"Court shall not allow quashing of proceeding against accused if charges is proved at prima facie stage."
Kolkata High Court (Appellete Side)
Rupa Agarwal & Anr vs The State Of West Bengal on 23 March, 2011
1) Smt. Rupa Agarwal and Smt. Deepa Tantia have taken out this application Under Section 482 of the Criminal Procedure Code praying for quashing of proceeding in Tollygunge Police Station Case No. 281 of 2009 dated 13.11.2009 under Sections 498A/384/327/406/506/120B of the Indian Penal Code so far as that relates to them. 2) Tollygunge Police Station case No. 281 of 2009 dated 13.11.2009 was initiated on the basis of a written complaint filed by Smt. Megha Agarwal wife of Deepak Agarwal in the Court of learned Chief Judicial Magistrate, Alipore on 15.11.2009 which was referred to Tollygunge Police Station under Section 156(3) of the Code of Criminal Procedure for treating the same as FIR and to start investigation and to report. Smt. Megha Agarwal filed that written complaint against her husband Deepak Agarwal, father- in-law Dursi Chandra Agarwal , Smt. Raj Kumari Agarwal, mother-in-law, Smt. Deepa Tanti, married sister-in-law and Smt. Rupa Agarwal, married sister-in-law. The allegations and aspersions putforth in the written complaint are stated below, in short : 3) The complainant Megha Agarwal was married to accused no. 1 Deepak Agarwal on 11.7.2007. At the time of marriage, cash of Rs. 10 lakhs and other valuables including gold ornaments, jewellery etc. were given to the accused persons to their full satisfaction. After marriage, Megha started residing in her matrimonial house with her husband, father-in-law and mother-in-law (accused no. 1,2 and 3) at Gurupada Haldar Road, P.S. Kalighat, Kolkata-700026. The accused no. 4 and 5 (hereinafter referred to as the petitioners) were regular visitors and at the instance of all the accused persons, the complainant Megha was to forced to hand over and entrust cash, jewellery, ornaments and other valuables worth Rs. 40 lakhs with the accused persons. Within a few months of her marriage, the accused persons started inflicting torture upon Megha and demanded that Megha should bring one Crore Rupees from her parents. On her failure to do so, she was subjected to torture by the accused persons. Megha used to report such incidents to her parents. Degree of torture upon her was increased as she failed to bring Rs. one Crore from her parents. The parents of Megha expressed their financial inability to meet such huge demand and agreed to the proposal of the accused persons that a sum of Rs. 50,000/- would be paid in every month towards maintenance of Megha. However, the behavior and attitude of the accused person towards Megha did not change. The husband i.e. accused no. 1 used to assault Megha and abuse her by passing ugly remarks. The accused no. 1 even inflicted burn injuries on her legs and arms. On 20.7.2009, the accused no. 1, after beating Megha mercilessly, disrobed her completely and ousted her from the flat in the open common verandah where she had to spend two hours in such condition. She was treated by the accused persons as maid servant of the house and was not allowed to talk to the neighbourers. Megha some how informed her father about her condition over telephone on 21.7.2009. Her father immediately came to her matrimonial house but he was treated rudely and roughly by the accused no. 1. Megha had to lodge one FIR with Kalighat Police Station against her husband, father-in- law and mother-in-law on 24.7.2009 and pursuant thereto a case being Kalighat Police Station case no. 140 dated 26.7.2009 under Section 4 498A/406/34 of Indian Penal Code read with Section 3 / 4 of the Dowry Prohibition Act was registered. The accused no. 1 was arrested on 26.7.2009
and he was remanded to police custody till 3.8.2009. The accused no. 2 and 3, in order to evade arrest, absconded after locking the Flat at 49, Guru Pada Halder Road. Subsequent to the arrest of the accused no. 1, the accused no. 2 to 5 visited Megha at her paternal home and assured her and her parents that in the event Megha gives no objection for the grant of bail in respect of accused no. 1, she would not only be taken back to her matrimonial home but would be treated well by the accused persons in future. They also assured Megha that a separate accommodation would be arranged for Megha and accused no. 1 and that accused no. 4 and 5 would not visit their new place of residence nor would interfere in their marital life. The accused no. 2 to 5 further promised that the stridhan articles of Megha would be given back to her custody. The accused no. 2 to 5 assured further that the accused no. 2 would withdraw the latter dated 29.7.2009 wherein he had made a false claim and statement to the effect that the complainant had taken of her stridhan and that they would not make any further claim of Rs. 50,000/- per month from the parents of Megha towards her purported maintenance. Megha and her parents in good faith believed the assurance and representation of the accused no. 2 to 5 and accordingly on 3.8.2009, Megha appeared before the learned Chief Judicial Magistrate and got her no objection in the matter of bail to the accused no. 1, recorded. Learned Magistrate pursuant to theundertaking given by the accused no. 1 in his affidavit for returning stridhan of Megha and on the basis of 'no objection' given by Megha, granted bail to the accused no. 1. Megha thereafter came back to her matrimonial house at 49, Gurupada Halder Road on 25.10.2009 and was shifted to her new place of residence together with accused no. 1 at 35 A Lake place P.S. Tollygunge, Kolkata - 700029. Few days thereafter, the accused no. 1 changed his behaviour and attitude towards Megha and started inflicting torture on her. That torture was increased day by day and the accused no. 1 forced Megha to have sexual intercourse with him against her will and thereby took revenge upon Megha deliberately and intentionally. The accused no. 2 to 5 also started visiting the new residence of Megha and accused no. 1 and again started interfering into the marital life in various ways. They gradually pressurised Megha to withdraw the Kalighat Police Station case lodged by her. When Megha reminded accused no. 2 to 5 about their earlier representation/promises to return her entire stridhan articles, they became furious and threatened her that she would be taught a lesson by her husband for her audacity. Thereafter, the cruel and harse behaviour of the accused no. 1 increased manifold. She was subjected to physical torture by the accused persons almost every day with threatening of dire consequences. Megha duly reported the matter to her parents. On 3.10.2009, at about 20.00 hours the accused no. 1 accompanied with other accused persons started arguing with Megha over the issue of non-withdrawal of the Kalighat Police Station Case by Megha. They started shouting, abusing and passing dirty remarks against Megha as well as her parents. The accused no. 1, at the instigation of other accused persons started assaulting Megha asking her to write a letter of declaration for withdrawing of Kalighat Police Station case and acknowledging receipt of her stridhan articles from them. Megha refused to do so and the accused no. 1 assaulted her with fists, blows and wooden stick on her face and other parts of the body causing severe injuries. Finally, the accused persons managed to extort signatures of Megha on some blank papers under threat of death and more grievous injuries. The accused no. 2 to 5 thereafter left the place with said blank papers containing signatures of Megha. Megha informed her parents about the incident and she was taken to Sambhunath Pandit hospital on 4.102009 by her brother. She lodged one complaint with Tollygunge Police Station which was noted in the G.D. of the police station as entry no. 274 dated 4.10.2009. Megha apprehending that in case she returns back to her matrimonial house she would be killed, stayed back with her parents. On 7.10.2009, in the eve of Karwa Chouth Festival she went to visit her in- laws at 49, Gurupada Halder Road. But she was misbehaved, abused and humiliated by the accused no. 3 in presence of accused no. 2 who threatened her that unless she takes divorce, she would be finished by them. Megha had to return back to her parent's house. The accused persons hatched up criminal conspiracy in convenience with each others to get the Kalighat Police Station case filed by Megha withdrawn by using physical force on her and obtaining her signatures on some blank papers under threatening of dire consequences. She was continuously ill treated and subjected to torture in her matrimonial house by husband and other in-laws. She apprehended that accused no. 1 may utilise the blank papers containing signatures of Megha for creating documents or valuable security. The offence alleged took place at 35A Lake place, P.S. Tollygunge, Kolkata- 29 wherein all the accused persons were involved.
4) On the basis of allegations contained in the FIR lodged by Megha in the Court of learned CJM Alipore which was referred to the Tollygunge Police Station, the instant case was registered and investigation is started. At this stage, these two petitioners, i.e., married sisters-in-law of Megha have come up with an application under Section 482 of the Cr.P.C. praying for quashing of the proceeding of Tollygunge Police Station case referred to above as far as they are concerned.
5) Mr. Sekhar Kumar Basu, the learned Senior Counsel appearing for the petitioners made twofold contention. His first contention is that the allegation made in the FIR even 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 petitioners. That being so, the proceeding so far as the petitioners are concerned is liable to be quashed otherwise continuation of the proceeding against them would be amounting to abuse of the process of the Court. Mr. Basu has taken me to the FIR and submitted that the FIR itself shows that Megha lodged one FIR in Kalighat Police Station against accused no. 1,2,and 3 under Section 498 A, 406/34 of IPC on 24.7.2009. In that FIR, Megha made out a case that she entrusted all her stridhan properties to the accused persons of that case, i.e., accused no. 1,2,and 3. If so, Mr. Basu submitted, there can not be any second entrustment of said stridhan articles to all the persons made accused in Tollygunge police Station case. Mr. Basu submitted that the names of the petitioners have been inserted at the time of lodging the FIR with Tollygunge police Station with ulterior motive for wreaking vengeance with a view to spite them due to personal grudge. As per as the petitioners are concerned, the allegations under Section 406 IPC are entirely false and malafide.
6) Mr. Basu submitted further that the offence under Section 498 A IPC is circumscribed to the explanation appended to it. Clause (a) of explanation to Section 498 A IPC which postulates that any willful conduct which is of such a nature as is likely to drive a women to commit suicide would constitute "crulty" or such willful conduct, which is likely to cause grave injury or danger to life, limb or health, whether mental or physical would be amounting to "crulty". The explanation (b) provides that harassment of the women with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand, would also constitute "crulty" for the purpose of Section 498 A IPC. It is not all sorts of harassment are crulty within the meaning ofSection 498A IPC. Mr. Basu contended that the petitioners are not named in the FIR which was lodged by Megha in Kalighat Police Station attributed to her specific case of "cruelty" alleged to have been inflicted by her husband, father-in-law and mother-in-law. In that FIR, the names of these two petitioners and their roles in the matter of inflicting torture on Megha is conspicuously absent. The FIR lodged in Tollygunge Police Station shows that the petitioners had been to the house of Megha with the accused no. 1 on 03.10.2009 and that at the instigation of all the accused persons the accused no. 1 mercilessly beaten her and got some blank papers signed by Megha. Therefore, there is no allegation of 'crulty' against these two petitioners. The incident alleged dated 3.10.2009 can not be categorized as "crulty" as defined in Section 498A IPC as far as these petitioners are concerned. Therefore, the petitioners can not be prosecuted for the alleged offence under Section 498 A IPC also. Mr. Basu submitted further that allegation of commission of offence under Section 384 of IPC by the petitioners have not been specifically mentioned/averred in the FIR. If the FIR is read minutely, it can well be understood that these two petitioners had no role in the episode dated 3.10.2009. Everything was done by the husband of Megha i.e. the accused no. 1. The allegations and aspersions against them are that they started shouting on the top of their voice, abused Megha in most vulgar languages and passed remarks against her parents. The facts relating to extortion of signatures of Megha on some blank papers are not directed to any particular accused person but the accused no.- I only. The petitioners did nothing but left the place along with the blank papers containing the signatures of Megha. Mr. Basu expressed his doubt whether this fact constitutes any offence under Section 384 of IPC against the petitioners or not.
7) In support of his submission that in a proper case High Court should exercise its inherent power under Section 482 and quash proceeding, Mr. Basu referred to the decisions of Hon'ble Apex Court in State of Hariyana Vs. Bajanlal AIR 1992 SC 604, Neelu Chopra and Anr. Vs. Bharati reported in (2010) 1 SCC Cri 286, Priti Gupta and Anr. Vs. State of Jharkhand and Anr. Reported in (2010) 3 SCC (Cri) 473. Mr. Basu also made available the petition for amendment inSection 498 A IPC before the committee of Rajya Sabha to show that how the provisions ofSection 498 A IPC are being misused by the women.
8) Mr. Sudipta Maitra, learned Counsel for the opposite party no. 2 while strongly opposing the submission of Mr. Basu, has drawn attention of the Court to the FIR lodged with Tollygunge P.S. and contended that Megha did neither suppressed the fact that she lodged one FIR with Kalighat P.S. against the Opposite parties no. 1, 2, 3 nor developed her case in course of time she filed the second FIR with Tollygunge Police Station against all the five(5) opposite parties. Mr. Maitra contended that in order to canvass the backdrop of the second episode, the reference of the FIR filed by her in Kalighat Police Station was given in the FIR lodged by her in Tollygunge Police Station. Both the cases are specific, distinct and separable although connected with each other closely.
9) Mr. Maitra contended that the petitioners entered into conspiracy with other opposite parties, mis-represented, mis-guided and persuaded Megha to file "no objection" for bail of the opposite party no. 1, thereafter, created undue pressure on her to withdraw the Kalighat Police Station case and ultimately, coerced her signatures on some blank papers which they may use for creating valuable securities. Two specific and distinct cases can not be mixed up and treated to be overlapping to each other. Had Megha any mal intention or ulterior motive to implicate the petitioners falsely in a criminal case, she could have done so well at the time of lodging the Kalighat Police Station case.
10) Mr. Maitra contended further that there are specific averments in the FIR against the petitioners suggesting their direct invlovement in creating a violent atmosphere on 3.10.2009 and coercing signatures of Megha on some blank papers.
11) Mr. Maitra submitted again that the FIR ought not to be thwarted at the initial stage unless materials do not disclose an offence. The FIR should be read as a whole and should be indicative of an offence broadly and not with mathematical accuracy and nicety. In support of his contention, Mr. Maitra referred to the decisions of the Hon'ble Apex Court in S. M. Dutta Vs. State of Gujrat (2001) SCC 3253 and State of Orrisa and Anr. Vs. Saroj Kumar Shoo (2006) SCC (Cri) 272.
12) Mr. Maitra submitted further that High Court should not exercise its inherent power to stifle a legitimate prosecution and should refrain from giving prima facie decision where entire facts are incomplete and hazy, more so, when evidence is not collected and produced before the Court and the issues involved, whether factual or legal, are of so magnitude can not be seen in their true perspective without sufficient materials. To find support of his contention, Mr. Maitra referred to the decisions in T. Vengama Naidu Vs. T. Darashawmi Naidu and Ors. ( 2008) 2 SCC (Cri) 231 and Minu Kumari and Anr. Vs. State of Bihar (2006) 2 SCC (Cri) 310.
13) Besides the decision of the Hon'ble Apex Court in State of Hariyana Vs. Bajan Lal 1992 SCC (Cri) 426, Mr. Mitra also referred to the decisions of the Hon'ble Court in Union of India Vs. Prakas P. Hinduja and Ors. 2003 Cr.L.R. (SC) 752 and Jahan Singh Vs. Delhi Administration 1974 SCc (Cri)
558.
14) Mr. Swapan Mallick, learned Counsel for the opposite party/ State of West Bengal contended that the FIR as well as the C.D. contain sufficient materials suggesting involvement of the petitioners in the alleged crime and at this primary stage of investigation which has also been stayed by an interim order, Court should not exercise its inherent power under Section 482 of the Code of Criminal Procedure and quash the proceeding.
15) Mr. Basu, referring to the illustrations of categories of cases given by the Hon'ble Apex Court in Hariyana Vs. Bajan Lal (Supra), contended that the petitioners case falls within the illustration no. 3 read with illustration no.
7. According to him, the uncontrovated allegations made in the FIR and evidence collected in support of the FIR do not disclose commission of any offence and make out a case against the petitioners. So, the prosecution against them, i.e., Tollygunge Police Station case no. 281 of 2009 dated 13.11.2009, is liable to be quashed. This apart, he contended that the names of the petitioners have been added to the accused persons named in the FIR with malafide and ulterior motive for wreaking vengeance on the accused no. 1 and all his family members with a view to spite them due to personal grudge. In such a case, Mr. Basu contended, the Court should exercise its power under Section 482 of the Cr.P.C. in order to stop abuse of the process of Court.
16) In Nelu Chopra and Ors. (Supra), the complaint was vague as it did not show which accused had committed what offence and exact role played by the appellants in commission of the offences. The Hon'ble Court was pleased to observe that in order to lodge a proper complaint, mere mentioning of the Sections and the language of those sections is not be all and end all of the matter. What is required to be brought to the notice of the Court is the particulars of the offences committed by each and every accused and the role played by each and every accused in committing that offence. The complaint being vague excepting the husband, is liable to be quashed so far as other persons are concerned.
17) In the case on hand, the names of the petitioners although mentioned from the very beginning in order to establish a case of inflicting "crulty" under Section 498A IPC and entrustment of the Stridhan articles and misappropriation thereof under Section 406 of I.P.C., that fact was not mentioned in the earlier FIR lodged by Megha in Kalighat Police Station. If the FIR lodged in Tollygunge Police Station and FIR lodged in Kalighat Police Station are kept side by side and read together, it will be crystal clear that the names of the petitioners have been added to the other accused persons as a result of subsequent thought. To be stated precisely, the allegations against them under Section 498 A and 406 of IPC made in the FIR lodged in Tollygunge Police Station appears to be vexatious and frivolous. However, there are specific allegations against them in respect of an incident dated 3.10.2009 alleged to have been taken place at 35 A, Lake Place under Police Station Tollygunge. The FIR shows clearly that these petitioners together with other accused persons named in that FIR created pressure on Megha to write a letter of declaration for withdrawal of Kalighat Police station case and acknowledging receipt of her stridhan articles from them. She was beaten by the accused no. 1 at the instigation of these petitioners and other accused persons named in the FIR. These petitioners helped the accused no. 1 to extort signatures of Megha on some blank papers under threat of death and more grievous injuries. It is true that what exactly the petitioner's had done is not mentioned but their role in commission of the offence under Section 384 of IPC has been broadly made out. The factual aspects in Neelu Chopra's case (Supra) and that of this case are different. On perusal of the case diary it also appears that the Investigating Officer has already collected some evidence in support of the FIR suggesting active role of these two petitioners in the matter of coercing signatures of Megha on some blank papers on 3.10.2009.
18) In Preeti Gupta's case (Supra) the Hon'ble Court observed that genuine cases of dowry harassment matter of serious concern but the exaggerated version of small incidents should not be reflected in the Criminal complaint. Allegations to be scrutinized with great care and circumspection, specially against husband's relatives who were living in different cities and never visited or rarely visited the matrimonial home of the complainant. In the case on hand, the petitioners are also residents of Lake Avenue and Lake Gardens, respectively under Lake Police Station which is near to Lake place under Tollygunge Police Station. It is the specific case of Megha, the complainant, that the petitioners were regular visitors of her matrimonial house. They promised not to come to the new address of the complainant at Lake place under Tollygunge P.S. But, they had forgotten their promise/undertaking and started visiting her matrimonial house at Lake place and started threatening her for the purpose of withdrawing Kalighat Police Station case and write a receipt acknowledging that she received all her Stridhan articles. On 3.10.2009, they accompanied with other accused persons came to that house of Megha at Lake place and took active part in the matter of coercing her signatures on some blank papers in order to convert those in valuable securities. That broad features of allegations have been clearly canvassed in the FIR. The Preeti Gupta's case (supra) does not come in aid of the petitioners. At this stage, and on the basis of broad features canvassed in the FIR against the petitioners, it can not be said that the implications were meant to harass and humiliate the petitioners.
19) The Hon'ble Court in Preeti Gupta's case (Supra) also held that Court must be careful to see that its discretion in exercising of power under Section 482 of the Cr.P.C. is based on sound principle and power should not be exercised to stifle legitimate prosecution but Courts failing to use the power for advancement of justice can also lead to gross injustice.
20) In a series of decisions the Hon'ble Court was pleased to take a consistent view that the power under Section 482 of the Code is meant to ex debito justitiae to do real and substantial justice for administration of which alone it exists or to prevent abuse of the process of Court. Again it was viewed by Hon'ble Court in series of decisions that the Court should refrain from giving a prima facie decision in a case where all the facts are incomplete and hazy; more so, when the evidence has not been collected and produced before the Court and the issue involved, whether factual or legal, are of such magnitude that they can not be seen in their true perspective without sufficient materials. Hon'ble Court also held that no hard - and - first rule can be laid down in regard to cases in which High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage.
21) There can not be any dispute as to the fact that High Court can exercise the power underSection 482 at any stage of a proceeding/enquiry/investigation in order to stopp the abuse of process of the Court or prevent mis-carriage of justice and for the advancement of the justice. But, in a case where the FIR discloses an offence broadly, Court should not and must not quash the proceeding at the threshold of it. In S. N. Dutta's case (Supra) the Hon'ble Court observed :
"FIR ought not to be thwarted at the Initial stages if an offence is disclosed but in the event however, the materials dod not disclose an offence, no investigation should normally be permitted. Criminal proceedings, in the normal course of events ought not to be scuttled at the initial stage, unless the same amounts to an abuse of the process of law. In the normal course of events thus, quashing of complaint should rather be an exception and a rarity than ordinary rule. The genuinneness of the averments in the FIR cannot possibly be gone into and the document shall have to be read as to decipher the intent of the maker thereof. It is not adocument which requires decision with exactitude neither it is a document which requires mathematical accuracy and nicety, but the same should be able to communicate or indicative of disclosure of an offence broadly and in the event the said test stands satisfied the question relating to the quashing of a complaint would not arise. It is this context however one feature ought to be noticed at this juncture that there cannot possibly be any guiding factor as to which investigation ought to be scuttled at the initial stages and investigations which ought not to be so scuttled. The FIR needs to be considered and if the answer is found on a perusal thereof which leads to disclosure of an offence even broadly, law courts are barred from usurping the jurisdiction of the police since two organs of the State operate in two specific spheres of activities and one ought not to tread over the other sphere."
22) In the instant case I find on careful perusal of the FIR in question filed by Megha Agarwal that involvement of these two petitioners in the alleged offence under Section 384 of IPC i.e. coercing signatures of the complainant Megha Agarwal has been broadly made out. The evidence so far collected by the I.O. before stay order was granted, indicates that the said allegation against the petitioners are supported by evidence. In such a case, in my humble estimate, this Court should not and must not thwart the FIR at this initial stage and quash the proceeding against the petitioners.
23) The decision in State of Orrisa Vs. Saraj Kumar Sahoo (Supra) may also be referred to in this context wherein the Hon'ble Court cautioned the High Court that it being the highest Court of a State should normally refrain from giving decision in a case where the entire facts are incomplete and hazy- more so, when the evidence has not been collected and produced before the Court and the issues involved are of magnitude and can not be seen in their true perspective without sufficient materials.
24) I have already stated that the FIR in question contains broadly the allegations against the petitioners in the matter of coercing signatures of Megha Agarwal. It discloses active role of the petitioners. The evidence is yet to be collected and issue involved as far as they are concerned, can no be seen in their true perspective without sufficient material. Therefore, in this stage, although there is no hard and first rule as regards cases where power under Section 482 can be exercised, this Court should refrain from giving a decision at this primary stage to the effect that the case against the petitioners are based on surmise and conjecture and are frivolous and vexatious. In Minu Kumari and others (Supra) the Hon'ble Court reiterated the above view. However, the decision in Union of India Vs. Prakash Singh Hinduza,(Supra) the question raised before the Hon'ble Court as to whether investigation by CBI can be interfered with by judiciary. Hon'ble Court, upon thorough discussion over the issue as well as High Court's power underSection 482 of the Code of Criminal Procedure, came to a conclusion that the Magistrate can not interfere during investigation. In T. Vengama Naidu (Supra) Hon'ble Court observed that High Court at the stage of investigation must not examine the nature of transaction or whether any offence was actually committed by the accused persons or not. Only enquiry that can be undertaken is to see as to whether the complaint or FIR contains allegation of any offence.
25) Upon consideration of the facts and circumstances and rival contentions of the learned Counsels for the parties I am of the opinion of that the FIR in question discloses commission a cognizable offence broadly and prima facie wherein the petitioners are involved. Disclosure of such a prima facie case against the petitioners can not possibly be ignored simple because the FIR is tainted with some exaggeration of facts wherein the petitioners were no way connected i.e. inflicting 'crulty' and breach of trust. At this stage of investigation when a broad and prima facie case is made out against the petitioners it will be improper for this Court to exercise inherent power under Section 482 Cr.P.C. and quash the proceeding. Accordingly, I dismiss the revision application.
26) The prayer for quashing of the proceeding against the petitioners in Tollygunge Police Station case no. 281 of 2009 dated 13.11 2009 is rejected.
27) The revision application is disposed of accordingly.
(Kanchan Chakraborty,J)
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