Harish Chandra Mishra, J.@mdashHeard learned counsel for the petitioners, learned counsel for the State, as also learned counsel for the informant opposite party No. 2. The petitioners have challenged the order dated 29.07.2010 passed by Sri A.K. Dubey, learned Judicial Magistrate, 1st Class, Dhanbad, in G.R. No. 1054 of 2009, arising out of Dhanbad P.S. Case No. 268 of 2009, whereby the application filed by the petitioners for discharge has been rejected by the Court below, holding that though the offences under Sections 420, 384 of the Indian Penal Code are not made out against the petitioners, but there are sufficient materials against the accused petitioners for framing charge for the offence u/s 417 of the Indian Penal Code and directed the petitioners to remain physically present for framing of the charge on the next date.
2. The petitioners have been made accused in Dhanbad P.S. Case No. 268 of 2009, corresponding to G.R. No. 1054 of 2009, which was instituted on the basis of the written application given by the opposite party No. 2, Rajni Kumar Ranjan, who is the son-in-law of the petitioners Nos. 1 and 2. In the F.I.R. it is alleged that the daughter of the petitioners No. 1 & 2 was married to the informant on 21.02.2009 and she was brought to the house of the informant on 22.02.2009. She kept sleeping upto 10:00 a.m. on the pretext that she was ill, whereupon the doctor was called, who checked her but found everything normal and told that she might have become weak due to undergoing rituals of the marriage. Some treatment was given to her and she suddenly woke up and started denying the marriage. The parents of the bride were called and it is alleged that it transpired that the bride was in love with someone else at Jamshedpur and suppressing this fact she was forcibly married to the informant under some intoxication. As it transpired that the marriage shall not subsist, all the gifts given to the informant and the bride were returned back and an agreement was entered into between the family members of the bride and the informant''s side and it was agreed upon that an application would be filed for dissolution of the marriage with mutual consent, which was ultimately filed on 25.02.2009 in the Family Court, Dhanbad, being Matrimonial Case No. 59 of 2009. It is alleged that on 06.04.2009 when the said Matrimonial Case No. 59 of 2009 was fixed for final hearing, the family members of the bride restrained her from appearing in the case, demanding Rs. 10,00,000/- (Rs. Ten Lakh), threatening to implicate the informant and his family members in criminal cases. With these allegations the F.I.R. was lodged by the informant Rajni Kumar Ranjan against his father-in-law, mother-in-law and all other in-laws, in all 11 (eleven) accused persons in number, which included the brother of the bride and his wife, unmarried younger sister of the bride, as also the elder sister and her husband and the nephews of the petitioner No. 1 & 2 and their wives, who were living separately.
3. On the basis of the written application the case was instituted under Sections 420/ 384/ 34 of the Indian Penal Code and after investigation the police submitted the charge-sheet against all the accused persons for the said offences. The cognizance was also taken against the petitioners by the learned Chief Judicial Magistrate, Dhanbad, and the case was transferred to the Court of Sri A.K. Dubey, learned Judicial Magistrate, Dhanbad, for trial in accordance with law. The petitioners filed their application for discharge stating that offences under Sections 420 and 384 of the Indian Penal Code were not made out against them, as there was no delivery of any property in the case. The Court below upon discussion of the materials on record found that though the offences under Sections 420 and 384 are not made out against the petitioners, but the offence of cheating was clearly made out, as it did not necessarily involve the delivery of any property and accordingly, there was sufficient material for framing the charge against the accused persons u/s 417 of the Indian Penal Code and dismissed the application filed by the petitioners asking them to appear for framing of the charge.
4. Learned counsel for the petitioners has submitted that the impugned order passed by the Court below is absolutely illegal, in as much as, the petitioners have been falsely implicated in this case due to matrimonial dispute between the informant and his wife, for which other cases were also filed. It is submitted that due to the said matrimonial dispute the petitioners have been falsely implicated in this case, who are not only the father-in-law and mother-in-law, rather even such person who was not even in the family on the date of the alleged occurrence. It is stated that the marriage of the informant had taken place on 21.02.2009, whereas the marriage of the son of the petitioner Nos. 1 & 2 was held on 27.02.2009, and even then the daughter-in-law has also been made accused in this case who was not even the member of the family on the alleged date of occurrence, i.e., prior to 21.02.2009. Similarly the married daughter and her husband and even the younger daughter, as also the nephews and their wives, who had no role in settlement of the marriage have also been falsely implicated in this case without any specific allegation against them, just with an omnibus allegation that they had also cheated the informant. Learned counsel has further pointed out that in the F.I.R. itself, there is mention about the Matrimonial Case No. 59 of 2009, which was filed for dissolution of the marriage with mutual consent, but the same was dismissed as both the parties subsequently refrained from appearing in the case. The order-sheet of T.M.S. No. 59 of 2009 has been brought on record by way of supplementary affidavit as Annexure-9, which shows that the same was dismissed on 20.01.2011, as both the parties were absent on the said date and they were absent on the previous dates also.
5. It is also pointed out by learned counsel for the petitioners that during the pendency of the said T.M.S. No. 59 of 2009, one another matrimonial suit was filed by the informant against his wife which was T.M.S. No. 120 of 2009, filed on 08.04.2009 and during the pendency of T.M.S. No. 59 of 2009 the said matrimonial suit was dismissed by order dated 18.05.2009 as the same had been filed within one year of marriage and no exceptional circumstance was shown, nor any petition for leave to file the petition for divorce within one year was filed by the petitioner. Against the said order the informant moved this High Court in First Appeal No. 82 of 2009, which was also summarily dismissed by order dated 15.02.2010. The order-sheet of T.M.S. No. 120 of 2009 as also the order passed by this Court in F.A. No. 82 of 2009 have been brought on record as Annexure-3 series to this application. The informant again filed a Title Matrimonial Suit against his wife in the Court of Principal Judge, Family Court, Dhanbad, being T.M.S. No. 161 of 1009. In that Suit also, the informant had made the allegation that his wife was in love with another person at Jamshedpur and after the marriage she refused to come to the house of her husband and hence the marriage was not consummated, the valid consent for marriage was not obtained by the respondent''s guardian (Petitioner No. 1 & 2) and a Panchnama was also executed. The petition filed by the informant in Title Matrimonial Suit No. 161 of 2009 has been brought on record as Annexure-4. The wife filed a Transfer Petition in this Court, being Transfer Petition (C) No. 16 of 2009, which was allowed by order dated 12.11.2009 and the case was transferred to the Court of Principal Judge, Family Court, Jamshedpur. The said order has also been brought on record as Annexure-4/1 to this application. It appears that upon transfer to the Court of Principal Judge, Family Court, Jamshedpur, the case was registered as Matrimonial Suit No. 9 of 2010, which was ultimately dismissed by Judgment dated 30.7.2012, in view of the fact that though the parties appeared in the case and the issues were also framed, but the petitioner did not adduce any evidence thereafter, nor appeared for arguments in the case. The Judgment dated 30.07.2012 passed in Matrimonial Suit No. 09 of 2010 has also been brought on record as Annexure-10 to this application, through supplementary affidavit.
6. Learned counsel for the petitioners has submitted that the aforesaid unimpeachable documents would clearly show that the informant is bent upon harassing all the in-laws and his wife by filing several cases and all the three matrimonial suits have been dismissed for non-prosecution. It is also submitted that in the present F.I.R. also, there is no specific allegation against the accused persons. Even the brother and cousins and their wives have been made accused in this case without their being any specific allegation against them. Learned counsel accordingly, submitted that it is a fit case in which this Court should exercise the inherent powers u/s 482 of the Cr.P.C., and quash the entire criminal proceedings against the petitioners, and set aside the impugned order dated 29.07.2010 passed by the Court below.
7. In support of his contention learned counsel for the petitioners has placed reliance upon the decision of the Supreme Court of India in
25. --- if the FIR as it stands does not disclose specific allegation against the accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognizance of the offence alleged against the relatives of the main accused who are prima-facie not found to have indulged in physical and mental torture of the complainant wife. ----.
8. Reliance has also been placed by the learned counsel for the petitioners upon the decision of the Supreme Court of India in
35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband''s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinised with great care and circumspection.
Placing reliance on these decisions, learned counsel for the petitioners has reiterated that the petitioners have been falsely implicated in this case only in order to harass the petitioners and it is a fit case in which the criminal proceedings against them be quashed.
9. Learned counsel for the State, as also learned counsel for the informant, on the other hand have submitted that on the basis of the allegations made in the F.I.R., the offence is clearly made out against the accused persons who are all named in the F.I.R. itself. It has been submitted that the fact that the bride was having some affairs with someone else was concealed from the informant''s family and the bride was married to the informant under intoxication, which she did not accept and accordingly, the informant has been cheated by the accused persons and the offence of cheating is clearly made out against them. Learned counsel has submitted that the documents brought on record by the petitioners in support of their contention cannot be looked into at this stage, as it is well settled principle of law that the documents of the accused cannot be look into at the time of framing of the charge. In this connection learned counsel has placed reliance upon the decision of the Supreme Court of India in
10. After having heard learned counsels for both the sides and upon going through the record, I find that this case arises out of a matrimonial dispute between the parties. The informant opposite party No. 2 had also filed Matrimonial Suit No. 161 of 2009 in which these allegations were made, but the allegations were not substantiated by him, as after transfer of the case to the Court of Principal Judge, Family Court, Jamshedpur, where it was registered as Matrimonial Suit No. 9 of 2010, even though the issues were framed, but the informant did not adduce any evidence in the said case nor he appeared for his arguments and the case was dismissed by Judgment dated 30.07.2012. The other matrimonial suits filed by the informant had also ended in dismissal only. Thus I find that there are series of litigations between the parties in the matrimonial dispute and accordingly, the allegations made against the petitioners in the F.I.R. have to be scrutinized very carefully. The submission of the learned counsel for the informant that the documents of the accused cannot be looked into at the stage of framing of charge, is absolutely misconceived. These documents are unimpeachable documents, i.e., the certified copies of the petitions and the order-sheets of the Court including that of the High Court and they can certainly be taken into consideration to come to the conclusion about the bona fides of the accusations against the accused persons. It is now well settled that these unimpeachable documents can be taken into consideration even at this stage for securing the ends of justice. [
11. In the celebrated decision in
(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 u/s 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 u/s 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.
The decision in Bhajan Lal''s case (supra) has been followed in various other cases by the Supreme Court, some of which are,
12. In the present case the learned Judicial Magistrate has held in the impugned order that the offences under Sections, 420, 384 of the Indian Penal Code are not made out against the petitioners, but there is sufficient material against the accused petitioners for framing charge only u/s 417 of the Indian Penal Code. The offence u/s 417 of the Indian Penal Code is a non-cognizable offence, which was admittedly investigated by the police officer without an order of a Magistrate as contemplated u/s 155(2) of the Cr.P.C. As such, the case of the petitioners is clearly covered by category (4) as discussed in Bhajan Lal''s case (Supra). In the facts of the case I also find that the informant opposite party No. 2 has filed the case against the petitioners maliciously and with an ulterior motive for wreaking vengeance on them with a view to spite them due to private and personal grudge, as he had also filed the Matrimonial Suit No. 161 of 2009 with the same allegations, but the allegations were not substantiated by him as he did not adduce any evidence in the said case and the case was dismissed by Judgment dated 30.07.2012. As such, the case of the petitioners is also covered by category (7) as discussed in Bhajan Lal''s case (Supra), and this is fit case for exercise of the inherent powers u/s 482 of the Cr.P.C.
13. This apart, the F.I.R. clearly shows that the matter has arisen out of a matrimonial dispute between the parties in which all the in-laws, including the daughter-in-law, who was not even married on the date of occurrence in the petitioner''s family, the married daughter and son-in-law, the nephews and their wives and even the unmarried daughter of the petitioner Nos. 1 and 2 have been made accused without there being any specific allegation against them, only in order to harass the entire family. As such I find that the facts of this case is also covered by the decisions of the Apex Court in Geeta Mehrotra''s case (supra), as also in Preeti Gupta''s case (supra).
14. In view of the aforementioned discussions, I find that the continuance of the proceedings against the petitioners shall be clear abuse of the process of Court, resulting in unnecessary harassment of the petitioners in the criminal case and it is a fit case for quashing the entire criminal proceedings against the petitioners for preventing the abuse of the process of Court and securing the ends of justice. Accordingly, the impugned order dated 29.07.2010 passed by Sri A.K. Dubey, learned Judicial Magistrate, 1st Class, Dhanbad, in G.R. No. 1054 of 2009, arising out of Dhanbad P.S. Case No. 268 of 2009, is hereby, set aside and the entire criminal proceedings in the said case against these petitioners, are hereby, quashed. This application is accordingly, allowed.
