Mallika Pal and Others vs The State of West Bengal and Others

Sudip Ahluwalia, J—The FIR in this case was lodged against as many as eight persons including the present petitioners, by Shri Shyamapada Hazra, father of the deceased victim Kakoli Pal, who allegedly died in her matrimonial house on 15.06.2014. The FIR Case No. 232 dated 15.06.2014 in Singur PS was started on the same day under Sections 498A/304-B/406/34 of the IPC, and Sections 3 and 4 of the Dowry Prohibition Act. It was alleged in the FIR that the complainant''s daughter Kakoli Pal was married to the accused Prabir Pal on 11.02.2010. The complainant alleged that he had given cash amounting to Rs. 2 lakhs, golden ornaments weighing about 9 Bhoris and other items as dowry in the marriage. At that time the accused Prabir Pal was working in a private establishment as a Software Engineer in Delhi, and a daughter was born to the couple. After that the said accused demanded an amount of Rs. 20 Lakhs from his wife for leading a luxurious lifestyle, but her father i.e., the complainant was unable to comply with such demand. He however somehow managed to give an amount of Rs. 5 Lakhs. But the same was not sufficient to enable his son-in-law to purchase a flat. Prabir Pal therefore left his job and returned to his native place where he started living as an unemployed man. He allegedly demanded money from his wife''s parental house to run the family, but the complainant could not meet up to such demands. As a result his son-in-law and the rest of his family members subjected the complainant''s daughter to various types of mental and physical torture. On the 4th of June, 2014 the complainant''s daughter narrated the incidents of torture to her mother when she had come to her matrimonial house on the occasion of ''Shasthi''. She was reluctant to go back to her matrimonial house but returned there after being persuaded by her parents on the 14th June, 2014. Thereafter the complainant tried to contact her on the telephone, but it was found to be switched off. On 15.06.2014, at about 1.30 p.m., the accused Prabir Pal called him and intimated that his daughter Kakoli Pal had committed suicide by hanging herself. The complainant thereafter lodged the FIR in the P.S.

The present two petitioners have prayed for quashing the proceedings arising out of the aforesaid FIR, on the basis of which G.R. Case No. 732 of 2014 pending in the Court of the Ld. Additional Chief Judicial Magistrate, Chandernagore was started. Both of them happen to be the married sisters in law of the deceased victim.

Their contention is that they are residents of the faraway States of Andhra Pradesh (presently Telangana) and Delhi respectively for a very long time, and so they have no connection whatsoever with the day to day family life of the deceased victim, and have been falsely implicated in the case. The petitioner No. 1 claims to have been residing in the faraway State of Andhra Pradesh (presently Telangana) since as far back as June, 1984 with her husband, who is based in that State. To support this contention, she has placed on record the copies of the Birth Certificate of her son Abhijit Pal, dated 2nd of December 1988, her Voter Identity Card dated 8th April 2003, her Passport dated 24.10.2008 as well as her Aadhar Card and other bank related documents to show that she has been residing in Andhra Pradesh/Telangana all along. Similarly the petitioner No. 2 has placed on record the copies of her Household/Ration Card dated 8.10.2005, the Birth Certificate of her son Rishit Dhara dated 28.8.2006, as well as her Aadhar Card and various other documents of a public nature to show that she has been residing in Delhi ever since her marriage in the month of December 2004.

The petitioners have also drawn attention of this Court to the statements of three witnesses examined during the course of investigation who did not say anything incriminating linking either of the two petitioners to the offences alleged in the FIR, and rather gave statements in favour of the petitioners. They have hence contended that the said FIR and the Charge Sheet subsequently submitted on the basis of the same are untenable and liable to be quashed. They have also placed various decisions of the Supreme Court in support of their contentions, which are being taken note of in the succeeding paragraphs.

In Geeta Mehrotra and Another Vs. State of U.P. and Another, AIR 2013 SC 181 : (2012) 10 SCALE 299 : (2012) 10 SCC 741 : (2012) AIRSCW 5692 it was observed:--

"20. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

We, therefore, deem it just and legally appropriate to quash the proceedings initiated against the appellants Geeta Mehrotra and Ramji Mehrotra as the FIR does not disclose any material which could be held to be constituting any offence against these two appellants. Merely by making a general allegation that they were also involved in physical and mental torture of the complainant-respondent No. 2 without mentioning even a single incident against them as also the fact as to how they could be motivated to demand dowry when they are only related as brother and sister of the complainant''s husband, we are pleased to quash and set aside the criminal proceedings in so far as these appellants are concerned and consequently the order passed by the High Court shall stand overruled. The appeal accordingly is allowed."

In Preeti Gupta and Another Vs. State of Jharkhand and Another, AIR 2010 SC 3363 : (2010) CriLJ 4303 : (2010) 4 Crimes 19 : (2010) 2 DMC 387 : (2010) 8 JT 410 : (2010) 7 SCC 667 : (2010) 9 SCR 1168 : (2010) 8 UJ 3936 : (2010) AIRSCW 4975 : (2010) 6 Supreme 312 it was noted:--

"28. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

Admittedly, appellant No. 1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant No. 2 is a permanent resident of Goregaon, Maharashtra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent No. 2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband''s relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

When the facts and circumstances of the case are considered in the background of legal principles set out in preceding paragraphs, then it would be unfair to compel the appellants to undergo the rigmarole of a criminal trial. In the interest of justice, we deem it appropriate to quash the complaint against the appellants. As a result, the impugned judgment of the High Court is set aside. Consequently, this appeal is allowed."

In Onkar Nath Mishra and Others Vs. State (NCT of Delhi) and Another, (2008) 2 CLT 718 : (2008) CriLJ 1391 : (2008) 1 DMC 265 : (2008) 1 JT 20 : (2007) 14 SCALE 403 : (2008) 2 SCC 561 : (2008) 1 UJ 107 , the relevant observations were:--

"2. ......Appellants No. 1, 2 and 3 are respectively the father-in-law, sister-in-law and the husband of the complainant.

Section 498A I.P.C. was introduced with the avowed object to combat the menace of dowry deaths and harassment to a woman at the hands of her husband or his relatives. Nevertheless, the provision should not be used as a device to achieve oblique motives. Having carefully glanced through the complaint, the F.I.R. and the charge-sheet, we find that charge under Section 498A I.P.C. is not brought home insofar as appellant Nos. 1 and 2 are concerned.

Consequently, we allow the appeal partly; quash the charge framed against all the appellants under Section 406 I.P.C.; quash the charge framed against appellant Nos. 1 and 2 under Section 498A I.P.C. and dismiss the appeal of appellant No. 3 against framing of charge under Section 498A I.P.C. Needless to add that the trial court shall now proceed with the trial untrammeled by any observation made by the Additional Sessions Judge and upheld by the High Court in the impugned order or by us in this judgment."

The aforesaid judgment in "Onkar Nath Mishra" (supra) the last paragraph was passed by the Supreme Court in following in the ratio of the decision in a previous case being State of Karnataka Vs. L. Muniswamy and Others, AIR 1977 SC 1489 : (1977) CriLJ 1125 : (1977) 2 SCC 699 : (1977) 3 SCR 113 , in which an appeal preferred by the State against a judgment of the High Court which had quashed the proceedings drawn up against certain petitioners who were charged for the offences under sections 324, 326 and 307 read with section 34 of the IPC, was dismissed by the Supreme Court with the following observations:--

"11. We are therefore in agreement with the view of the High Court that the material on which the prosecution proposes to rely against the respondents is wholly inadequate to sustain the charge that they are in any manner connected with the assault on the complainant. We would, however, like to observe that nothing in our judgment or in the judgment of the High Court should be taken as detracting from the case of the prosecution, to which we have not applied our mind, as against accused Nos. 1 to 9. The case against those accused must take its due and lawful course. The appeals are accordingly dismissed."

From the prosecution side as well as also on behalf of the defacto complainant however, attention of this Court has been drawn to certain statements transpiring against the petitioners which ostensibly go to reveal their involvement/complicity in the alleged physical and mental cruelty committed upon the deceased victim along with the regular inmates of her matrimonial house at various times, when these petitioners allegedly visited the said house which also happens to be their own parental house. The Opposite Parties from their side have also placed certain decisions to emphasise that this is not a fit case for exercising the discretionary power of quashing criminal proceedings under section 482 CRPC.

In Ajay Kumar Das Vs. State of Jharkhand and Another, (2011) 13 JT 78 : (2011) 4 RCR(Criminal) 231 : (2011) 10 SCALE 390 : (2011) 5 UJ 3403 , the Supreme Court had observed:--

"12. The Counsel appearing for the appellant also drew our attention to the same decision which is relied upon in the impugned judgment by the High Court, i.e. State of Haryana v. Bhajan Lal. In the said decision, this Court held that it may not be possible to lay down any specific guidelines or water tight compartment as to when the power under Section 482 CrPC. could be or is to be exercised. This Court, however, gave an exhaustive list of various kinds of cases wherein such power could be exercised. In paragraph 103 of the said judgment, this Court, however, hastened to add that as a note of caution it must be stated that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the First Information Report or in the complaint that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.

We are, however, unable to accept the said contention at this stage for we find that there was a demand for giving cows, motor cycle and other goods. All these allegations will have to be dealt with by the Court at different stages for which liberty would be available to the appellant. In our considered opinion, this is not the stage when the Court would make an inquiry into the factual position to find out as to whether or not the appellant is guilty of the charges or not. The appellant, in our considered opinion, will have sufficient opportunity to place his entire case before the Court at the time of framing of the charge since charge sheet has already been filed against the appellant also holding that a case under Section 304B and Section 34 is made out. We do not wish to enter into the factual details for any discussion on them at this stage as the same may prejudicially affect the case of the appellant.

We are, however, of the considered opinion that on a reading of the First Information Report and the materials that are available in the case file of the appellant that no case is made out so as to quash the entire proceeding. Therefore, while rejecting the contention of the counsel appearing for the appellant so far quashing of the proceedings is concerned we give him the liberty to raise all his defence as may be available to him in accordance with law at the time of framing of the charge and at that stage the Court shall consider the material on record as also the contentions raised by the appellant in proper perspective and decide the matter in accordance with law.........."

In Amit Kapoor Vs. Ramesh Chander and Another, (2012) 4 JCC 2885 : (2012) 9 JT 329 : (2012) 9 JT 312 : (2012) 9 SCALE 58 : (2012) 9 SCC 460 , it was laid down:--

"27.12 In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution.

27.13 Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

27.16 These are the principles which individually and preferably cumulatively (one or more) be taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance to the requirements of the offence."

Following the aforesaid decision in "Amit Kapoor" (supra), the Supreme Court in "Chandra Babu @ Moses v. State through Inspector of Police & Ors" [Criminal Appeal No. 866 of 2015 (arising out of SLP [Cri] No. 5702 of 2012)] went on to observe:--

"12. First, we shall dwell upon the issue whether the High Court, in exercise of the revisional jurisdiction, should have adverted to the merits of the case in extenso. As the factual matrix would reveal, the learned Single Judge has dwelled upon in great detail on the statements of the witnesses to arrive at the conclusion that there are remarkable discrepancies with regard to the facts and there is nothing wrong with the investigation. In fact, he has noted certain facts and deduced certain conclusions, which, as we find, are beyond the exercise of revisional jurisdiction. It is well settled in law that inherent as well as revisional jurisdiction should be exercised cautiously. Normally, a revisional jurisdiction should be exercised on a question of law. However, when factual appreciation is involved, then it must find place in the class of cases resulting in a perverse finding. Basically, the power is required to be exercised so that justice is done and there is no abuse of power by the Court..."

As per the law laid down in relation to the exercise of revisional jurisdiction, this Court is not to sift through the evidences collected during investigation or to conduct anything in the nature of a mini-trial. It is only to be seen as to whether no cognizable offence whatsoever is made out on a plain reading of the contents of the FIR, or whether the allegations made are in themselves so absurd as to render the FIR visibly meaningless. But it cannot be held so in the present case. There is a clear and categorical case of physical and mental cruelty being inflicted upon the deceased victim by the members of her matrimonial house hold including the present petitioners. Of course the fact that these petitioners are ordinarily not the residents of the matrimonial house has not been specifically mentioned in the FIR. But such omission does not automatically take away from the effect of the incriminating statements which have subsequently come forth against them during investigation. The aforesaid cases cited on behalf of the petitioners in which proceedings against the family members of any victim wife apart from her husband were actually ordered to be quashed are restricted to those matters in which the victim/complainant was actually alive, and the cases were restricted to her alleged harassment/torture or misappropriation of her properties punishable under sections 498A/323/504/506/406 etc. of the IPC along with offences under the Dowry Prohibition Act. But the offence punishable under section 304-B, which is additionally attracted in the present case is far more serious, and it cannot be gainsaid that relatives of the victim wife have been roped in just for the sake of humiliation on account of any petty matrimonial dispute between the two spouses. The evidence collected against the petitioners cannot also be simply done away with, without a proper trial as in view of the settled law, the power to quash a criminal proceeding under section 482 of the Cr.P.C. is meant to be used very sparingly. At the most, this Court can only help the petitioners who are admittedly staying far away from the State of West Bengal only to the extent that during the course of trial, their personal presence may not be insisted upon on each and every date of the trial. On the other hand, they may be asked to remain present only when their presence is absolutely necessary for any purpose such as actual consideration of charge, or examination under section 313 of the Cr.P.C. etc., or on any other specific date as deemed necessary by the Ld. Trial Court for reasons to be recorded. On all other dates, the petitioners can be permitted to be represented by their Advocates, if they choose to exercise such option, so long as the Trial does not get delayed due to their absence. The revisional application is disposed off with these observations.