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Badri Nath Peer & Others v/s Simi Peer


Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- BADRI & CO (PVT) LTD [Strike Off] CIN = U51109WB1948PTC016374

    CRMC No. 06 of 2008, IA. No. 7 of 2008

    Decided On, 01 February 2019

    At, High Court of Jammu and Kashmir

    By, THE HONOURABLE MR. JUSTICE SANJAY KUMAR GUPTA

    For the Petitioners: Kapil Gupta vice, C.M. Koul, Advocates. For the Respondent: None.



Judgment Text

1. Through the instant petition filed under Section 561-A, Cr.P.C., petitioners seek quashing of the complaint filed against the petitioners by respondent under Sections 498-A, 504 and 120-B, RPC along with the proceedings taken on the said private complaint, pending disposal before the Court of learned Sub-Judge/Railway Magistrate, Jammu.

2. In this petition, it has been stated that order of cognizance is incorrect because marriage took place in 1994 and complaint has been filed in the year 2007, i.e. after more than 13 years. It is stated that entire family of the petitioners has been involved in the complaint. That petitioner Nos. 3 to 5 have nothing to do with the allegation levelled in the complaint. That no substantial allegation has been levelled against the accused persons. That it is the respondent who has deserted the husband and after desertion she has filed petition under Section 488, Cr.P.C. in which Rs. 1,500 per head maintenance has been granted because the respondent was having one minor daughter also at the time of filing of petition under Section 488, Cr.P.C. That in order to further pressurize the petitioners, a false and baseless complaint has been lodged against them by the respondent. That respondent also filed a petition under Section 13 of the Hindu Marriage Act before the Court of Additional District Judge (Matrimonial Cases), Jammu where petitioner No. 2 filed the reply. The said matter was compromised and respondent along with minor child came back and started living with her husband. The respondent did not mend herself and thereafter again deserted.

3. I have considered the rival contentions of learned Counsel for the petitioners and also gone through the documents annexed in the petition. Law with regard to inherent power of High Court has now been well settled. In I (2017) SLT 207=I (2017) DLT (CRL.) 181 (SC)=AIR 2017 Supreme Court 37 in case titled, State of Telangana v. Habib Abdullah Jeelani & Ors., it is held as under:

“11. Once an FIR is registered, the accused persons can always approach the High Court under Section 482, Cr.P.C. or under Article 226 of the Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-Judge Bench after referring to Hazari Lal Gupta v. Rameshwar Prasad [7], Jehan Singh v. Delhi Administration [8], Amar Nath v. State of Haryana [9], Kurukshetra University v. State of Haryana [10], State of Bihar v. J.A.C. Saldanha [11], State of West Bengal v. Swapan Kumar Guha [12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi [13], Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [14], State of Bihar v. Murad Ali Khan [15] and some other authorities that had dealt with the contours of exercise of inherent powers of the High Court, thought it appropriate to mention certain category of cases by way of illustration wherein the extraordinary power under Article 226 of the Constitution or inherent power under Section 482, Cr.P.C. could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The Court also observed that it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad cases wherein such power should be exercised. The illustrations given by the Court need to be recapitulated:

“(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 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.

(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.”

It is worthy to note that the Court has clarified that the said parameters or guidelines are not exhaustive but only illustrative. Nevertheless, it throws light on the circumstances and situations where Court’s inherent power can be exercised.

12. There can be no dispute over the proposition that inherent power in a matter of quashment of FIR has to be exercised sparingly and with caution and when and only when such exercise is justified by the test specifically laid down in the provision itself. There is no denial of the fact that the power under Section 482, Cr.P.C. is very wide but it needs no special emphasis to state that conferment of wide power requires the Court to be more cautious. It casts an onerous and more diligent duty on the Court.

4. As per above law, a complaint is liable to be quashed, if it does not disclose any offence or is frivolous, vexatious or oppressive; if the allegations set out in complaint do not constitute offence of which cognizance has been taken by Magistrate, then it can be quashed.

5. In present case, from the perusal of the documents annexed with the petition, it is evident that respondent herein filed a complaint under Sections 498-A, 504 and 120-B, RPC against the petitioners before the Court below. The Court below on 23.11.2007 after recording the statement of complainant and her witnesses took the cognizance and issued process against the petitioners herein.

6. The relevant extract of complaint reads as under:

“That just few days after her marriage the accused 1-5 hatched a criminal conspiracy against the complainant for getting less dowry subjected her to cruelty by nagging her under one pretext or other and made her life miserable. Accused Nos. 2-5 being sisters and father of the ruthless husband. Their conduct is so obnoxious and unbearable for any person of reason. They forced her out of their house in the month of November 2000. She was left with no alternative but to file application under Section 488 in the month of February 2000 and Hon’ble Court was kind enough to grant her interim maintenance at the rate of Rs. 1,500 per month.

That the complainant being a conservative Kashmiri lady having great moral for the holy sacrament of matrimony wanted to start life a fresh with accused No. 1 and filed petition under Section 9 of Hindu Marriage Act for the restitution of conjugal right with a sincere intention to forget the pungent cruelties of accused but it proved an exercise in futility.

That the accused No. 1 is crafty and cleaver Government official at the instance and instigation of accused Nos. 2-5 under criminal conspiracy exploited the virtues, moral values of holy alliance of matrimony agreed and entered upon a compromise took complainant back home only to encash the maintenance amount deposited by him in maintenance application and petition which was pending before the Additional District Judge, Matrimonial cases where too he had to deposit some money.

That after the gap of long five years complainant had gone with her husband with a hope to start her married life afresh but this was a simple trick played by all the accused to dodge the legal process and withdraw the amount from the Court deposited by accused No. 1 in response to Court order. All the accused started the old story of dowry and gifts for her sister-in-laws as she had come back after five year and her parents too had retired from Government service and collected huge sums of money as their pensioner benefits she should get at least Rupees two lacs as her share in the money received by her parents.

They (accused 1-5) started beating her and hurdling unbearable abuses in presence of her daughter Sonika Peer the only child born of this unfortunate wedlock. Their wilful conduct is of such a nature likely to drive her to commit suicide but only idea which stopped her from this extreme step was the problem of her helpless daughter who was living under the shadow of fear to her life and that of her mother as she cried in solitude but his did not give them any satisfaction, their harassment continued with a view to coerce her to meet their unlawful demand, the tortur to her by her husband accused No. 1 and his sisters accused Nos. 2-4 and father-in-law accused No. 5.

The accused started beating her without any rhyme and reason and when they failed to force her to commit suicide they humilated her in presence of her minor daughter and assaulted both mother and daughter and threw them out of their residence at Surakhsha Vihar Top on 14.11.2006 which is within the jurisdiction of this Hon’ble Court, therefore, the Hon’ble Court has got the jurisdiction to entertain and try this complaint.”

7. From bare perusal of relevant paras of the complaint and statements of complainant and her witness, it is evident that essential of Section 498-A, RPC have been made out. In terms of Section 561-A, Cr.P.C., complaint can only be quashed in order to prevent abuse of process of law or to otherwise secure the ends of justice. The expression ‘ends of justice’ and ‘to prevent abuse of process of any Court’ are intended to work out either when an innocent person is unjustifiable subjected to an undeserving prosecution or if an ex facie all merited prosecution is throttled at the threshold without allowing the material in support of it.

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8. This Court while exercising the power under Section 561-A, Cr.P.C., does not function as Court of trial, appeal or revision. Inherent jurisdiction has to be exercised sparingly, carefully and with great caution. These powers cannot be used to stifle the legitimate prosecution. This is discretionary power vested in High Court to do substantial justice. High Court cannot examine the evidence as to whether charge for alleged offence is made out or not. This is prerogative of Trial Court where challan is produced. 9. In present case, all the pleas taken are pertaining to factual in nature. These may be defenses of accused/petitioners which they have to prove before Court below by producing evidence or in cross-examination of respondent and her witnesses. It is not case of petitioners that 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 proceeding. 10. In view of above discussion, this petition is dismissed. Interim stay, if any, is vacated. Trial Court file be sent back forthwith. Petition dismissed.
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