Uttarakhand High Court
Parmjit Singh Sagar vs State Of Uttarakhand & Another on 25 January, 2021
Author: Lok Pal Singh
Bench: Lok Pal Singh
(Reserved judgment)
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application No.403 of 2019
Parmjit Singh Sagar ........Applicant
Versus
State of Uttarakhand & another ........Respondents
With
Criminal Misc. Application No.2039 of 2018
Surinder Kaur ........Applicant
Versus
State of Uttarakhand & another ........Respondents
Present: Mr. V.K. Kohli, Senior Advocate assisted by Mr. Kanti Ram Sharma,
Advocate for the applicants.
Mr. Subhash Tyagi Bhardwaj, Dy. A.G. with Ms. Shivangi Gangwar,
Brief Holder for the State.
Mr. Rakesh Thapliyal, Senior Advocate, assisted by Mr. Lalit Sharma,
Advocate, for the private respondent.
Hon'ble Lok Pal Singh, J.
Both these Criminal Miscellaneous Applications arises out of the order dated 24.11.2018 passed in Criminal Case No.5910 of 2018 "State Vs. Paramjit Sagar & others" under Sections 323, 498-A, 420, 467, 468, 471 and 120-B of IPC, pending in the court of 3rd Additional Chief Judicial Magistrate, Dehradun.
2. The facts leading to the present case are that respondent no.2 - Neetu Kainth lodged an FIR being FIR No.0149 dated 31.12.2017 at Police Station, Rajpur, District Dehradun against her husband, Parmjit Singh Sagar, father-in-law Manjeet Singh and mother-in-law Smt. Surendra Kaur being Case Crime No.147 of 2017 2 under Sections 498-A and 323 of IPC with an assertions that her marriage was solemnized with Parmjit Singh Sagar on 17.10.2004 and from the said wedlock, she begotten a son who is aged about eight years. After marriage, her mother-in-law tortured her physically and mentally. Thereafter, a compromise took place between the family and her mother-in-law who has started to reside in College campus, Wherefor, the complainant/respondent no.2 started to reside with her husband in a house situated at Sinola. Her father-in-law mainly remains outside the town but comes frequently. The husband of the respondent no.2 is in full control of her mother-in-law. Her mother-in-law is a woman of criminal nature. There are various litigations of criminal as well as of civil nature are pending between her mother-in-law and her real brother and relative. The case of abetment of suicide of a College student is also pending against her Mother-in-law. Her father-in-law is a Chairman of "Gyani Indra Singh College" of which her mother-in-law is a Secretary, her husband is a Treasurer/Director and the complainant is the Joint Secretary/Managing Director. Respondent no.2 further states that she was not feeling well for the last two years as she is suffering from "Uterine Fberoid" and "Gynecological" disorder. The behaviour of her mother- in-law and husband has become cruel by which her commercial work has been disturbed. The husband, father-in-law and mother-in-law of respondent no.2 regularly comments on her and misbehaved on her character and insulted her. She further states that her husband threatened her that he will falsely implicate her and her family in a false case. They also obtained the signature of respondent no.2 on blank papers. The father 3 of respondent no.2 has made several calls to her father- in-law and mother-in-law, but they did not pick-up the phone. She was informed by her friend that her husband is admitted in Max Hospital, Dehradun.
3. Thereafter, investigation was commenced in the matter, the statements of complainant/respondent no.2 and others were recorded by the Investigating Officer of the case. The Investigating Officer after completing its investigation in the matter submitted the charge-sheet against the applicants before the Magistrate concerned for the offences punishable under Sections 323, 498-A, 467, 468, 471, 120-B and 420 of IPC on 04.10.2018.
4. It must be stated here that respondent no.2 has filed a medical report dated 06.08.2017 along with the counter affidavit, in which following injuries are shown:
"1. Abrasion 0.5cm x 0.5cm on back of left hand little finger on back (illegible).
2. Abrasion 0.5 cm x 0.5 cm on back left hand just below back of pinky finger (illegible)
3. contusion reddish in colour 2 cm x 1.5cm left forearm (illegible)
4. Contusion 1 cm x 1cm (illegible) right forearm, 5 inch below injury number 3.
5. Complaint of pain in whole abdomen and at place of original injury.
6. Lacerated wound 1 cm in length on left hand finger (illegible)"
5. The learned Magistrate took cognizance for the offences punishable under Sections 323, 420, 498-A, 467, 468, 471 and 120-B of IPC. Hence the present 4 applications have been filed by the applicants under Section 482 of CrPC, challenging the summoning order dated 24.11.2018.
6. Heard learned Counsels for the parties, and perused the material brought on record.
7. Learned Senior Counsel for the applicants Mr. V.K. Kohli appearing for the applicants vehemently argued that the marriage between the complainant/ respondent no.2 and Paramjit Singh Sagar was solemnized on 17.10.2004, wherefor before lodging the first information report dated 31.12.2017, there is no incident of any cruelty with the complainant. He further submits that the FIR has been lodged for the ulterior motive to implicate the applicants falsely. He also submits that in the FIR there was allegation of simple "marpeet" and demand of dowry. However, there is no whisper in the FIR that there was a demand of dowry; that the applicants committed cruelty with the complainant for the demand of dowry. He further submits that the entire family has been implicated in the aforesaid case and the averments made in the FIR would depict that the entire story set-up by the complainant/respondent no.2 in the FIR is concocted.
8. It is an admitted case of the complainant/ respondent no.2 that her mother-in-law resides separately, and her father-in-law remain outside of the city, though according to the complainant he comes regularly at home. Insofar allegations against the husband are concerned, there is no specific allegation against the husband Parmjit Singh Sagar. However, 5 respondent no.2 states that her husband consume pills to commit suicide. It is further alleged that her signatures were obtained on blank papers.
9. Learned Senior Counsel for the applicants would submit that the FIR was lodged by the complainant/wife under Sections 498-A and 323 of IPC, but the Investigating Officer has enlarged the scope of the case as he has added Sections 420, 467, 468, 471 and 120-B of IPC, which has no concern with the contents of the FIR. He further submits that the Investigating Officer exceeded in his authority to investigate the matter, as fabricating the forged documents of the society has no concern with the matrimonial dispute. It is stated that the Investigating Officer had no authority to enlarge the scope, that the applicants have procured the forged documents pertaining to the resignation of the complainant/ respondent no.2 from the Institution/college. Learned Senior Counsel for the applicant has relied upon the judgment of the Hon'ble Apex Court rendered in the case of Fakhruddin Ahmad Vs. State of Uttaranchal and another reported in 2008 AIR SCW 5881, where the Hon'ble Apex Court in paragraph nos.10 and 15 held as under:-
10. Thus, it is trite that the Magistrate is not bound by the opinion of the investigating officer and he is competent to exercise his discretion in this behalf, irrespective of the view expressed by the police in their report and decide whether an offence has been made out or not. This is because the purpose of the police report under Section 173 (2) of the Code, which will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom is primarily to enable the Magistrate to satisfy himself whether on the basis of the report and the material referred therein, a case for cognizance is made out or not.
615. Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender."
10. Learned Senior Counsel further placed reliance upon the judgment of Hon'ble Apex Court in the case of Punjab National Bank & ors., vs. Surendra Prasas Sinha, reported in AIR 1992 SC 1815 wherein the Hon'ble Apex Court has held that "relevant facts and circumstances should be considered before issuing process. It was further held that the process was issued mechanically on the basis of the complaint filed as vendetta to harass persons and the complaint was quashed."
11. Mr. Rakesh Thapliyal, learned Senior Counsel for the private respondent/complainant submits that the applicant did "marpeet" with respondent no.2 and also tortured her for demand of dowry. He further argued that since the applicants procured the forged documents in regard to the resignation of respondent no.2 from the College, thus the Investigating Officer did not commit any illegality in investigating the matter in that regard. He further submits that after lodging of the FIR when the complainant came to know that the applicants have fabricated her resignation from the College, the Investigating Officer has also investigated in this regard.
7He would further submit that the offences punishable under Sections 420, 467, 468, 471 and 120-B of IPC are pertaining to the same incident and in continuation of the FIR. Learned Senior Counsel for the complainant placed reliance upon the judgment of Hon'ble Apex Court in the case of Babubhai vs. State of Gujarat reported in (2010) 12 SCC 254 and would submit that the Investigating Officer had full authority to investigate the subsequent events which happened at the hands of the applicants. The relevant paragraphs of the judgment are extracted hereunder:-
"14. In T.T. Antony Vs. State of Kerala this Court dealt with a case wherein in respect of the same cognizable offence and same occurrence two FIRs had been lodged and the Court held that (SCCp.181d-e) "There can be no second FIR and no fresh investigation on receipt of every subsequent information in respect of the same cognizable offence or same occurrence giving rise to one or more cognizable offences."
The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge under Section 158 of the Code of Criminal Procedure, 1973 (hereinafter called the CrPC) and all other subsequent information would be covered by Section 162 CrPC, for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence report in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports under Section 173 CrPC. Even after submission of the report under Section 173(2) CrPC, if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation, but it is 8 desirable that he must take the leave of the court and forward the further evidence, if any, with further report or reports under Section 173(8) CrPC. In case the officer receives more than one piece of information in respect of the same incident involving one or more than one cognizable offences such information cannot properly be treated as an FIR as it would, in effect, be a second FIR and the same is not in conformity with the scheme of the CrPC."
12. The submission of the learned Senior Counsel for the private respondent that since the applicants have procured the forged documents pertaining to the resignation of the complainant from the College/Soceity, which have been found to be forged, has no substance. The submission of the learned Senior Counsel for the private respondent is misconceived.
13. Before adverting to the arguments advanced by the learned Counsels for the parties, it would be appropriate to reproduce Sections 323 and 498-A of IPC, which read as follows:-
"Section 323. Punishment for voluntarily causing hurt.--Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
Section 498A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.--For the purpose of this section, "cruelty"
means--
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or 9
(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."
14. A perusal of the averments made in the FIR would depict that the complainant has made assertion that her mother-in-law tortured her physically and mentally. The allegations against mother-in-law, father- in-law and husband are general in nature and no specific role has been assigned to each of them. Furthermore, it appears that the FIR seems to have been filed in order to pressurize the applicants. As per the averments made in the FIR, the complainant herself states that her husband obtained her signatures on blank papers. In case, her signatures were obtained on blank papers, there is no question of fabricating her signatures. The purpose of signature is the resignation of respondent no.2 from the Institute.
15. From the perusal of the FIR, it appears that the averments/allegations are only with regard to mental and physical torture, and none of the ingredients of Section 498-A of IPC are made out against the applicants. Insofar as the submission of the charge-sheet under Section 323 IPC is concerned, respondent no.2/complainant herself has annexed a copy of the medical examination report dated 06.08.2017, which is much prior to the incident.
16. It is important to note that nothing has been said by the complainant in her complaint that she was beaten on 06.08.2017 and she got medically examined on 06.08.2017 at Pt. Deendayal Upadhyaya Government 10 Combined Hospital, Dehradun, wherefor the complainant has narrated all facts by mentioning the dates. The perusal of the medical certificate reveals that there are two abrasions on the fingers of respondent no.2, two contusions on forearm, complain of pain in whole abdomen and lacerated wound 1cm in length on left hand finger of respondent no.2. The injuries as mentioned in the medical certificate have no bearing in the matter as it has nowhere in the FIR that her medical was conducted in this regard.
17. In view of this Court, no offence under Sections 498-A and 323 are made out against the applicants and the submission of charge-sheet under these aforesaid sections seems to be without authority.
18. Since none of the ingredients under Sections 498-A and 323 of IPC are made out, the learned Magistrate has committed gross illegality in taking cognizance without application of his mind. Insofar as the summons under Sections 420, 467, 468, 471 and 120-B of IPC are concerned, none has been averred in the FIR that the applicants have ever cheated and dishonestly induced respondent no.2.
19. On the perusal of the FIR and charge-sheet submitted by the Investigating Officer, it would depict that the offences punishable under Sections 420, 467, 468, 471 and 120-B of IPC do not in continuation of the FIR.
20. Assuming that any forged document has been procured by the applicants in regard to the resignation of 11 respondent no.2 from the Institution/society, it does not mean that it was in continuation of the FIR dated 31.12.2017. Such evidence cannot be in continuation of the continuing offence of the FIR. It seems that the Investigating Officer has submitted the charge-sheet for the offences punishable under Sections 323, 498A, 467, 468, 471,120-B and 420 of IPC at the behest of the complainant and he has exceeded in its jurisdiction beyond the FIR. It is true that the FIR is not an encyclopedia, but the Investigating Officer can investigate the matter in regard to the facts narrated in the FIR and explore the area of investigation, but such investigation should be confined to the ingredients of the FIR or anything or any offence happens in continuation of the averments made in the FIR, not in regard to the separate offence, if any, committed by the accused subsequent to the FIR.
21. It is a case where nothing has been alleged in the FIR that the accused persons have procured the forged documents pertaining to the resignation of respondent no.2 - Neetu Kainth. It is the specific case of the complainant that her husband, namely, Paramjit Singh Sagar had obtained her signatures on blank papers. Thus, no prudent person would believe that for the purpose of expelling the complainant from the Institution, the applicants have procured the forged documents. The perusal of the charge-sheet and material brought on record would reveal that none of the ingredients of Sections 323, 498-A, 467, 468, 471, 120- B and 420 of IPC are made out against the applicants, as there is no element of cheating and inducement. In any case, respondent no.2 has been expelled from the 12 Institute, then it is a simple case of civil dispute, which has been given a criminal colour.
22. This Court has no hesitation to state that Investigating Officer has played at the hands of the complainant/respondent no.2 in submitting the charge- sheet for the offences which have no connection with the FIR, and therefore he has exceeded in its authority. It is the settled position in law that subsequent offence which has no direct or indirect relation with the offence being investigated should not have been included in the same offence. Otherwise, it would be endless to investigate the matter.
23. The learned Senior Counsel for respondent no.2 submitted that this Court should be slow in interfering in the summoning order as the powers conferred to this Court under Section 482 of CrPC should be exercised to secure ends of justice, prevent abuse of the process of any court and to make such orders as may be necessary to give effect to any order under this Code, depending upon the facts of a given case. Court can always take note of any miscarriage of justice and prevent the same by exercising its powers u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of the Code. However, such inherent powers are to be exercised sparingly and with caution.
24. Having considered the ratio which is laid down by the Hon'ble Apex Court in the case of Fakhruddin Ahmad Vs. State of Uttaranchal and another (Supra), this Court is convinced that while taking the 13 cognizance of the offences, it was imperative upon the learned Magistrate to take notice of the acquisition and applied its mind to the allegations made in the complaint/first information report.
25. A perusal of the contents of the FIR, no prudent person would believe that the incident happened as alleged in the FIR. Furthermore, Investigating Officer has taken the investigation in distinct coach, which cannot said to be in continuation of the FIR and submitting the charge-sheet under Sections 323, 498-A, 467, 468, 471, 120-B and 420 of IPC, but the learned Magistrate did not apply its mind while taking the cognizance in the aforesaid sections.
26. A perusal of the material brought on record, it depicts that the FIR was lodged on false averments and the Investigating Officer submitted the charge-sheet at the behest of the complainant, which is beyond the scope of his investigation. Thus, the entire investigation is held to be tainted and just to implicate the applicants in a false case.
27. Having considered the submissions of the learned Senior Counsels for the parties, this Court is of firm view that the submission of charge-sheet for the offences punishable under Sections 420, 467, 468, 471 and 120-B of IPC are not sustainable in the eyes of law. Prima facie no case is made out against the applicants for facing trial under the aforesaid sections.
28. Consequently, the criminal miscellaneous applications are allowed. The criminal proceedings of 14 Criminal Case No.5910 of 2018 "State Vs. Paramjit Sagar and others" pending in the Court of 3rd Additional Chief Judicial Magistrate, Dehradun and summoning order dated 24.11.2018 are hereby quashed and set aside.
(Lok Pal Singh, J.) 25.01.2021 Nitesh/