Patna High Court
Bibijan Bibi And Ors. vs State Of Bihar on 21 January, 1997
Equivalent citations: 1997(1)BLJR586
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
JUDGMENT M.Y. Eqbal, J.
1. In this application, the petitioner has prayed for quashing of the First Information Report on the ground that no offence is made out against the petitioner under Sections 493/376, 109 and 504 of the Indian Penal Code.
2. The prosecution story, in short, as alleged in the F.I.R. is that the informant made a written statement to the police on 8.8.1996 alleging inter1 alia that she was dumb lady of 20-22 years old and she was still unmarried. The accused persons were neighbours of the informant. One Samsuk Sheikh started visiting the house of the informant since the 1st week of January, 1996 and they fell in love. It was further alleged that in the 1st week of February, 1996, the accused Samsuk Sheikh came to the house of the informant when she was alone and her parents were absent. He caught her hand with a proposal to have sexual intercourse but she opposed it. Thereafter he told that she was a beautiful and helpless girl and so he wanted to marry her. After getting such assurance, the informant relief on his statement and accepted him as her would be husband. Thereafter accused Samsuk Sheikh closed the door and made intercourse with her and returned his home with the accurrence of marriage. It was further alleged that accused Samsuk Sheikh used to have intercourse with the informant but she never opposed it because of the said assurance. In the mean time, in April, 1996 she came to know that she was pregnant. She accordingly gave this hint to the accused that she is going to be a mother so she was to be married but when the informant could not get any reply, she told this fact to her parents. In the last week of May 1996, her father called a Panchayat and she stated everything by sign and signals before the panches and accused Samsuk Sheikh accepted about her pregnancy by him before the Panches and stated that he will marry her. It is alleged that the informant and her parents pressed all the accused persons, including the petitioner, for marriage. Thereafter all of them started abusing the informant and her parents. Thereafter she and her father complained before the members of the Panchayat who made a Panchanama. At that time she was having pregnancy five months. It was, therefore, alleged that accused Samsuk Sheikh spoiled the life of the girl and other accused persons helped him in denial.
3. Mr. M.K. Mishra learned Counsel appearing on behalf of petitioners submitted that from the reading of the F.I.R. no case is made out against petitioner Nos. 1 and 2 who are parents of Samsuk Sheikh and petitioners No. 3 who is a villager. The learned Counsel further submitted that none of the ingredients of any of the sections are fulfilled and no criminal offence whatsoever is made out under Section 493, 1.P.C. The learned Counsel submitted that it was a case of only giving assurance of marriage and subsequently refusal to marry her. Section 493, IPC has, therefore, no application in the present case. The learned Counsel further submitted that from the allegations made in the F.I.R. it is evident that it is not a case where co-habitation is against the will or without the consent of the informant or the consent of the informant was obtained by putting her in fear of death or hurt. Admittedly, the informant is also not a minor and, therefore, no case under Section 375 or 376, IPC is made out. The learned Counsel further submitted that there is nothing in the F.I.R. that these petitioners who are the parents and villagers have even abetted the offence, rather these petitioners were not aware about the incident prior to the alleged Panchayati. The only allegation against these petitioners is that they did not agree for the marriage of Samsuk Sheikh with the informant and they refused to abide by the so called verdict of the Panches. The learned Counsel, therefore, submitted that Section 109 of the IPC has no application in the present case.
4. The learned Counsel put heavy reliance on a decision of the Supreme Court in State of U.P. v. R.K. Srivastava .
5. There is no dispute with regard to the settled principles of law that if the allegations made in the F.I.R. are taken at their face value and accepted in their entirety, do not constitute an offence, the criminal proceedings instituted on the basis of such F.I.R. should be quashed.
6. In the case of State of U.P. v. R.K Srivastava (supra), the fact of the case was that the two employees of the State Bank of India and one of its clients holding current accounts were charged under Sections 120-B, 420, 468 and 471 of the IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. The allegation was that these employees entered into a criminal conspiracy with Shri Sarwant Singh and his wife to cheat the S.B.I. and in pursuance of the said conspiracy, an amount of Rs. 54, 600/- was withdrawn on the basis of false credit entry made in the books of accounts in the Bank and connected credit and debit voucher were also prepared and passed by the accused employees of the Bank and payments were made to the accused persons, namely, Shri Sarwant Singh and his wife who tendered cheques. The apex Court upholding the order of the High Court that no offence is made out has held as under:
The question is whether the facts disclosed in the F.I.R. constitute the offences with which the accused have been charged. It is manifestly clear from the allegations in the FIR that the respondent or the other accused had no intention whatsoever to make any wrongful gain or to make any wrongful loss to the Bank. They had accepted the said three cheques amounting to Rs. 54, 600/- and sent the same for clearance after debiting the LOC account. The said cheques have been encashed and the money was received by the State Bank of India. It may be that there was some delay in crediting the LOC account or that the money against the three cheques were credited in the accounts of the said Shri Sarwant Singh and his wife, but the allegations made either in the FIR or in the charge-sheet do not show that the respondent and the said B.C. Saxena had acted disnonestly, that is to say, acted with a deliberate intention to cause wrongful gain or wrongful loss. In our opinion, the High Court has rightly held that the allegations made in the F.I.R. do not constitute any offence of cheating nor do they constitute any offence of forgery. It is true that it has been alleged that the said sum of Rs. 54, 600/- was withdrawn on the basis of false credit entries made in the books of accounts of the Bank and connected credit and debit vouchers were also prepared and passed by the respondents and the other accused. When the said of Rs. 54, 600/-had been allowed to be withdrawn by the said Shri Sarwant Singh and his wife, necessary entries had to be made in the books of accounts, but it is not understandable how these entries can be characterised as false entries. No document has been referred to in the FIR as the outcome of forgery.
7. In Radhey Shyam Khemka v. State of Bihar (1993) 2 BLJR 881 (SC.) the Apex Court, while considering the power of the High Court under Section 482 of the Code of Criminal Procedure in the matter of quashing of prosecution and the FIR has held as under:
The complaint made by the Deputy Secretary to the Government of India to the CBI mentions different circumstances to show that the appellants did not intent to carry on any business. In spite of the rejection of the application by the Stock Exchange, Calcutta they retained the share moneys of the applicants with dishonest intention. Those allegations were investigated by the CBI and ultimately charge-sheet has been submitted.
On basis of that charge-sheet cognizance has been taken. In such a situation, the quashing of the prosecution pending against the appellants only on the ground that it was open to the applicants for shares to take recourse to the provisions of the Companies Act, cannot be accepted. It is futile attempt on the part of the appellants, to close the chapter before it has unfolded itself. It will be for the trial court to examine whether on the materials produced on behalf of the prosecution it is established that the appellants had issued the prospectus inviting applications in respect of shares of the Company aforesaid with a dishonest intention or having received the moneys from the applicants they had dishonestly retained or mis-appropriated the same. That exercise cannot be performed either by the High Court or by this Court. If accepting the allegations made and charges levelled on their face value, the Court had come to conclusion that no offence, under the Penal Code was disclosed the matter would have been different. this Court has repeatedly pointed out that the High Court should not, while exercising power under Section 482 of the Code, usurp the jurisdiction of the trial court. The power under Section 482 of the Code has been vested in the High Court to quash a prosecution which amounts to abuse of the process of the court. But that power cannot be exercised by the High Court to hold a parallel trial, only on basis of the statements and documents collected during investigation or inquiry, for purpose of expressing an opinion whether the accused concerned is likely to be punished if the trial is allowed to proceed.
8. In Union of India v. B.R. Bajaj and Ors. , a similar question arose before the Apex Court with regard to power of the High Court in the matter of quashing of F.I.R., the apex Court has held as under:
In the instant case the High Court while interfering at the stage of FIR holding that the FIR did not disclose any offence, as a matter of fact, took into consideration several other records produced by Respondents 1 and 2 and also relied on the affidavit filed by Shri Banerjee and also on a latter written by the Director, State Lotteries. This approach of the High Court, to say the least, to some extent amounts to investigation by the Court whether the offences alleged in the FIR are made out or not. In the FIR it is clearly mentioned that a false note was recorded by respondent 1 with a view to help M/s Om Prakash and Co. and its sister concerns. It is also mentioned in the FIR that the information so far received disclosed that before the agreement dated November 7, 1985 was signed between M/s H.K. Chugh & Co. and the Council, M/s V. Kumar Lotterywala sent a telegram and also complaint alleging malpractices in the awarding of the contract and the same was also sent to the President and Shri B.R. Bajaj. However, even after receiving such a telegram, Shri B.R. Bajaj did not take any steps to stop the loss to the Council because of his deep involvement in the conspiracy and it is also clearly mentioned that the total loss causes to the Council and gain to the accused persons is to the tune of Rs. 1, 43, 34, 000/-when compared to the offer made by the highest tenderer M/s Bharat & Co. or at least Rs. 1, 13, 34, 000/- when compared to the next highest tenders V. Kumar Lotteriwala. These are some of those important allegations in the FIR which make out a cognizable offence at that stage and the registration of an FIR is only the beginning of the investigation. That being the case, the High Court has grossly erred in quashing the FIR it self when several aspects of the allegations in the FIR had still to be investigated. The learned judge of the High Court while coming to the conclusion that the allegations in the FIR do not disclose any offence, has taken into consideration several aspects including the guidelines, normal duty of Shri B.B. Bajaj etc. and went further and investigated whether offences under Section 120-B read with Section 418, 468, IPC and Sections 5(2) read with 5(1)(d) of the Prevention of Corruption Act have been made out. Suffice it to say that the learned Judge has treated the whole matter as though it was an appeal against order of conviction and that should never be the approach exercising the inherent power under Section 482, Cr.PC particularly at the stage of FIR when the same discloses commission of a cognizable offence which had still to be investigated thoroughly by Police. We do not thing that in this case we should make a further detailed consideration about the contents of the AIR, we are satisfied that this is not at all a fit case for quashing the FIR under Section 482, Cr. P.C, Accordingly the appeal is allowed.
9. In the State of T.N. v. Thirukkuural Perumal an appeal was filed before the apex Court against the order of the High Court quashing the FIR, in so far as the respondent was concerned and also the criminal investigation eminating therefrom against him. The apex Court, allowing the appeal, held as under:
The power of quashing an FIR and criminal proceeding should be exercised sparingly by the courts. Indeed, the High Court has the extraordinary or inherent power to reach out injustice and quash the FIR and criminal proceedings, keeping in view the guidelines laid down by this Court in various judgments (reference in this connection may be made with advantage to State of Haryana v. Bhajan Lai, but the same has to be done with circumpections. The normal process of the criminal trial cannot be cut short in a rather casual manner. The Court, is not justified in embarking upon an enquiry as to the reliability or genuineness of the allegations made in the FIR or the complaint on the basis of the evidence collected during investigation only while dealing with a petition under Section 482 Cr.PC seeking the quashing of the FIR and the criminal proceedings. The learned single Judge apparently fell into an error in evaluating the genuineness and reliability of the allegations made in the FIR on the basis of the evidence collected during the investigation. The order of the learned single Judge cannot, therefore, be sustained. This appeal succeeds and is allowed. The impugned order of the High Court is hereby set aside.
10. In State of H.P. v. Pirthi Chand and Anr. , a similar question arose before the Apex Court and the Apex Court held as under:
It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is rarest of raise cases to scuttle the prosecution in its inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is read, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider necessity of strick compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The Court has the prima facie consider from the averments in the charge-sheet and the statements of witnesses on the record in support thereof whether Court could take cognizance of the offence on that evidence and proceed further with the trial. If it, reaches a conclusion that no cognizable offence is made out, no further act could be done except is made out, no further act could be done except to quash the charge sheet. But only in exceptional cases, i.e. in rarest of rare cases of mala fide initiation of the proceedings to wreck private vengence process of criminal is availed of in laying a complaint or FIR itself does not disclose at all any cognizable offence-the court may embark upon the considerations thereof and exercise the power.
11. In the light of the propositions of law held down by the Supreme Court, If I examine the allegations made out in the FIR against the petitioner, it appears that when the informant became pregnant on account of the act of the accused Samsuk Sheikh, a Panchayati was held wherein the Panchayat was assured that the informant would be married within a month. However after one month when the informant and her father approached all the accused persons, including the petitioners, they denied and refused to marry her and started abusing the informant and her father. From the allegations made in the FIR it appears to me that the petitioner Nos. 1 and 2 who are the parents refused to take the informant in the wedlock of their son. Nowhere in the instant application the petitioners parents have said that they are agreeable to marry the informant with their son but it is the son Samsuk Sheikh was has refused to marry her.
12. Be that as it may, it is equally well settled that in the matter of quashing of FIR or the criminal proceeding at the initial stage, the factum of mala fide or animus of prosecution are not relevant. If on the basis of the allegations a prima facie case is made out, then this Court should be very loath to quash the proceeding. this Court is also not Justifying in Judging the probability, reliability or genuinesess of the allegations made in the FIR. If the contentions of the petitioners are correct, then the petitioners may raise all the points at the time of framing of charge or at any appropriate stage during the trial of the case.
13. For the reasons aforesaid, this application is dismissed.