Rohit Srivastava vs State of U.P. and another

Hon''ble Vinod Prasad, J.—Wife Manisha Srivastava, is at loggerheads with her husband, in-laws, brother -in -laws (jeth & devars) and their family feud has come up to this Court in above two connected Criminal Misc. Applications, u/s 482 Cr.P.C.(in short code),by which husband, in-laws and brother-in-laws (Jeth and Devar), have prayed for quashing of their prosecution, instituted by her, of case No. 1313 of 2008,u/s 498-A, 323, 504, 506 I.P.C. & 3/4 D.P. Act, relating to crime No. 589 of 2008, pending before Judicial Magistrate, Jalaun. Ancillary prayer is to stay trial court''s proceedings pendent lite their above Applications. Former 482 Application is by the husband Rohit Srivastava, whereas later is by his other family members father Avinash Chandra Srivastava, mother Smt. Awadh Kishori, two brothers Dr. Mohit Srivastava (Devar) and Rahul Srivastava (Jeth). Since both the Applications arises out of the same case, hence facts in both the applications are common which are recapitulated herein under.

Unfolded background facts, as are decipherable from the pleadings made in both 482 Cr.P.C. Applications and allegations contained in the FIR, annexure No. 2, to the 482 Cr.P.C. Application No. 15938 of 2009, indicate that informant Manisha Srivastava d/o Dr. Shyam Prakash Srivastava tied her nuptial knot with the applicant Rohit Srivastava on 27.4.2007 according to Hindu Customs and Rites in Utsav Guest House, Nirala Nagar, Lucknow. Husband was gainfully employed as Assistant Commissioner in Commercial Tax department and was posted in Khatima, Udham Singh Nagar, Uttaranchal. Her father Dr. Shyam Prakash Srivastava, was I/C Medical Officer in District Lalitpur. In the marriage, Rs. ten lacs and other articles were given as dowry but the rapacious attitude of the husband and in-laws did not satisfy them, who all were demanding additional Rs. 75 lacs. Wife expressed inability of her parents to part away with such huge dowry because of their fiscal conditions and also because they had two other younger daughters to marry. Wife''s inability to mollify dowry demand resulted in her mental and physical torture. She was forced to sleep on the ground and was starved. During her torture period, wife became pregnant but this also did not dissipate greed for further dowry. Informant was sent back to her parental house, where she attained motherhood of a daughter Ratna. After delivery, husband applicant Rohit Srivastava came to his in-laws house at Jalaun to taken back his family to his house at Lucknow, but insisted that he be allowed to carry them by car by feigning an argument that carrying them by bus or train will be troublesome. Dr. Shyam Prakash Srivastava, gave his Maruti Esteem VXI U.P. 92 K 0129, to him to go to Lucknow. Said car was retained by the applicant husband who did not return it back. After arriving at in-laws house, informant was again tortured for dowry demand and when her father was intimated about it he along with maternal uncle came to in-laws house and was coerced to succumb to pay some money. On such assurance, husband brought his wife to the place of his posting at Khatima. In-laws, devar and jeth used to visit her and continued to pamper and torture her. On 25.8.2008 Dr. Srivastava was intimated on phone that either he pays demanded dowry or informant will be annihilated and since husband is a government servant he will be absolved from any action. On such a threat father along with maternal uncle Devendra Srivastava and Dr. Jitendra rushed to Khatima to inquire about welfare of his daughter but meanwhile, she was pushed out of her husband''s house after snatching away her stridhan-ornaments and her apparels. Dr. Srivastava lodged a written complaint to S.P., Udham Singh Nagar for the crime and brought his daughter back to Jalaun.

Complaint by the father was relegated to conciliatory proceedings to Marriage Conciliation Centre, where it is pending. After returning to Jalaun, informant wife Manisha Srivastava got herself medically examined in district hospital. Being under impression that family reunion may take place she did not take any legal step against her husband and in-laws. Relatives of both the sides indulged in an exercise to re-unite the family. On 24.9.2008 at 8 A.M., applicants came to Jalaun and entered into a dialogue of reconciliation and in midst of it pressurised the wife to withdraw her complaint at Udham Singh Nagar. Informant inhibited such a proposal unless she was given written assurances from in-laws that they will not torture her in future nor will demand any dowry. This infuriated the applicants who accosted the wife and repeated their dowry demand. Verbal triadic onslaught ensued with vituperation, which dissolute behaviour, affronted the wife for whom it was a faux pas. Informant objected to such vituperation, on which she was physical assaulted by kicks, fists and knife. This assault was witnessed by Brahm Prakash, Mata Prasad and Shailendra Singh. Accused applicants thereafter left the place. On 23.9.2008, wife got herself medically examined. Inspite of all this insult, torture and assault hurled on her and her parents, informant wife did not initiate any immediate legal action under hope that wisdom will dawn upon applicants and relations will become normal. Since all efforts by the wife and her parents went in vein without yielding any fruitful result that the wife, in utter disgust, lodged FIR annexure No. 2, on 12.10.2008 at 9.30 P.M. at police station Kotwali Jalaun against the applicants as crime No. 589 of 2008, under sections 498-A, 323, 504, 506 I.P.C. & 3/4 D.P. Act.

Crime was investigated by SSI Udai Bhan Singh of P.S. Kotwali, District Jalaun, who recorded investigatory statements of the informant, her relatives and witnesses and thereafter concluding investigation, charge sheeted the applicants on 15.11.2008 for the aforesaid offences.

Judicial Magistrate, Jalaun, took cognizance of the offence on the basis of charge sheet by registering criminal case No. 1313 of 2008, State Vs. Rohit Srivastava and others, for the offences mentioned above and summoned the applicants to stand trial for those crimes. Applicants in these two connected Applications, one by the husband and other by his parental relatives, have prayed for quashing of this prosecution.

I have heard Sri V.P. Srivastava, learned senior counsel in support of both the Applications, Sri Dharam Pal Singh, learned senior counsel for the respondent No. 2 and Sri Sangam Lal Kesharwani, learned AGA for the respondent State.

Learned senior counsel desired this Court to quash prosecution of the applicants for three primary reasons stated by him. The first being that the I.O. had gone to Jhansi on 15.11.2008 and he had returned from there and so how come he had interrogated the applicants at Lucknow same day. On the strength of two documents, which have been filed as annexure nos. 13 to 16 that it is contended that the entire investigation is tainted, malafide and does not inspire any confidence and cooked up. On such cooked up and fabricated evidences, applicants accused cannot be prosecuted is the contention. Second limb of the argument is that father Dr. Shyam Prakash Srivastava was employed in the State Medical services and was posted at Jalaun for two decades and it was under his pressure and influence that, medical report of his daughter, wife of applicant Rohit Srivastava was fabricated and on such manufactured medical evidence, prosecution of the applicants should not be permitted to go on. Third limb of argument is the alibi, on which ground, not much emphasis was laid by learned senior counsel.

On the strength of these submissions, it was prayed that the prosecution of the applicants is tainted with malafide investigation is not above board and, therefore, trial of the applicants be scuttled at it''s very inception and be quashed.

Learned senior counsel for the informant along with learned AGA in counter address, contended that the scope of section 482 Cr.P.C. is very limited, if prima facie offence is disclosed, prosecution must be allowed to go on after charge sheet has been submitted by the police after due investigation and, therefore, 482 Cr.P.C. Applications by the husband and his parental relatives be dismissed.

I have considered the argument raised by both the sides. Before adverting to the factual controversy, a search light on the scope of power of this Court u/s 482 Cr.P.C. is sketched herein below:-

In State of Haryana Vs. Bhajan Lal 1992 SCC (Cr.) 426, apex court has held as under: 108. 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 u/s 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.

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.

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 u/s 156 (1) of the Code except under an order of a Magistrate within the purview of Section 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 u/s 155(2) of the Code.

Where the allegations made in the F.I.R. 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.

In State of West Bengal and Others Vs. Swapan Kumar Guha and Others, it has been held by the Apex Court as under:

The only other decision to which I need refer is that of the Privy Council in AIR 1945 18 (Privy Council) , which constitutes, as it were, the charter of the prosecution all over, for saying that no investigation can ever be quashed. In a passage oft-quoted but much misunderstood, Lord Porter, delivering the opinion of the Judicial Committee observed :

In their Lordship''s opinion, however, the more serious aspect of the case is to be found in the resultant interference by the court with the duties of the police. Just as it is essential that every one accused of a crime should have free access to a court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province and into which the law imposes on them the duty of inquiry. In India, as has been shown, there is a statutory right on the part of the police to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would, as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the court. The functions of the judiciary and the police are complementary, not overlapping, and the combination of individual liberty with a clue observance of law and order is only to be obtained by leaving each to exercise its own function, always, of course, subject to the right of the court to intervene in an appropriate case when moved under S. 491 of the Criminal P. C. to give directions in the nature of habeas corpus. In such a case as the present, however, the court''s functions begin when a charge is preferred before it, and not until then,

I do not think that this decision supports the wide proposition canvassed before us by Shri Som Nath Chatterjee. In the case before the Privy Council, similar charges which were levelled against the accused in an earlier prosecution were dismissed. The High Court quashed the investigation into fresh charges after examining the previous record, on the basis of which it came to the conclusion that the evidence against the accused was unacceptable. The question before the Privy Council was not whether the fresh F.I.R. disclosed any offence at all. In fact, immediately after the passage which I have extracted above, the Privy Council qualified its statement by saying :

No doubt, if no cognizable offence is disclosed, and still more, if no offence of any kind is disclosed, the police would have no authority to undertake an investigation.

If anything, therefore, the judgment shows that an investigation can be quashed if no cognizable offence is disclosed by the F.I.R. It shall also have been noticed, which is sometimes overlooked, that the Privy Council took care to qualify, its statement of the law by saying that the judiciary should not interfere with the police in matters which are within their province. It is surely not within the province of the police to investigate into a Report which does not disclose the commission of a cognizable offence and the Code does not impose upon them the duty of inquiry in such cases.

Swapan Kumar Guha''s case(Supra) was referred to because thwarting a prosecution or scuttling investigation into a FIR has somewhat similar parameters. In S. Khushboo Vs. Kanniammal and Another, apex court has held as under:

In order to decide this case, it will not be proper for us to either condemn or endorse the views expressed by the appellant. When the criminal law machinery is set in motion, the superior courts should not mechanically use either their inherent powers or writ jurisdiction to intervene with the process of investigation and trial. However, such forms of judicial review can be exercised to prevent a miscarriage of justice or to correct some grave errors that might have been committed by the subordinate courts. [See decision of this Court in: Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, ]. In the past, this Court has even laid down some guidelines for the exercise of inherent power by the High Courts to quash criminal proceedings in such exceptional cases. We can refer to the decision in State of Haryana and others Vs. Ch. Bhajan Lal and others, , to take note of two such guidelines which are relevance for the present case :-

(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.

.....(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 of course a settled legal proposition that in a case where there is sufficient evidence against the accused, which may establish the charge against him/her, the proceedings cannot be quashed. In M/s. Medchl Chemicals and Pharma Ltd. v. M/s. Biological E. Ltd. and Ors., AIR 2000 SC 1869, this Court observed that a criminal complaint or a charge sheet can, only be quashed by superior courts in exceptional circumstances, such as when the allegations in a complaint do not support a prima facie case for an offence. Similarly, in Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others, , this Court has held that criminal proceedings can be quashed but such a power is to be exercised sparingly and only when such an exercise is justified by the tests that have been specifically laid down in the statutory provisions themselves. It was further observed that superior courts "may examine the questions of fact" when the use of the criminal law machinery could be in the nature of an abuse of authority or when it could result in injustice. In Shakson Belthissor Vs. State of Kerala and Another, , this Court relied on earlier precedents to clarify that a High Court while exercising its inherent jurisdiction should not interfere with a genuine complaint but it should certainly not hesitate to intervene in appropriate cases.

In State of Maharashtra and Others Vs. Arun Gulab Gawali and Others, it has been held by the apex court as under:

The power of quashing criminal proceedings has to be exercised very sparingly and with circumspection and that too in the rarest of rare cases and the Court cannot be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of allegations made in the F.I.R./Complaint, unless the allegations are so patently absurd and inherently improbable so that no prudent person can ever reach such a conclusion. The extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice. However, the Court, under its inherent powers, can neither intervene at an uncalled for stage nor it can ''soft-pedal the course of justice'' at a crucial stage of investigation/proceedings. The provisions of Articles 226, 227 of the Constitution of India and Section 482 of the Code of Criminal Procedure, 1973 (hereinafter called as ''Cr. P.C.'') are a device to advance justice and not to frustrate it. The power of judicial review is discretionary, however, it must be exercised to prevent the miscarriage of justice and for correcting some grave errors and to ensure that esteem of administration of justice remains clean and pure. However, there are no limits of power of the Court, but the more the power, the more due care and caution is to be exercised in invoking these powers. (Vide State of West Bengal and Others Vs. Swapan Kumar Guha and Others, ; Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, ; G. Sagar Suri and Another Vs. State of U.P. and Others, ; and Ajay Mitra Vs. State of M.P. and Others, .

From the above apex court decisions, the law on the point is well settled that powers u/s 482 Cr.P.C. is very wide and very magnitude of the power indicate that it should be exercised with circumspection only in appropriate cases to secure ends of justice or prevent abuse of the process of the court. Power to nullify a prosecution should be resorted to only when from the perusal of the entire material placed before the Court or contained in the case diary no offence of any kind is disclosed or the launched prosecution was malafide, vindictive and was instituted to wreck vendetta because of ulterior motives. There is no scope for this Court to take a contrary view on such settled binding precedents.

Applying the ratio for quashing of prosecution at it''s initial stage, stated above, on the facts of the present Application, it is surfaced that none of the aforesaid grounds exists for this Court to intervene and nipped the prosecution into it''s bud as against applicants Rohit Srivastava, his father Avinash Chandra Srivastava, and mother Smt. Awadh Kishori. At this inception stage, the defence plea that the allegations by the wife are fib cannot be taken to be gospel truth. Even counsel for the applicants did not harp much on the said aspect. Main thrust of the submissions was for the reason that the I.O. cannot be omnipresent at two places-at Jhansi and at Lucknow, simultaneously. It was submitted that during investigation, statements of the accused was recorded at Lucknow on the same day when I.O. was at Jhansi and therefore entire investigation is fabricated. For accepting such a plea evidence is required. It is only in a proper trial that a conclusion on the said aspect can be drawn. How I.O. came to Lucknow, for how much time he stayed at Jhansi, all these aspect has to be judged by the trial judge and not by this Court on affidavits. While exercising power u/s 482 Cr.P.C., this Court cannot sift and weigh evidences to scuttle a legitimate prosecution. These are all disputed questions of facts which cannot be gone into u/s 482 Cr.P.C. Informant and prosecution has to be afforded opportunity to establish their charges. U/s 482 Cr.P.C., what can be considered by this Court is as to whether a prima facie case is disclosed against the accused or not?. If the offence is disclosed, there is no scope for this Court to interfere with a legitimate trial.

Turning towards another harangued submission that wife''s medical report is cooked up and manufactured, the said contention also does not carry much substance. Merely because father of the wife was employed in a government service and was posted at one station for near about two decades, as a medical officer, is no reason for the entire medical fraternity to turn dishonest. Castigation of medical reports requires depositions to be proved or negated. It is only when the doctor enters into witness box, who had prepared the medical examination report of the wife, that the accused can get his defence elicited from him. Holding a doctor dishonest, without affording him any opportunity to explain, will be illegal and unjust and will offend golden principles of natural justice of audi alteram partem. No person can be condemned without affording him a reasonable opportunity to defend.

Coming to the third submission that some of the applicants had an alibi and were absent at the time and place of the incident, that is also a matter, which has to be looked into by the trial Judge. Alibi has to be established by leading cogent and reliable evidences. Accepting alibi of an accused on the face of it when there are paradoxical and contrary evidences available on record in the form of credible prosecution evidences will be illegal and will not serve cause of justice. Thus contentions of learned senior counsel in respect of three applicants husband, father-in-law and mother -in-law does not carry any force and are hereby repelled.

Now coming to the Applications of rest of the family members namely Dr. Mohit Srivastava and Rahul Srivastava, who are Jeth and Devar of the wife, I don''t find sufficient material against them for their prosecution. There are no specific allegations against them. How they will be benefitted is also not disclosed. They are gainfully employed and hence is it not appealing that they will indulge in dowry demand and will assault the informant. Prosecution has prolixed it''s allegations to rope in them. Normally in such family disputes between husband, wife and in -laws, allegations are aggrandized to implicate other family members also. In such cases a pragmatic approach has to be adopted so that innocent relatives are not harassed and put to loss. Boarder probabilities of the case have to be tested on the anvil of practicality to fathom out real facts and separate truth from falsehood. Latin maxim actus curiae neminem gravabit( acts of courts should prejudice none) cannot be lost site off. To obviate wrong done to them, it is desirable for this Court, to mollify their abash. On this conclusion support can be had from apex court decision in Preeti Gupta and Another Vs. State of Jharkhand and Another, where, in somewhat similar circumstances, Supreme Court has held as under:

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, Maharasthra. 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.

Without being verbose and in all humility I adopt aforesaid reasoning by the highest court of the land.

Wrapping up the discussion Criminal Misc. Application No. 15938 of 2009, Rohit Srivastava Versus State of U.P. and another is dismissed.

Criminal Misc. Application No. 17603 of 2009, Avinash Chandra Srivastava & others Versus State of U.P. and another is allowed in respect of applicants Dr.Mohit Srivastava and Rahul Srivastava only and their prosecution in case No. 1313 of 2008, State versus Rohit Srivasatava and others, pending before Judicial Magistrate Jalaun under sections 498-A, 323, 504, 506 I.P.C. and 3/4 D.P. Act is here by quashed. However this Application is dismissed in respect of in-laws applicants Avinash Chandra Srivastava, and Smt. Awadh Kishori. They are directed to surrender and seek bail along with their son Rohit Srivastava. On the facts and of the case it directed that their bail prayer be considered on the same day on which it is moved.

Both the above Criminal Misc. applications are finally decided as above. Let a copy of this judgement be intimated to the trial court for it''s intimation and future action.