Quashing of F.I.R/Charge Sheet under sec. 498 A , sec.3 &4 of Dowry prohibition Act = mere general sweeping allegations against the relatives of husband in order wreck vengeance, never fasten criminal liability against them - criminal case is an abuse of court proceedings and are liable to be quashed = Y.Sham Kumar and others State of A.P. and another = published in http://judis.nic.in/judis_andhra/qrydispfree.aspx?filename=9491

Quashing of F.I.R/Charge Sheet under sec. 498 A , sec.3 &4 of Dowry prohibition Act  = mere general sweeping allegations against the relatives of husband  in order wreck vengeance, never fasten criminal liability against them - criminal case is an abuse of court proceedings and are liable to be quashed  =

the High Court while exercising
jurisdiction under Section 482 of the Code of Criminal Procedure to quash the
proceedings can scrutinize the allegations leveled in the complaint for the
purpose of arriving at the conclusion whether they are designed to harass the
family members of the husband of the de-facto complainant and to wreak vengeance 
against them owing to the differences of the de facto complainant with her
husband.  
Merely because there are some general and sweeping allegations against 
the accused in the complaint, the Court is not precluded from scrutinizing the
allegations while exercising jurisdiction under Section 482 of the Code of
Criminal Procedure for the purpose of quashing the proceedings. The law does not
mandate that when there are certain allegations, the Court while acting under
Section 482 Cr.P.C. is not supposed to scrutinize them and it has to simply
allow the trial to be proceeded with before the trial Court for the purpose of
deciding the truth or otherwise of the allegations mentioned in the
complaint/charge sheet.

In the instant case, the allegation
that A2 to A.12 have been instigating A1 to harass her and that in connection
with the birth of the male child, they visited the house of the second
respondent and there, all the accused demanded dowry of Rs.2,00,000/- is quite
un-convincing and appears to have been made purposely and designedly to involve
A2 to A12 in the case filed by the second respondent/de facto complainant. 
 If
there is any harassment meted out by the first accused, the second respondent is
not supposed to make all his relatives accused in the complaint by alleging in
general terms that they committed offences punishable under Section 498-A IPC
and Sections 3 and 4 of the Dowry Prohibition Act.  
Such a course shall not be
encouraged. If A2 to A-12 are allowed to face trial basing on such sweeping and
general allegations, in my view, it is nothing but abuse of process of law and
ultimately it would result in miscarriage of justice causing undue hardship and
agony to A2 to A12.

25.     For all the aforesaid reasons, I am of the view that it is a fit case to
quash the proceedings against A2 to A12 since apparently they have been made as  
accused only on account of their relationship with A1.  
Therefore, the entire
proceedings in C.C.No.87 of 2009 on the file of the Judicial First Class
Magistrate, Penugonda insofar as the petitioners 2 to 12/A2 to A12 concerned are
hereby quashed. Insofar as the petitioner No.1/A-1 is concerned, the criminal
petition is dismissed.

26.     As indicated above, the criminal petition is partly allowed.

THE HON'BLE MR JUSTICE R. KANTHA RAO        

Crl.P.No.9407 of 2009

06.09.2012

Y.Sham Kumar and others  

State of A.P. and another

Counsel for the Appellant: Sri M.V.Swamy
                               
Counsel for respondent No.1: Addl.Public Prosecutor
Counsel for respondent No.2: Sri K.Maheshwara Rao

<GIST:

>HEAD NOTE:  

? Cases referred:
1 AIR 1992 SC 1379
2 2007(12) SCC 369
32008AIR SCW 6901  
4 1988(1)SCC 692
5 1992 Supp.(1) SCC 335
6 (2010) 7 SCC 667

ORDER:


        This criminal petition is filed under Section 482 of the Code of Criminal
Procedure to quash the proceedings in C.C.No.87 of 2009 on the file of the
Judicial First Class Magistrate, Penugonda.

2       I have heard the learned counsel appearing for the petitioners/accused,
second respondent/de facto complainant and the learned additional Public
Prosecutor representing the first respondent/State.

3.      The brief facts of the case which is sought to be quashed are that the
second respondent/wife filed a private complaint against the petitioners under
Section498-A, 420 IPC and Sections 3 and 4 of the Dowry Prohibition Act in the
Court of the Judicial First Class Magistrate, Penugonda, Ananthapur District.
The learned Magistrate forwarded the case to the Station House Officer,
Puttaparthy Police Station under Section 156 (3) Cr.P.C for investigation and
report. The police after conducting investigation filed charge sheet against the
petitioners under Sections 498-A, 420 IPC and Sections 3 and 4 of the Dowry
Prohibition Act.

4.      Shortly stated, the averments made in the complaint petition are that the
marriage of the second respondent with the first petitioner was solemnized on
19.05.2006 at Puttaparthi at her parents' house.
Before the marriage, it is
said that all the petitioners represented to the second respondent and her
parents that the first petitioner was an engineering graduate and was working as
Engineer.
They demanded a sum of Rs.2,00,000/- dowry and 20 tolas of gold which
was given by the second respondent's father to the first petitioner at the time
of marriage.
The marriage was consummated and the second respondent found that
A1 was not doing any job and he is also not an engineering graduate.
When the
second respondent questioned the first petitioner about the same, all of them
got offended and told her to leave their house.
Having no other option, she
returned to her parents' house and started living at Puttaparthi.

5.      Subsequently, it is said that the first petitioner came to her parents'
house, requested the second respondent to excuse for mis-representation made and
requested to lead a peaceful life.  The second respondent pardoned him and
started leading conjugal life with him at her parents' house at Puttaparti.
Later on, the first petitioner got a job at Yadiki, Ananthapur District as
Junior Engineer in a cement factory.
He had put up family at Yadiki and started
harassing the second respondent.
It was alleged by the second respondent that
the first petitioner used to tell her that he had illicit intimacy with his
sisters-in-law and some other women, he used to talk to his sisters-in-law over
phone (A3 and A7) hours together, A3 and A7 used to write letters to A1 stating
their illicit intimacy with him and A1 used to hand over the said letters to the
second respondent and was insisting upon her to go through the letters, and on
refusal by her, he used to beat her.

6.      Some time thereafter, the first petitioner secured employment in West
Africa and left for West Africa.
 Later, the second respondent gave birth to a
male child on 23.04.2007.
After the birth of the said male child, all the
petitioners/accused visited her parents' house at Puttaparthy under the guise of
seeing the new born child.   
At that time, all the accused insisted upon the
mother of the second respondent to pay an amount of Rs.2,00,000/- as additional
dowry to A1, who was intending to go to West Africa for securing job.
When the
second respondent and her father expressed their inability to pay the said
amount, the accused threatened that they will desert the complainant and unless
the amount demanded is paid, they will not visit the second respondent and so
saying, all the accused went away.

7.      Subsequently, the second respondent learnt that the first accused having
secured job in West Africa, left for that place during May, 2007. From there, A1
wrote some letters to the complainant admitting all his misdeeds during the
matrimonial life.  In number of letters, he admitted that he used to starve the
second respondent and resorted to beat her for no fault of her.  Subsequently,
when her father fell sick, the second respondent requested A1 to visit his
father, but he refused to come to Puttaparthy on the ground that his father did
not pay the amount which was demanded by him.  

8.      Subsequently, the father of the second respondent died on 29.01.2008 and
the 1st accused came down to Puttaparthy and started living with the second
respondent at her parents' house at Puttaparthy.  It is alleged that on the
instigation of the remaining accused, the first accused continued harassment by
abusing and beating her.  Some Panchayat was convened before the elders, which
was found to be futile and the second respondent states that under the aforesaid
circumstances she filed a private complaint before the Magistrate.

9.      In the complaint filed by her, the second respondent made all the
relatives close and distant of the first petitioner as accused.

10.     Learned counsel appearing for the second respondent placed the statements
of LWs1 and 2 recorded by the police before this Court and those statements
reveal that the first accused has been harassing the second respondent on the
instigation of the remaining accused.  It is also mentioned therein that when
all the accused came to the parents of the second respondent to visit the new
born child demanded an amount of Rs.2,00,000/- as additional dowry.

11.     Basing on the said statements and also the allegations levelled in the
complaint petition, the learned counsel appearing for the second respondent
contends that the truth or otherwise of the allegations has to be decided in the
course of the trial after the evidence was let in before the Court, since the
allegations prima face disclose the involvement of all the accused in the
commission of offence, the complaint is not liable to be quashed.

12.     The learned counsel appearing for the second respondent invited my
attention to the decision of the Supreme Court in
SMT CHAND DHAWAN v JAWAHR LAL       
AND OTHERS1 wherein the Supreme Court held that:    
"when the allegations in the complaint prima facie constitute the offence
against any or all of the accused in the absence of materials on record to show
that the continuance of the proceedings would be an abuse of the process of the
court or would defeat the ends of justice, the High Court would not be justified
in quashing the complaint."

13.     He further relied on a decision reported in PRATIBHA v RAMESHWARI DEVI AND     
OTHERS2  wherein the Supreme Court held as follows:  
"Filing of a divorce petition in a civil court cannot be a ground to quash
criminal proceedings under Section 482 Cr.P.C. as it is well settled that
criminal and civil proceedings are separate and independent and the pendency of
a civil proceeding cannot bring to an end a criminal proceeding even if they
arise out of the same set of facts."
"From a plain reading of the findings arrived at by the High Court while
quashing the FIR, it is apparent that the High Court while exercising its
inherent powers under Section 482 Cr.P.C. has gone beyond the allegations made 
in the FIR and has acted in excess of its jurisdiction and, therefore, the High
Court was not justified in quashing the FIR by going beyond the allegations made
in the FIR or by relying on extraneous considerations."

14.     Relying on the aforesaid judgments, the learned counsel appearing for the
respondent No.2 would contend that in the instant case, the fact that the first
petitioner filed a petition under Section 9 of the Hindu Marriage Act for
restitution of conjugal rights and obtained a decree is not a ground to quash
the criminal proceedings in the present case.  He would further contend that
since the allegations made in the complaint prima facie constitute the offences
punishable under Sections 498A, 420 IPC and Sections 3 and 4 of the Dowry 
Prohibition Ac, the complaint is not liable to be quashed.

15.     On the other hand, the learned counsel appearing for the petitioners would
contend that only certain omnibus allegations have been made against the
petitioners in the complaint, the police without conducting proper investigation
mechanically filed a charge sheet which is nothing but reproduction of the
contents of the complaint which was forwarded by the Magistrate, the Court can
go into the question whether the criminal proceedings initiated would result in
abuse of process of law and if they are allowed to continue, they would cause
miscarriage of justice and on such scrutiny, according to the learned counsel,
this is a fit case to quash the proceedings in exercise of powers under Section
482 Cr.P.C.

16.     The crucial question to be determined in the criminal petition therefore
is when there are certain allegations levelled against the accused in the
complaint petition whether the court in exercise of jurisdiction under Section
482 Cr.P.C. can go in to the correctness of the allegations to decide the
question as to
whether the criminal proceedings initiated are abuse of process
of Court and whether they would result in miscarriage of justice if the accused are made to face the trial of the case.
17.     In this case, it is true that the complaint petition filed by the second
respondent/de facto complainant was forwarded by the Magistrate to the police
under Section 156(3) Cr.P.C for investigation and the police after conducting
investigation filed charge sheet.
 It is also a fact that the learned Magistrate
took cognizance of the offences under Section 498A, 420 IPC and Sections 3 and 4
of the Dowry Prohibition Act against all the accused.
Under these
circumstances, therefore, it is required to be examined whether this Court can
scrutinize the allegations levelled in the complaint so as to take a decision as
to whether the proceedings are in fact abuse of process of Court and if they are
allowed to continue would result in miscarriage of justice.

18.     In GORIGE PENTAIAH v STATE OF A.P. AND OTHERS3 
the Supreme Court held as        
follows:
"Inherent powers under Section 482 Cr.P.C. though wide have to be exercised
sparingly, carefully and with great caution and only when such exercise is
justified by the tests specifically laid down in this section itself.  Authority
of the court exists for the advancement of justice. If any abuse of the process
leading to injustice is brought to the notice of the Court, then the Court would
be justified in preventing injustice by invoking inherent powers in absence of
specific provisions in the Statute."

It is further held as under:
"The High Court should normally refrain from giving a prima facie decision in a
case where all the facts are incomplete and hazy; more so, when the evidence has
not been collected and produced before the court and the issues involved,
whether factual or legal, are of such magnitude that they cannot be seen in
their true perspective without sufficient material. Of course, no hard and fast
rule can be laid down in regard to cases in which the High Court will exercise
its extraordinary jurisdiction of quashing the proceedings at any stage."

19.     Similarly in MADHAVRAO JIWAJIRAO SCINDIA AND OTHERS v SAMBHAJIRAO              
CHANDROJIRAO ANGRE AND OTHERSS 4
the Supreme Court observed as follows:          
"The legal position is well settled that when a prosecution at the initial stage
is asked to be quashed, the test to be applied by the court is as to whether the
un-controverted allegations as made prima facie establish the offence.  It is
also for the court to take into consideration any special features which appear
in a particular case to consider whether it is expedient and in the interest of
justice to permit a prosecution to continue.  This is so on the basis that the
court cannot be utilized for any oblique purpose and where in the opinion of the
court chances of an ultimate conviction is bleak and, therefore, no useful
purpose is likely to be served by allowing a criminal prosecution to continue,
the court may while taking into consideration the special facts of a case also
quash the proceeding even though it may be at a preliminary stage."

20.     In STATE OF HARYANA AND OTHERS v BHANJAN LAL AND OTHERS5 the Supreme Court              
expressed the view that:
"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,
then the proceedings are liable to be quashed."
        
The Supreme Court further held that:
"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., the proceeding is liable to be quashed".

21.     From the legal position which emerges out of the aforesaid judicial
pronouncements, it is therefore, obvious that the High Court while exercising
jurisdiction under Section 482 of the Code of Criminal Procedure to quash the
proceedings can scrutinize the allegations levelled in the complaint for the
purpose of arriving at the conclusion whether they are designed to harass the
family members of the husband of the de-facto complainant and to wreak vengeance 
against them owing to the differences of the de facto complainant with her
husband.  
Merely because there are some general and sweeping allegations against 
the accused in the complaint, the Court is not precluded from scrutinizing the
allegations while exercising jurisdiction under Section 482 of the Code of
Criminal Procedure for the purpose of quashing the proceedings. The law does not
mandate that when there are certain allegations, the Court while acting under
Section 482 Cr.P.C. is not supposed to scrutinize them and it has to simply
allow the trial to be proceeded with before the trial Court for the purpose of
deciding the truth or otherwise of the allegations mentioned in the
complaint/charge sheet.

22.     In PREETI GUPTA AND ANOTHER v STATE OF JHARHAND AND ANOTHER6 the Supreme                 
Court held as follows:
"It is a matter of common knowledge that unfortunately matrimonial litigation is
rapidly increasing in our country. All the courts in our country including the
Supreme Court are flooded with matrimonial cases.  This clearly demonstrates
discontent and unrest in the family life of a large number of people of society.
It is a matter of common experience that most of these complaints under Section
498-A IPC are filed in the heat of the moment over trivial issues without proper
deliberations.  It is seen that a large number of such complaints are not even
bona fide and are filed with oblique motive.  At the same time, rapid increase
in the number of genuine cases of dowry harassment is also a matter of serious
concern.
The learned members of the Bar have enormous social responsibility and
obligation to ensure that the social fibre of family life is not ruined or
demolished. They must ensure that exaggerated versions of small incidents should
not be reflected in the criminal complaints.
---The courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration while dealing
with matrimonial cases."
The allegations of harassment by the husband's close relations who had been
living in different cities and never visited or rarely visited the place where
the complainant wife resided would have an entirely different complexion.  Such
allegations of the complainant are required to be scrutinized with great care
and circumspection."

23.     Now, turning to the facts of the present case, the second respondent-de
facto complainant implicated all the relatives close and distant of her husband
as accused in this case and only some general and sweeping allegations, which
are referred above have been made against A2 to A.12.  If we examine the crux of
the complaint petition, it seems that the grievance of the second respondent is
mainly against the first petitioner/husband.

24.     It cannot be accepted that all the accused collectively represented that
the first accused is an engineering graduate and is working as an Engineer.  The
fact which cannot be disputed is that the first accused has a diploma in
Engineering.  Ultimately, he secured a job in a cement factory at Yadiki as
Junior Engineer. The second respondent herself stated in the complaint petition
that after the first accused revealed these facts to her, she condoned his
representation and started living with him and gave birth to a male child.
Subsequently, the first accused secured employment in West Africa as an Engineer
and worked there for some time.  Therefore, what all can be understood from the
facts of the case is that even if there is any representation made that the
first accused is an Engineering graduate and was working as an engineer, it was
by the first accused himself, but not by all the accused.  Even if there is any
demand for dowry, from the facts and circumstances of the case, it must have
been from the first accused, but not from all the other accused who are the
relatives of the first accused.  It can be clearly understood from the nature of
the allegations levelled in the complaint that A2 to A.12 have been implicated
in this case only for the sole reason that they are related to the first
accused.
The Apex Court in Preethi Gupta (6th cited supra) observed that the
allegations in the complaint have to be scrutinized with great care and
circumspection especially when they are made against the husband's relatives.
The Supreme Court also held that there is a need for serious re-look at the
entire provision of Section 498-A IPC, and it made recommendation to the
Parliament to revisit the said provision.
 In the instant case, the allegation
that A2 to A.12 have been instigating A1 to harass her and that in connection
with the birth of the male child, they visited the house of the second
respondent and there, all the accused demanded dowry of Rs.2,00,000/- is quite
un-convincing and appears to have been made purposely and designedly to involve
A2 to A12 in the case filed by the second respondent/de facto complainant. 
 If
there is any harassment meted out by the first accused, the second respondent is
not supposed to make all his relatives accused in the complaint by alleging in
general terms that they committed offences punishable under Section 498-A IPC
and Sections 3 and 4 of the Dowry Prohibition Act.  
Such a course shall not be
encouraged. If A2 to A-12 are allowed to face trial basing on such sweeping and
general allegations, in my view, it is nothing but abuse of process of law and
ultimately it would result in miscarriage of justice causing undue hardship and
agony to A2 to A12.

25.     For all the aforesaid reasons, I am of the view that it is a fit case to
quash the proceedings against A2 to A12 since apparently they have been made as  
accused only on account of their relationship with A1.  
Therefore, the entire
proceedings in C.C.No.87 of 2009 on the file of the Judicial First Class
Magistrate, Penugonda insofar as the petitioners 2 to 12/A2 to A12 concerned are
hereby quashed. Insofar as the petitioner No.1/A-1 is concerned, the criminal
petition is dismissed.

26.     As indicated above, the criminal petition is partly allowed.

___________________  
R. KANTHA RAO, J  
Date: 06.09.2012

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