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Quashing of FIR under Article 226

Delhi High Court

Sunil Aggarwal
vs
Commissioner Of Police And Ors. on 25 January, 2002

Equivalent citations: 2002 IIIAD Delhi 346, 2002 CriLJ 1690, 96 (2002) DLT 293, I (2002) DMC 415, 2002 (62) DRJ 52

Bench: B Khan, V Aggarwal

JUDGMENT Khan, J.

1. All these writ petitions are seeking quashing of FIR No. 740/2000 registered at P.S. Patel Nagar against petitioners on the complaint of R-4 under Sections 498-A and 406 IPC.

2. The controversy arises out of a matrimonial discord between one of the petitioners, Sunil Aggarwal (husband) and R-4 an Advocate wife. Other petitioner are related or linked to the husband and are named in the FIR. Petitioner in writ petition No. 1214/2000 Shanata Sunder Aggarwal is his mother and in writ petition No. 1295/2000 Shalini his sister. The other two petitions have been filed, one by Sarits, his alleged second wife (Crl. W.P. 1294/2000) and the other (Crl. W.P. 1284/2000) by her father B.S. Puri. All these petitions are identical on all fours and challenge the FIR on same grounds and are, therefore, disposed by this common judgment.

3. Petitioner, Sunil Aggarwal and R-4 were married on 1.5.1983 and a son was born to them out of the wedlock. They fell out later, separated and launched litigation against each other. R-4 started first and filed. Suit No. 1031/88 for partition of joint property before this court and obtained an injunction order dated 27.4.1989 restraining defendant husband from marrying second time. The husband retaliated by filing a suit for conjugal rights against her. While all this was going on, he cultivated one Sarita, petitioner in Crl. W.P. No. 1294/2000 and allegedly married her. Both are said to be living together with their three children. R4, on learning about this reacted by filing CCP 15/99 alleging breach of court orders which is also pending. She thereafter lodged a report with the police after one year or so alleging cruelty by all writ petitioners culminating in impugned FIR which contains both general and specific allegations. She alleges in this that her in-laws were troubling her for insufficiency of dowry and that her husband and mother-in-law would beat her regularly and along with her sister-in-law Shalini taunt, ridicule and abuse her and three of them had taken her dowry articles into custody. Broad summary of material allegations is extracted as given by the petitioner only to appreciate whether Section 498-A and 406 IPC were attracted in the facts and circumstances of the case.

S.No. Name of the Relation with Allegations petitioner R-4/complain-

No. of writ ant petition

1. SUNIL Husband – Used to regularly drink AGGARWAL and beat her up.

(Crl. W. 1217/ – had also tried to throw 2000) her out of moving vehicle in 1984.

– in 1988 came to know that Sunil had embraced Islam to re-marry.

– in 1993 came to know through my grandfather that he had remarried one Sarita, D/o B.S. Puri who was also pregnant through him but which he denied during CCP proceedings.

– I found concrete evidence in 1999 that Sunil had three children from Sartia.

– on 18.9.2000 after court proceedings Sunil came after me and started abusing me.

2. Smt. Sunder Mother – used to beat me and Shanta taunt me.

Aggarwal (Crl.W. 1214/ – “On 16.11.99, after 2000) finishing the case, I was moving out of court premises and my mother-in-

law also started shouting at me and said as to what do I think of myself and she said that she has been successful in fixing a new home for her son and I can go to hell. She further said that whatever you want to do, do it and we are not going to give you a penny.

– On 18.9.2000, my mother-

in-law said to me that I may go back to them else I would be taught a lesson and I would be put to such a bad condition that entire family of mine would become silent spectator. My mother-in-

law kept on abusing me and I was deeply shocked.”

3. B.S. Puri Sarita’s No. specific allegation as (Crl. W. 1284/ father such.

2000)

4. Sarits Friend/second “On 19.11.2000, Sarita’s (Crl. W. 1294/ wife of Sunil evidence was recorded when 2000) Aggarwal she agreed that she has been staying with Sunil and had three children.

Sarita in the court corridor laughed at me and taunted that she has been staying with my husband and has three children from him. Now that I was helpless, I would not be paid any money out of family properties. I was helpless, I would not be paid any money out of family properties. I was shell shocked having been given such maltreatment by Sarita.”

5. Shalini Sister – Used to taunt me. Aggarwal – On 16.11.99, she said to (Crl. W. 1295/ 2000) me “Rekha, I have come from Bombay and my brother Sunil would be well advised by me as to what bad condition you would bad condition you would have hereafter, now you wait and watch and my brother has remarried you know it.”

4. All petitioners are challenging the FIR on the ground that the allegations contained in it do not disclose or make out any offence against them under Sections 498-A and 406 IRC and that it was tainted by R-4’s vindictiveness.

5. R-4, on her part, has justified the FIR against petitioners and has highlighted how their actions had caused her mental agony and torture. She has also explained why she had not promptly initiated criminal proceedings earlier. She says that she did not do it earlier because her husband had denied any relationship with Sarita. Now that he had admitted it, she had no option but to proceed against him.

6. Official respondents have also filed a status report justifying that impugned FIR was registered on due consideration and legal opinion and pursuant thereto both the husband and his mother were arrested and some articles recovered from them. Others had sought anticipatory bail and had not joined the investigation so far.

7. Section 498-A is the newly added section to IPC falling under Chapter XXA and deals with cruelty committed by the husband or his relatives to a woman and provides for three years punishment and a fine. It also explains cruelty as any willful conduct which is of such a nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to her life, limb or health (whether mental or physical) or which caused harassment to her with a view to coercing her or any person related to her to meet any unlawful demand for any dowry or valuable security or was on account of her failure or of her relations to meet such demand.

8. Section 406 provides punishment for criminal breach of trust by a person who was entrusted with property, or with any dominion over such property and had dishonestly misappropriated or converted it to his own use or disposed it off in violation of any direction of law.

9. It is in this background that we are required to explore whether allegations made by R-4 in her report disclosed any offence under Sections 498-A and 406 IPC and whether the impugned FIR would survive or was liable to be quashed against all or some of the petitioners.

10. It is by now well settled that the FIR was liable to be quashed only where the complaint failed to lay down the factual foundation for making out the offence. But where such foundation for making out the offence. But where such foundation was laid, it was not for the court to step in to stall, stifle or do away with the investigation exercise which was to be undertaken by the police and which fell within its domain and whose powers were unfettered in this regard if legitimately exercised within the four corners of Chapter XII of Cr.P.C. The court would intervene sparingly and with circumspection in the rarest of rare cases where it was found that investigating agency had either abused its power or had exercised it malafide or in breach of any statutory provision.

11. It is also no more res integra that the court would not go into the reliability, correctness or genuineness of the allegations made in the complaint which was again the prerogative of the investigating agency. Nor would it dwelve into whether the complaint had stated or satisfied all the ingredients of an offence.

12. This position stands well settled in a series of Supreme Court judgments right from the celebrated judgment in State of Haryana v. Bhajan Lal and Rupan Bajaj v. K.P.S. Gill .

13. Though it would be a repeat of exercise to extract from these judgments to prove the obvious, it may still be useful to recapitulate the guidelines laid by the Apex Court in Bhajan Lal’s case which were required to be taken in regard for purposes of quashing an FIR/criminal proceedings. These are:-

“(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 entirely 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 uncontroverter 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 malafide and/or where the proceeding is maliciously instituted with an ulterior motive for weaking vengeance on the accused and with a view to spite him due to private and personal grudge.”

14. Applying all this to the present case, we feel convinced that allegations made by R-4 in her complaint do not make out any offence under Sections 498-A and 406 IPC against any one of the writ petitioners except her husband Sunil Aggarwal (Crl. W. 1217/2000). Though we deem it unnecessary to refer to these again but read and viewed from any angle, these do not fit the bill at all. The mother-in-law, sister-in-law and Sarita is said to have taunted, abused and harassed her. Even if all this was taken on its face value, still it would fail to make out an offence under Section 498-A. It would be useless to repeat and reproduce the allegations made by R-4 qua each petitioner which were otherwise reflected in the table above and which when read and viewed from any angle do not lead to any other conclusion. If anything, these smack of R-4’s vindictive action against these petitioner. There was no allegation against writ petition B.S. Puri as such and yet he was roped in perhaps for his daughter’s action.

15. Perusal of the First Information Report further reveals that the marriage had taken place almost 19 years ago. For the past about 13 years the complainant/ respondent is living separately. The First Information Report is purported to have been made on 5th October, 2000. This by itself speaks volumes about R4’s accusations is against writ petitioners on the than Sunil Aggarwal. Inordinate delay read with the nature of assertions which we have referred to in the preceding paragraph prompt us to say that all that is being asserted in writ petitioner Nos. 1214, 1284, 1217, 1294 and 1295/2000 should not be allowed to be proceeded. The court would use the inherent powers as well as extraordinary powers vested under Article 226 of the Constitution to prevent any abuse of the process of law. The facts indicate it to be so.

16. It is a different story, however, in case of petitioner husband Sunil Aggarwal. The complaint against him deserves to be examined and investigated, more particularly in the light of his self-contradictory stand on the issue of his relationship with Sarita.

17. The result is that writ petition Nos. 1214/2000, 1284/2000, 1294/2000 and 1295/2000) are allowed and FIR 740/2000 is quashed against these petitioners. The other Crl. W. 1217/ field by Sunil Aggarwal is dismissed. The FIR shall survive and proceed for investigation in his case which shall be completed expeditiously under law.

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