Criminal Application (APL) No. 249 of 2011

20th July, 2011

Petitioner Counsel: Mr. R.D. Karode
Respondent Counsel: Mr. Anoop Parihar,Mr. G. G. Mishra

Cases Cited:
Preeti Gupta and another Vs. State of Jharkhand, 2010 ALL MR (Cri) 2947 (S.C.)=(2010) 7 SCC 667 [Para 5]
Pashaura Singh Vs. State of Punjab and another, 2010 ALL MR (Cri) 2028 (S.C.)=(2010) 11 SCC 749 [Para 5]
Mandakini Kiran Landge and others Vs. State of Maharashtra & another, 2010 ALL MR (Cri) 2081 [Para 5]
State of Haryana Vs. Bhajan Lal, 1992 Supp (1) SCC 335 [Para 8]
Inder Mohan Goswami Vs. State of Uttaranchal, 2007 ALL MR (Cri) 3302 (S.C.)=(2007) 12 SCC 1 [Para 8]
Vijeta Gajra Vs. State of NCT of Delhi, 2010 ALL MR (Cri) 2656 (S.C.)=(2010) 11 SCC 618 [Para 10]
U. Suvetha Vs. State, 2009 AIR SCW 3491 [Para 10]

JUDGMENT

JUDGMENT :- Heard finally by consent.

2. By this application under Section 482 of Cr.P.C. the applicants have prayed to quash and set aside the proceedings in Regular Criminal Case No.202/2010 arising out of Crime No.14/2010 registered by Police Station Tamgaon, Tah. Sangrampur, Dist. Buldhana with accusations for the offences punishable under Sections 498A, 506, 504 r/w Section 34 of the IPC pending on the file of learned Judicial Magistrate First Class, Sangrampur, Dist. Buldhana. It appears that the applicants are facing proceedings arising from F.I.R. No.41/2010, which was registered on 17.04.2010 by Tamgaon Police Station, Dist. Buldhana on the basis of complaint lodged by Smt. Shabana Chhotushah against her husband and seven others on the ground that they have conspired together to harass the first informant mentally and physically with a view to demand dowry.

3. According to the first informant, she had married with the accused Lalshah @ Chhotushah Yunus Shah six years prior to the complaint. After her marriage, she went to Zadegaon for cohabitation with her husband. Thereafter, they had also stayed at Nirod for about a year. According to first informant, accused no.1 to 8 used to treat her with cruelty, both mentally and physically on the pretext that dowry was not paid by her mother. On that pretext, they had demanded sum of Rs. 35,000/and threatened her that if she come back again without bringing dowry she may be murdered. She was compelled to leave the matrimonial home and she is residing with her mother at Nirod.

4. Since 23 days prior to lodging of the F.I.R., on 17.04.2010, at about 1000 a.m., accused no.1 to 7 came on one white jeep car and threatened her to withdraw cases filed by her in Khamgaon Court and demanded dowry in the of sum of Rs.35,000/from her mother. At that time, she and her mother were frightened. Accused nos.1 to 8 attacked both of them. They were rescued by neighbourers. The accused had also threatened that if any complaint is lodged with Police then the first informant and her mother will lose their hands and legs. Under these circumstances, the first informant has prayed for stern action against the accused. Submission on behalf of respondent is that the chargesheet has already been filed in respect of these accusations in the Court of Judicial Magistrate First Class, Tamgaon under Sections 498A, 506, 504 r/w Section 34 of the I.P.C.

5. Learned Advocate made a reference to the ruling in Preeti Gupta and another Vs. State of Jharkhand and another (2010) 7 SCC 667 : [2010 ALL MR (Cri) 2947 (S.C.)], Pashaura Singh Vs. State of Punjab and another reported in (2010) 11 SCC 749 : [2010 ALL MR (Cri) 2028 (S.C.)] and Mandakini Kiran Landge and others Vs. State of Maharashtra & another reported in 2010 ALL MR (Cri) 2081 and submitted that the powers under Section 482 of Cr.P.C. can be exercised even if trial is to begin and even if the petitioner has alternate remedy of seeking discharge. On behalf of respondent, it is also submitted that the applicant/husband had already communicated Talak to his wife and therefore, she could not have lodged complaint against him and his family members under Sections 498A, 506, 405 r/w Section 34 of the I.P.C.

6. I have perused the rulings cited by the learned Advocate appearing for the applicants. The Apex Court in Preeti Gupta's case explained ambit of courts' powers under Section 482 Cr.P.C. Every High Court has inherent power to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent the abuse of process of court. Inherent power under Section 482 Cr.P.C. can be exercised:

(i) to give effect to an order under the Code;

(ii) to prevent the abuse of process of court; and

(iii) to otherwise secure the ends of justice.

7. It is further explained that the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. The Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution but the Court's failing to use the power for advancement of justice can also lead to grave injustice. The High Court should normally refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the court and the issues involved, whether factual or legal, are of such magnitude that they cannot be seen in their true perspective without sufficient material. Of course, no hardandfast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage.

8. The Apex Court also referred to State of Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335 and mentioned seven categories of cases where such power should be exercised. There is a word of caution mentioned by the Apex Court in para 27 making a reference to Inder Mohan Goswami Vs. State of Uttaranchal reported in (2007) 12 SCC 1 : [2007 ALL MR (Cri) 3302 (S.C.)]. The observations by the Apex Court are reproduced thus:

"Inherent powers under Section 482 Cr.P.C. though wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."

9. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. It is true that prolonging of criminal trials, particularly in cases under Section 498A IPC may lead to rancour, acrimony and bitterness in the relationship between the husband and wife. Criminal trials against husband or if the husband has to remain in jail even for a few days, it would ruin the chances of an amicable settlement. Therefore, the facts and circumstances of such cases are required to be considered in the background of legal principles to decide as to whether the complaint proceedings is required to be quashed or not.

10. There cannot be dispute with the proposition of law in relation to the exercise of inherent powers under Section 482 of Cr.P.C. as referred to in Preeti Gupta's case by the Apex Court. The complaint in a given case can be quashed if allegations do not prima facie constitute any offence or if it is clear abuse of the process of court initiated with malice or malafide for recking vengeance or to cause harm when allegations are absurd or inherently improbable but the complaint cannot be quashed merely because few ingredients of offence have not been stated in details. It is true that in a matrimonial offence in order to ensure cohabitation between husband and wife, the High Court may use its extraordinary and inherent jurisdiction and exercise powers under Section 482 Cr.P.C. to quash the FIR Complaint or criminal proceedings. However, as observed by the Apex Court, the power under Section 482 Cr.P.C. cannot be exercised so as to scuttle investigation or stifle legitimate prosecution, inherent powers is required to be used in rarest of the rare case. The Court cannot have justification to use inherent powers to scuttle investigation at crucial and preliminary stage. Therefore, such powers are required to be used sparingly in the rarest of the rare case. Coming to the facts of the present case in the F.I.R. itself, the accusations have been made by the first informant against all these applicants that they had conspired with each other to harass her on the pretext of demand of dowry. They had evicted her out of matrimonial house and threatened to kill her if she returns back without money demanded to her matrimonial house. They had also threatened her to withdraw the case from Tamgaon Court and come with a sum of Rs.35,000/- from her mother, failing which they gave threat that if she lodge any complaint to the Police, her hands and legs may be broken by them. According to respondent, investigation was made into these accusations and chargesheet is also filed after recording statement of six witnesses. The contention of the applicant no.1 Lalshah that he had communicated Talak to his wife by notice sent by R.P.A.D. on 22.01.2010 and the defence that because of such communicated Talak, prosecution under Section 498A IPC must fail can be considered by learned Trial Magistrate at appropriate stage or if any application is made for discharge from the case. But, in the present case, the accusation under Section 498A is also coupled with accusation under Sections 504, 506 r/w Section 34 of the IPC. In addition the allegation is that the first informant was also assaulted. The allegation under Section 12 of the Protection of Women for Domestic Violence Act, 2005, led to filing of Misc. Criminal Application No. 39/2008 in the Court of Judicial Magistrate First Class, Jalgaon Jamod, District Buldhana, in which interim maintenance was ordered on 28.08.2008. According to learned Advocate for the applicant, only relatives of husband can be charged under Section 498A of IPC. He disputed that all the applicants are relatives of Shabana's husband answerable to the charges. He made reference to Vijeta Gajra Vs. State of NCT of Delhi (2010) 11 SCC 618 : [2010 ALL MR (Cri) 2656 (S.C.) ] and U. Suvetha Vs. State 2009 AIR SCW 3491. Considering the accusations under Section 498A are also coupled with Sections 506, 504 r/w Section 34 of the IPC. I do not think this case as a fit case for exercise of exceptional and extraordinary inherent powers under Section 482 of Cr.P.C. so as to interfere with the criminal proceedings concerned when the chargesheet is already filed by Tamgaon Police Station, District Buldhana bearing No.2/2010. That being so, no case is made out for to quash the FIR and criminal proceedings in the present case. Application is therefore, dismissed.

Application dismissed.