Partly allowed

Vinod Nishad v. State of Chhattisgarh

Chhattisgarh HC9 Jul 2024CRMP/247/2024

Case brief

AI extract

What is this about?

High Court exercised inherent powers under Section 482 CrPC to partly allow Section 482 petition. Court quashed charge against petitioners except husband as omnibus allegations lacked specificity and prima facie case against distant relatives was not made out.

What did the court decide?

Charge against petitioners Kala Bai Nishad, Kartik Ram Nishad, Kailash Kumar Nishad, Champa Bai Nishad, Sadanand Nishad @ Bhola, and Meera Nishad Sashi quashed; prosecution against petitioner Vinod Ni

Vinod Nishad Vs State of Chhattisgarh — Matrimonial and Divorce | Chhattisgarh HC (2024)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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CRMP No. 247 of 2024

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1 - Vinod Nishad S/o Kartik Ram Nishad Aged About 26 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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2 - Kala Bai Nishad W/o Kartik Ram Nishad Aged About 68 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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3 - Kartik Ram Nishad S/o Bijul Ram Nishad Aged About 55 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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4 - Kailash Kumar Nishad S/o Kartik Ram Nishad Aged About 32 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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5 - Champa Bai Nishad W/o Kailash Ram Nishad Aged About 26 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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6 - Sadanand Nishad @ Bhola S/o Kartik Ram Nishad Aged About 29 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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7 - Meera Nishad Sashi W/o Sadanand Nishad @ Bhola Aged About 23 Years R/o Ward No. 11, Vill- Damoh, Ps- Birsa, Distt- Balaghat, Mp

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---- Petitioners

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Versus

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1 - State Of Chhattisgarh , through Station House Officer, City Dongargaon,, District : Rajnandgaon, Chhattisgarh

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2 - Pushpa Nishad W/o Vinod Nishad Aged About 22 Years R/o Ratapayali, Ps- Dongargoan,, District : Rajnandgaon, Chhattisgarh

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---- Respondent s

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(Cause title taken from Case Information System)

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For petitioners	-	Mr. Krishna Tandon, Advocate.
For Respondent/ State	–	Mr. Kanwaljeet Singh Saini, P.L.
For Res. No. 2	-	Mr. Praveen K. Dhurandhar, Advocate

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Division Bench:

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon’ble Ravindra Kumar Agrawal, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice 10.07.2024

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1. Heard Mr. Krishna Tandon, learned counsel for the petitioners as well as Mr. Kanwaljeet Singh Saini, learned Panel Lawyer, for the State/Respondent and Mr. Praveen K. Dhurandhar, learned counsel for Respondent No. 2/ complainant.

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2. The present petition under Section 482 of Cr.P.C. has been filed by the petitioners with the following prayer :-

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“It is therefore, prayed that Hon’ble Court may kindly be pleased to allow this petition and quash the First Information Report and entire criminal proceedings inscribed against the petitioners, in the interest of justice.”

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3. The case of the prosecution, in brief, is that the petitioner No. 1 is the husband of the complainant Pushpa Nishad whose marriage have been solemnized on 07/07/2022 with the customary rites and rituals. The petitioner No. 2 is mother-in-law, petitioner No. 3 is father-in-law and petitioner Nos 4 and 6 are brother-in-law (Jeth) and petitioner Nos. 5 and 7 are sister-in-law (Jethani) of the complainant. After some time of marriage, dispute arose between the husband and wife and she filed a complaint on 06/12/2022 to the women cell, Rajnandgaon. The matter was sent for counseling but the same was failed and thereafter the matter was recommended from woman cell, Rajnandgaon to the Police Station, Dongangaon, Dist- Rajnandgaon for further action on which the FIR of Crime No. 41 of 2023 is

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registered against the petitioners for the offence under Sections 498A/34 of IPC. After due process of investigation, the charge-sheet is filed before the learned trial Court against the petitioners for the offence under Section 498-A/34 of IPC where the Criminal Case No. 3884 of 2023 is registered and proceedings of the trial Court is in progress.

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4. On 05/10/2023, the petitioner No. 1/ husband has filed an application under Section 13(1) of the Hindi Marriage Act, 1955, for grant of divorce in which notice has been issued to the complainant and the divorce proceeding is also pending before the learned Principal Judge, Family Court, Rajnandgaon. In the said divorce proceedings, the complainant appeared and filed his reply to the application and the proceedings of that divorce case is also pending before the learned Family Court, Rajnandgaon, vide Civil Suit No. A/261/2023.

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5. Learned counsel for the petitioners would submit that the material available on record clearly shows that the complainant is not interested to reside with the petitioners and she has raised allegation which are trivial in nature and the same are insufficient to support the allegation of harassment and cruelty and even when the counseling has been taken place before the Mahila Thana, Rajnandgaon, she made a contradictory statement and therefore the counseling could not be turned into a fruitful result and ultimately the matter was referred to the Police Station. He further submit that when petitioners have granted anticipatory bail, she moved an application for cancellation of the anticipatory bail granted to the petitioners before this Court by filing a Cr.M.P. No. 1752 of 2023 which is dismissed vide order dated 08/08/2023. He further submits

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that the Criminal Complaint under Section 498-A of IPC against all the family members is none other than to satisfy her ego and when she considers before the Mahila Thana, at the time of counseling that she could not support her allegation by evidence, she made allegation against all the family members and then she has implicated the petitioners in a false and frivolous case. He also submits that for constituting an offence, the requirement is of cruelty is lacking. The cruelty is defined under Section 498-A of the IPC, according to which, any willful conduct, which is of such a nature as is likely to derive the woman to commit suicide or to cause grave injury or to danger to life, limb or health, which is not present in the complaint as well as in the statement and report.

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6. He further contended that where allegation made in the FIR is so absurd and inherently improbable on the basis of which a prudent person can reach to just conclusion that there is no sufficient ground for proceeding against the accused criminal prosecution cannot be continued. As such, the petition deserves to be allowed and FIR bearing Crime No.41/2023 registered at Police Station Dongargaon, Dist- Rajnandgaon and entire criminal proceedings pending before the learned Judicial Magistrate First Class, Rajnandgaon in Criminal Case No. 3884/2023 against the petitioners for offence under Section 498-A/34 of the IPC deserves to be quashed. In support of his submission, he would rely upon the judgments of the Supreme Court in the matters of Geeta Mehrotra and another v. State of

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Uttar Pradesh and another1, Preeti Gupta and another v. State of Jharkhand and another2, Swapnil v. State of Madhya Pradesh3,

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1 (2012) 10 SCC 741

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2 (2010) 7 SCC 667

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3 (2014) 13 SCC 567

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Rashmi Chopra v. State of Uttar Pradesh and Another4 (Para-24) , Rajesh Sharma and others v. State of Uttar Pradesh and Another5, Kahkashan Kausar alias Sonam and others v. State of 6 7 Bihar and others and Abhishek v. State of Madhya Pradesh .

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7. On the other hand, learned counsel appearing for respondent/State, would submit that after due investigation the petitioners have been charge-sheeted for the aforesaid offences and prima-facie material collected are sufficient to put the petitioners at trial and considering the material available on record, it cannot be held that no prima-facie case against the petitioners for standing trial is made out. He would further submit that jurisdiction of this Court under Section 482 of the CrPC is extremely limited as FIR and charge-sheet cannot be quashed particularly when there is sufficient evidence available on record to put the accused persons to trial. He would rely upon the judgment of the Supreme Court in the matter of Taramani Parakh v. State of Madhya Pradesh and others8 to buttress his submission that allegation of cruelty is question of fact to be established during trial, as such, the petition deserves to be dismissed.

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8. Learned counsel for respondent No.2/complainant, would submit that after due investigation, the jurisdictional police has submitted charge-sheet against the petitioners in which there are serious allegations against the petitioners for treating respondent No.2 with cruelty. He would further submit that all submissions raised on behalf of the petitioners relate to question of fact, that can be considered during the course of trial and that cannot be considered at this stage

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4 2019 SCC OnLine SC 620

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5 (2018) 10 SCC 472

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6 (2022) 6 SCC 599

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7 2023 SCC OnLine SC 1083

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8 (2015) 11 SCC 260

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and that too in proceeding under Section 482 CrPC as all ingredients of the aforesaid offences are available to put the petitioners to trial, as such, it is the case where the petition deserves to be dismissed.

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9. We have heard learned counsel for the parties and considered their rival submissions made hereinabove and also went through the records with utmost circumspection.

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10. At the outset, it would be appropriate to consider the scope of interference in charge-sheet filed by the police against accused in extraordinary jurisdiction under Section 482 of the CrPC.

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11. In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and others9 , the Hon’ble Supreme Court has held that the accused can approach the High Court either under Section 482 of the CrPC or under Article 227 of the Constitution of India to have the proceeding quashed against him when the complaint does not make out any case against him.

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12. The Hon’ble Supreme Court in the matter of State of Haryana and others v. Bhajan Lal and others10 laid down the principles of law relating to the exercise of extraordinary power under Article 226 of the Constitution of India to quash the first information report and it has been held that such power can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. In paragraph 102 of the report, their Lordships laid down the broad principles where such power under Article 226 of the Constitution/Section 482 of the CrPC should be exercised, which are as under: -

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9 (1998) 5 SCC 749 10 1992 Supp (1) SCC 335

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"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

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(1)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.

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(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.

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(3)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.

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(4)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.

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(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.

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(6)Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which criminal proceeding is a 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.

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(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.

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We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice."

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13. The principle of law laid down in Bhajan Lal's case (supra) has been followed recently by the Supreme Court in the matters of Google India Private Limited v. Visaka Industries11 , Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another 12 and Dr Dhruvaram Murlidhar Sonar. v. State of Maharashtra and others13 ". The Supreme Court in Google India Private Limited

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(supra), explained the scope of dictum of Bhajan Lal's case (supra)

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11 (2020) 4 SCC 162

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12 (2020) 13 SCC 435

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13 (2019) 18 SCC 191

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that the power of quashing a criminal proceeding be exercised very sparingly and with circumspection and "that too in the rarest of rare cases" as indicated in paragraph 103 therein of the report.

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14. Having noticed the scope of interference by this Court in the petition relating to quashment of FIR/charge-sheet, reverting to the facts of the present case, it is quite vivid that in the impugned charge-sheet, four petitioners have been charged for offences under Sections 498A/34 of the IPC.

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15. Chapter XXA of the IPC deals with offence of cruelty by husband or relatives of husband. Section 498A of the IPC defines the offence of cruelty as under:-

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"498A. Husband or relative of husband of a woman subjecting her to cruelty - 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.

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Explanation.- For the purpose of this section, "cruelty" means-

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(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

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(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."

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16. A careful perusal of the aforesaid provision would show that in order

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to establish offence under Section 498A of the IPC, the prosecution must establish,

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(i) That, woman must be married:

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(ii) She has been subjected to cruelty or harassment and

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(iii) Such cruelty or harassment must have been shown either by husband of the woman or by relative of her husband.

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17. The word 'cruelty' within the meaning of Section 498A of the IPC has been explained in Explanation appended to Section 498A of the IPC. It consists of two clauses namely clause (a) and clause (b). To attract Section 498A of the IPC, it must be established that cruelty or harassment to the wife to coerce her or cause bodily injury to herself or to commit suicide or the harassment was to compel her to fulfill illegal demand for dowry. It is not every type of harassment or cruelty that would attract Section 498A of the IPC. Explanation (b) to Section 498A of the IPC contemplates harassment of woman to coerce or any relation of her to meet any unlawful demand for any property or valuable security. The complainant if wants to come within the ambit of Explanation (b) to Section 498A of the IPC, she can succeed if it is proved that there was an unlawful demand by the husband or any of his relatives with respect to money or of some valuable security.

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18. The Hon’ble Supreme Court in the matter of Priya Vrat Singh and others v. Shyam Ji Sahai14 considered the issue of delay in lodging the complaint as well as role that has been ascribed to the accused therein and quashed the complaint holding the delay of two years in lodging FIR to be fatal and further held that no role has been ascribed to the petitioner/accused therein. It was observed as under:-

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14 (2008) 8 SCC 232

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"8. Further it is pointed out that the allegation of alleged demand for dowry was made for the first time in December, 1994. In the complaint filed, the allegation is that the dowry torture was made some times in 1992. It has not been explained as to why for more than two years no action was taken.

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Further, it appears that in the complaint petition. apart from the husband, the mother of the husband, the subsequently married wife, husband's mother's sister, husband's brother in law and Sunita's father were impleaded as party. No role has been specifically ascribed to anybody except the husband and that too of a dowry demand in February 1993 when the complaint was filed on 6.12.1994 i.e. nearly after 22 months. It is to be noted that in spite of service of notice, none has appeared on behalf of Respondent No.1."

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19. Similarly, in the matter of Sunder Babu and others v. State of Tamil Nadu15 delay in filing complaint against accused therein was taken note of by their Lordships of the Supreme Court holding the case to be covered by Category Seven of para-102 highlighted in Bhajan Lal's case (supra), the prosecution for offence under Section 498A of the IPC and Section 4 of the Dowry Prohibition Act was quashed.

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20. Similarly, in the matter of Geeta Mehrotra (supra), the Supreme Court held that casual reference to the family member of the husband in FIR as co-accused particularly when there is no specific allegation and complaint did not disclose their active involvement. It was held that cognizance of matter against them for offence under Sections 498-A, 323, 504, 506 and 304- B of the IPC would not be justified as cognizance would result in abuse of judicial process.

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15 (2009) 14 SCC 244

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21. In the matter of K. Subba Rao and others v. State of Telangana represented by its Secretary, Department of Home and others16 their Lordships of the Supreme Court delineated the duty of the criminal Courts while proceeding against relatives of victim's husband and held that the Court should be careful in proceeding against distant relatives in crime pertaining to matrimonial disputes and dowry deaths and further held that relatives of husband should not be roped in on the basis of omnibus allegations, unless specific instances of their involvement in offences are made out.

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22. Recently, in the matter of Rashmi Chopra (supra) it has been held by their Lordships of the Hon’ble Supreme Court relying upon the principle of law laid down in Bhajan Lal's case (supra) that criminal proceedings can be allowed to proceed only when a prima facie offence is disclosed and further held that judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of oppression or harassment and the High Court should not hesitate in exercising the jurisdiction to quash the proceedings if the proceedings deserve to be quashed in line of parameters laid down by the Hon’ble Supreme Court in Bhajan Lal's case (supra) and further held that in absence of specific allegation regarding anyone of the accused except common and general allegations against everyone, no offence under Section 498A IPC is made out and quashed the charges for offence under Section 498A of the IPC being covered by category seven as enumerated in Bhajan Lal's case (supra) by holding as under:-

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16 (2018) 14 SCC 452

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"24. Coming back to the allegations in the complaint pertaining to Section 498A and Section 3/4 of D.P. Act. A perusal of the complaint indicates that the allegations against the appellants for offence under Section 498A and Section 3/4 of D.P. Act are general and sweeping. No specific incident dates or details of any incident has been mentioned in the complaint. The complaint having been filed after proceeding for divorce was initiated by Nayan Chopra in State of Michigan, where Vanshika participated and divorce was ultimately granted. A few months after filing of the divorce petition, the complaint has been filed in the Court of C.J.M., Gautam Budh Nagar with the allegations as noticed above. The sequence of the events and facts and circumstances of the case leads us to conclude that the complaint under Section 498A and Section 3/4 of D.P. Act have been filed as counter blast to divorce petition proceeding in State of Michigan by Nayan Chopra.

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There being no specific allegation regarding any one of the applicants except common general allegation against everyone i.e. "they started harassing the daughter of the applicant demanding additional dowry of one crore" and the fact that all relatives of the husband, namely, father, mother, brother, mother's sister and husband of mother's sister have been roped in clearly indicate that application under Section 156(3) Cr.P.C. was filed with a view to harass the applicants....."

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23. Having noticed the legal position qua quashing the FIR and chargesheet, the question would be whether taking the contents of the FIR and charge-sheet as it is, offence under Section 498-A/34 of the IPC is made out against the petitioners?

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24. It is the case of the prosecution that marriage of the complainant with the petitioner No. 1 was solemnized on 07/07/2022 as per their customary rites and rituals and on 06/12/2022, the respondent No. 2 has lodged a written complaint to Woman Cell, Rajnandgaon, alleging therein that she was subjected to cruelty by her husband and family members of her husband. On the basis of the written

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complaint which has ultimately forwarded from woman cell, Rajnandgaon to the Police Station, Dongangaon, the offence under Section 498 A/34 of IPC has been registered against the petitioners including husband and upon completion of investigation, chargesheet was filed before the learned Judicial Magistrate, First Class, Rajnandgaon.

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25. In the complaint so made, the complainant has only made omnibus and general allegations against the petitioners without being full particulars about date and place that all the petitioners including the husband treated her with cruelty for not bringing sufficient dowry at the time of marriage. There is no specific allegation regarding anyone of the petitioners except common and general allegations against all the petitioners that they have demanded cash amount and household articles.

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26. Considering the submissions of the learned counsel for the parties, material available on record, perusing the FIR in which no specific allegations have been made and only bald and omnibus allegations have been made against the petitioners, we are of the considered opinion that prima-facie no offence under Section 498A/34 of the IPC is made out for prosecuting petitioner Nos. 2 to 7 for the abovestated offences and the prosecution against them for the aforesaid offence is covered by Category 1, 3 & 7 of para-102 of the judgment rendered by the Supreme Court in Bhajan Lal’s case (supra) and as such, liable to be quashed.

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27. As a fallout and consequence of the above-stated legal analysis and also in the facts and circumstances of the case, the Criminal Case

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No. 3884/2023 pending before the court of Judicial Magistrate, First Class, Rajnandgaon arising out of Crime No. 41 of 2023 registered at Police Station, Dongangaon, Dist- Rajnandgaon for the offence under Section 498-A/34 is hereby quashed to the extent of Petitioner No. 2 (Kala Bai Nishad) , Petitioner No. 3 (Kartik Ram Nishad) , Petitioner No. 4 (Kailash Kumar Nishad) , Petitioner No. 5 (Champa Bai Nishad) , Petitioner No. 6 (Sadanand Nishad @ Bhola) , Petitioner No. 7 (Meera Nishad Sashi) . The prosecution against her husband i.e. petitioner No. 1- Vinod Nishad, S/o Kartik Ram Nishad shall continue.

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28. It is made clear that all the observations made in this order are for the purpose of deciding the petition filed by the petitioners hereinabove and this Court has not expressed any opinion on merits of the matter and concerned trial Court will decide criminal case pending against Vinod Nishad strictly in accordance with law without being influenced by any of these observations made hereinabove.

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29. The petition under Section 482 CrPC is allowed to the extent indicated hereinabove. No cost(s).

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Sd/-

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(Ravindra Kumar Agrawal) Judge

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Sd/-

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(Ramesh Sinha) Chief Justice

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sagrika

Vinod Nishad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Vinod Nishad v. State of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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