwise, being premature and untenable in law, deserves to be dismissed.
7. No one appeared on behalf of petitioners.
8. Heard learned Govt. Advocate appearing on behalf of respondent Nos.1 & 2 and learned counsel representing respondent No.3.
9. From the perusal of FIR, I find that it has been lodged on the direction of JMIC Rajouri u/s 156(3) Cr.P.C., before whom respondent no.3 filed written complaint on 27.1.2016. The contents of FIR reads:
561-A Cr.P.C. No.164/2016 Page 4 of 7"That on assurance given by the bridegroom and his family as shown above for performing dowry free marriage, all the arrangement were made for my marriage that was fixed on 17.04.2009. For which maximum advances were paid to the concerned, but all of sudden, the father of the bridegroom informed my family that his son had received a big supply order from Germany on the name of their firm namely SEERENE HANDICRAFTS that required a good amount to accomplish the delivery. In this connection, they required not less than Rs. 10 lac to save the business. So they expressed their inability to perform the marriage on the due date; That all the cards were delivered, payment was made in advance and our family was put in trouble after fixation of the date. Any how the amount of Rs. 10 lac was arranged from favourable source and paid to save the prestige of our family. That my mother and my sister provided all their gold in addition to the gold kept for my marriage that comes to 32 tolas and I entered the house No. 12- DI Floor Daya Nand Nagar, Ghaziabad on 18th of April, 2009; That within two weeks of my marriage my father in law Sheeraj Singh Sirohi asked me to give him all the gold ornaments except Mangal Sooter for the safe custody of gold as there existed danger of theft in that locality. I obeyed his order with respect and never seen that gold again. Few months after this incident the Ground Floor of the building 12-D was purchased on the name of Reena Singh the elder married sister of my husband. My family was cheated with Dowry and the Gold & Cash enabled them to make the purchase; That then I got pregnancy and at a ripe time my husband dragged me to test the sex of the unborn baby and was a female child. They tried their level best to persuade me for the abortion but I did not obey them. I was beaten again and again by my drunkard husband and members of the family now kept me working day and late-night even they prohibited me, they kept me in isolation at a corner in the burning heat of summer and I was not allowed to make any phone call to my parents, even no phone call from my parents was answered by them. I borne all their tortures for the birth of my female child developing in my womb. One evening my mother in law brought meals for me and reiterated in a soft tone that the business of my husband was not flourishing and the female baby was going to put more burdens upon him that required some financial assistance. Therefore she stressed that I must demand from my parents at least 10 lac for my future and welfare of my coming daughter but I refused to make any more demand to my parents as they have already looted my family with their plans. She called my husband who was drinking in his room who dragged me from my hair and beaten me with kicks and blows. I remained in troubles on the floor on the night; That 561-A Cr.P.C. No.164/2016 Page 5 of 7 the hunger, fatigue and injuries has become my fate which would have killed me and my unborn daughter, if the next day my father in law would not have thrown me out of his house after snatching my mangal sooter from my neck. , no shelter or Food given and begged support from the public and contacted my parents on telephone and they managed to bring me back to Rajouri after that; That my condition was critical but my parents tried their level best to save me and my child but my husband continuously mentally tortured me. Consequently I got a sudden stroke and I was hospitalized at Rajouri but my life was saved by a major operation and female baby was also born; That my family informed my husband on telephone about the birth of girl but he instructed to "Disposed of the Girl child immediately" but my family did not tell me that but after some day after the birth of the child talked to him and was shocked to know that he was not willing to accept me and my daughter until costs of our lives are met; all of sudden one day he arrived to my house and my family pleased to find at home but when the baby stopped taking milk and remained crying after his arrival we become doubtful and my father found a small medicine bottle from his room asked about it to my husband but he could not satisfy my father, heated arguments were exchanged between them and my husband left the house next morning. After his departure the baby recovered but he started teasing and threatening me on cell phone making me worried about the future of my daughter. Consequently got paralysis attack and I remained bed ridden and my daughter suffered a lot; That after that my husband and my father in law came to our home and he asked them to sit in a room at ground floor. My father in law started to discuss about the business of his son which was not in a good shape and tried to explain that if business of his son supported financially but my father would secure me and the future of my daughter as my father has been retired shortly even have got the pension benefits from the Govt. My father asked him that if he did not pay them? On this my husband pulled the table cloth and the pots fell down on the floor and he said them keep your daughter and granddaughter for whole the life and face the dire consequences even consider your daughter divorced, his father started abusing my family being cheap poor and uncivilized. They threatened us to teach some better lesson and we felt insulted as found neighbours and passersby standing listening outside in the street and my father in law left left the room. Last I and my father again approached them in April, 2015 but the husband, his father & sister demanded Rs. 20 lac, showing inability to pay, they all beaten me and my father and thrown out of their house. It is therefore prayed before Hon'ble Court to pass direction to SHO, Rajouri for lodging of FIR."561-A Cr.P.C. No.164/2016 Page 6 of 7
10. Bare perusal of FIR /complaint, it is evident that cognizable offence has been made out, which requires investigation by police. This court while exercising the power under section 561-A Cr.P.C., does not function as court of trial, appeal or revision. Inherent jurisdiction has to be exercised disparity, careful and with great caution. These powers cannot be used to stifle the legitimate proceeding. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether investigation into the alleged allegation is to be conducted or not. It is domain of police to investigate the truthfulness of allegations leveled in complaint when it is sent for investigation. During investigation, complainant as well as alleged accused person/s have right to produce evidence. The purpose of police investigation is not to collect evidence against the alleged accused, but it is also duty of police under relevant provision of police rules to allow the accused to produce evidence from which he can show his innocence. The conduct of counsel for petitioners is also casual, as he has not appeared on last two dates.
11. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated.
(Sanjay Kumar Gupta) Judge Jammu, 12.10.2017 Narinder 561-A Cr.P.C. No.164/2016 Page 7 of 7