Aditya Singh and Another vs State and Another

Satya Prakash Pathak, J.—By the instant petition, filed u/s 397 read with Section 401 Cr.P.C, the petitioners have challenged the order dated 28.3.2005 passed by learned Addl. Chief Judicial Magistrate, Bali in Original Criminal Case No. 56/ 2005 arising out of C.R. No. 11/2004 PS Falna by which allowing the application of complainant filed under Sec. 190 Cr.P.C. cognizance for the offences under Sec. 498-A, 406 IPC has been taken against the petitioners.

Brief facts of the case are that complainant Manohar Singh, filed a complaint on 15.1.2004 in the Court of Addl. Chief Judicial Magistrate, Bali against petitioners and 8 others stating inter-alia therein that on 27.4.2001 his daughter Rekha was married to Kuldeep Singh but after the marriage the in-laws of his daughter started harassing his daughter demanding more dowry. It is further stated in the complaint that all the demands of accused persons were fulfilled by the complainant but even then after about a week of the marriage further demand of Rs. 1 lac and a Maruti Car was also made by the accused persons and as these demands could not be fulfilled, Rekha was harassed and in such circumstances she returned back to her parental house. It is also stated in the complaint that the accused have kept the Stridhan of her daughter with them and complainant asked the petitioners who are nephew (brother''s son) and sister-in-law (brother''s wife) to settle the matter by persuading the other accused persons so as to sent Rekha to her matrimonial home back but to no avail. It is alleged that despite repeated requests and demands the other accused persons did not return the Stridhan of Rekha and on 11.1.2004 the present petitioners gave a telephonic message to the complainant that if the demands were not fulfilled then Kuldeep will marry with someone else.

The complainant was forwarded to the Police Station, Falna under Sec. 156(3) Cr.P.C. for investigation where a case was registered and FIR No. 11/2004 for offence under Sec. 498A & 406 IPC was chalked out. After investigation, police filed challan against 8 accused persons except the petitioners so the complainant filed the application under Sec. 190 Cr.P.C. before the learned Addl. Chief Judicial Magistrate, Bali, praying for taking cognizance against the present petitioners. The learned Magistrate by his order dated 28.3.2005 has allowed the application filed by the complainant and has taken cognizance against the petitioners also for the aforesaid offences punishable under Sec. 498-A & 406 IPC while taking cognizance against other 8 accused persons. Aggrieved, the petitioners have filed the present criminal revision petition.

Learned counsel for the petitioners submitted that the petitioners who are the near relatives of complainant have not committed any offence but as they could not persuade the in-laws of complainant''s daughter they have been roped in the case and the learned Magistrate without taking into consideration the entire facts and circumstances in a perspective manner has taken cognizance against them in a mechanical manner. It was also submitted that in the statement of Rekha no allegation is levelled against the petitioners about their harassing her or for demanding dowry and as such no offence prima facie is made out punishable under Sec. 498A IPC against them under Sec. 498A IPC. He also submitted that offence under Sec. 406 IPC is also not made out against them as the in-laws of Rekha reside in Beawar whereas the petitioners are residing at Shreesaila and they have not detained the Stridhan of Rekha. According to him, neither there is any allegation against the petitioners that the dowry articles were entrusted to them nor there is any question of delivering it as they are the near relatives of complainant. In the last learned counsel prayed for quashing the order of taking cognizance against them.

On the other hand, learned Public Prosecutor simply supported the order passed by learned Magistrate but the learned counsel for respondent No.2 complainant contended that it is not open for this Court to interfere with the impugned order taking cognizance which is perfectly justified and requires no interference by this Court in its revisional jurisdiction. In support, the learned counsel for complainant relied upon the authorities reported in 1995 Cr.L.R. (SC) 724 Anil Saran Vs. State of Bihar and another, Anil Saran Vs. State of Bihar, 1996(1) Apex Court Journal 417 (S.C.) : State of Bihar Vs. Rajendra Agrawalla, State of Bihar Vs. Sri Rajendra Agrawalla, 2001 (3) Crimes 195 (SC), Rama Shankar Mani Tripathi Vs. State of Bihar & Ors. and 2004(1) Apex Court Judgments 619 (S.C.): 2004(2) Criminal Court Cases 520 (S.C.): 2004 Cri.L.J. 5008, Jagdish Ram Vs. State of Rajasthan.

I have heard learned counsel for the parties and gone through the case file including the complaint, order of Magistrate and the statements of witnesses.

It would be worthy to first see the law laid down in such matters.

In one of the earlier decisions, in Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi and Others, the Hon''ble Apex Court has held that where the allegations made in the complaint or the statements of the witnesses recorded in support of the same, taken at their face value, make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused, the cognizance can be set aside. The Court mentioned the cases for such setting aside of cognizance as follows:

(1) Where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the magistrate in issuing process is capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as want of sanction, or absence of complaint by legally competent authority and the like.

Later on, in a case reported in State of Haryana and others Vs. Ch. Bhajan Lal and others, the Hon''ble Apex Court has held that the High Court may interfere in proceedings relating to cognizable offences to prevent abuse of the process of any court and to secure the ends of justice. However, the power should be exercised sparingly and that too in the rarest of rate cases. The categories which have been enumerated by the Hon''ble Apex Court are as follows:

Where the allegation 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.

Where the allegations in the First Information Report and other materials, if any, accompanying in F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S. 155(2) of the Code.

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.

Where the allegations in the F.I.R. 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 S. 155(2) of the Code.

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.

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.

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.

Thereafter, in a case reported in Punjab National Bank and others Vs. Surendra Prasad Sinha, the Hon''ble Apex Court has observed that issuing of process should not be an instrument of private complainants to harass other persons and has held, -

It is salutary to note that judicial process should not be an instrument of oppression or needless harassment. The complaint was laid impleading the Chairman, the Managing Director of the bank by name and a host of officers. There lies responsibility and duty on the Magistrate to find whether the concerned accused should be legally responsible for the offence charged for. Only on satisfying that the law casts liability or creates offence against the juristic person or the persons impleaded then only process would be issued. At that stage the court would be circumspect and judicious in exercising discretion and should take all the relevant facts and circumstances into consideration before issuing process lest it would be an instrument in the hands of the private complaint as vendetta to harass the persons needlessly. Vindication of majesty of justice and maintenance of law and order in the society are the prime objects of criminal justice but it would not be the means to wreak personal vengeance. Considered from any angle, we find that the respondent had abused the process and laid complaint against the appellants without any prima facie case to harass them from vendetta.

In another case reported in (1996) 1 SCC 692 - Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandojirao Angre, the Hon''ble Apex Court has held 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 uncontroverted allegations as made prima facie establish the offence. It is 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 case to continue.

It is true that this Court should be slow in interfering with the orders taking cognizance in its revisional jurisdiction and it should exercise its powers sparingly but at the same time when the order suffers from infirmity and causes grave miscarriage of justice or abuse of the process of the Court then the powers under Sec. 397 read with Sec. 401 Cr.P.C. can very well be exercised.

In the present case, a perusal of order of taking cognizance reveals that it is passed in a mechanical manner without prima facie considering the entire material available on record. As far as offence under Sec. 406 IPC is concerned, the same is not at all made out against the present petitioners because neither there is any allegation that any stridhan or dowry article was ever entrusted to them nor there is any allegation that any particular dowry article was ever demanded by the complainant and that as refused to be returned by the petitioners. Thus, the ingredients of Sec. 406 IPC are totally missing in the present case against the petitioners and in such circumstances it cannot be said that the petitioners committed any criminal breach of trust warranting the learned Magistrate to take cognizance against them for offence punishable under Sec. 406 IPC and as such the order taking cognizance against the petitioners cannot sustain. The other offence for which the cognizance taken against the petitioners is punishable under Sec. 498A. A bare perusal of the complainant and the statements of witnesses including Smt. Rekha, her mother Rajendra Kanwar, her uncle Hanuman Singh, her brother Shailendra Singh excepting Manoharing Singh have not stated anything about demand of dowry by the petitioners. What has come is that they conveyed the telephonic message of the in-laws of Smt. Rekha to the complainant. There is no allegation of their pressurizing the complainant or harassing Smt. Rekha. Smt. Rekha herself has given clean chit to the petitioners by stating that when she left Beawar all the accused except the petitioners Mohan Kanwar and Aditya told that until and unless the demand is fulfilled they would not come to bring Rekha. The allegations made by her are against father-in-law and mother-in-law. Had there been any role of the petitioners for demand of dowry she should have stated so in her statement. It appears that the petitioners, who are relatives of both the parties, could not satisfy the complainant in the matter or failed to persuade the in-laws of Smt. Rekha, so they were roped and in such circumstances no offence punishable under Sec. 498A can be said to be made out against them.

The judgments cited by. learned counsel for complainant are of no help to him as each case has its own facts and circumstances and its fate hinges on its own strength.

Keeping in mind the law laid down by the Hon''ble Apex Court, I am of the view that the allegations and averments made in the complaint are not sufficient to make any offence against the petitioners when taken at its face value. The allegations made in the complaint are also not sufficient to proceed against the petitioners for the offences punishable under Sections 498A and 406 IPC and as such the order taking cognizance against the petitioners is liable to be set aside.

In the result, revision petition is allowed, the order dated 28.3.2005 passed by learned Addl. Chief Judicial Magistrate, Bali in Original Criminal Case No.56/2005 taking cognizance is set aside qua the petitioners and to that extent the order is modified.

As the revision petition itself has been decided, the stay application filed by petitioners also stands decided in terms thereof.