Amit Anand Jha Vs State of Chhattisgarh

NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 258 of 2023

1 - Amit Anand Jha S/o Shri Parmanand Jha Aged About 43 Years R/o Beside Aalmari Factory Tarun Nagar, Kushalpur, Raipur, Puranibasti Raipur, District Raipur Chhattisgarh

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2 - Parmanand Jha S/o Lt. Kalikant Jha Aged About 67 Years R/o Beside Aalmari Factory, Tarun Nagar Kushalpur, Raipur Puranibasti Raipur, District Raipur Chhattisgarh

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3 - Smt. Savita Jha W/o Shri Parmanand Jha Aged About 64 Years R/o Beside Aalmari Factory Tarun Nagar, Kushalpur, Raipur, Puranibasti Raipur, District Raipur Chhattisgarh

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---- Petitioners

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Versus

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1 - State Of Chhattisgarh Through Sation House Officer, Mahila Thana, Raipur, District Raipur Chhattisgarh

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2 - Smt. Abhilasha Sharma Jha Aged About 39 Years, C/o Shree Hemant Kumar Sharma H. D. D. 266 Kabir Nagar Raipur District And Tehsil Raipur Mobile No. 9424213361 ...........Complainant, Chhattisgarh --- Respondents

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For Appellant	- Mr. Shakib Ahmed, Advocate
For State	- Mr. Kanwaljeet Singh Saini, PL
For Res. No. 2	- Mr. Sharad Mishra, Advocate

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Hon'ble Shri Ramesh Sinha, Chief Justice Hon'ble Shri Sachin Singh Rajput, Judge

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Order on Board

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Per Ramesh Sinha, Chief Justice

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24.06.2024

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By this petition under Section 482 of the Code of Criminal Procedure, 1973 (for short, the Cr.P.C.), the petitioners seek quashing of First Information Report (for short, the FIR) bearing Case No.13371/22, and entire criminal proceedings initiated against the petitioners pursuant to impugned First Information Report dated 27.08.2022 for the offence punishable under Sections

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498-A, 506/34 of Indian Penal Code registered at P. S. Mahila Thana, Raipur District Raipur (CG), in the interest of justice.

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Facts of the case in brief are that the marriage of petitioner No.1 herein namely Amit Anand Jha and respondent No.2 namely Smt. Abhilasha Sharma Jha, the complainant, was solemnized on 20.04.2022 as per Hindu Rites and Rituals. This the second marriage between them. It is alleged that few days after marriage the petitioners herein started torturing the respondent No.2 physically and mentally demanding Rs. 15,00,000/- as dowry. When the things became unbearable, respondent No.2 lodged a report against the petitioners in Mahila Thana, Raipur and there was no possibility of any settlement between them. Petitioner No.1 – husband used to subject respondent No.2 to beating due to which injuries were caused to her. Other petitioners also tortured her by way of putting taunts to her for not being able to conceive.

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Mr. Sakib Ahmed, learned counsel for the petitioners submits that the FIR against the petitioners is arbitrary, illegal and contrary to the law. He submits that petitioner No.1 – husband has filed an application under Section 12(1)(a) of the Hindu Marriage Act, 1955 on 3.8.2022 for annulling the marriage on the ground that the marriage has not been consumated owing to impotency of respondent/complainant and that the FIR by the complainant has been filed after 24 days of said application being

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filed by him and it was all done with an intention to mentally harass him and his parents. In these circumstances, it is submitted that filing of FIR against them is nothing but an abuse of the process of law, and therefore the same needs to be quashed. To bolster his submission, he would rely upon the judgments of the Supreme Court in the matters of Geeta Mehrotra and another v. State of Uttar Pradesh and another 1 and Kahkashan Kausar alias Sonam and others v. State of Bihar and others 2.

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On the other hand, Mr. Kanwaljeet Singh Saini, learned Panel Lawyer appearing for the State/respondent assisted the Court. Mr. Sharad Mishra learned counsel for respondent No.2 submits that just after marriage the respondent No.2-wife was subjected to physical and mental torture for bringing Rs. 15,00,000/- as dowry, they do not deserve any sympathy and the FIR against them cannot be quashed as has been prayed for on behalf of the petitioners.

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We have heard learned counsel for the parties, perused the pleadings and documents appended thereto.

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From perusal of the FIR and other relevant documents, we are not persuaded with the submissions made by learned counsel for the petitioners as regards petitioner No. 1. From perusal of FIR , it is evident that prima facie, a cognizable offence is made out against him. Accordingly, the petition is dismissed so far as it

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1 (2012) 10 SCC 741

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2 (2022) 6 SCC 599

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relates to petitioner No.1- husband.

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However, as regards petitioners No. 2 and 3 – the parents of petitioner No.1 and parents-in-law of respondent No.2, there is nothing specific against them which can entail prosecution and resultant conviction against them in the long run because the allegations against them appear to be of general and omnibus nature.

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In the matter of Pepsi Foods Ltd. and another v. Special Judicial Magistrate and other, (1998) 5 SCC 749 , the 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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The Supreme Court in the mater of State of Haryana and others v. Bhajan Lal and others, (1992) Supp. 1 SCC 335 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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“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 controverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission

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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 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.

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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

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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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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 Industries (2020) 4 SCC 162 , in the matter of Ahmad Ali Quraishi and another v. State of Uttar Pradesh and another (2020) 13 SCC 435, in the matter of Dr Dhruvaram Murlidhar Sonar v. State of Maharashtra and others (2019) 18 SCC 191 . The Supreme Court in Google India Private Limited (supra), explained the scope of dictum of Bhajan Lal’s case (supra) 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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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 FIR, four petitioners have been charged for offences under Sections 498-A/34 of the IPC.

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Chapter XXA of the IPC deals with offence of

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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. 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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A careful perusal of the aforesaid provision would show

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that in order to establish offence under 14. 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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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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The word 'cruelty' within the meaning of Section 498A of the

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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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The Supreme Court in the matter of Priya Vrat Singh and others v. Shyam Ji Sahai (2008) SCC 232 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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“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

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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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Similarly, in the matter of Sunder Babu and others v. State of Tamil Nadu (2009) 14 SCC 244 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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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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In the matter of K. Subba Rao and others v. State of Telangana represented by its Secretary, Department of Home and others (2018) 14 SCC 452 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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Recently, in the matter of Rashmi Chopra Vs. State of Uttar

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Pradesh & another, (2019) 15 SCC 357 it has been held by their Lordships of the 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 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

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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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“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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Thus keeping in mind the afore-stated judicial pronouncements of Supreme court where it has been categorically held that any casual reference to the family

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members of the husband in FIR as co-accused particularly when there is no specific allegation and complaint did not disclose their active involvement in the torture or cruelty meted out to the complainant would not constitute the offence under Sections 498A and 506 IPC, we are of the opinion that continuance of criminal proceedings against the petitioners No. 2 & 3 would resultant in abuse of process of law and therefore, deserve to be quashed. Order accordingly.

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Accordingly, the petition is allowed so far as it relates to petitioners No. 2 and 3 and the FIR referred to above and the Criminal proceedings pending before the judicial magistrate Raipur bearing Case No. 13371/2022 are hereby quashed pertaining to them. However, the FIR as regards petitioner No.1husband is not being interfered with by this Court and the criminal proceedings against him shall go on in its usual course.

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Sd/- (Sachin Singh Rajput) Judge

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Sd/- (Ramesh Sinha) Chief Justice

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Jyotishi/Pawan

Amit Anand Jha v. State of Chhattisgarh

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Amit Anand Jha v. State of Chhattisgarh

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