Court: Allahabad High Court
Bench: JUSTICE S.C. Agarwal
Rupa & Ors. Vs. State Of U.P & Anr. On 29 August 2013
Law Point:
Indian Penal Code, 1860 — Section 498A — Cruelty — In FIR no allegations of harassment leveled against applicants — Offence under Section 498A, IPC can only be committed by husband of lady or relative of husband and by none else — Submission of charge-sheet against applicants, who are not relatives of husband of OP No. 2 in respect of offence under Section 498A, IPC misconceived and deliberate attempt on part of Investigating Officer to harass applicants.
JUDGEMENT
This application under Section 482, Cr.P.C. has been filed with a prayer to quash the charge-sheet as well as the entire proceedings in Criminal Case No. 1322 of 2011, under Sections 498A, 307, 323, 504, 506, 494, 406, IPC arising out of Crime No. 3 of 2011, P.S. Kotwali City, District-Bijnor, State v. Ram Sajan & Others, pending in the Court of C.J.M., Bijnor as against the applicants Smt. Roopa, Km. Vandana Singh, Sumitra Devi and Devendra Kumar.
2. In brief, the facts are that FIR was lodged by Smt. Pushpa Deorar-opposite party No. 2 on 1.1.2011 at 7.30 p.m. at P.S. Kotwali City, District Bijnor alleging therein that she was posted as S.D.M., Hapur, District Ghaziabad and was also holding additional charge of Assistant Records Officer and was married with accused Rajesh Kumar Deorar, who was posted in District Bijnor as Consolidation Officer. Husband and wife used to live in Government accommodation, C-2, Officer Colony Collectorate Compound, Bijnor. On 27.11.2010, their daughter Akansha was married and Rajesh Kumar Deorar performed Kanyadan. After marriage of the daughter, the behaviour of her husband suddenly changed and he started insulting and threatening the informant. Since marriage of the daughter, her father in-law Prabhu Nath, mother in-law Smt. Anari Devi and relative Ram Sajan were also living with the informant and used to incite her husband and also threatened her with dire consequences. On 6.12.2010 at about 8 p.m., all the aforesaid persons, in pursuance of a plan, insulted the informant by hurling abuses. When Nand Lal, Hargovind and Vinod, who were present at the house tried to pacify them, they stated that they would perform remarriage of Rajesh Kumar Deorar with another girl. On 7.12.2010 at about 5 a.m., when the first informant was sleeping, her husband, father-in-law, mother-in-law, Ram Sajan and one unknown, who was subsequently named in the FIR itself as Chhotey Singh (father of applicant No. 1), came to her room, Rajesh Kumar Deorar, caught her neck and tried to strangulate her. Her mother-in-law, father-in-law and Ram Sajan were exhorting to kill her. Somehow, the informant managed to escape but she received injuries on her neck. Rajesh Kumar Deorar also threatened her with death. Thereafter, the accused persons went from the house in a car and the informant also went away to Hapur where she was posted. She got herself medically examined subsequently on 22.12.2010.
3. It was alleged in the FIR that on 10.12.2010, the informant came to know that the aforesaid accused persons had re-married Rajesh Kumar Deorar on 9.12.2010 with Smt. Rupa (applicant No. 1) at Bijnor but to mislead, in the Invitation Card, the marriage place was shown as Haridwar in Uttrakhand. The first informant came to her house at Bijnor and found her husband, father-in-law, mother-in-law, Ram Sajan, Chhotey Singh, Smt. Sumitra Devi (applicant No. 3) and Rupa (applicant No. 1) present there. All of them insulted her with abuses and threatened her with death and asked her to get out of the house. Rajesh Kumar Deorar, Pushpa and Chhotey took away her jewellery, Rs. 50,000 in cash and other goods and took it in a car and misappropriated the same. It was alleged that the second marriage took place at Bijnor, which was witnessed by persons known to both the parties and they advised the accused persons not to perform illegal marriage but accused persons did not pay any heed.
4. After investigation, the Investigation Officer submitted charge-sheet only agaisnt Rajesh Kumar on 15.3.2011 and exonerated the other accused named in the FIR including the applicants. The said charge-sheet is Annexure No. 6. The said charge-sheet was received by C.J.M., Bijnor on 24.3.2011. On the same day, an application was moved on behalf of prosecution that cognizance be taken against accused persons other than Rajesh Kumar Deorar as FIR was lodged against them but the said application was not pressed by the prosecution on 31.5.2011 and the same was rejected and cognizance was taken only against Rajesh Kumar Deorar. In the meantime, a complaint was made by the first informant to Director General of Police, Lucknow. On the orders passed by the Magistrate, further investigation was done by C.O., Kanth, Moradabad, who submitted supplementary charge-sheet against the applicants as well as Chhotey Singh, Ram Sajan, father-in-law and mother-in-law of the complainant in respect of offences punishable under Sections 498A, 307, 504, 506, 323, 494, 406, IPC.
5. It may be noted that Smt. Rupa (applicant No. 1) is the alleged second wife of Rajesh Kumar. Applicants 2, 3 and 4 are the sister, mother and brother of applicant No. 1 respectively.
6. Heard Mr. Sushil Shukla, learned Counsel for the applicants, learned AGA for the State as well as Mr. Viresh Mishra, Senior Advocate assisted by Mr. S.C. Kushwaha, learned Counsel for the first informant-opposite party No. 2.
Mr. Sushil Shukla, learned Counsel for the applicants submitted that the first Investigating Officer had exonerated the applicants and submitted charge-sheet only against Rajesh Kumar Deorar and at that stage, the investigation was complete and, therefore, the supplementary charge-sheet submitted by the C.O. Kanth is nothing but the abuse of process of law as the further investigation was conducted under pressure of the complainant, who was working as S.D.M., Hapur. It was contended that there is no credible evidence or material to support any of the offences with which the applicants have been charge-sheeted and the charge-sheet as well as the criminal proceedings, as far as they relate to the applicants, are nothing but gross abuse and misuse of process of law.
8. It was contended that Akansha—the daughter of opposite party No. 2 whose marriage was performed on 27.11.2010, was not the daughter of Rajesh Kumar Deorar but was the daughter of one Mihilal with whom the first informant was married earlier but subsequently she obtained an ex parte decree of divorce against Mihilal. Thereafter the informant developed intimacy with Rajesh Kumar Deorar and entered into a live-in relationship with him and there was no legal marriage between the informant and Rajesh Kumar Deorar. The house No. C-2, Officer’s Colony, Bijnor was allotted to Rajesh Kumar Deorar but after the incident, on 24.12.2010, the same was allotted to the first informant by the Collector. The applicants had no knowledge of any prior marriage between the informant and Rajesh Kumar Deorar.
9. It was further contended by learned Counsel for the applicants that the offence under Section 498A, IPC can be established only against the husband or relatives of the husband of a woman when such woman is subjected to cruelty. The contention is that the applicants cannot be said to be the relatives of husband of the complainant. The contention is that the first informant claims that she is legally wedded wife of Rajesh Kumar Deorar. If the said marriage is valid, the second marriage of Rajesh Kumar Deorar with applicant No. l – Smt. Rupa is null and void and she cannot be termed as legally wedded wife of Rajesh Kumar Deorar and, therefore, she cannot be said to be a relative of husband of the complainant. In the alternative, it was contended that if alleged marriage between the first informant and Rajesh Kumar Deorar did not exist and they were simply in a live-in relationship, in that event, no offence under Section 498A, IPC is made out against the applicants.
10. Regarding offence under Section 494, IPC, it was contended that only such person can be punished for the offence under Section 494, IPC who, having a husband and wife living, married with another person and, therefore, applicant No. 1 cannot be held guilty of committing an offence punishable under Section 494, IPC and similarly applicant Nos. 2, 3 and 4, the mother and, siblings of applicant No. 1 cannot be said to be guilty of the said offence and there was no abetment on their part. It was further contended that there is no material in the case diary or in the FIR to show that the applicants had prior knowledge of alleged marriage of opposite party No. 2 with Rajesh Kumar Deorar.
11. Mr. Shukla argued that from the FIR itself, it is evident that the first incident took place on 6.12.2010 when the first informant was allegedly insulted, abused and threatened by Rajesh Kumar Deorar, his parents Prabhu Nath and Anari Devi, Ram Sajan and Chhotey Singh (father of applicant Nos. 1, 2 and 4). Even in the morning of 7.12.2010 at 5 p.m. when the complainant alleged that attempt on her life was made by Rajesh Kumar Deorar by strangulation, the applicants are not said to be present at that time and, therefore, they cannot be deemed guilty in respect of offence under Sections 323, 307 IPC.
12. Regarding offence under Section 406, IPC, it was contended that according to the prosecution allegations, on 10.12.2010, the accused persons including the applicants took away jewellery and cash of the complainant and misappropriated the same. Learned Counsel contended that to prove an offence under Section 406, IPC, it must be established by the prosecution that the said property was entrusted to the accused persons. It was argued that the offence of looting the property was not found correct by the Investigating Officer and charge-sheet was submitted for the offence under Section 406, IPC but in the absence of any entrustment to the applicants by opposite party No. 2, offence under Section 406, IPC is not made out.
13. It was also argued by learned Counsel for the applicant that at the time of incidents of 6.12.2010 and 7.12.2010, the applicants were not present. It was alleged in the FIR that 10.12.2010, when the first informant went to her house in Bijnor after hearing about the second marriage of her husband Rajesh Kumar Deorar, all the accused persons were present there and they hurled abuses and death threats to her. It was contended that these are general allegations and no specific threats and abuses have been mentioned by the first informant or by the witnesses in their statements recorded under Section 161, Cr.P.C. and, therefore, offences under Sections 504 and 506, IPC are also not made out against the applicants.
14. Lastly, it was submitted that filing of charge-sheet against the applicants was simply an abuse of power by the police officer concerned, who was under undue influence of the first informant, who happens to be an Executive Magistrate in the State Provincial Civil Service and the Court should exercise its inherent power under Section 482, Cr.P.C. to quash the proceedings against the applicants. It was further submitted that the case of the applicants is different from other co-accused. The main allegations are against co-accused Rajesh Kumar Deorar, who is alleged to have performed second marriage with applicant No. 1 and may be responsible for committing offences under Sections 307, 323, 494, 498A, 406, 504, 506, IPC but no criminal offence is made out against the applicants.
15. Per contra, learned AGA as well as learned Counsel for the complainant vehemently opposed the pleas raised on behalf of the applicants.
16. Mr. Viresh Mishra, Senior Advocate appearing on behalf of the first informant submitted that in this case, three writ petitions and three applications under Section 482, Cr.P.C. were filed earlier on behalf of the accused persons, which were dismissed by different Benches of this Court. It was contended that no leave was obtained by the applicants for filing a fresh application under Section 482, Cr.P.C.
17. It was also submitted that the first informant was working as Deputy Collector and her husband Rajesh Kumar Deorar was working as Consolidation Officer at Bijnor and Smt. Rupa and her father Chhotey Singh had personal knowledge of the fact that Rajesh Kumar Deorar was earlier married with Smt. Pushpa- opposite party No. 2. On 7.12.2010, husband and his parents as well as applicant No. l and her father made murderous assault on the life of the first informant and also abused and threatened her with death and her articles were stolen from the almirah. It was contended that even if the second wife cannot be prosecuted for the offence under Section 494, IPC directly, she and other relatives can be prosecuted for having committed abetment to commit an offence under Section 494, IPC read with Sections 107, 109 or 114, IPC. It was further submitted that disputed questions of fact cannot be and should not be considered in an application under Section 482, Cr.P.C. and these issues are best left to be decided by the Trial Court and it would not be appropriate to this Court to enter upon a scrutiny of the material available in the case diary or to quash the proceedings.
18. I have considered the submissions advanced by learned Counsel for the parties very carefully and perused the records and I have also gone through the case law cited at the Bar.
19. The first point of consideration is as to whether the application under Section 482, Cr.P.C. is maintainable, as three writ petitions as well as three applications under Sections 482, Cr.P.C. have been dismissed earlier.
20. It appears that criminal misc. writ petition No. 771 of 2011 was filed on behalf of Rajesh Kumar Deorar and Others including the applicants, praying for quashing of the FIR and the same was dismissed by a Division Bench of this Court vide order dated 31.3.2011 on the ground that prima facie cognizable offence is disclosed and directions regarding bail, etc. were given.
21. Second criminal misc. writ petition No. 9352 of 2011 and the third criminal misc. writ petition No. 9962 of 2011 praying for the same relief were dismissed as withdrawn by the same Division Bench vide orders dated 24.5.2011 and 31.5.2011 respectively.
22. After submission of the first charge-sheet against co-accused Rajesh Kumar Deorar, learned Magistrate, on the application of the police, directed further investigation and the said order was challenged by the applicants as well as other co-accused by means of application under Section 482, Cr.P.C. No. 23935 of 2011 and the same was dismissed vide order dated 28.7.2011 on the ground that the same had become infructuous.
23. Another criminal misc. application under Section 482, Cr.P.C. No. 31705 of 2011 filed by co-accused Prabhu Nath and Anari Devi, praying for quashing of the proceedings, was rejected vide order dated 12.10.2011 passed by Hon’ble R.D. Khare, J. The third application under Section 482, Cr.P.C. No. 19620 of 2011 was filed by co-accused Rajesh Kumar Deorar praying for quashing of the entire proceedings and the same was disposed of by my order dated 3.9.2011, but the prayer for quashing the proceedings was refused.
24. In Devendra & Ors. v. State of U.P., & Anr., V (2010) SLT 526=III (2010) CCR 167 (SC)=(2009) INSC 953 (6 May, 2009), the Apex Court has held as under:
“Mr. Das, furthermore, would contend that the order of the High Court dated 17.10.2005 would operate as res judicata. With respect, we cannot subscribe to the said view. The principle of res judicata has no application in a criminal proceeding. The principles of res judicata as adumbrated in Section 11 of the Code of Civil Procedure or the general principles thereof will have no application in a case of this nature.
The High Court has refused to quash a First Information Report as a different standard therefor was required to be applied. However, when materials are collected and a charge-sheet is filed on the basis whereof the Magistrate takes cognizance of the offence, the same would give rise to a new cause of action. An order taking cognizance of an offence on the basis of a charge-sheet filed by the investigating officer and/ or directing issuance of summons on a complaint petition, indisputably, would attract the provisions of Section 482 of the Code of Criminal Procedure if a case has been made out for invocation thereof.
25. Keeping in view the aforesaid decision of the Apex Court, it is clear that the writ petitions were filed by the applicants as well as other co-accused praying for quashing of the FIR, but the first writ petition was dismissed on the ground that prima facie cognizable offence is made out and the subsequent two writ petitions were dismissed as withdrawn. The writ petitions were filed at a different stage praying for a different relief.
26. The application under Section 482, Cr.P.C. was filed by the applicants challenging the order passed by the Magistrate directing further investigation, but after submission of the supplementary charge-sheet, the application under Section 482, Cr.P.C., having become infructuous, was dismissed. The other two applications under Section 482, Cr.P.C. were filed by co-accused Rajesh Kumar Deorar, Prabhu Nath Singh and Anari Devi and not by the applicants. The applicants have not, by means of any previous writ petition or application under Section 482, Cr.P.C., challenged the charge-sheet or the entire proceedings of the criminal case. After submission of the supplementary charge-sheet against the applicants, a new cause of action has arisen. Therefore, in view of the aforesaid decision of the Apex Court in Devendra’s case, the present application under Section 482, Cr.P.C. is maintainable.
27. The parameters where exercise of inherent powers under Section 482 of the Code can be exercised either to prevent abuse of process of any Court, or otherwise to secure the ends of justice, have been highlighted in several cases by the Apex Court.
28. In State of Haryana v. Bhajan Lal, I (2006) CCR 209 (SC)=1992 SCC (Cr.) 426, the Apex Court in para 102 observed as follows:
“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:
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.
2. Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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 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.
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.
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.
29. In the aforesaid case, a note of caution was also indicated to the effect that the power of quashing the criminal proceedings should be exercised very sparingly and with circumspection and that too in the rarest of the rare cases; that the Court will not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. 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.
30. In Manoj Mahavir Prasad Khaitan v. Ram Gopal Poddar & Another, II (2010) DMC 802 (SC)=VIII (2010) SLT 653=IV (2010) CCR 465 (SC)=2010 (10) SCC 673, the Apex Court observed and concluded as under:
“12. We reiterate that when the Criminal Court looks into the complaint, it has to do so with an open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter Section 482 of Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interests of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interest of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482, Cr.P.C.”
31. It is thus clear that the inherent powers under Section 482, Cr.P.C. can be exercised by the High Court very sparingly and with circumspection and that too in the rarest of the rare cases, but the High Court is not helpless if the Court finds that there is misuse of process of the Court or to secure the ends of justice, its intervention is necessary to avoid undue harassment of a person against whom no case is made out.
32. As far as offences under Sections 307, 323, IPC are concerned, there is no allegation in the FIR against the applicants. According to the FIR, an attempt on the life of opposite party No. 2 was made in the morning of 7.12.2010 at 5:00 a.m. when, on the exhortation of Prabhu Nath Singh and Anari Devi, Rajesh Kumar Deorar attempted to strangulate the first informant. It was alleged that Chhotey Singh and Ram Sajan were also present at that time and entered the bedroom of opposite party No. 2. Thus, as per FIR, there is no allegation against the applicants that they were, in any manner, involved in the murderous assault on the life of opposite party No. 2. There is not even a whisper in the FIR that there was any conspiracy to kill the opposite party No. 2, of which the applicants were parties. Subsequently, in her statement recorded under Section 161, Cr.P.C., the first informant Smt. Pushpa tried to implicate applicant No. l Rupa also alleging her presence on 7.12.2010, but no reason has been disclosed as to why her name was not mentioned in the FIR regarding the incident of 7.12.2010. Furthermore, Nand Lal and Vinod are the witnesses of the incident of 7.12.2010, but they have not spoken about presence of applicants at the house of opposite party No. 2. They have simply stated that on 7.12.2010 at 5:00 a.m., Rajesh, Prabhu Nath, Ram Sajan, Anari Devi and Chhotey Singh entered the room of opposite party No. 2 and Rajesh tried to strangulate Pushpa.
33. Later, during further investigation, the second investigating officer re-interrogated the witnesses and this time the first informant as well as the witnesses Hargovind @ Ravi, Nand Lal and Vinod improved upon their statements given earlier and stated that at the time of incident of 7.12.2010, the applicants were also present on spot and they had caught hold of the opposite party No. 2 when Rajesh Kumar tried to strangulate her. These statements were simply recorded by the second investigating officer solely with the purpose of falsely implicating the applicants in the incident of 7.12.2010, though, there is no mention regarding this fact in the FIR. These witnesses did not state these facts in their earlier statements given to the first investigating officer. These witnesses are close relatives of the complainant and the case diary was manipulated by the second investigating officer simply to support the opposite party No. 2 in falsely implicating the applicants in the incident of 7.12.2010. In the absence of any averment in the FIR regarding presence of applicants at the time of incident of 7.12.2010, their presence at that time cannot be believed.
34. It is obvious that the FIR does not support the first informant regarding presence of applicants at the time of incident of 7.12.2010 when the opposite party No. 2 was allegedly strangulated. When an attempt was made by Rajesh to strangulate opposite party No. 2, had the applicants been present at that time, this fact would have been mentioned in the FIR, which was lodged after 25 days on 1.1.2011. Moreover, the complainant got herself medically examined on 22.12.2010 after 15 days and three 10 to 14 days old scar marks of abrasions were found on her neck and left wrist joint. The opposite party No. 2 is an Executive Magistrate and well-versed in law. There is no earthly reason as to why she would not name the applicants in the FIR regarding incident of attempt to murder her if Rupa as well as applicants Nos. 2 to 4 were present at that time. Therefore, the subsequent statements of opposite party No. 2 and other witnesses given to the second investigating officer under Section 161, Cr.P.C. implicating the applicants also in the incident of 7.12.2010 are simply an afterthought and an attempt to falsely implicate the applicants.
35. In these circumstances, it is evident from the material available on record that the applicants were not, in any manner, involved in the alleged murderous assault on the life of opposite party No. 2 by Rajesh in presence of his parents, Ram Sajan and Chhotey Singh. In these circumstances, offences punishable under Sections 307, 323, IPC are not made out against the applicants.
36. Regarding offence under Section 406, IPC, it was alleged in the FIR that on 10.12.2010, Rajesh Kumar Deorar, Rupa – applicant No. l and Chhotey Singh forcibly took away the jewellery, Rs. 50,000 in cash and other goods in a car and misappropriated the same, whereas in her statement recorded under Section 161, Cr.P.C, opposite party No. 2 stated that Chhotey Singh, Rupa and Rajesh took out Rs. 50,000 and jewellery from the Almirah in the room and took it away. It is pertinent to note that the investigating officer has not found any offence under Section 379, IPC being committed by the applicants. Charge-sheet has been filed in respect of offence under Section 406, IPC, which makes criminal breach of trust a punishable offence. Criminal breach of trust is defined in Section 405, IPC, which provides as under:
405 IPC. Criminal breach of trust—Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits “criminal breach of trust.”
(Explanations and illustrations omitted)
37. There is no allegation of theft, robbery or criminal breach of trust against applicant Nos. 2, 3 and 4. So far as applicant No. 1 is concerned, it is apparent from the definition of criminal breach of trust as provided in Section 405, IPC that entrustment of property is an essential ingredient of the offence of criminal breach of trust. It is not the case of opposite party No. 2 that the said jewellery or cash was ever entrusted to the applicants and in the absence of any entrustment, the applicants cannot be said guilty of the offence punishable under Section 406, IPC and in these circumstances, this Court is of the opinion that the investigating officer committed illegality in submitting charge-sheet against the applicants in respect of the offence under Section 406, IPC.
38. Coming to the offence under Section 498A, IPC, I find that the said offence is also not made out against the applicants. Section 498A, IPC provides as under:
498A, IPC.—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 purposes of this Section, “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. From the FIR as well as the statements of witnesses, it transpires that the allegation of the complainant is that her husband, father-in-law, mother-in-law and Ram Sajan used to harass her soon after the marriage of daughter of opposite party No. 2 and used to threaten her that they would perform second marriage of Rajesh Kumar Deorar. In the FIR, no allegation was made against the applicants that they used to harass opposite party No. 2 in any manner. Moreover, an offence under Section 498A, IPC can only be committed by the husband of the lady or relatives of the husband and by none else. Till 9.12.2010, applicant No. l was not the wife of Rajesh Kumar Deorar nor the applicants were relatives of Rajesh Kumar Deorar, therefore, they do not come within the definition of relatives of husband of opposite party No. 2 and they cannot be held guilty of an offence punishable under Section 498A, IPC.
40. In I (2009) DMC 887 (SC)=IV (2009) SLT 462=2009 (6) SCC 757, U. Suvetha v. State By Inspector of Police & Another, the Apex Court has held as under:
“9. The word “cruelty” having been defined in terms of the aforesaid explanation, no other meaning can be attributed thereto. Living with another woman may be an act of cruelty on the part of the husband for the purpose of judicial separation or dissolution of marriage but the same, in our opinion, would not attract the wrath of Section 498A of the Indian Penal Code. An offence in terms of the said provision is committed by the persons specified therein. They have to be the “husband” or his “relative”. Either the husband of the woman or his relative must be subjected to her to cruelty within the aforementioned provision. If the appellant had not been instigating the husband of the first informant to torture her, as has been noticed by the High Court, the husband would be committing some offence punishable under the other provisions of the Indian Penal Code and appellant may be held guilty for abetment of commission of such an offence but not an offence under Section 498A of the Indian Penal Code.
10. In the absence of any statutory definition, the term “relative” must be assigned a meaning as is commonly understood. Ordinarily it would include father, mother, husband or wife, son, daughter, brother, sister, nephew or niece, grandson or grand-daughter of an individual or the spouse of any person. The meaning of the word “relative” would depend upon the nature of the statute. It principally includes a person related by blood, marriage or adoption.
13. Furthermore, Section 498A is a penal one. It, thus, deserves strict construction. Ordinarily, save and except where a contextual meaning is required to be given to a statute, a penal provision is required to be construed strictly.
41. A three-Judge Bench of the Apex Court, however, in Shivcharan Lal Verma and Another v. State of M.P., IX (2006) SLT 493=2002 (2) Crimes 177 (SC), while interpreting Section 498A of the Indian Penal Code, in a case where the prosecution alleged that during the life of the first wife-Kalindi, appellant therein married for the second time, Mohini, but after marriage both Kalindi and Shiv Charan tortured Mohini as a result thereof, she ultimately committed suicide by burning herself opined:
“One, whether the prosecution under Section 498A can at all be attracted since the marriage with Mohini itself was null and void, the same having been performed during the lifetime of Kalindi. Second, whether the conviction under Section 306 could at all be sustained in the absence of any positive material to hold that Mohini committed suicide because of any positive act on the part of either Shiv Charan or Kalindi. There may be considerable force in the argument of Mr. Khanduja, learned Counsel for the appellant so far as conviction under Section 498A is concerned, inasmuch as the alleged marriage with Mohini during the subsistence of valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498A of the IPC.”
42. The time when the opposite party No. 2 is alleged to have been harassed by her husband and his relatives, the applicants were no relatives of the husband in any manner. In the FIR, no allegation of harassment was levelled against the applicants, therefore, submission of charge-sheet against the applicants in respect of the offence under Section 498A, IPC was misconceived and was a deliberate attempt on the part of the investigating officer to harass the applicants.
43. Now the question arises as to whether the applicants can be prosecuted for the offence under Section 494, IPC or not. Section 494, IPC is as follows:
“494, IPC. Marrying again during life-time of husband or wife—Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
Exception—This section does not extend to any person whose marriage with such husband or wife has been declared void by a Court of competent jurisdiction;
nor to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge.”
44. Section 494, IPC applies to a person who, having a husband or wife living, remarries. In the facts of the instant case, the allegation is that Rajesh Kumar Deorar remarried during subsistence of his first marriage with opposite party No. 2. In these circumstances, only Rajesh Kumar Deorar can be prosecuted for the offence punishable under Section 494, IPC. The person, with whom second marriage is performed in violation of Section 494, IPC, has not been made liable for punishment in this section.
45. The contention of learned Counsel for opposite party No. 2 is that even though the applicants cannot be prosecuted directly for the offence punishable under Section 494, IPC, they can be prosecuted for having abetted Rajesh Kumar Deorar for committing an offence under Section 494, IPC with the help of Section 114, IPC.
46. Abetment is defined in Section 107, IPC as follows:
“107. IPC. Abetment of a thing—A person abets the doing of a thing, who—
First—Instigates any person to do that thing; or
Secondly—Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or
Thirdly—Intentionally aids, by any act or illegal omission, the doing of that thing.”
Explanation 1—A person who, by wilful misrepresentation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Explanation 2—Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act.
47. For abetment of an offence, it is necessary that the abettor must have either instigated any person to do such an offence or must have engaged in a conspiracy for doing such an illegal act. In the instant case, there is no allegation against the applicants that they instigated Rajesh Kumar Deorar to commit an offence punishable under Section 494, IPC. There is no allegation that the applicants engaged themselves in any criminal conspiracy to commit an offence under Section 494, IPC. It is the case of applicant No. 1 that she did not know about any prior marriage of Rajesh Kumar Deorar with opposite party No. 2. Her presence at the time of incident dated 7.12.2010 has been falsified as held earlier. In the absence of any knowledge of prior marriage of Rajesh Kumar Deorar, the applicants cannot be held guilty for the offence under Section 494, IPC read with Section 109 or 114, IPC.
48. As far as the material available in the case diary is concerned, it is evident that the second marriage of Rajesh did not take place in the presence of opposite party No. 2. Yogesh Kumar is a photographer, who performed photography and videography of the marriage, which took place on 9.12.2010 at Haridwar. During further investigation, statements of Laxmi Shanker Srivastava, Roshan Singh and Surendra Singh were recorded under Section 161, Cr.P.C., who stated that they went to Hotel View at Haridwar and found the marriage between Rajesh Kumar Deorar and Rupa being solemnized and seven pheras were performed. They questioned Rajesh Kumar Deorar that his first wife was alive and he did not do a proper thing by performing remarriage, but Rajesh did not reply. From the statements of these three witnesses, only this much transpires that they protested with Rajesh Kumar Deorar about performing second marriage, but did not inform the applicants that Rajesh Kumar Deorar was married earlier with opposite party No. 2. They do not even speak about whether saptpadi was performed which is an essential ceremony for a valid marriage.
49. There is nothing in the FIR or in the statements of witnesses recorded in the case diary to show that the applicants had prior knowledge of alleged marriage of informant with Rajesh Kumar Deorar. To hold a person guilty for an offence of abetment to commit Bigamy, it is essential to prove that such person must have prior knowledge of the existence of first marriage of the main person who is guilty of an offence under Section 494, IPC. In the absence of such knowledge, a person cannot be said to be guilty of abetment to commit an offence under Section 494, IPC. It may, however, be noted that the alleged earlier marriage between opposite party No. 2 and Rajesh Kumar Deorar is not an admitted fact and is yet to be established by positive evidence.
50. In C.S. Varadachari and Others v. C.S. Shanti, 1987 Cr.LJ 1048, the Madras High Court held as under:
“Mere allegation that accused were present and they threw sacred rice over the couple and blessed them there is absolutely nothing to show that they intentionally aided the commission of the offence of Bigamy. Even in respect of the allegation that they threw holy rice, blessed the couple and gave presents, the complainant has not examined any witness to the marriage and the alleged information was said to have been given by the witness cited in the complaint to her father who in turn conveyed the same to the complainant. Hence, I find much force in the contention of the learned Counsel for the petitioners in this regard.”
51. In the instant case, there is no evidence to show that there was any intentional abetment on the part of the applicants to commit an offence under Section 494, IPC. Mere presence of applicant Nos. 2, 3 and 4 at the time of marriage of applicant No. l with Rajesh Kumar Deorar does not make them criminally liable without any criminal intent on their part.
52. In these circumstances, this Court is of the opinion that Rajesh Kumar Deorar and his family members as well as Chhotey Singh and Ram Sajan, who were present at the house of Rajesh Kumar Deorar on 7.12.2010, may be presumed to have the knowledge of alleged earlier marriage of Rajesh Kumar Deorar with opposite party No. 2 and may be prosecuted for the offence punishable under Section 494, IPC or its abetment, but as far as applicants are concerned, there is no material to suggest that they had any prior knowledge of the alleged marriage between the opposite party No. 2 and Rajesh Kumar Deorar and, therefore, they cannot be prosecuted for the offence under Section 494, IPC read with Section 109 or 114, IPC.
53. Lastly, the question remains as to whether the applicants can be prosecuted for the offences punishable under Sections 504, 506, IPC. In the FIR as well as in the statements of the complainant and the witnesses recorded under Section 161, Cr.P.C, it was alleged that on 10.12.2010, when the first informant came to the house of Rajesh Kumar Deorar after hearing about his second marriage, the accused persons including the applicants abused her and threatened her with death, but no specific abuses or threats have been mentioned in the FIR or in the statements of the witnesses recorded under Section 161, Cr.P.C. It is highly improbable that on the very next day of marriage of applicant No. l with Rajesh Kumar Deorar, her brothers, sister and parents would be present at the house of the bride-groom. Moreover, similar allegation has been made against Rajesh Kumar Deorar, his parents, Ram Sajan as well as Chhotey Singh. When nine persons have been assigned the omnibus role of abusing and threatening the opposite party No. 2, it cannot be conceived that all the accused persons uttered identical words simultaneously. In these circumstances, it was for the first informant to specify either in the FIR or in the statements under Section 161, Cr.P.C. as to what were the exact words used by the applicants in abusing or threatening her. In the absence of the exact words uttered by the applicants, it cannot be said that they had committed an offence punishable under Sections 504, 506, IPC.
54. It is true that disputed questions of fact cannot be adjudicated upon in proceedings under Section 482, Cr.P.C. Whether the complainant is the legally wedded wife of the co-accused Rajesh Kumar Deorar or there was a mere live-in relationship between them is a question which shall be decided by the Trial Court after evidence of parties. The relevance of call details of the mobile phone of the opposite party No. 2 showing her presence on 7.12.2010 at Hapur or Meerut as well as the effect of inordinate delay in getting the complainant medically examined shall also be considered by the Trial Court during trial, so as to find out whether any offence under Section 307, IPC is made out against Rajesh Kumar Deorar or co-accused other than the applicants, but even if the allegations made in the FIR are taken to be correct at their face value, as discussed above, the offences punishable under Sections 307, 323, 504, 506, 498A, 494, IPC are not made out against the applicants: The first investigating officer rightly exonerated the applicants and submitted charge-sheet against Rajesh Kumar Deorar only. Subsequent further investigation at the instance of opposite party No. 2 with the permission of the Magistrate and subsequent improvements in the statements of opposite party No. 2 and other witnesses to falsely implicate the applicants are apparent on the face of record. Admittedly, the first informant is an Executive Magistrate and is a Member of the Provincial Civil Services and prima facie the second investigating officer was influenced by the status of the complainant.
55. Considering all the facts and circumstances, I am of the view that even if the allegations made in the FIR are taken at their face value and accepted in their entirety, the same do not prima facie constitute any offence or make out a case against the applicants and the evidence collected in support of the same does not disclose the commission of any offence by the applicants and the criminal proceedings against the applicants are manifestly attended with mala fide with a ulterior motive for wrecking vengeance on the applicants and with a view to spite them due to private and personal grudge. Thus, the instant case is squarely covered by sub-paras 1, 3 and 7 of para 102 of the Bhajan Lal’s case (supra).
56. When the allegations against the applicants are so absurd that no reasonable man would accept the same, the High Court cannot throw its arms in the air and expressed its inability to do anything in the matter. As held in Manoj Mahavir Prasad Khaitan’s case (supra). Section 482 of the Cr.P.C. is a guarantee against injustice and the High Court is invested with the tremendous powers thereunder to pass any order in the interests of justice.
57. Considering all the facts and circumstances of this case, I find it to be a proper case where, in the interest of justice, powers under Section 482, Cr.P.C. should be exercised by this Court, to prevent misuse of process of the Court and to secure the ends of justice.
58. Criminal proceedings may go on against Rajesh Kumar Deorar, Prabhu Nath, Anari Devi, Ram Sajan and Chhotey Singh, but as far as the applicants are concerned, prima facie no criminal offence is made out against them and the charge-sheet as well as the entire proceedings as against them are liable to be quashed.
59. Application under Section 482, Cr.P.C. is allowed.
60. The charge-sheet against the applicants Smt. Rupa, Km. Vandana Singh, Sumitra Devi and Devendra Kumar in crime No. 3 of 2011 under Sections 498A, 307, 323, 504, 506, 494, 406, IPC, P.S. Kotwali Nagar, District Bijnor as well as entire proceedings in criminal case No. 1322 of 2011 arising out of the aforesaid crime number pending in the Court of Chief Judicial Magistrate, Bijnor as against the applicants only are quashed and the Trial Court shall be at liberty to proceed against remaining co-accused.
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