Santram Swarnkar vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—Writ Petition (Cr) Nos. 3566 & 5928 of 2010 involve common facts and common question of law and, as such, require consideration and disposal by the common order. W.P. (Cr.) No. 3566 of 2010: - By this petition, the petitioner-Santram Swarnkar (hereinafter referred to as ''S''), who is the father in law of respondent - Smt. Nikita Swarnkar (hereinafter referred to as ''N''), seeks quashing of FIR No. 717/2008 (Annexure - P/1) filed by N against the son of S namely; Pushpal Swarnkar (hereafter referred to as ''P'') whereunder N has made allegations of having committed the offence punishable under Sections 341, 294, 506 & 323 of the Indian Penal Code (for short "the IPC"). S further seeks quashing of the notice dated 2.5.2010 (Annexure - P/6), whereby S was directed to produce his son P before the Police Station, Supela without any delay.

The facts, in brief, as projected by S, are that S is the father-in-law of N. On 30.12.2008 (Annexure - P/1), N lodged a report against P (son of S) alleging commission of offence punishable under Sections 341, 294, 506 & 323 of the IPC. According to S, N has already lodged a report against him and his son P for commission of offence punishable u/s 498-A of the IPC. The said case is pending before the Judicial Magistrate First Class, Durg, (hereinafter referred to as "the Magistrate") but in the said case, N never appeared before the Court to adduce her evidence.

After lodging of report, the respondent No. 3 conducted an investigation and found nothing against P. Accordingly, the respondent No. 3 submitted a report before the respondent No. 2 on 27.05.2009 (Annexure P-2). Thereafter, the opinion of the respondent No. 4 was sought for by the respondent No. 2. The respondent No. 4 gave his opinion on 12.06.2009 (Annexure P-3) and advised for closing of the case.

The said final report u/s 173 of the Code of Criminal Procedure (for short "the Code") was filed before the competent Court on 30.6.2009 (Annexure - P/5) holding that no case is made out against P (son of S). However, all of a sudden, on 02.05.2010 (Annexure P-6), S received a notice u/s 91 of the Code from the respondent No. 3, by which S was directed to produce his son i.e. P before the Police Station, Supela without any delay in spite of the fact that S and his son P have never committed any offence and N is taking undue advantage of being a female. S and his family members have been falsely implicated in the criminal case by making false and concocted allegations against them. Thus, this petition for quashing of FIR No. 717/2008 and also for quashment of the notice dated 02.05.2010 (Annexure P-6).

W.P. (Cr.) No. 5928 of 2010: - By this petition, P, S & Smt. Kiran Swarnkar (hereinafter referred to as ''K'') seek quashing of the criminal case No. 156/2010 pending in the Court of the Magistrate; further for quashing of the order dated 24.09.2010 (Annexure P/6) passed by the Magistrate and also for prosecution of N under the provisions of Section 3 of the Dowry Prohibition Act, 1961 (for short "the Act, 1961").

The facts, in brief, as projected by P, S & K, are that P, S & K are the husband, father-in-law & mother-in-law of N, respectively. The marriage between P & N was solemnized on 29.04.2007 in accordance with the Hindu rites and rituals. At the time of marriage, P was rendering his services in the United State of America (USA). After marriage, N did not cohabit with P for more than 5 days and even she never stayed with the family members of her in-laws. However, on 06.08.2007, N obtained marriage certificate from the Municipal Corporation, Bhilai, in a fraudulent manner by forging the signatures of P. Thereafter, N lodged a report against P, S & K alleging commission of offence punishable under Sections 498-A read with Section 34 & 406 of the IPC. The said report was registered bearing crime No. 35/2008. After investigation, the final report was filed u/s 173 of the Code.

Subsequently, P, S & K were granted bail. On 25.09.2008, the Magistrate, framed the charges against P, S & K for commission of offence punishable u/s 498-A/34 of the IPC read with Section 4 of the Act, 1961. On 11.11.2008, N filed an application u/s 125 of the Code and prayed for grant of maintenance. On 03.09.2010, N appeared before the Magistrate and deposed that her parents have given an amount of Rs. 8.00 lacs as dowry to P at the time of marriage. In the meanwhile, N had lodged another report bearing crime No. 717/2008. Against the said report, S filed the writ petition bearing W.P. (Cr) No. 3566/2010.

On 16.1.2009 (Annexure - P/7) S lodged a report before the Senior Superintendent of Police, Durg, against N and requested to take appropriate action against N. On the basis of the said report, the FIR was registered bearing crime No. 57/2009 on 04.02.2009 (Annexure - P/8) in Police Station, Supela, District Durg. Thereafter, after lapse of more than one year, no challan has been filed by the police authorities and the reasons for the same are best known to them.

Shri Tamaskar, learned counsel appearing for P, S & K, would submit that P, S & K have never demanded any dowry and even they have not harassed N whereas, N has falsely implicated P, S & K in the criminal cases. Shri Tamaskar would further submit that at the time of marriage, P was working in USA.

Shri Nigam, learned Panel Lawyer appearing for the State, would submit that initially by order dated 15.09.2008, P was released on bail with certain conditions. As per condition No. 2, P was directed not to leave the State of Chhattisgarh up to six months without permission of the Court below. The said period came to an end on 22.12.2008 and thereafter no relaxation was granted in favour of P. In spite of the above order of the Court, P went to France without obtaining prior permission from the Court below and, as such, P violated the conditions of the order dated 15.09.2008.

Shri Tripathi, learned counsel appearing for N supported the arguments advanced by the learned State counsel. Shri Tripathi would submit that on account of lodging of false report by P, S & K against N, she is not in a position to get employment. Shri Tripathi, would further submit that P, S & K are not cooperating with the proceedings and, as such, the matter is being delayed.

I have examined the facts of the case and also the allegations leveled by N against P, S & K. On bare perusal of the entire documents, FIR and the Final Report submitted before the Magistrate under the provisions of Section 173 of the Code, it appears that no decision has been taken on the said final report.

Contents of final report dated 30.6.2009 is as under:

Contents of final report dated 25.8.2008 is as under:

Having considered all the aforestated documents, it is a case where the facts are under consideration in a proceedings pending before the Magistrate. Once the Magistrate is seized of the matter, it is for the Magistrate to consider the final report and pass the order. On perusal of entire facts on its face value, it does not appear to be frivolous exercise leading to misuse of justice.

It is well settled principle of law that if a police report u/s 173 of the Code has been forwarded to the Magistrate after completion of the investigation and the material collected by the Investigating Officer is under the gaze of judicial scrutiny, the High Court would do well to discipline itself not to undertake quashing proceedings in exercise of its inherent jurisdiction. (See: State of Bihar and Another Vs. P.P. Sharma, IAS and Another,

This Court in exercise of inherent powers under Article 226 of the Constitution of India and u/s 482 of the Code should exercise the power with great care and circumspection, except when the Court is convinced on the basis of material on record that the proceeding to continue would be an abuse of process of law. No doubt the power of the High Court under Article 226 and u/s 482 of the Code is untrammeled and unfettered.

It is further well settled principle of law that at an initial stage, the High Court should not embark upon an inquiry asto whether the allegations in the complaint are likely to be established by evidence or not. The Court would also not be justified in embarking upon an inquiry asto the reliability or genuineness or otherwise of the allegations made in the FIR or a report submitted u/s 173 of the Code. (See: Shri Mahavir Prashad Gupta and Another Vs. State of National Capital Territory of Delhi and Others,

In the case on hand, after lodging of FIR, investigation has been completed in both the cases. In WP (Cr.) No. 3566/2010, the report has been filed u/s 173 of the Code, requesting the Magistrate for closure of the case. In WP (Cr.) No. 5928/2010 final report u/s 173 of the Code has been filed before the Magistrate for further action. Since in both the cases final report has been filed before the competent Court, it is for the Magistrate to consider the facts in accordance with law and take a decision on the basis of material available before him. As a sequel, both the writ petitions, sans substratum, are liable to be and are hereby dismissed, leaving the parties to bear their own costs.