1 R Reserved on :
05. 07.2024 Pronounced on :
19. 07.2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE19H DAY OF JULY, 2024 BEFORE THE HON'BLE MR. JUSTICE M. NAGAPRASANNA CRIMINAL PETITION No.4687 OF2024BETWEEN: ABHAY KUMAR S/O JAGAT BHUPENDRA PRASAD AGED ABOUT43YEARS RESIDING AT C/O SANDIP SHANKAR MAHABIR TOLA OPP. POULTRY FARM ARRAH, BIHAR – 802 301. ... PETITIONER (BY SMT.AMRITA MANCHAND, ADVOCATE) AND:
1. . THE STATE OF KARNATAKA REPRESENTED BY SHO/POLICE INSPECTOR SADASHIVANAGAR POLICE STATION BENGALURU – 560 080. REPRESENTED BY SPP HIGH COURT BUILDING BENGALURU – 560 001. 2 . MRS. RASHMI RANJAN W/O ABHAY KUMAR D/O RAJ KISHORE PRASAD2AGED ABOUT41YEARS RESIDING AT AADARSH COLONY KOERI TOLA, P.O.BETTIAH BIHAR – 845 438. ... RESPONDENTS (BY SRI HARISH GANAPATHI, HCGP FOR R-1; SRI V.CHANDRAMOULI, ADVOCATE FOR R-2) THIS CRIMINAL PETITION IS FILED UNDER SECTION482OF CR.P.C., PRAYING TO QUASH THE ENTIRE PROCEEDINGS IN C.C.NO.24483/2018 REGISTERED BY SADASHIVANAGAR POLICE STATION, BENGALURU (1ST RESPONDENT) FOR THE OFFENCES P/U/S498A), 420 R/W34OF IPC AND SEC. 3 AND4OF DOWRY PROHIBITION ACT, NOW PENDING BEFORE THE XXXIX ADDL.C.M.M., BENGALURU. THIS CRIMINAL PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON0507.2024, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDERThe petitioner is before this court calling in question proceedings in C.C.No.24483 of 2018 arising out of crime in Crime No.112 of 2018 registered for offences punishable under Sections 498A, 420 read with 34 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act, 1961 (‘the Act’ for short). 3
2. The facts, in brief, germane are as follows: The 2nd respondent is the complainant, wife of the petitioner. The two get married on 21-04-2014. Soon thereafter, the allegation or averment in the petition is that, the complainant started to quarrel with the petitioner/husband and therefore, the relationship began to flounder. After floundering of the relationship, the wife institutes several proceedings – one invoking Section 12 of the Protection of Women from Domestic Violence Act, 2005, the other is petition for restitution of conjugal rights in M.C.No.2536 of 2015 and the third one is the impugned proceedings for it being registered on 30-05-2018 for the afore-quoted offences. Thereafter, the husband institutes proceedings before the concerned Court seeking dissolution of marriage.
3. The Police, in the subject crime, conduct investigation and file a charge sheet in C.C.No.24483 of 2018 for the aforesaid offences. The learned Magistrate takes cognizance of the offences and the matter is pending before the concerned Court. Long thereafter the Family Court at Bangalore allows divorce petition of 4 the petitioner and rejects the petition for conjugal rights of the wife by making certain observations. It is then the subject petition is preferred contending that all the allegations made by the wife are false by seeking quashment of entire proceedings.
4. Heard Smt. Amrita Manchand, learned counsel appearing for the petitioner, Sri Harish Ganapathi, learned High Court Government Pleader appearing for respondent No.1 and Sri V. Chandramouli, learned counsel appearing for respondent No.2.
5. The learned counsel for the petitioner would vehemently contend that the allegation against the petitioner is on the face of it false. There is no demand of dowry made at any point in time by the petitioner. It is the torture that is meted out by the wife against the husband that led the concerned Court granting divorce and rejecting restitution of conjugal rights petition. Those orders have become final. It is to be noticed that at the stage of registration of the crime all the members of the family had been drawn into the web of crime. There were 9 accused. The police conduct 5 investigation and drop all others except the husband from the array of accused. Even the husband has not indulged in any act that would become any of the ingredients of offences. She would seek quashment of entire proceedings, terming them to be an abuse of the process of law.
6. Per contra, the learned counsel appearing for the 2nd respondent/complainant would vehemently refute the submissions to contend that the police after investigation have filed the charge sheet. Once having filed the charge sheet, it is for the petitioner to come out clean in the trial. The Police while filing the charge sheet have dropped all other accused except the petitioner. Therefore, it cannot be said that there is abuse of the process of law. All allegations against the husband are clearly met in the case at hand. He would submit that merely because the concerned Court has rejected the petition for conjugal rights and granted divorce, the same would mean that the subject crime registered long ago would vanish. He would seek dismissal of the petition. 6
7. The learned High Court Government Pleader would toe the lines of the learned counsel representing the complainant/ 2nd respondent in contending that it is a matter of trial for the petitioner to come out clean and would submit that the proceedings before the concerned Court are at advanced stage and, therefore, this Court should not interfere.
8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.
9. The afore-narrated facts are all a matter of record. The link in the chain of events is borne out from the pleadings. The relationship between the two i.e., the petitioner and the 2nd respondent has turned sore. The soreness leads to four proceedings – three registered by the wife against the husband and one registered by the husband against the wife. The ones that are registered by the wife are invoking the provisions of the Protection of Women from Domestic Violence Act, 2005; seeking restitution of conjugal rights and the subject crime. The analogous proceedings 7 that have taken place have a bearing on the consideration of the issue in the lis. At the outset, I deem it appropriate to notice the complaint that has triggered registration of the crime. It reads as follows: “….. On 30th April, my mother-in-law and my husband took me to a temple and then to a dargah, which was around 50 KMs outside Bangalore in Ramnagar district Tungni village. I came to know that my husband used to visit that place before marriage also regularly and Maulana was known to him. I was shocked that was not discussed during our courtship period. Maulana started telling me that no one in the family is happy with this marriage and until you bring 50 lakh amount, the marriage will not be complete and your husband will not maintain any physical relationships with you. Maulana started threatening me that he can perform black magic on me and my family and will never allow the relationship to progress. When I asked my husband regarding this he threatened me saying that this Maulana he is very powerfull black magician and has a capacity to ruin or kill people and I should listen to him and get the money has told by his family and the Maulana who he respect a lot. After That I was force to entire household work, including cooking, sweeping, mopping, toilet cleaning, cloth washing etc, my days used to start at 4 AM and finish at 11:30 PM. My mother-in-law used to abuse my family members and scold me regularly and teasing me about my height and my looks and continuously asking me to bring money from my parents. I was not given food till 12. She used to send me down for dry cleaning her clothes and for stitching her clothes and used to call my husband and said that I am outside house for my own work. she was playing a double game. Both of them continuously used to visit Mrs. Mala Sinha house and lock both bedrooms in house and keep me in the hall alone. Whenever I fell ill, there was no consultation to doctor by them for me saying ask money from parents and then only we will take you 8 to doctor. They also started blaming me that as per Maulana. there is some ghost staying with me and as per Maulana I was blamed to get all information about my husband through that ghost, and the Maulana used to come home and do some ritual and ask me to bring money if not my entire family will suffer in turn they blamed me for doing black magic and creating trouble to them. My Mother-in-law use to caurse me saying that she will ensure I will not get the child the Maulana ask my husband not to have any physical contact with me. He started abusing my parents regularly and started asking me to leave the house. He started hating my face. His Elder brother-in-law Mr.Prem Shanker came to Bangalore along with his daughter Anjali Shanker for CET examination and even he started scolding me asking my family is not giving those 50 lakhs to them immediately.-.---Mrs.Mala house in one evening and there also, everyone was asking about money. Brother-in-law left the house same night. His ticket was confirm, my life had become a hell. All of a sudden, my husband said that he has to go to Chennai due to his job and he said he will call me after getting settled there and asked me to go to my house for pag-phera (a ceremony where girl visits her house after marriage for the first time). He dropped me to my parent's house on 09th June and left from there. Some days later he said over phone that he has to go to Mysore now and will need some more time to call me over. I called over my elder sister-in-law and all refused to help me and said you alone can resolve the matter by bringing quick money from your parents. In September first week, my father and brother went to Bell road house and found that my husband has left the house and another renter was staying over there from 01st August itself. My brother met Mr.Swaraj Sinha and he first assured of help but later started threatening of his power and reach to big people in administration. We are simple people so we got scared. I asked my husband over phone to give me his new address so that I can come over, but he never provided me new address. He started asking me to search him and was very angry to know that my father and brother went to search him in the house address. My father spoke to my elder brother-in-law PremShankar and asked whether to send me to Arrah house, and then my elder brother-in-law asked him to not send me to 9 Arrah and send to Abhay by finding him. He also threatened of my life if we do not arrange for 50 lakh at the earliest. Slowly all stopped receiving my calls and there was no help available from anywhere. My husband used to call my parents sometimes and talk bad things about me. Every now and then he used to convince me that he will come very soon and me. In February 2015, sent a mail to my brother asking him to take whatever step we could, but he refused to take me back to his house. Abhay told no one wants to take me. Back. My father, brother spoke to him several times but he was very much adamant about not calling me back to his house and started giving legal threats. We tried our best to meet him and talk to him in person, but there was no way. After that I went and met the Maulana, who told me that if you arrange the money then he will direct the husband to live with me has no one was helping I filed DV case and Conjugal rights only to ensure that my husband comes and live with me. Several medication took place and my husband promised to take me back if the conditions are met. trusted my husband and words I waited believing that he will come and take me back from my parents home. Recently I came to know that my husband is having a affair with a colleague and as per the direction of Maulana he is to trying to et married to her. The entire family of my husband has colluded with the Maulana and cheated and threatened me and also spoiled my life. I request your good self to register a case and investigate and also provide protection to me and my aged parents.” Minor skirmishes between the husband and the family members are undoubtedly blown out of proportion in the complaint. Though the complaint is verbose, it does not point at any ingredients of any offence that is alleged. All day-to-day occurrences and registration of proceedings are narrated after the institution of third proceedings, in the impugned crime, in Crime No.112 of 2018. By 10 then, the husband had already instituted proceedings for annulment of marriage. The Police conduct investigation and file a charge sheet. Column No.7 of the charge sheet reads as follows: “F zÉÆõÁgÆÉ Ã¥ÀuÁ ¥ÀnÖ CAPÀt 4 gÀ°è £ÀªÀÄÆ¢¹gÀĪÀ DgÉÆæUÀÆ ªÀÄvÀÄÛ ¸ÁQë- 1 gÀªÀjUÉ ¢£ÁAPÀ:21/04/2024 gÀAzÀÄ ©ºÁgÀzÀ ¥ÀmÁß zÀ°è UÀÄgÀÄ »jAiÀÄgÀ ¸ÀªÀÄÄäRzÀ°è ªÀÄzÀĪÉAiÀiÁVzÀÄÝ ªÀÄzÀĪÉAiÀÄ ¸ÀªÀÄAiÀÄzÀ°è 5 ®PÀë gÀÆ, 100 UÁæA a£ÀßzÀ ªÀqÀªÉ, 100 UÁæA ¨É½îAiÀÄ ªÀqÀªÉUÀ¼À£ÀÄß ªÀgÀzÀQëuÉAiÀiÁV ¤Ãr «dÈA¨sÀuɬÄAzÀ ªÀÄzÀÄªÉ ªÀÄrPÉÆnÖzÀÄÝ £ÀªÄÀvÀgÀ ¸ÁQë-1 gÀªÀgÀ£ÀÄß ¢£ÁAPÀ:29/04/2014 gÀAzÀÄ DgÉÆævÀ£ÀÄ EzÉà ¨ÉAUÀ¼ÀÆgÀÄ £ÀUÀgÀ ¸ÀzÁ²ªÀ £ÀUÀgÀ ¥Éưøï oÁuÁ ¸ÀgÀºÀzÁÝzÀ £ÀA.444. 2£Éà ªÀĺÀr, 2£Éà PÁæ¸ï, ¸ÀgÉÆÃd ¤®AiÄÀ, aPÀ̪ÀiÁgÀ£ÀºÀ½î, £ÀÆå © E J¯ï gÀ¸ÉÛ, ¨ÉAUÀ¼ÀÆgÀÄ E°è£À ¨ÁrUÉ ªÀÄ£ÉUÉ PÀgÉvÀAzÀÄ ¥ÀævÉåÃPÀªÁV ªÁ¸À«zÁÝUÀ ¸ÁQë-1 gÀªÀgÀÄ ¨ÉAUÀ¼ÀÆj£À dUÀ¢Ã±ï £ÀUÀgÀzÀ vÀ£Àß CtÚ£À ªÀÄ£ÉUÉ ºÉÆÃV ¸éÀ®à ¢£ÀUÀ¼À £ÀAvÀgÀ ªÁ¥À¸ï §AzÀÄ C£ÁgÉÆÃUÀå ¦ÃrvÀgÁzÁUÀ DgÉÆævÀ£ÀÄ ¸ÁQë-1 gÀªÀjUÉ ¤£ßÀ ªÉÄÊAiÀÄ°è zɪÀé EgÀĪÀÅzÁV ºÉzÀj¹ 50 ®PÀë gÀÆUÀ¼À£ÀÄß vÀAzÀÄ PÉÆqÀÄ E®èªÁzÀgÉ ¤£ÉÆßA¢UÉ ¸ÀA¸ÁgÀ ªÀiÁqÀĪÀÅ¢®è ¨ÉÃgÉƧâ¼À£ÀÄß ªÀÄzÀÄªÉ ªÀiÁrPÉƼÀÄîvÉÛãÉAzÀÄ ¨ÉzÀjPÉ ºÁQ ºÉaÑ£À ªÀgÀzÀQëuÉ ºÀtPÁÌV ¸ÁQë-1 gÀªÀgÀ£ÀÄß ªÉÆøÀ¢AzÀ ºÉaÑ£À ºÀtªÀ£ÀÄß ¥ÀqÉAiÀÄĪÀ GzÉÝñÀ¢AzÀ ªÀÄ£É ©lÄÖ ºÉÆÃUÀĪÀAvÉ ¨ÉzÀjPÉ ºÁQgÀĪÀÅzÀÄ. vÀ¤SÁ PÁ®zÀ°è zÀÈqÀ¥ÀnÖgÀĪÀÅzÀjAzÀ DgÉÆævÀ£À ªÉÄÃ¯É ¨sÁgÀwÃAiÀÄ zÀAqÀ ¸ÀA»vÉ PÀ®A498J), 420 L¦¹, eÉÆvÉUÉ PÀ®A3ªÀÄvÀÄÛ 4 r ¦ DPïÖ jÃvÁå zÀAr¸À®àqÀĪÀ C¥ÀgÁzÀsªÉ¸ÀVgÀĪÀÅzÀÄ vÀ¤SÁ PÁ®zÀ°è ¸ÀAUÀ滹zÀ ¸ÁPÁëzsÁgÀUÀ½AzÀ zÀÈqÀ¥ÀnÖgÀÄvÀÛzÉ. DzÀÝjAzÀ DgÉÆævÀ£À «gÀÄzÀÝ ªÉÄîÌAqÀ PÀ®A£ÀAvÉ zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖ.” A perusal at the complaint or the summary of the charge sheet would at the outset indicate that every member of the family had been maliciously drawn into the web of crime. The Police rightly dropped all other accused and held the reins on the petitioner/ husband. Whether the offences alleged against the husband also meet any of the ingredients is what is required to be noticed. It is here analogous proceedings become necessary to be noticed. 11
10. As observed hereinabove, the wife had preferred a petition for restitution of conjugal rights. The husband had preferred petition seeking annulment of marriage. The two are taken up together by the concerned Court in M.C.No.4065 of 2018 which was for annulment of marriage and M.C.No.2536 of 2015 which was for restitution of conjugal rights. Certain paragraphs of the order would clinch the issue. They read as follows: “…. …. ….
28. The respondent during the cross-examination of the petitioner contended that though she is not interested to return to her matrimonial home. She filed false complaint against him and his family members petitioner subjected them for cruelty, Though, the PW-1 was subjected for cross-examination in length in support of the allegation made by the respondent / husband in his petition filed for dissolution of marriage in MC No.4065/2018, nothing has been elicited in her cross- examination in support of her case.
29. Admittedly, the marriage of the petitioner and respondent was solemnized on 21-4-2014 and both of them came to Bengaluru and started residing together on 29-4-2014. Admittedly, on 9-6-2014, the petitioner / wife returned to her parents house for pagphera ceremony it means both petitioner and respondent lived together in their marital home for a short time i.e., from 29-4-2014 to 9-6-2014. The petitioner denied the suggestion that she was not attending to the household chores. The respondent / husband in his affidavit evidence clearly pleaded that though he suggested the petitioner to have a maid servant, she refused to hire any maid servant. It shows that there was no maid servant in the matrimonial home of the petitioner. Admittedly, respondent was employed and he has busy schedule. 12
30. The petitioner / wife in her cross- examination clearly stated that the respondent sent her to her parents house and denied the suggestion that she continued to stay in her parents house on one or the other pretext as she was not willing to return to her marital home. The petitioner contended that in spite of their several requests, the respondent failed to give his address for her to return to her matrimonial home. In this regard, Ex. P5 supports the case of the petitioner as said in previous paragraphs. …. …. ….
37. Though the PW-1 has contended that he was demanded for dowry, as discussed in previous paragraphs she filed the said complaint subsequently after her husband filed the petition for dissolution of their marriage. Even in the entire e- mail produced before the court both by the petitioner as well as respondent there is no reference regarding the demand placed for dowry. Though, the PW-1 in her statement of objections stated that her husband / respondent filed the petition for dissolution of her marriage, claiming that their marriage has not been consummated, PW-1 in her cross- examination clearly admitted that their marriage has not been consummated. The facts elicited during the cross- examination of the PW-1 prevails over the pleadings. Admittedly, both petitioner and respondent are residing separately from 2014. IN the decision reported in 2007 (4) SCC511in Samarghosh vs. Jaya Ghosh case, held that unilateral decision and refusal to have physical relationship for considerable period without any sufficient cause or valid reasons amounts to mental cruelty. Ex. R4 e-mail chats refers to the fact that the PW-1 has no respect towards the family members of her husband and she blamed the entire family members of her husband, for which, the brother of the PW-1 accepted the disrespectful attitude of his sister towards his mother-in-law and family members of her husband and he apologized for the same. The contents of Ex. R4 also reflects that the petitioner / PW-1 took all her valuables and most of the clothes with her, while going to her parents house on 9-6- 2014. If she had an intention to return to her marital home after pagphera ceremony she had no reason to carry all her belongings to her parents house from her matrimonial home. The e-mail correspondence held in September 2014 between the brother of the petitioner and respondent as well as e-mail correspondence 13 between the petitioner and respondent reflects the cause for matrimonial dispute between the parties and it shows that the brother of the petitioner has not denied any of the allegations made by the RW- 1 against his wife. Ex. R4 reflects that the RW-1 has replied to the e-mail received from the petitioner in September 2014 stating that since she is not having interest to have physical relationship with him, the place where she is going to stay will not make any difference. Till date, the petitioner / PW-1 even after knowing the specific contention taken up by her husband and the e-mail placed before the court which reflects the cause for their matrimonial dispute, she has not assigned any reasons for having not consented for the consummation of their marriage. Even though the RW-1 has not tendered himself for cross-examination the entire evidence placed before the court clearly leads to the conclusion that no purpose will serve in allowing the petition filed by the PW-1 for restitution of conjugal rights and it is settled position of law that no person can be compelled to have co-habitation.
38. The RW-1 by placing the e-mail correspondence held between them and also by cross-examining the PW-1 made it clear that the petitioner is not entitled for the relief of restitution of conjugal rights as she failed to restore conjugal rights in favor of her husband while she was residing with him after their marriage. The petitioner has not assigned any reason for having failed to restore conjugal rights in favor of her husband and for preventing the respondent from consummating their marriage. When she failed to assign any reasons, I find no reason to disbelieve the case of the respondent / husband that the purpose of their marriage got defeated at the instance of the petitioner. Hence, no purpose will serve in directing them to stay together through the decree of Restitution of conjugal rights after the lapse of more than 9 years of their separation. Thereby the respondent assigned reasons for having failed to take his wife / PW-1 back to her matrimonial home. Hence, I proceed to hold that the petitioner / PW-1 has failed to made out the grounds for restitution of conjugal rights. The evidence placed before the court by the parties to the proceedings clearly leads to the inference that the respondent / RW-1 suffered cruelty in his marital life due to the failure of PW-1 to restore conjugal rights. Both parties are residing separately from 9-6-2014 i.e., for more than nine years. Since the PW-1 has failed to made out the ground for restitution of 14 conjugal rights, though the RW-1 has failed to tender himself for cross-examination, the facts admitted by the parties to the proceedings leads to the conclusion that he suffered cruelty in his marital life due to the refusal of the PW-1 for the consummation of their marriage and by showing disrespectful attitude towards the family members of the RW-1 which amounts to cruelty. Merely for the reason that the RW- 1 has failed to make payment towards the maintenance of his wife, if the petition is dismissed, it will just protract the proceedings and leads to the multiplicity of the proceedings. The records placed before the court shows that as on the date of filing the petition in MC No.2536/2015 PW-1 was aged 36 years and RW-1 was aged about 40 years. The present age of the parties also needs to be taken into consideration, for just and proper adjudication of the matter and to avoid multiplicity of proceedings. Till date, PW-1 has not taken any steps for recovery of maintenance amount. Hence, she is at liberty to recover the maintenance amount as per the orders on IA No.5 dated 6-1-2022. Hence, I proceed to answer point No.1 in negative and point No.2 in the affirmative.”
(Emphasis added)The concerned Family Court grants divorce – annulment of marriage and rejects the plea of the wife for conjugal rights. What is discernible from the aforesaid paragraphs of the order passed by the concerned Court is that, nothing has come out in the cross- examination of the complainant that there was at any point in time cruelty meted out by the husband against her. Therefore, the issue of cruelty has tumbled down. The Court again records that though the complainant has contended that the husband had demanded dowry, in the entire correspondence between the husband and the wife, there was no reference at any point in time about demand of 15 dowry. The Court again goes on to record that the complainant has failed to make out any ground for restitution of conjugal rights. The facts admitted by the parties would lead to a conclusion that the husband has suffered cruelty in his matrimonial life due to refusal of the wife even for consummation of marriage. All that was projected before the concerned Court is non-payment of maintenance by the husband. For all the aforesaid reasons, the Court would pass the following order: “…. …. ….
39. Point No.3:- In view of the above said findings, I proceed to pass the following :-
ORDERThe petition filed by the petitioner in MC No.2536/2015 u/sec. 9 of Hindu Marriage Act, is hereby dismissed. The petition filed by the petitioner in MC No.4065/2018 u/sec. 13 (1) (ia) of Hindu Marriage Act, is hereby allowed. The marriage of the petitioner solemnized with the respondent on 21-04-2014 at Sri Radhe Krishna Community Hall, Shivapuri, Ganga Market, Behind AN College, Patna, Bihar - 800 023, is hereby dissolved through the decree of divorce. Considering the relationship between the parties, no order as to costs. Draw decree accordingly. 16 Ordered to return the original documents to the concerned, as per the rules. Original judgment copy kept in MC No.2536/2015 and copy kept in MC No.4065/2018.” This is said to have become final by the parties. If the complaint, summary of the charge sheet, findings by the concerned Court in the aforesaid matrimonial cases are read in tandem, what would unmistakably emerge is, minor skirmishes between the husband and the wife without there being any spec of evidence or demand of dowry by the husband or cruelty by the husband for demand of dowry are blown out of proportion with ulterior motive. There being nothing that would pin the petitioner down with the ingredients of the offences, permitting any further proceedings would become an abuse of the process of law.
11. Section 498A of the IPC has two parts. One, cruelty to the extent that the women would be forced to commit suicide and the other is cruelty on a demand for dowry which is unfulfilled by the wife. Both these circumstances are conspicuously absent in the case at hand. The other offence is Section 420 of the IPC. Where from 17 Section 420 of the IPC would spring is a mystery, as the petitioner has never, with dishonest intention, married the complainant. It was a marriage and the marriage has gone wrong. Marriage going wrong cannot be termed to be cheating on the part of the husband. Both of them are equally responsible for tumbling down of the marriage in the case at hand.
12. In the circumstances, it would become apposite to refer to the judgment of the Apex Court in the case of ACHIN GUPTA v. STATE OF HARYANA1, wherein it is held as follows: “ANALYSIS15 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is whether the criminal proceedings should be quashed?.
16. The Appellant and the Respondent No.2 got married in October 2008. The couple lived together for more than a decade and in the wedlock a child was born in March 2012.
17. We take notice of the fact that the Appellant filed a divorce petition in July 2019 on the ground of cruelty. The divorce petition was withdrawn as the Appellant was finding it difficult to take care of his child, while travelling all the way to Hisar on the dates fixed by the Court. The Appellant's mother had to file a domestic violence case against the First Informant in October 2020 under the provisions of the Protection of Women from Domestic Violence Act, 2005. 1 2024 SCC OnLine SC75918 18. The plain reading of the FIR and the chargesheet papers indicate that the allegations levelled by the First Informant are quite vague, general and sweeping, specifying no instances of criminal conduct. It is also pertinent to note that in the FIR no specific date or time of the alleged offence/offences has been disclosed. Even the police thought fit to drop the proceedings against the other members of the Appellant's family. Thus, we are of the view that the FIR lodged by the Respondent No.2 was nothing but a counterblast to the divorce petition & also the domestic violence case.
19. It is also pertinent to note that the Respondent No.2 lodged the FIR on 09.04.2021, i.e., nearly 2 years after the filing of the divorce petition by the Appellant and 6 months after the filing of the domestic violence case by her mother-in-law. Thus, the First Informant remained silent for nearly 2 years after the divorce petition was filed. With such an unexplained delay in filing the FIR, we find that the same was filed only to harass the Appellant and his family members.
20. It is now well settled that the power under Section 482 of the Cr. P.C. has to be exercised sparingly, carefully and with caution, only where such exercise is justified by the tests laid down in the Section itself. It is also well settled that Section 482 of the Cr. P.C. does not confer any new power on the High Court but only saves the inherent power, which the Court possessed before the enactment of the Criminal Procedure Code. There are three circumstances under which the inherent jurisdiction may be exercised, namely (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
21. The investigation of an offence is the field exclusively reserved for the Police Officers, whose powers in that field are unfettered, so long as the power to investigate into the cognizable offence is legitimately exercised in strict compliance with the provisions under Chapter XII of the Cr. P.C.. While exercising powers under Section 482 of the Cr. P.C., the court does not function as a Court of appeal or revision. As noted above, the inherent jurisdiction under the Section, although wide, yet should be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests 19 specifically laid down in the Section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. The authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, the court would be justified to quash any proceeding if it finds that the initiation or continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
22. Once the investigation is over and chargesheet is filed, the FIR pales into insignificance. The court, thereafter, owes a duty to look into all the materials collected by the investigating agency in the form of chargesheet. There is nothing in the words of Section 482 of the Cr. P.C. which restricts the exercise of the power of the court to prevent the abuse of process of court or miscarriage of justice only to the stage of the FIR. It would be a travesty of justice to hold that the proceedings initiated against a person can be interfered with at the stage of FIR but not if it has materialized into a chargesheet.
23. In R.P. Kapur v. State of Punjab, AIR1960SC866 this Court summarised some categories of cases where inherent power can, and should be exercised to quash the proceedings:— (i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction; (ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged; 20 (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.
24. This Court, in the case of State of A.P. v. Vangaveeti Nagaiah, (2009) 12 SCC466: AIR2009SC2646 interpreted clause (iii) referred to above, observing thus:— “6. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process no doubt should not be an instrument of oppression, or, needless harassment Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the Section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC335. A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. The illustrative categories indicated by this Court are as follows: “(1) Where the allegations made in the first information report or the complaint, even if they are taken 21 at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non- cognizable offence, no investigation is permitted by a Police Officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” (Emphasis Supplied) 25. If a person is made to face a criminal trial on some general and sweeping allegations without bringing on record any specific instances of criminal conduct, it is 22 nothing but abuse of the process of the court. The court owes a duty to subject the allegations levelled in the complaint to a thorough scrutiny to find out, prima facie, whether there is any grain of truth in the allegations or whether they are made only with the sole object of involving certain individuals in a criminal charge, more particularly when a prosecution arises from a matrimonial dispute. …. …. ….
32. Many times, the parents including the close relatives of the wife make a mountain out of a mole. Instead of salvaging the situation and making all possible endeavours to save the marriage, their action either due to ignorance or on account of sheer hatred towards the husband and his family members, brings about complete destruction of marriage on trivial issues. The first thing that comes in the mind of the wife, her parents and her relatives is the Police, as if the Police is the panacea of all evil. No sooner the matter reaches up to the Police, then even if there are fair chances of reconciliation between the spouses, they would get destroyed. The foundation of a sound marriage is tolerance, adjustment and respecting one another. Tolerance to each other's fault to a certain bearable extent has to be inherent in every marriage. Petty quibbles, trifling differences are mundane matters and should not be exaggerated and blown out of proportion to destroy what is said to have been made in the heaven. The Court must appreciate that all quarrels must be weighed from that point of view in determining what constitutes cruelty in each particular case, always keeping in view the physical and mental conditions of the parties, their character and social status. A very technical and hyper sensitive approach would prove to be disastrous for the very institution of the marriage. In matrimonial disputes the main sufferers are the children. The spouses fight with such venom in their heart that they do not think even for a second that if the marriage would come to an end, then what will be the effect on their children. Divorce plays a very dubious role so far as the upbringing of the children is concerned. The only reason why we are saying so is that instead of handling the whole issue delicately, the initiation of criminal proceedings would bring about nothing but hatred for each other. There may be cases of genuine ill-treatment and harassment by the husband and his 23 family members towards the wife. The degree of such ill- treatment or harassment may vary. However, the Police machinery should be resorted to as a measure of last resort and that too in a very genuine case of cruelty and harassment. The Police machinery cannot be utilised for the purpose of holding the husband at ransom so that he could be squeezed by the wife at the instigation of her parents or relatives or friends. In all cases, where wife complains of harassment or ill-treatment, Section 498A of the IPC cannot be applied mechanically. No FIR is complete without Sections 506(2) and 323 of the IPC. Every matrimonial conduct, which may cause annoyance to the other, may not amount to cruelty. Mere trivial irritations, quarrels between spouses, which happen in day-to-day married life, may also not amount to cruelty.
33. Lord Denning, in Kaslefsky v. Kaslefsky, [1950]. 2 All ER398observed as under:— “When the conduct consists of direct action by one against the other, it can then properly be said to be aimed at the other, even though there is no desire to injure the other or to inflict misery on him. Thus, it may consist of a display of temperament, emotion, or perversion whereby the one gives vent to his or her own feelings, not intending to injure the other, but making the other the object-the butt-at whose expense the emotion is relieved.” When there is no intent to injure, they are not to be regarded as cruelty unless they are plainly and distinctly proved to cause injury to health……..when the conduct does not consist of direct action against the other, but only of misconduct indirectly affecting him or her, such as drunkenness, gambling, or crime, then it can only properly be said to be aimed at the other when it is done, not only for the gratification of the selfish desires of the one who does it, but also in some part with an intention to injure the other or to inflict misery on him or her. Such an intention may readily be inferred from the fact that it is the natural consequence of his conduct, especially when the one spouse knows, or it has already been brought to his notice, what the consequences will be, and nevertheless he does it, careless and indifferent whether it distresses the other spouse or not The Court is, however not bound to draw the inference. The presumption that a person intends the natural consequences of his acts is one that may not must- 24 be drawn. If in all the circumstances it is not the correct inference, then it should not be drawn. In cases of this kind, if there is no desire to injure or inflict misery on the other, the conduct only becomes cruelty when the justifiable remonstrances of the innocent party provoke resentment on the part of the other, which evinces itself in actions or words actually or physically directed at the innocent party.
34. What constitutes cruelty in matrimonial matters has been well explained in American Jurisprudence 2nd edition Vol. 24 page 206. It reads thus:— “The question whether the misconduct complained of constitute cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an individual under one set of circumstances may be extreme cruelty under another set of circumstances.” (Emphasis supplied) 35. In one of the recent pronouncements of this Court in Mahmood Ali v. State of U.P., 2023 SCC OnLine SC950 authored by one of us (J.B. Pardiwala, J.), the legal principle applicable apropos Section 482 of the CrPC was examined. Therein, it was observed that when an accused comes before the High Court, invoking either the inherent power under Section 482 CrPC or the extraordinary jurisdiction under Article 226 of the Constitution, to get the FIR or the criminal proceedings quashed, essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive of wreaking vengeance, then in such circumstances, the High Court owes a duty to look into the FIR with care and a little more closely. It was further observed that it will not be enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary 25 ingredients to constitute the alleged offence are disclosed or not as, in frivolous or vexatious proceedings, the court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection, to try and read between the lines.
36. For the foregoing reasons, we have reached to the conclusion that if the criminal proceedings are allowed to continue against the Appellant, the same will be nothing short of abuse of process of law & travesty of justice. This is a fit case wherein, the High Court should have exercised its inherent power under Section 482 of the Cr. P.C. for the purpose of quashing the criminal proceedings.
37. Before we close the matter, we would like to invite the attention of the Legislature to the observations made by this Court almost 14 years ago in Preeti Gupta (supra) as referred to in para 26 of this judgment. We once again reproduce paras 34 and 35 respectively as under: “34. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases.
35. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law. We direct the Registry to 26 send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law and Justice to take appropriate steps in the larger interest of the society.
38. In the aforesaid context, we looked into Sections 85 and 86 respectively of the Bharatiya Nyaya Sanhita, 2023, which is to come into force with effect from 1st July, 2024 so as to ascertain whether the Legislature has seriously looked into the suggestions of this Court as made in Preeti Gupta (supra). Sections 85 and 86 respectively are reproduced herein below: “Husband or relative of husband of a woman subjecting her to cruelty.
85. 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. Cruelty defined.
86. For the purposes of section 85, “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 (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.
39. The aforesaid is nothing but verbatim reproduction of Section 498A of the IPC. The only difference is that the Explanation to Section 498A of the IPC, is now by way of a separate provision, i.e., Section 86 of the Bhartiya Nyaya Sanhita, 2023.
40. We request the Legislature to look into the issue as highlighted above taking into consideration the pragmatic realities and consider making necessary changes in Sections 85 27 and 86 respectively of the Bharatiya Nyaya Sanhita, 2023, before both the new provisions come into force.
41. In the result, the appeal succeeds and is hereby allowed. The impugned judgment and order passed by the High Court is hereby set aside.” (Emphasis supplied) The Apex Court considers the entire spectrum of law where provisions of Section 498A have been grossly misused, time and again by drawing proceedings against the members of the family or the husband without any rhyme or reason. The findings of the Apex Court would become applicable to the facts of the case at hand on all its fours and permitting trail against this petitioner, the husband, would become an abuse of the process of law, resulting in miscarriage of justice. Therefore, I deem it appropriate to exercise my jurisdiction under Section 482 of the Cr.P.C., and take off the sword of trial hanging upon the petitioner, failing which it would become an abuse of the process of law and result in miscarriage of justice. 28
13. For the aforesaid reasons, the following:
ORDER(i) Criminal Petition is allowed. (ii) The proceedings in C.C.No.24483 of 2018 pending before the XXXIX Additional Chief Metropolitan Magistrate, Bengaluru stand quashed. Consequently, I.A.No.1 of 2024 stands disposed. Sd/- JUDGE bkp CT:MJ