| SooperKanoon Citation | sooperkanoon.com/140368 |
| Subject | ;Criminal |
| Court | Guwahati High Court |
| Decided On | Sep-15-2008 |
| Judge | B.D. Agarwal, J. |
| Appellant | Ravi Jhunjhunwala and anr. |
| Respondent | Pawan Kumar Mishra and anr. |
| Disposition | Application allowed |
B.D. Agarwal, J.
1. Both the aforesaid revision applications were heard together and are being disposed of by this common judgment since the cause of action, for filing the revision applications under Section 482 of the Code of Criminal Procedure (Briefly CrPC), so as to quash the criminal proceedings against the petitioners, stems out of the same incident and common facts. At the same time, two accused persons before this Court are seeking quashing of the FIR No. 50 (3) of 2007 at Lumdingiri Police Station and Criminal Complaint Case No 824 (S) of 2007, now pending in the court of Judicial Magistrate, Shillong, on the same grounds.
2. I have heard Mrs. PDB Baruah, learned Counsel appearing for the petitioners. Shri MF Qureshi, learned Counsel, represented the complainant/respondent. When the case was last heard on 14.05.2008 it was thought it proper to ascertain the view of the State. Accordingly State of Meghalaya was also impleaded as respondent No. 2. Today, Shri ND Chullai, learned PP appeared for the State along with the) case diary of the Lumdiengiri Police Station Case No. 50(3) 2007 under Sections 420/468/506/509/34 IPC. After listening to the lengthy arguments of both the sides and on perusal of the FIR, complaint petition, case diary, statements, made in the revision applications and the documents filed therein, it appears to me that the facts of the case indicate that the petitioner Shri Ravi Jhunjhunwala, rather, should have been on the offensive side. However, very strangely, the said petitioner/ accused is on the receiving end and facing the criminal prosecution. This view of mine can be vouched from the facts of the case, which are briefly summarized below.
3. It is the case of the complainant/ respondent that in the month of March, 2007 the accused No. 1, i.e., Shri Ravi Jhunjhunwala telephoned him that he had married his daughter and if he arranges the marriage of his daughter with any other person, it will invite serious consequences. The respondent has also alleged in the complaint petition that on being informed, the police summoned the aforesaid accused and after warning him no formal case was registered. According to the respondent, however, the accused continued to give threatening over telephone and as such, a formal written FIR was lodged on 28.04.2007, whereupon Lumdiengiri PS Case No. 50(3) 2007 under Sections 207/420/468/506/509/34, IPC was registered. It has also been alleged in the complaint that the aforesaid accused persons have fabricated a false marriage certificate in conspiracy. The Marriage Officer of the Asansol, West Bengal has also been impleaded as accused No. 3 with an allegation that he is involved in issuing fake marriage certificates. On the basis of these allegations the Judicial Magistrate recorded the statement of the complainant Under Section 200 CrPC and after taking cognizance of the complaint issued process against the accused persons vide order dated 16.07.2007. Being aggrieved with the order, taking cognizance of the complaint accused Nos. 1 and 3 have filed the revision applications seeking quashing of the police case as well as the complaint oh various grounds.
4. At this stage, it would be apposite to mention here that the accused No. 2, Shri Amit Kumar Mishra is the son of the complainant himself and he has also been implicated in the case for hatching conspiracy to facilitate the marriage of the prime accused with the informant's daughter by way of arranging a fake marriage certificate.
5. Per contra, it is the case of the petitioner No. 1 that the complainant and his daughter are the residents of Shillong and he also used to visit Shillong in his relative's house. On such visit, the said accused came in contact with the informant's daughter and in regular course they developed intimacy. It is the further case of the accused No. 1 that ultimately the informant's daughter fell in love with the accused Ravi and insisted that he should marry her. In support of this statement, the aforesaid petitioner has submitted couple of letters written by the victim girl. I have perused the aforesaid letters, which speak volume about the affair between the boy and the girl. It is the further case of the accused that to fulfill her dream the girl went to Asansol in West Bengal where they got their marriage registered on 27.6.2005. This was the culmination of long intimacy of nearly six years. According, to the petitioner-Ravi the family members of the complainant knew about their intimacy. This statement has been made on the basis of few photographs that were allegedly supplied to the accused by the informant's daughter. It is also the case of the prime accused that after the marriage; both of them stayed together at Kolkata and visited a number of tourist places. Regarding the marriage registration, it is the case of the petitioner that the marriage was registered with all necessary formalities and the allegations of the complaint that the marriage certificate is a fabricated one the petitioner has furnished a group photograph featuring the accused Ravi, the Marriage Officer as well as the victim girl under Annexure IV to show that the marriage was registered in presence of the informant's daughter and with their consent.
6. The above apart there is no dispute that the informant's daughter is/was an adult one. One of the age certificates has been annexed with the revision application under Annexure V showing that the informant's daughter born on 25.11.1981. In this way the victim being an adult woman, the first question would be the locus standi of the complainant/respondent to file FIR and a complaint in the Court alleging fake marriage allegedly against the wishes of the informant's daughter. The other admitted facts are there that when the petitioner Ravi filed complaints before the Superintendent of Police, Begusarai and Munger on 27.04.2007 and 28.04.2007 respectively alleging illegal detention and confinement of his wife a counter FIR was lodged by the father of the girl on 28.04.2007 and followed by the complaint in the Court on 25.06.2007. In between this period, the informant gave out his daughter in marriage with another boy on 6.5.2007. Hence, it can be inferred that the FIR was lodged with an intention to prevent the accused Ravi from interfering in the marriage of the informant's daughter with another boy. During the course of argument Mrs. PDB Baruah, learned Counsel for the petitioner also submitted that at one point of time the accused Ravi had filed a civil suit for restitution of conjugal rights. However, after filing of the revision application and realizing the futility of the previous suit, Ravi has filed a suit for divorce in the month of October, 2006. Now the question before me is whether, amidst above factual scenario, both police and complaint case should be allowed to proceed. It has also to be examined whether this is a fit case to quash the aforesaid criminal cases.
7. In support of her submission, Mrs. PDB Baruah, learned Counsel for the petitioner cited two authorities from the Hon'ble Supreme Court rendered in the case of State of Karnataka v. M. Devendrappa, reported in : 2002CriLJ998 and that of S W Palanitkar v. State of Bihar, reported in : 2001CriLJ4765 .
8. On the other hand, Mr. MF Qureshi, learned Counsel for the complainant/ respondent submitted that photographs, letters and documents submitted with the revision applications cannot be taken into consideration while exercising powers under Section 482 CrPC. To buttress this submission, the learned Counsel also cited few authorities from the Hon'ble Supreme Court. The cases are State of Orissa v. Debendra Nath Padhi reported in : AIR2005SC359 ; Indian Oil Corporation v. NEPC India Ltd. : AIR2006SC2780 and Pratibha v. Rameshwari Devi reported in : 2008CriLJ329 . On the basis of these authorities, the learned Counsel submitted that this Court has to confine itself to the allegations made in the FIR/complaint and the initial statements of the witnesses and the court cannot make an enquiry whether the aforesaid materials are sufficient to convict the accused persons.
9. As it has been said earlier, the learned Public Prosecutor was directed to produce the case diary. On the basis of the case diary, the learned PP submitted that during the last one and half years, the IO has only recorded the statements of the complainant, his wife and one son. In other words the investigation is not moving since 17.5.2007. Strangely the complainant has also not produced his victim daughter either before the Investigating Officer nor was she produced before the Judicial Magistrate.
10. Before examining the question whether it is a fit case for quashing the criminal proceeding, I would also like to point out certain other special features of the criminal proceedings, which in my opinion would be relevant in disposing of the criminal revisions. The noticeable features are as below:
i) Although there was specific averment in the complaint petition that for the same incident an FIR was also lodged at Lumdingiri Police Station on 28.4.2007. Despite this statement, the learned Judicial Magistrate, Shillong issued the process without calling for any report from the police as mandatorily required Under Section 210 CrPC:
ii) The learned Judicial Magistrate also did not think it proper to defer the issuance of process till recording of the statement of the complainant's daughter, who would have been the best witness to corroborate the allegations of forced and fake marriage;
iii) The Judicial Magistrate has issued process with a vague order that he is satisfied that a prima facie case exists against the accused persons. In other words, the learned Judicial Magistrate has not specified as to which accused person is being summon against which penal provisions. Apparently, a Govt. Officer i.e. the Marriage Officer is also one of the accused and the offences like Ss. 509/506/500 and 471 were apparently not applicable against the Marriage Officer. No process could have been issued against the Govt. Officer on the aforesaid penal provisions. In this way, the cognizance of the case has been taken mechanically and in a slip-shod manner. In a number of authorities the Hon'ble Apex Court has observed that the learned Judicial Magistrate should be cautious and take extra precaution before issuing process against the Govt. Officer. However, the observations have been followed more in breach than observance;
iv) Section 509, IPC relates to uttering any word or making any gesture, intended to insult the modesty of a woman. In my considered opinion, cognizance of this offence could have been taken only after recording the initial statement of the victim woman. However, no attention was also given in this regard. Be that as it may, I am not quashing the criminal proceedings on the aforesaid infirmities since some of the infirmities are curable one.
11. Apparently, the main cause of action i.e. solemnization of marriage took place at Asansol in the State of West Bengal. However, the learned Judicial Magistrate was totally oblivious to this aspect. In other words, the Judicial Magistrate did not examine the legal question whether he had at all jurisdiction to entertain the complaint against an accused who were outside his jurisdiction in the light of limitations prescribed under Section 202(1), CrPC, as amended in the year 2005.
12. Long back in the case of Pepsi Food Ltd. v. Special Judicial Magistrate, reported in : 1998CriLJ1 the Hon'ble Supreme Court had given wise advice to the Magistrates to take judicial precaution before issuing summons to accused persons. The relevant observations, which have been followed by the Apex Court in the case of Maksud Saiyed v. State of Gujarat reported in : (2008)5SCC668 upholding quashing of criminal complaint, are reproduced below for ready reference:
28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinize the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.
13. The allegations made in the complaint have been precisely summarized at the outset of this judgment. Since initial statement of the complainant is a relevant factor to take cognizance of a complaint, the statement given by the complainant Under Section 200 CrPC is reproduced below in extenso:
16.7.07- On oath, I am the complainant in this Case. The accused No. 1 forcefully, claim that my daughter Miss Neha Mishra is his wife while my daughter is unmarried. The accused No. 1 claim my daughter Miss Neha Mishra as his wife on the basis of forged and manufactured Certificate of Marriage dated 27.6.05 issued by the accused No. 1. We made on enquiry from the Office of the Registrar and found that the Marriage Certificated dated 27.6.05 is false and fabricated one. The accused No. 2 is also involved in the criminal conspiracy. I pray the Court to issue process against (sic) punish them accordingly.
Sd/-Shri Pawan Mishra
14. Now I shall turn to the main issue of quashing of the cases. The legal principles regarding quashing of criminal proceedings are no more res integra. Criterion for quashing of criminal proceedings have been lucidly crystallized in the case of State of Haryana v. Bhajan Lal reported in : 1992CriLJ527 . The illustrative category for quashing the criminal proceedings are as below:
i.. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
ii. 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.
iii. Where the uncontroverted allegations made in the FIR 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.
iv. Where, the allegations in the FIR 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.
v. Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused.
vi. 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.
vii. 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.
15. The aforesaid views have been consistently approved by the Hon'ble Supreme Court. One such judgment has been referred to by the learned Counsel for the petitioner i.e. the case of M. Devendrappa (supra). In this case, their Lordships have dealt with the power that can be exercised ex debito justitiae to do complete and substantial justice for the administration, for which alone, Court exists. Their Lordships have further observed that it would be abuse of the process of court to allow any action that would result in injustice and prevent promotion of justice. However, a note of caution has also been given in the judgment so that the extraordinary power is not misused. The Hon'ble Apex Court has further held that while examining an application under Section 482 CrPC, it is not permitted to meticulously examine the materials available before the trial court.
16. In the case of SW Palanitkar (supra) the Hon'ble Supreme Court has observed that many a times criminal complaints are filed with oblique motive or for collateral purpose to harass, to wreck vengeance, to pressurize the accused to bring them to their own terms etc. While dealing with a case, arising out of quashing of a criminal proceeding, their Lordships have held that before issuing the process, the Magistrate has to sincerely keep in mind the scheme contained in the provisions of Sections 200-203 CrPC. While quashing the criminal proceedings, their Lordships have observed that the High Courts have to look at the object and purpose for which inherent powers under Section 482 CrPC have been conferred. Besides this their Lordships have followed the judgment rendered in the case of Nirmaljit Singh Hoon v. The State of West Bengal reported in : [1973]2SCR66 wherein the Hon'ble Apex Court has observed that at the time of taking cognizance of complaint the test is whether there are sufficient grounds for proceeding and not whether there are sufficient grounds for conviction
17. In the case before me, although the letters, allegedly written by the victim woman to the accused, photographs and other documents were submitted to establish the point that the marriage was registered voluntarily and without any fraudulent mind or method, the respondent has not filed any counter disputing the aforesaid facts and genuineness of the documents. It is true that the new sets of documents are ordinarily not examined by the High Court. However, I am of the view that the High Courts, while examining an application under Section 482 CrPC and also being a supervisory authority of the subordinate courts under Article 227 of the Constitution of India and Section 483 CrPC it has an onerous duty to see that justice is secured and injustice is prevented sans technical hindrances. To say it differently, High Courts cannot suo motu put its hands into shackles and close its eyes to allow perpetuation of apparent injustice and abuse of process of law.
18. The authority of the Hon'ble Supreme Court relied upon by the learned Counsel for the respondent rendered in the case of Pratibha (supra) is not applicable. In the aforesaid case, the Apex Court dispproved the quashing of criminal proceedings by the High Court on the ground that the High Court had taken into consideration certain police reports, which were neither produced before the Judicial Magistrate nor supplied to the complainant. However, in the present case, the documents, which the petitioners are relying upon, have been made a part of the criminal petitions. Besides this, the learned PP also admitted the fact that except recording the statements of complainant, his wife and son there is no progress in the investigation. Moreover, the daughter of the complainant, who is stated to be the main victim, has not been produced before the IO.
19. In the case of Debendra Nath Padhi (supra) the Hon'ble Supreme Court has held that the documents of the accused cannot be taken into consideration at the time of issuing process. This principle is strictly not applicable in the instant case in as much as presently I am examining the justification of continuance of criminal proceedings before police and the Court and not examining the propriety and legality in issuing processes. In other words, I have referred various letters allegedly written by the victim woman and their joint photographs and the Marriage Certificate only to assess whether it is desirable to allow continuance of criminal proceedings and not from the angle to ascertain as to whether the allegations made in the complaint would be sufficient to convict the accused person.
20. In the case of Indian Oil Corporation (supra) relied upon by the respondent quashing of criminal proceedings was not permitted on the ground that the accused person had, prima facie, removed the engine and certain parts of aircrafts, despite there being temporary injunction by the civil courts.
21. Ordinarily the learned Public Prosecutors defend continuance of criminal proceedings. However, in this case the learned PP was fair enough to submit that considering the case in its entirety and more particularly from the facts that the informant's daughter has already married another person and also from the fact that the main accused has filed a divorce suit, it is not desirable that the criminal proceedings should continue.
22. Apart from the submissions and informations given by the learned PP, I am of the view that parallel criminal proceedings were being filed with mala fide intention to harass the accused person, who had married the informant's daughter against the wishes of her parents and it being an inter-caste marriage. Besides this, the allegation of manufacturing marriage certificate is also apparently absurd inasmuch as the Marriage Officer himself has come forward to this Court asserting that the marriage was registered in accordance with the procedure. This petitioner has submitted few model certificates to contend that the marriage certificate issued to the accused No. 1 was in the same procedure. In my considered opinion, in the backdrop of these facts, if the criminal proceedings are allowed to continue, it would amount to giving sanction to abuse the process of law, which would be contrary to the true spirit of Section 482 CrPC.
23. For the reasons alluded hereinabove, I hold that both the revision applications have sufficient merit. Consequently, the revision applications stand allowed. The criminal proceedings in the form of CR Case No. 824(s) 2007, now pending in the court of Judicial Magistrate, as well as the FIR No. 50(3) of 2007 of Lumdiengiri police station are hereby quashed. The accused person shall be treated as discharged.