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Badri Nath Peer And Ors. vs Smt. Simi Peer on 1 February, 2019

HIGH COURT OF JAMMU AND KASHMIR AT JAMMU

CRMC No.06/2008, IA No.07/2008
Date of order: 01.02.2019
Badri Nath Peer and others Vs. Smt. Simi Peer
Coram:

Hon’ble Mr. Justice Sanjay Kumar Gupta, Judge.
Appearing counsel:
For Petitioner (s) : Mr. Kapil Gupta, Advocate vice
Mr. C. M. Koul, Advocate
For Respondent (s) : None.
i) Whether to be reported in
Digest/Journal : Yes/No.
ii) Whether approved for reporting
in Press/Media : Yes/No.

1. Through the instant petition filed under Section 561-A Cr.P.C.,
petitioners seek quashing of the complaint filed against the petitioners by
respondent under Sections 498-A, 504 and 120-B RPC along with the
proceedings taken on the said private complaint, pending disposal before
the Court of learned Sub- Judge/Railway Magistrate, Jammu.

2. In this petition, it has been stated that order of cognizance is incorrect
because marriage took place in 1994 and complaint has been filed in the
year 2007 i.e. after more than 13 years. It is stated that entire family of
the petitioners has been involved in the complaint. That petitioner Nos. 3
to 5 have nothing to do with the allegation levelled in the complaint. That
no substantial allegation has been levelled against the accused persons.
That it is the respondent who has deserted the husband and after
desertion she has filed petition under Section 488 Cr.P.C. in which
Rs.1,500/- per head maintenance has been granted because the
respondent was having one minor daughter also at the time of filing of
petition under Section 488 Cr.P.C. That in order to further pressurize the
petitioners, a false and baseless complaint has been lodged against them

CRMC No. 06/2008, IA No. 07/2008 Page 1 of 6
by the respondent. That respondent also filed a petition under Section 13
of the Hindu Marriage Act before the Court of Additional District Judge
(Matrimonial Cases) Jammu where petitioner No.2 filed the reply. The
said matter was compromised and respondent along with minor child
came back and started living with her husband. The respondent did not
mend herself and thereafter again deserted.

3. I have considered the rival contentions of learned counsel for the
petitioners and also gone through the documents annexed in the petition.
Law with regard to inherent power of High court has now been well
settled. In AIR 2017 SUPREME COURT 37 in case titled State of
Telangana v Habib Abdullah Jeelani ors., it is held as under:-

“11. Once an FIR is registered, the accused persons can always approach
the High Court under Section 482 CrPC or under Article 226 of the
Constitution for quashing of the FIR. In Bhajan Lal (supra) the two-
Judge Bench after referring to Hazari Lal Gupta v. Rameshwar
Prasad[7], Jehan Singh v. Delhi Administration[8], Amar Nath v. State of
Haryana[9], Kurukshetra University v. State of Haryana[10], State of
Bihar v. J.A.C. Saldanha[11], State of West Bengal v. Swapan Kumar
Guha[12], Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi[13],
Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre[14],
State of Bihar v. Murad Ali Khan[15] and some other authorities that
had dealt with the contours of exercise of inherent powers of the High
Court, thought it appropriate to mention certain category of cases by way
of illustration wherein the extraordinary power under Article 226 of the
Constitution or inherent power under Section 482 CrPC could be
exercised either to prevent abuse of the process of any court or otherwise
to secure the ends of justice. The Court also observed that it may not be
possible to lay down any precise, clearly defined and sufficiently
channelized and inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad cases wherein such power should be exercised.
The illustrations given by the Court need to be recapitulated:-

“(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.

(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

CRMC No. 06/2008, IA No. 07/2008 Page 2 of 6
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 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.

(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 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 worthy to note that the Court has clarified that the said parameters
or guidelines are not exhaustive but only illustrative. Nevertheless, it
throws light on the circumstances and situations where court’s inherent
power can be exercised.

12. There can be no dispute over the proposition that inherent power in a
matter of quashment of FIR has to be exercised sparingly and with
caution and when and only when such exercise is justified by the test
specifically laid down in the provision itself. There is no denial of the fact
that the power under Section 482 CrPC is very wide but it needs no
special emphasis to state that conferment of wide power requires the
court to be more cautious. It casts an onerous and more diligent duty on
the Court.

4. As per above law, a complaint is liable to be quashed, if it does not
disclose any offence or is frivolous, vexatious or oppressive; if the
allegations set out in complaint do not constitute offence of which
cognizance has been taken by Magistrate, then it can be quashed.

CRMC No. 06/2008, IA No. 07/2008 Page 3 of 6

5. In present case, from the perusal of the documents annexed with the
petition, it is evident that respondent herein filed a complaint under
Sections 498-A, 504 and 120-B RPC against the petitioners before the
Court below. The Court below on 23.11.2007 after recording the
statement of complainant and her witnesses took the cognizance and
issued process against the petitioners herein.

6. The relevant extract of complaint reads as under:-

“That just few days after her marriage the accused 1-5 hatched a criminal
conspiracy against the complainant for getting less dowry subjected her to
cruelty by nagging her under one pretext or other and made her life
miserable. Accused Nos. 2-5 being sisters and father of the ruthless husband.
Their conduct is so obnoxious and unbearable for any person of reason.
They forced her out of their house in the month of November 2000. She was
left with no alternative but to file application under Section 488 in the month
of February 2000 and Hon’ble Court was kind enough to grant her interim
maintenance at the rate of Rs. 1500/- per month.

That the complainant being a conservative Kashmiri lady having great
moral for the holy sacrament of matrimony wanted to start life a fresh with
accused No. 1 and filed petition under Section 9 of Hindu Marriage Act for
the restitution of conjugal right with a sincere intention to forget the pungent
cruelties of accused but it proved an exercise in futility.
That the accused No. 1 is crafty and cleaver government official at the
instance and instigation of accused Nos. 2-5 under criminal conspiracy
exploited the virtues, moral values of holy alliance of matrimony agreed and
entered upon a compromise took complainant back home only to encash the
maintenance amount deposited by him in maintenance application and
petition which was pending before the Additional District Judge,
Matrimonial cases where too he had to deposit some money.
That after the gap of long five years complainant had gone with her husband
with a hope to start her married life afresh but this was a simple trick played
by all the accused to dodge the legal process and withdraw the amount from
the Court deposited by accused No. 1 in response to court order. All the
accused started the old story of dowry and gifts for her sister-in-laws as she
had come back after five year and her parents too had retired from
Government service and collected huge sums of money as their pensioner
benefits she should get at least Rupees two lacs as her share in the money
received by her parents.

They (accused 1-5)started beating her and hurdling unbearable abuses in
presence of her daughter Sonika Peer the only child born of this unfortunate
wedlock. Their wilful conduct is of such a nature likely to drive her to
commit suicide but only idea which stopped her from this extreme step was
the problem of her helpless daughter who was living under the shadow of
fear to her life and that of her mother as she cried in solitude but his did not
give them any satisfaction, their harassment continued with a view to coerce

CRMC No. 06/2008, IA No. 07/2008 Page 4 of 6
her to meet their unlawful demand, the tortur to her by her husband accused
No. 1 and his sisters accused Nos. 2 -4 and father-in-law accused No. 5.
The accused started beating her without any rhyme and reason and when
they failed to force her to commit suicide they humilated her in presence of
her minor daughter and assaulted both mother and daughter and threw
them out of their residence at Surakhsha Vihar Top on 14.11.2006 which is
within the jurisdiction of this Hon’ble Court, therefore, the Hon’ble Court
has got the jurisdiction to entertain and try this complaint.”

7. From bare perusal of relevant paras of the complaint and statements of
complainant and her witness, it is evident that essential of section 498-A
RPC have been made out. In terms of section 561-A Cr.P.C., complaint
can only be quashed in order to prevent abuse of process of law or to
otherwise secure the ends of justice. The expression ‘ends of justice’ and
‘to prevent abuse of process of any court’ are intended to work out either
when an innocent person is unjustifiable subjected to an undeserving
prosecution or if an ex-facie all merited prosecution is throttled at the
threshold without allowing the material in support of it.

8. This court while exercising the power under section 561-A Cr.P.C., does
not function as court of trial, appeal or revision. Inherent jurisdiction has
to be exercised sparingly, carefully and with great caution. These powers
cannot be used to stifle the legitimate prosecution. This is discretionary
power vested in High Court to do substantial justice. High Court cannot
examine the evidence as to whether charge for alleged offence is made
out or not. This is prerogative of trial court where challan is produced.

9. In present case, all the pleas taken are pertaining to factual in nature.

These may be defenses of accused/petitioners which they have to prove
before court below by producing evidence or in cross-examination of
respondent and her witnesses. It is not case of petitioners that 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 proceeding.

CRMC No. 06/2008, IA No. 07/2008 Page 5 of 6

10. In view of above discussion, this petition is dismissed. Interim stay, if
any, is vacated. Trial court file be sent back forthwith.

( Sanjay Kumar Gupta )
Judge
Jammu
01.02.2019
Narinder

CRMC No. 06/2008, IA No. 07/2008 Page 6 of 6

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