Manorama vs State Of U.P. And Another
2014 Latest Caselaw 5544 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 14
 

 
Case :- APPLICATION U/S 482 No. - 32746 of 2014
 

 
Applicant :- Manorama
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Saroj Kumar Dubey,Ananya Pandey, C.L. Pandey, Rajesh Pandey
 
Counsel for Opposite Party :- Govt. Advocate, S.N. Singh, R.P. Mishra, R.K. Ojha
 

 
Hon'ble Mrs. Ranjana Pandya,J.

This Criminal Misc. Application under Section 482 Cr.P.C. has been preferred with prayer to quash the impugned summoning order dated 18.7.2014 passed by the Special Chief Judicial Magistrate, Allahabad in Criminal Case No. 129 of 2013 arising out of Crime No. 513 of 2012 registered against the applicant at Police Station Colonelganj, Allahabad under Sections 498-A, 323, 420 I.P.C. and Section 3/4 D. P. Act along with the entire proceedings of Criminal Case No. 129 of 2013 arising out of Case Crime No. 513 of 2012 registered against the applicant at Police Station Colonelganj, Allahabad under Sections 498-A, 504, 506, 420 I.P.C. and Section ¾ D.P. Act

I have heard learned counsel for the applicant, learned A.G.A. and learned counsel for the opposite party no. 2.

Brief facts are that an application under Section 156 (3) Cr.P.C. was filed by the opposite party no.2 alleging that the opposite party no. 2 had married his daughter Nishtha to Arpit Pandey on 29.11.2008. The marriage was solemnized by the mediation of Manorama Mishra, the real elder sister of the wife of the complainant. Since the father of the boy, Ram Pyare Pandey, used to come to the house of Manorama, hence, Manorama took guarantee of all the things and got the marriage solemnized. Accused Manorama cheated the complainant and told him that Ram Pyare is a big leader. He has purchased 22 acres of land for his only son at Arjunganj, Lucknow and he has arranged Rs.20 crores for settling him into business. He further alleged that the father of the boy, Ram Praye Pandey owns a house in an area of 1,000 sq. yard situate at Viratkhand, Gomti Nagar and is owner of a big property and thus, after him, his only son will be the owner of his property. The complainant and his wife relied upon what Manorama had said because Manorama was the elder sister of the wife of the complainant, and therefore, they started thinking about materialising the marriage. Manorama's brother Ravindra @ Tuttar runs a sweet shop in the name of Rama House situate opposite to Sardar Patel Dental College, 4A Highway, Eldico Udyan-2, Lucknow. Accused Manorama, his brother Ravindra @ Tuttar and Ravindra's wife Poonam, who were staying with Manorama, came to Allahabad and showed the documents relating to 22 acres of land to the complainant and his wife. At that point of time, the complainant had no reason to disbelieve Manorama as Manorama was his wife's sister. But, now it is clear that Manorama and her brother and Poonam had forged the documents and thus, cheated the complainant and induced him to marry his daughter to the son of Ram Pyare Pandey. Manorma also said that Ram Pyare Pandey was an affluent man, as such, she wanted that the complainant's daughter should become his daughter-in-law. This was only said because Manorama was living as kept/ wife of Ram Pyare Pandey for the last 20 years and if the girl came in her house all her illegal activities would not be disclosed. Manorama was married 25 years ago to Shobh Nath Pandey of Ahimane Bazar, Sultanpur but Manorama drove away her husband and became the kept/wife of Ram Pyare Pandey and ruined the family of Ram Pyare Pandey. The complaint believing the false documents to be true, married his daughter to the son of Ram Pyare Pandey. When his daughter Nishtha went to her in-laws house, she came to know about the real facts. Later on, Manorama made his daughter, son-in-law and his mother stay in her house at Lucknow and said that she would get a juice factory installed for the husband of Nishtha and sent the son-in-law of the complainant for one year's training to Gujrat and Jharkhand on false pretext. After one year, Arpit Pandey was told that he was being strayed and unless and until Manorama desires, nothing can be done. Thus, the daughter of the complainant, his son-in-law and daughter's mother-in-law concluded that nothing can be done without the consent of Manorama. The son-in-law and his mother told the complainant that since 1990 Manorama had kept the father-in-law of the complainant's daughter according to her wishes and father of Arpit Pandey came only twice to her house and they are torturing the son-in-law and his mother for the last 20 years. Now, she is behaving like a real mother-in-law and torturing the complainant's daughter. All the papers relating to house of Gomti Nagar and 22 acre land and business of 22 crore were proved to be forged by Manorama, her brother Ravindra and his wife Poonam, all have ruined the life of complainant's daughter.

When truth was revealed, on 3.7.2010 at 8 a.m. the complainant along with his family members and daughter went to the house of Manorama at Arjunganj, Lucknow for 'panchayat'. Manorama was found closed in a room with Ram Pyare Pandey. When Manorama along with Ram Payare Pandey came out of the room, she as well as his brother and wife, abused the complainant and his family members, and called the police. When the police understood the matter, they went away. Then the complainant came back to Allahabad.

When the complainant's daughter went to her husband's house on 25.7.2010, since the second day, Manorama, his brother and brother's wife started torturing the complainant's daughter. They had also tortured the son-in-law and mother-in-law of the complainant's daughter. The accused persons went to the daughter of the complainant in the morning and evening of 28.7.2012 and abused the complainant's daughter demanding Rs.10,00,000/- as dowry. The daughter of the complainant told this telephonically to her mother. Ram Pyare always used to come to the complainant's daughter accompanied by Manorama. Manorama, her brother and his wife, had assaulted the complainant's daughter many times.

On 3.9.2012 at about 10 a.m. when Manorama, her brother and his wife went to the house of the complainant's daughter, her husband had gone to the doctor along with his mother. As soon as Manorama reached, she started abusing the complainant's daughter. When the complainant's daughter asked her not to abuse, Manorama, her brother and sister-in-law started assaulting the complainant's daughter. Manorama snatched the golden chain worn by the complainant's daughter and her brother and wife snatched the ring worn by the complainant's daughter. After that, Manorama's brother brought a cane of kerosene oil from the kitchen and asked Manorama to set the complainant's daughter ablaze. Manorama poured Kerosene oil on the complainant's daughter and asked to bring match-box to lit fire. Suddenly, son-in-law of the complainant came there along with her mother and seeing them, the accused went away. The next day the complainant's daughter came to the complainant and this application was got registered on which investigation was ordered. After investigation, the police submitted final report against the accused persons. But the reinvestigation was ordered. Again after reinvestigation, the police filed final report against which the protest petition was submitted. On the protest petition, the order dated 18.7.2014 was passed against which the present application has been submitted.

This application has been submitted by Manorama, who is admittedly the sister of the victim's mother meaning thereby she is mausi of the victim.

The learned counsel for the applicant has argued that exaggerated version of small incidents should not be reflected in criminal complaints and the allegations should be scrutinized with great care and circumspection specially against the husband's close relatives, who were living in different districts and who never visited or rarely visited the complainant's house as has been been alleged in (2010) 7 SCC 667, Preeti Gupta and another Vs. State of Jharkhand and another.

The learned counsel for the applicant has also vehemently argued that the mausi of the victim is not squarely covered within the definition of relatives of the husband and, thus, she could not have been summoned under Section 498A I.P.C. and Section ¾ of the Dowry Prohibition Act. In support, he has placed reliance on Laws (SC) 2014-7-19, State of Punjab Vs. Gurmit Singh in which it has been held that the brother of the husband's aunt (chachi) cannot be said to be a relative of the husband. It has also been laid down in the said Judgement as under:-

"Even the dictionary meaning of a relative is one who is related by blood or marriage. Gurmit Singh is certainly not related to Paramjit Singh either by blood or by marriage. Gurmit Singh would not fall in the category of relative of the husband. Therefore, Gurmit Singh must be excluded from the array of the accused. It is not necessary to try him under Section 304 B I.P.C. for the dowry death of Paramjit Singh's wife."

The word relative of the husband as envisaged in Section 498A has also been dealt with by Hon'ble Apex Court in (2009) 6 Supreme Court Cases 757, U. Suvetha Vs. State by Inspector of Police and another in which the Hon'ble Apex Court has said that the girlfriend not being a relative cannot be charged under Section 498A I.P.C. A perusal of the order passed by the learned Magistrate and the papers filed by the applicant herself go to show that according the statements given by the victim, complainant is son-in-law etc. The present applicant is said to be a kept of the father-in-law of the victim. The applicant Manorama being mausi of the victim does not come within the the definition of the family of the husband but it will not be out of place to mention that the Hon'ble Apex Court has recognized the live in for marriage like relationship of a man or woman.

In AIR (SC) 2014 page 309, Indra Sarma Vs. V.K.V. Sarma, the Hon'ble Apex Court has held that:-

"Marriage and the family are social institutions of vital importance. Entering into and sustaining a marriage is a matter of intense private significance to the parties to that marriage for they make a promise to one another to establish and maintain an intimate relationship for the rest of their lives which they acknowledge obliges them to support one another, to live together and to be faithful to one another. Such relationships are of profound significance to the individuals concerned. But such relationships have more than personal significance at least in part because human beings are social beings whose humanity is expressed through their relationships with others. Entering into marriage therefore is to enter into a relationship that has public significance as well."

This aspect of the matter was also discussed by the order passed by the learned lower court in the order. The learned Magistrate has specifically mentioned that the Investigating Officer failed to investigate the matter as regards to the fact relating live in relationship of Manorama and Ram Pyare.

Another argument advanced on behalf of the applicant is that the court passing the impugned order had no jurisdiction to pass the same since the matter was barred by Section 177 &178 Cr.P.C. in as much as the occurrence took place at Lucknow and the court at Allahabad had no jurisdiction about the matter. In support, the counsel for the applicant has placed reliance on JT 2006 (9) SC 630, Manish Ratan & others Vs. State of M.P. and another in which appeal, the Hon'ble the Apex Court has laid down that if no part of the cause of action arose within the territorial limits of the jurisdiction of the particular court, Section 177 Cr.P.C. would come into play.

The learned counsel for the applicant has also relied upon 2009 (66) ACC 643, Rajiv Modi Vs. Sanjay Jain and others, in which the Hon'ble Apex Court has laid down that whole or part of cause of action must have arisen within the territorial jurisdiction of the court. Same must be decided on the basis of averments made in the complaint without embarking upon any inquiry. In the same Rajiv Modi's case (supra), the Hon'ble Apex Court has also laid down in para 33 as under:-

"33. The cardinal principle's which requires to be kept in view while invoking powers under Section 482 of Cr.P.C. has been stated in the case of State of H.P. v. Pirthi Chand wherein this Court has observed that:

  "When the court exercises its inherent power under Section 482, the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an            abuse of the process of the court." (Para 13) 
 
     "It is thus settled law that the exercise of inherent power of the High Court is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the FIR/charge-sheet/complaint. In deciding whether the case is  rarest of rare cases to scuttle the prosecution in its            inception, it first has to get into the grip of the matter whether the allegations constitute the offence. It must be remembered that FIR is only an initiation to move the machinery and to investigate into cognizable offence. After the investigation is conducted (sic concluded) and the charge-sheet is            laid, the prosecution produces the statements of the witnesses recorded under Section 161 of the Code in support of the charge-sheet. At that stage it is not the function of the court to weigh the pros and cons of the prosecution case or to consider          necessity of strict compliance of the provisions which are considered mandatory and its effect of non-compliance. It would be done after the trial is concluded. The court has to prima facie consider from the averments in the charge-sheet and the       statements of witnesses on the record in support thereof whether court could take cognizance of the offence on that evidence and proceed further with the trial. If it reaches a conclusion that no cognizable offence is made out, no further act could be done except to quash the charge-sheet. But only in exceptional cases, i.e., in rarest of rare cases of mala fide initiation of the proceedings to wreak private vengeance, the court may embark upon the consideration thereof and exercise the power." (Para 12) 
 
	But, I think that cannot be vitiated on this sole ground. 
 

Counsel for the complainant has argued that the court should be very cautious while exercising jurisdiction under Section 482 Cr.P.C. No intricate questions can be decided in jurisdiction exercised under Section 482 Cr.P.C. In this regard, the counsel for the complainant has argued that the only thing the Magistrate has to look into while passing the summoning order is whether there are sufficient grounds to proceed against the accused or not. The Magistrate found that there were sufficient grounds to proceed against the accused. Thus, section under which the accused was summoned cannot be segregated from the offence.

Counsel for the applicant has also argued that the Magistrate failed to follow the procedure prescribed by law in as much as the statement under Section 200 Cr.P.C. and inquiry under Section 202 Cr.P.C. was not held. In support, he has placed reliance on 2001 (43) ACC 1096, Pakhando and others Vs. State of U.P. And another, in which it has been held that when a Magistrate receives a final report, he may accept the report and drop the proceedings, may take cognizance under Section 199-B and issue process straight way to the accused, order for further investigation and treat the protest petition as a complaint and proceed to act under Section 200 and 202 Cr.P.C. In the same context, the counsel for the applicant has placed reliance upon 2008 (61) ACC 431, Kiran Pal and others Vs. State of U.P. and another, in which it has been held that if the protest petition was filed against the final report, the Magistrate would have proceeded only to treat the case as a complaint case.

Counsel for the applicant has argued that it was open for the Magistrate to order for further investigation. As has been laid down in 2009 (66) ACC 936, Kishan Lal Vs. Dharmendra Bafna and another, I do not think that it is mandatory for the Magistrate to order for the reinvestigation. As far as issuance of process is concerned, there is no bar for the Magistrate to issue process. The Hon'ble Apex Court in 1978 Law Suit (SC) 212, Hareram Satapathy Vs. Tikaram Agarawala, has laid down that under Section 190 of the Code of Criminal Procedure, the Magistrate takes cognizance of an offence made out in the police report or in the complaint and there is nothing like taking cognizance of the offenders at that stage. As to who actually the offenders involved in the case might have been has to be decided by the magistrate after taking cognizance of the offence. Thus, it is clear that cognizance is taken on the offence and not the offenders.

The Hon'ble Apex Court in 2012 STPL (Web) 606 SC, Geeta Mehrotra & another Vs. State of U.P. And another, has held that the question of territorial jurisdiction cannot appropriately be decided by the High Court under Section 432 for want of adequate facts. In AIR 1957 Supreme Court 196, State of M.P. Vs. K.P. Ghiara, it has been held that the venue of enquiry or trial of a case like the present is primarily to be determined by the averments contained in the complaint or charge-sheet and unless the facts there are positively disproved, ordinarily the Court, where the charge-sheet or complaint is filed, has to proceed with it, except where action has to be taken under Section 202 Cr.P.C.

The Hon'ble Apex Court in (1999)8 Supreme Court Cases, 728, Satvinder Kaur Vs. State (Govt. of NCT of Delhi) and another, has held that it is true that territorial jurisdiction also is prescribed under sub-section (1) of Section 156 to the extent that the Officer can investigate any cognizable case which a court having jurisdiction over the local area within the limits of such police station would have power to inquire into or try under the provisions of Chapter XIII. However, sub-section (2) Section 156 makes the position clear by providing that no proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered to investigate. After investigation is completed, the result of such investigation is required to be submitted as provided under Sections 168, 169 and 170. Section 170 specifically provides that if, upon an investigation, it appears to the Officer in charge of the police station that there is sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, forward the accused under custody to a Magistrate empowered to take cognizance of the offence upon a police report and to try the accused or commit for trial. Further, if the Investigating Officer arrives at the conclusion that the crime was not committed within the territorial jurisdiction of the police station, then F.I.R. can be forwarded to the police station having jurisdiction over the area in which crime is committed. But this would not mean that in a case which requires investigation, the police officer can refuse to record the FIR and/or investigate it.

The legal position is well settled that if an offence is disclosed the Court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed. If the F.I.R. prima facie discloses the commission of an offence, the Court does not normally stop the investigation, for, to do so would be to trench upon the lawful power of the police to investigate into cognizable offences. It is also settled by a long course of decisions of the Supreme Court that for the purpose of exercising its power under Section 482 Cr.P.C. to quash an F.I.R. or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se; it has no jurisdiction to examine the correctness or otherwise of the allegations.

As far as the inherent powers of the court are concerned, the inherent powers of the High Court have been laid down by the Apex Court in AIR 1989 Supreme Court 1, State of Bihar Vs. Murad Ali Khan and others, in which it has been held as under:-

"6. The second-ground takes into consideration the merits of the matter. It cannot be said that the complaint does not spell-out the ingredients of the offence alleged. A complaint only means any allegation made orally or in writing to a Magistrate. with a view to his taking action, that some person, whether known or unknown, has 'committed an offence.

It is trite jurisdiction under Section 482 Cr.P.C. which saves the inherent power of the High court, to make such orders as may be necessary to prevent abuse of the process of any court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the Trial Magistrate when the evidence comes before him. Though it is neither possible nor advisable to lay down any inflexible rules to regulate that jurisdiction, one thing, however, appears clear and it is that when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence the High Court is guided by the allegations, whether those allegations, set out in the complaint or the charge-sheet do not in law constitute or spell-out any offence and that resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the court or not."

In Municipal Corporation of Delhi v. R.K. Rohtagi, [1983] 1 SCR 884 at p. 890:(AIR 1983 SC 67 at p.70) it is reiterated:

"It is, therefore, manifestly clear that proceedings against an accused in the initial stages can be quashed only if on the face of the complaint or the papers accompanying the same, no offence is constituted. In other words, the test is that taking the allegations and the complaint as they are, without adding or subtracting anything, if no offence is made out then the High Court will be justified in quashing the proceedings in exercise of its powers under Section 482 of the present Code."

In Municipal Corporation of Delhi v. P.D. Jhunjunwala, [1983] 1 SCR p. 895 : (AIR 1983 SC 158 at p. 159) it was further made clear:

" . . . As to what would be the evidence against the respondents is not a matter to be considered at this stage and would have to be proved at the trial. We have already held that for purpose of quashing the proceedings only the allegations set forth in the complaint have to be seen and nothing further."

It has been held that so far quashing of the complaints and inquiry on the basis of F.I.R. registered by the complainant are concerned, interference by the High Court with the same and quashing the proceedings by an elaborate discussion on merits of the matter and coming to the conclusion of Section 195 being a bar, is rather premature for the High Court to come to the aforesaid conclusion. The scope of Section 482 has also been given in AIR 2004 Supreme Court 517, State of M.P. Vs. Awadh Kishore Gupta and others, in which it has been held that the High Court cannot appreciate the evidence to conclude whether the material produced are sufficient or not for convicting the accused. The inquiry as to the probability, reliability, genuineness of allegations in the F.I.R. is totally beyond the scope of Section 482 as has been laid down in 2000 CRLJ 2256, Udaipal Singh and others Vs. State of U.P. and another.

As I have said earlier that neither the investigation shall be vitiated nor the matter can be segregated since the cognizance is taken about the offence and not the offenders, the only fact that the Magistrate had to see while summoning the accused was whether having regard to the material in hand, there was sufficient ground to proceed or not and this Court cannot go into the factual aspect of the matter in proceedings under Section 482 Cr.P.C. The alternative remedy available to the applicant has not been availed and the applicant rushed to the Hihg Court .

In the case of Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi (1983) 1 SCC 1, this Court relying upon the earlier decision in Madhu Limaye case (supra) observed:-

"5. After the coming into force of the Code of Criminal Procedure, 1973 (hereinafter referred to as the "present Code"), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised under Section 397 of the present Code, the High Court could exercise those very powers under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court. In this connection, Untwalia, J. speaking for the Court observed as follows: [SCC para 10, pp. 555-56: SCC (Cri) P. 15]

"On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub- section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court'. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers...."

From the perusal of the material on record and looking into the facts of the case, at this stage, it cannot be said that no offence is made out against the applicant. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage, only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283. The disputed defence of the accused cannot be considered at this stage. Moreover, the applicant has got a right of discharge under Section 239 or 227/228 Cr.P.C. as the case may be through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

Thus, on the basis of the aforesaid discussions, the application has no force and is liable to be dismissed.

The application is, accordingly, dismissed.

Order Date :- 2.9.2014

Ram Murti