Criminal Application No.2049 of 2010

14th June, 2011

Petitioner Counsel: Mr. J. S. BAJPAYEE
Respondent Counsel: Mr. A. PARIHAR,Mr. A. D. MOHGAONKAR

Cases Cited:
Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC 368 [Para 6]
R. P. Kapur Vs. State of Punjab, 2009 ALL SCR (O.C.C.) 80 : AIR 1960 SC 862 [Para 6]

JUDGMENT

JUDGMENT :- The applicants pray for to quash and set aside the prosecution initiated by the Tumsar Police Station pursuant to the crime registered as no 219 of 2010 under Section 498-A of the I.P.C. and Sections 3 and 4 of the Dowry Prohibition Act read with Section 34 of the I.P.C. According to them,Tumsar Police have taken cognizance of the complaint without jurisdiction with reference to the allegations for the period from 21th April, 2009 to 14th June, 2009.

2. It is case of the Applicants no.1 and 2 that their Son Tapeshchandra presently resident of USA is married with the respondent no.2 Payal since 8 th April 2009. Applicant No.3 Sau. Maya is their married daughter resident of Bangalore but is shown resident of Raipur for the purpose of this proceeding. The applicants claim that they have no role in the matter and are likely to be harassed in a prosecution which they allege is bad in law.Applicants claim that there are no specific allegations against them and as such no action was taken against the Applicants by the National Commission for Women at New Delhi.They claimed that during the period between 21/04/2009 to 14/06/2009 Sau Payal was not residing at Raipur and as such no action should have been taken by the Police.It is further claimed that no ingredients of the offence punishable under Section 498-A of the Indian Penal Code were satisfied to initiate action. The applicants state that no incident occurred at Tumsar for the police to initiate action against the Applicants.

3. The respondent State of Maharashtra opposed the Application on the ground that the respondent no.2 lodged the complaint against the Applicants on the ground that the applicants had after her marriage made her victim of harassment and ill-treatment on the pretext of dowry demands. Investigation is completed by the Police and prima facie strong case is made out against the Applicants and the Charge-sheet is to be filed.

4. Respondent no.2 opposing the Petition claimed that she was made to face severe sufferance at the hands of the applicants and the respondent no.2 was tortured by the Applicants accusing that she has not brought anything with her while many things were given to Applicant no.3 Maya at the time of her marriage. And that respondent Payal's Father had given very cheap sarees and dress materials. It is claimed that the Applicant no.3 was at Raipur and was also instrumental to harass the respondent Payal till 24/04/2009. Documentary evidence in the nature of messages sent by e-mail by the respondent to her brother are also relied upon to prove torture by in-laws and the Husband Tapeshchandra, in support of the accusations made. Detailed affidavit-in-reply is filed to counter the contentions of the Applicants.

5. I have heard submissions at the Bar at length and perused the record of documents relied upon in support of the rival submissions. The respondents contended that the marriage between Payal and Tapeshchandra was solemnized at Tumsar district Bhandara (Maharashtra) on 17/04/2009 and not on 8.4.2009 as claimed. On 18/04/2009 the reception was held at Raipur (Chattisgarh) therefore the Police station at Tumsar where the respondent no.2 Payal is residing has jurisdiction to take cognizance of the complaint made by respondent no.2 Payal. Marriage never took place in Raipur (Chattisgarh) on 08/04/2009 as claimed by applicant.

6. The contention of the Applicants that marriage took place at Raipur on 8.4.2009 is difficult to believe as the Applicants have exhibited tendency to show the residential address of the Applicant no.3 at Raipur to suit their convenience even though she is residing at Bangalore after she got married. The respondent no.2 residing with her child at Tumsar can certainly lodge complaint at Tumsar where she had married with Tapeshchandra. She is also presently residing at Tumsar in District Bhandara in Maharashtra.Tumsar Police in Maharashtra can not be blamed on this count for taking cognizance of the complaint and investigating it. The inherent power under Section 482, Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. Section 482 of the Cr.P.C. itself envisages three circumstances under which the inherent jurisdiction may be exercised by the High Court, namely : (i) to give effect to an order under the Cr.P.C.; (ii) to prevent an abuse of the process of Court; and (iii) to otherwise secure the ends of justice. It is trite that although the power possessed by the High Court under the said provision is very wide but it is not unbridled. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the Court exists. Nevertheless, it is neither feasible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Yet, in numerous cases, the Apex Court has laid down certain broad principles which may be borne in mind while exercising jurisdiction under Section 482 of the Cr.P.C.. In Sajjan Kumar Vs. Central Bureau of Investigation reported in (2010)9 SCC 368, though it is emphasized that exercise of inherent powers would depend on the facts and circumstances of each case, but, the common thread which runs through all the decisions on the subject is that the Court must have justification for invoking its inherent jurisdiction where the allegations made in the Complaint or Charge-sheet, as the case may be, taken at their face value and accepted in their entirety do not constitute the offence alleged. In one of the earlier cases in R. P. Kapur Vs. State of Punjab, AIR 1960 SC 862 : [2009 ALL SCR (O.C.C.) 80] the Apex Court had culled out some of the categories of cases where the inherent powers under the code of Criminal procedure could be exercised by the High Court to quash criminal proceedings against the accused. These are :

"(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings e.g. want of sanction;

(ii) Where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;

(iii) Where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

7. The Dowry prohibition Act, 1961 (Act No.28 of 1961) is an Act to prohibit the giving or taking of dowry. It contains special non obstante provisions to deal with menace of giving and taking dowry and to punish offences relating thereto. Section 7 of the Act reads thus:

"7. Cognisance of offences.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

no Court inferior to that of a Metropolitan magistrate or a Judicial Magistrate of the first class shall try any offence under this Act;

no Court shall take cognizance of an offence under this Act except upon -

(i) its own knowledge or a police report of the facts which constitute such offence, or

(ii) a complaint by the person aggrieved by offence or a parent or other relative of such person, or by any recognized welfare institution or organization :

it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the first class to pass any sentence authorized by this Act on any person convicted of any offence under this Act.

Explanation.- For the purposes of this sub-section, "recognised welfare institution or organization" means a social welfare institution or organization recognized in this behalf by the Central or State Government.

(2) Nothing in Chapter XXXVI of the Code of Criminal Procedure, 1973 (2 of 1974), shall apply to any offence punishable under this Act.)

Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."

8. Applicants have exhibited tendency to alter the fact to suit their convenience by showing address of applicant no.3 Maya (married daughter) who is resident of Bangalore (Karnataka) to show as if she is residing at Raipur (Chhatisgarh). This conduct of applicants made me difficult to believe the date and place of marriage of Payal as pleaded by them at Raipur on 7.4.2009.

9. In the facts and circumstances disclosed in the present case, there is no legal bar for to continue the complaint proceedings initiated by the respondent no.2 Payal under Section 498-A of the Penal Code read with Sections 3 and 4 of the Dowry prohibition Act read further with section 34 of the Indian Penal Code at Tumsar in District Bhandara in Maharashtra. The place of trial in such case where apart from the cruelty punishable under Section 498-A, IPC, the offences under the Dowry prohibition Act are also alleged shall be the place where the aggrieved person is residing with her child. In the interest of justice she is neither expected to suffer hardship of frequent travel to Chhattisgarh State nor shall be required to tread and toil in to territories of her in-laws along with her minor child to get redressal of her grievances. The contention of the Applicants that the Tumsar Police can not entertain the complaint is devoid of merits and do not deserve to be accepted bearing in mind the above principles and the fact that marriage was solemnized at Tumsar District Bhandara. Their defence that the complaint do not relate to any incidents at Tumsar but elsewhere or nowhere will be considered by the trial Magistrate on merits. The Petition being meritless must be dismissed. It is dismissed. No order as to costs.

Ordered accordingly.