Chattisgarh High Court

Sanjay Mirania vs State Of Chhattisgarh on 1 April, 2022

                                 1

                                                              NAFR
         HIGH COURT OF CHHATTISGARH, BILASPUR
                Order Reserved on 03/02/2022
                Order Delivered on 01/04/2022

                    CRMP No. 1124 of 2021

  1. Sanjay Mirania S/o Shri Bhim Kumar Mirania Aged About 42
     Years R/o Near Gouri Shankar Mandir Raigarh, Police Station
     City Kotwali, Tahsil And District Raigarh, Chhattisgarh.
  2. Bhim Kumar Mirania S/o Begraj Mirania Aged About 74 Years
     R/o Near Gouri Shankar Mandir Raigarh, Police Station City
     Kotwali, Tahsil And District Raigarh, Chhattisgarh.
  3. Smt. Premlata Mirania W/o Shri Bhim Kumar Mirania Aged
     About 68 Years R/o Near Gouri Shankar Mandir Raigarh, Police
     Station City Kotwali, Tahsil And District Raigarh, Chhattisgarh.
  4. Manoj Mirania S/o Shri Bhim Kumar Mirania Aged About 49
     Years R/o Near Gouri Shankar Mandir Raigarh, Police Station
     City Kotwali, Tahsil And District Raigarh, Chhattisgarh.
  5. Smt. Vinita Mirania W/o Shri Manoj Mirania Aged About 43
     Years R/o Near Gouri Shankar Mandir Raigarh, Police Station
     City Kotwali, Tahsil And District Raigarh, Chhattisgarh.
  6. Smt. Anju Agrawal W/o Shri Vishnu Agrawal Aged About 43
     Years R/o Brahaspati Bazaar, Bilaspur Police Station Civil Line,
     Tahsil And District Bilaspur, Chhattisgarh.
                                                    ---- Petitioners
                             Versus
  1. State of Chhattisgarh Through Station In Charge, Mahila
     Thana, District Bilaspur, Chhattisgarh.
  2. Smt. Preeti Chandra @ Nisha W/o Sanjay Mirania Aged About
     31 Years R/o LIG 06 B.D.A. Colony, Nutan Chowk Sarkanda,
     Police Station Sarkanda, District And Tahsil Bilaspur,
     Chhattisgarh.
                                                  ---- Respondents

For Petitioners : Shri Rishi Rahul Soni, Adv. For Respondent No. 1/ State : Shri Ishwar Jaiswal, P.L. For Respondent No. 2. : Shri Goutam Khetrapal, Adv.

Hon'ble Smt. Justice Rajani Dubey C A V Order

Date- 01/04/2022

Heard.

1. This petition has been filed under Section 482 of Cr.P.C. for

quashing the criminal proceeding against the petitioners including

First Information Report bearing Crime No. 0027/2021 at Mahila

Thana, Bilaspur for the offence punishable under Section 498-A, 34

of the IPC.

2. Brief facts of the case are that on 28.05.2021 complaint was

lodged by Smt. Preeti Chandra before the Station In-charge, Mahila

Thana, Bilaspur (C.G.) that on 13.02.2016 marriage between the

respondent No. 2 and petitioner No. 1 was solemnized according to

social customs at Raigarh. The husband/petitioner no. 1 of the

victim was working as assistant professor in Kirodimal College

situated at Raigarh (C.G.). The victim's parents gave her all the

house hold articles and about 29 tolas of gold and 12 tolas of silver

ornaments according to their status. It is alleged that on the second

day of marriage, the victim's husband and mother-in-law started

taunting her that her mother was going to give cash in Tilak and a

Car for wedding. After 15 days of marriage, when the victim came

to know that her husband was a divorcee and when she asked her

husband about his divorce, he assaulted her. When the victim was

living with her mother at Bilaspur for her B.Ed., on September

2016, she came to know that she was pregnant and informed to her

in-laws that she was pregnant. Thereafter, the victim's husband,

mother-in-law and sister-in-law came to meet the victim at Bilaspur

and asked her to test the gender of the child. When the victim

refused, she was beaten up and abused by her in-laws. It is further

alleged that when the girl child of victim was three months old, the

victim's husband came to Bilaspur to take her with him and after

few days, the behavior of in-laws became cruel. On one occasion

the victim's mother-in-law, sister-in-law (Jethani) and her husband

beat her over the matter of eating and drinking. In the month of

August 2017, the victim returned to Bilaspur with her mother and

brother and since then she is living in Bilaspur. Thereafter, on

28.05.2021 she filed a written complaint before Mahila Thana,

District-Bilaspur (C.G.) and on the basis of that complaint, offence

has been registered against the accused and other co-accused

under Section 498-A of Indian Penal Code, 1860.

3. Learned counsel for the petitioners submits that the

petitioners are innocent and have been falsely implicated in the

present case. He submits that there is delay of about three years

and nine months in filing the written complaint, and in the light of

the provision given in Section 468 of Code of Criminal Procedure,

the complaint dated 28.05.2021 is time barred. He next submits

that there is no material in the hands of the prosecution to connect

the petitioners with the above mentioned crime. The first complaint

was filed by the victim in 2017 before the Mahila Thana, Bilaspur.

On 10.10.2017 the first complaint was dismissed by the Family

Welfare Committee (Mahila Thana) Bilaspur, because the victim

wanted to resolve her case from the Court. On 10.10.2017 the

victim misled the Family Welfare Committee, Bilaspur by not

disclosing the fact, that on 29.08.2017 the application has already

been filed by the victim for grant of maintenance under Section

125 of Cr.P.C. before the learned Family Court, Bilaspur and also

misled the learned Family Court, Bilaspur by not disclosing about

the proceeding before the Family Welfare Committee (Mahila

Thana), Bilaspur. He further submits that the petitioner No. 1 has

paying interim maintenance of Rs. 6000/- per month (Rs. 4000/- to

the victim and Rs. 2000/- to her daughter) since 30.10.2018, in

compliance of the order dated 24.09.2018 passed by the learned

Additional Principal Judge Family Court, Bilaspur. In MJC Case No.

394/2017, the petitioner No. 1 filed an application for conducting

D.N.A. test of the victim and her daughter to determine the

paternity of the victim's daughter. The victim gave her oral consent

for conducting the D.N.A. test before the learned Family Court,

Bilaspur, and thereafter the victim filed a criminal revision bearing

Cr.R. No. 385/2019 before Hon'ble High Court of Chhattisgarh on

the ground that the order dated 30.10.2018 for conducting D.N.A.

test was passed without her consent by the learned Family Court,

Bilaspur. Later on, Hon'ble High Court of Chhattisgarh has

dismissed the said revision by its order dated 09.02.2021 and held

that there is no ground to entertain the revision for setting aside

the impugned order of learned Family Court. He lastly submits that

on 17.01.2018 the victim has filed a complaint case under Section

12 of Protection of Women from Domestic Violence, 2005 against

the present petitioner No. 1-Sanjay Mirania, petitioner No. 3-

Premlata Mirania and petitioner No. 5-Vinita Mirania and the same

has been registered as MJC Criminal/81/2018 and is pending before

the learned Judicial Magistrate First Class, Bilaspur. The petitioner

No. 1 had made every possible effort to save his married life but

the respondent No. 2 has left the petitioner's house without any

reason and went to her maternal house without his consent and

after three years, complaint has been lodged against the

petitioners which is not maintainable. He has placed reliance on the

decision of Hon'ble Supreme Court in matter of Kamlesh Kalra

and Ors. Vs. Shilpika Kalra and Ors. Judgment dated

24.04.2020.

4. Learned State counsel and counsel for the respondent No. 2

oppose the prayer of petitioners. Learned counsel for the

respondent No. 2 submits that the petitioners were continuously

harassing the respondent No. 2 when she left her matrimonial

house and immediately lodged a complaint against the petitioners

but the police authorities did not investigate into the matter,

therefore, the FIR lodged against the petitioners is not time barred.

He has placed reliance upon the decisions of Hon'ble Supreme

Court in the matters of Sushil Kumar Vs. Union of India1, Vanka

Radhamanohari (SMT) Vs. Vanka Venkata Reddy and

Others2, Ropali Devi Vs. State of Uttar Pradesh and Others3

and N.S. Giri Vs. Corporation of city of Mangalore and

Others4 and upon the decision of High Court of Delhi in the matter

of Anthony Jose Vs. State of NCT of Delhi & Ors 5 and upon the

decision of High Court of Patna in the matter of Suraj Raj vs.

State of Bihar & Another passed in Criminal Miscellaneous No.

83250 of 2019 vide order dated 16.01.2020.

5. Heard counsel for both the parties and perused the material

available on record.

6. Section 468 of Code of Criminal Procedure provides as under:-

468. Bar to taking cognizance after lapse of the 1 2005 (6) SCC 281 2 (1993) 3 SCC 4 3 (2019) 5 SCC 384 4 (1999) 4 SCC 697 5 2018 SCC Online Del 12956: 2019 Cri LJ 800

period of limitation-

(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.

(2) The period of limitation shall be -

(a) six months, if the offence is punishable with fine only;

(b) one year, if the offence is punishable with imprisonment for a term not exceeding one year;

(c) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

7. The impugned FIR has been registered under Section 498-A,

34 of IPC. Section 498-A of IPC provides as under :-

498-A. Husband or relative or husband of a woman subjecting her to cruelty. - Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Explanation. - For the purpose of this section, "Cruelty" means-

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to

6 Inserted by Act 45 of 1978, S. 33 (w.e.f. 18-12-1978).

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.

8. It is clear from Section 498-A that maximum punishable

sentence is three years and it is clear from the written complaint

dated 28.05.2021 that since August 2017 respondent No. 2 (victim)

and petitioner No. 1 are living separately. Petitioner No. 1 filed

several applications before the competent Court under Section 125

of Cr.P.C. and under Section 12 of Domestic Violence Act but after

three years, respondent No. 2 filed this complaint before Mahila

Thana, Bilaspur. Learned counsel for the respondent No. 2 submits

that respondent No. 2 filed an application before the Mahila Thana,

Bilaspur on which a counselling was conducted but FIR has not

been registered by the police and on 10.10.2017 her case has been

dismissed by the Mahila Thana, Bilaspur. Previous complaint of

respondent No. 2 is also attached with charge-sheet which was filed

by the petitioner on 10.11.2017 on this complaint counselling was

done by the Mahila Thana, Bilaspur before the counselor, which

was recored and annexed as Annexure-P/7 which reads thus:-

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9. On 10.10.2017 counselling was done by Mahila Thana,

Bilaspur and after three years, written complaint was lodged by the

respondent No. 2 and on 28.05.2021 FIR was lodged and charge-

sheet was filed against the petitioners. Hon'ble the Apex Court

while dealt in the matter of Kamlesh Kalra and Ors. (Supra) has

held in paras 12 & 13 which reads thus:-

"12. After considering the decisions of this Court rendered in Vanka Radhamanohari v. Vanka Venkata Reddy MANU/SC/0510/1993 : (1993) 3 SCC 4 and Arun Vyas v. Anita Vyas MANU/SC/0385.1999 : (1999) 4 SCC 690, and the decisions of this High Court of Delhi in Asha Ahuja v. Rajesh Ahuja MANU/DE/0380/2003 : 2003 (68) DRJ 437 and S.K. Bhall V. State of NCT of Delhi, the High Court held as under :

........

11. As noted above, the allegations of the complainant are of harassment by the Petitioners No. 1 and 2 i.e. the husband and the mother-in-law. Admittedly the Respondent No. 2 and Petitioner No. 1 are living separately since June 10, 2009 and there is no material to show that due to reconcilliatory measures or for what reason the Respondent No. 2 failed to file the complaint on which the afore-noted FIR was registered till 28th January, 2013, i.e. beyond the period of limitation of three years. Thus there being no justification for the delay in filing the complaint beyond the period of limitation and there being no allegation that the physical and mental harassment continued against Respondent No. 2 beyond June 10, 2009, Petitioners No. 1 and 2 are not liable to be proceeded Under Section 498-A Indian Penal Code. However, as noted

above, Section 406 Indian Penal code is a continuing offence and every day of non- return of the stridhan articles would give fresh cause of action. Admittedly, after the

sought to return certain stridhan articles thereby fortifying the claim of breach of trust. However, one of the necessary ingredients for offence punishable Under Section 406 Indian Penal Code is entrustment and the complainant alleges entrustment of stridhan articles to Petitioner No. 2 and not Petitioner No. 1.

12. Thus, this Court finds no ground to quash the FIR in question against Petitioner No. 2 for offence punishable Under Section 406 Indian Penal Code or the proceedings thereto.

13. As regards, the finding recorded by the High Court in respect of complaint/FIR filed Under Section 498A Indian Penal code, we are of the firm opinion that the same does not call for interference. In the facts of this case, it is clear that the FIR filed in this regard in 2015 was time barred, having been filed much more than three years after the separation of Manish Kalra (husband) and Shilpika Kalra (wife) and the filing of the divorce petition by the husband, both in 2009. In the facts of the case, the reasons given by the High Court for quashing the proceedings Under Section 498A Indian Penal Code are justified and do not call for interference by this Court."

10. It is clear from all the documents that respondent No. 2 (wife)

has filed different proceedings against the petitioners but she

remained silent for the harassment she suffered, which clearly

shows that the filing of this complaint is a pressure tactic. The

respondent No. 2 has implicated all the family members of her

husband in this case after limitation period (Three years and Nine

Months) which is clearly an abuse of process of Court, therefore,

these proceedings are liable to be quashed.

11. In view of the above facts and circumstances of the case, this

petition is allowed. The impugned FIR No. 0027/2021 registered at

Mahila Thana, Bilaspur and further proceedings against the

petitioners are hereby quashed.