Chattisgarh High Court

Smt. Dolly Soni vs Smt. Sarla Awadiya Soni on 2 February, 2022

                                      1

                                                                      NAFR

               HIGH COURT OF CHHATTISGARH, BILASPUR

                           CRMP No.979 of 2016

                      Order reserved on : 08.12.2021

                      Order delivered on : 02.02.2022

      Smt. Dolly Soni, W/o Ravi Prakash Soni, Aged About 29 Years, R/o
       Soni Villa Shakti Nagar, Katni, Madhya Pradesh

                                                              ---- Petitioner

                                  Versus

     1. Smt. Sarla Awadiya Soni, W/o Late Rajesh Soni, Aged About 60
        Years, R/o New Changora Bhatta, Nearby Asha Deep School,
        District Raipur, Chhattisgarh

     2. State Of Chhattisgarh Through Police Station D.D. Nagar, Raipur,
        District Raipur, Chhattisgarh

                                                          ---- Respondents

For Petitioner Mr. Vasant Daniel & Mr. Anand Dadariya, Advocates with Smt. Dolly Soni, Petitioner in person

For Respondent No.1 Mr. J. K. Gupta, Advocate

For Respondent No.2 Mr. Ravi Maheshwari, PL

Hon'ble Justice Smt. Rajani Dubey

C.A.V. Judgment

1. This petition under Section 482 of CrPC has been preferred by the

petitioner for quashment of FIR No.0167/2016 dated 12.07.2016

registered by the Police Station D. D. Nagar, District Raipur for the

offence punishable under Section 509 of IPC & Section 67 of the IT

Act.

2. The brief facts of the case are that the petitioner and son of

respondent No.1 namely Ravi Prakash Soni were married according

to Hindu Rites and Rituals on 04.07.2014 at Raipur. Immediately

after marriage within few days, the marriage turned sour and

animosity prevailed between the couple and the respondent No.1.

The petitioner's husband ill treated the petitioner, assaulted her and

demanded dowry from her. On 22.09.2014 vide Annexure-A/1, the

petitioner lodged a written complaint alleging that she was beaten

by her husband and is being harassed by her in-laws since

marriage and her parents are also abused every now and then, due

to which she had consumed poison. Since thereafter due to mental

torture and harassment of her husband and in-laws, the petitioner

came back to stay in her paternal house at Katni. The petitioner

lodged an FIR under Section 498-A of IPC vide Annexure-A/2

against her husband and in-laws in the District Court Katni. Another

case was also filed by the petitioner under Section 125 of CrPC vide

Annexure-A/3 for maintenance before the Family Court, Katni.

Thereafter, the petitioner also filed two cases under Section 67 of

the IT Act vide Annexure-A/4 & A/5 against her husband,

respondent No.1 and brother-in-law Nitin Soni. Both these cases

are pending before the JMFC, Katni. The husband of the petitioner

also filed an application under Section 13 of the Hindu Marriage Act

for divorce and the same is pending before the JMFC, Raipur. On

18.02.2016 (Annexure-A/6), when the petitioner had gone to attend

the Court, the husband of the petitioner assaulted her, thereafter

FIR was lodged by the petitioner in Police Station Civil Line, Raipur.

On 21.07.2016, when the respondent No.1 and her son came to

Katni to attend the Court as an accused in the offence under

Section 500 of IPC, they assaulted the petitioner, thereafter the

petitioner lodged an FIR vide Annexure-A/9 before Madhav Nagar

Police Station, Katni for the offence punishable under Sections 324,

506-B, 294 & 34 of IPC. Thereafter, the impugned FIR

No.0167/2016 dated 12.07.2016 has been lodged by the

respondent No.1 against the petitioner at Police Station D. D.

Nagar, District Raipur for the offence punishable under Section 509

of IPC and Section 67 of the IT Act.

3. Mr. Vasant Daniel with Mr. Anand Dadariya, learned counsel for the

petitioner, submits that the impugned FIR has been lodged against

the petitioner just to falsely implicate her as rebound to the cases

filed by the petitioner against the respondent No.1 and her husband.

The respondent No.1 and husband of petitioner are threatening the

petitioner of dire consequences that if she would come to Raipur to

prosecute her cases, they would kill her. The petitioner has filed all

the requisite documents as evidence, which pertains to the

document put in public domain by the respondent No.1. The

petitioner in her personal capacity rebutted and refuted the

documents sent by the respondent No.1' son in facebook, which is

an offence under Section 67 of the IT Act, but with a difference, she

has sent rebuttal of the above documents on whatsapp, which is not

a public forum, on the contrary it is a personal forum, wherein the

question of public document does not come into play at all, hence

the document attached by the respondent No.1 in her complaint

under Section 67 of the IT Act does not violate Section 67 of the IT

Act. He further submits that some of the electronic documents filed

by the respondent No.1 in her complaint are handwritten

documents, but the handwriting is not of the petitioner. The

respondent No.1 has not filed any certificate under Section 65-B of

the Indian Evidence Act, hence all documents filed by the

respondent No.1 becomes inadmissible. Therefore, the impugned

FIR may kindly be quashed and the petition be allowed. Learned

counsel has placed reliance on Karmanya Singh Sareen and Anr

vs Union of India and others 1, State of Haryana and others vs

Bhajan Lal and others2, Vineet Kumar and others vs State of

U.P. and another3.

4. Mr. J. K. Gupta, learned counsel for the respondent No.1, submits

that the petitioner has filed various false and baseless complaints

against the respondent No.1 and her son under Section 67 of IT Act

and under Section 498-A of CPC and Section 125 of CrPC as well,

which demonstrates that how this woman is misusing the laws

against the respondent No.1 and her son. He further submits that

there is no referral to the allegations made in the FIR or what has

come out in the investigation and the allegations are subject matter

of investigation, but vide order dated 25.10.2016, the proceedings of

the impugned FIR have been stayed, meaning thereby the accused

person would not be arrested, which amounts to an order under

Section 438 of CrPC, albeit without satisfaction of the conditions of

the said provision. The Court cannot issue a blanket order

restraining arrest or investigation. The accused may apply before

the Trial Court under Section 239 of CrPC for her discharge if the

materials are not there to prosecute. The petitioner is trying to buy

time to mislead the facts starting right from the suppression of initial

application and annexed documents. The petitioner is also not

2 1992 AIR 604

cooperating with the investigation, which would not invoke the

inherence power of this High Court for quashment of the impugned

FIR against the petitioner. Therefore, the petition is liable to be

dismissed. Learned counsel has placed reliance on Kurukshetra

University vs State of Haryana 4, State of Telangana vs Habib

Abdullah Jeelani and others5, Umesh vs State of Kerala6, State

of Orissa vs Debendra Nath Padhi7, State of Tamil Nadu vs S.

Martin and others8.

5. Mr. Ravi Maheshwari, learned State counsel, supports the argument

advanced by learned counsel for the respondent No.1 and opposes

the petitioner's version.

6. Heard learned counsel for the parties and perused the material

available on record.

7. It is clear from the documents that various cases are pending

between the petitioner and respondent No.1 and her son in Katni

and Raipur District Courts. The respondent No.1 lodged an FIR vide

Annexure-A/10 dated 12.07.2016 under Section 67 of the IT Act and

Section 509 of IPC against the petitioner in Police Station D.D.

Nagar, Raipur on the ground that the petitioner sent some whatsapp

messages in filthy language and threatened her and also demanded

money. The main contents of FIR (Annexure-A/10) are as under:-

"esjs iq= ds ikl OgkVvi eks0 dz 8717800007] 9039375807 o Vsyhxzke 9479038807 ij xkyh xykSp okys eslst Hksts tkrs gS rFkk QthZ fdlh O;fDr }kjk ncko dk iz;kl dj jgh gS og eq>s eks dz 09165225101

4 (1977) 4 SCC 451 5 (2017) 2 SCC 779 6 (2017) 3 SCC 112 7 Appeal (Crl) No.497/2001, Order dated 29.11.2004 8 (2018) 5 SCC 718

ij eks dz ds ek/;e ls 545145]9828678620 ds }kjk ncko Myok jgh Fkh fd fdlh Hkh izdkj ls ge Mkyh lksuh dks iSls ns ns bl vKkr O;fDr }kjk leLr ckrksa dh esjs ikl fjdkfMZx gS ge yksxks ls Mkyh nl ls iUnzg yk[k :i;s nsus dh uktk;t ekax dj jgh gSA"

8. The petitioner and respondent No.1 have filed various documents

relating to facebook and whatsapp chat. It prima facie reveals that

the son of respondent No.1 has uploaded some abusive remarks in

his facebook profile, which was downloaded by the petitioner and

thereafter the petitioner sent it through whatsapp to her husband. In

the FIR apart from whatsapp chat, it is also alleged that the

petitioner demanded money from the respondent No.1 and his son.

On this report, Police Station D. D. Nagar, Rapur registered an

offence vide FIR No.0167/2016 dated 12.07.2016 under Section 67

of the IT Act and Section 509 of IPC. However, vide interim order

dated 25.10.2016 passed by the Coordinate Bench of this Court,

further proceeding in the FIR has been stayed.

9. The Hon'ble Supreme Court in the matter of S. Martin (supra) has

held as under:-

"7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for. Presence of two crucial facts was enough to let the investigation go on, namely, recovery of huge amount of cash of Rs.7.2 crores from the house of one of the accused and that such recovery was accepted by the accused. The explanation given by them about the alleged transaction of agreement of sale and receipt of cash in pursuance thereof does not prima facie appear to be correct. The agreement is stated to have been entered on 02.03.2012 while the stamp paper in question was issued by the relevant department on 09.03.2012 to the vendor which was later sold to lady named Vimla on 13.3.2012. Whether the possession of huge cash amounting to Rs. 7.2 crores can be explained by the accused and whether such explanation be accepted or not, are all matters which

will be gone into at the relevant stage in the proceedings. The investigation in any case ought not to have been set at naught but it ought to have been permitted to be taken to its logical conclusion."

10. The Hon'ble Supreme Court in the matter of Umesh (supra) held in

para 6 as under:-

"6. We find it difficult to appreciate the contention. Even if all contentions taken by the appellant are taken on their face value also, it is for the Magistrate concerned to consider those contentions in an appropriate application filed under Section 239 of the Cr.P.C."

11. The Hon'ble Supreme Court in the matter of Neeharika

Infrastructure Pvt. Ltd. Vs. State of Maharashtra 9 held in paras

15 to 18, which read as under:-

"15. As observed hereinabove, there may be some cases where the initiation of criminal proceedings may be an abuse of process of law. In such cases, and only in exceptional cases and where it is found that non interference would result into miscarriage of justice, the High Court, in exercise of its inherent powers under Section 482 Cr.P.C.

and/or Article 226 of the Constitution of India, may quash the FIR/complaint/criminal proceedings and even may stay the further investigation. However, the High Court should be slow in interfering the criminal proceedings at the initial stage, i.e., quashing petition filed immediately after lodging the FIR/complaint and no sufficient time is given to the police to investigate into the allegations of the FIR/complaint, which is the statutory right/duty of the police under the provisions of the Code of Criminal Procedure. There is no denial of the fact that power under Section 482 Cr.P.C. is very wide, but as observed by this Court in catena of decisions, referred to hereinabove, conferment of wide power requires the court to be more cautious and it casts an onerous and more diligent duty on the court. Therefore, in exceptional cases, 9 AIR 2021 SC 1918

when the High Court deems it fit, regard being had to the parameters of quashing and the self-restraint imposed by law, may pass appropriate interim orders, as thought apposite in law, however, the High Court has to give brief reasons which will reflect the application of mind by the court to the relevant facts.

16. We have come across many orders passed by the High Courts passing interim orders of stay of arrest and/or "no coercive steps to be taken against the accused" in the quashing proceedings under Section 482 Cr.P.C. and/or Article 226 of the Constitution of India with assigning any reasons. We have also come across number of orders passed by the High Courts, while dismissing the quashing petitions, of not to arrest the accused during the investigation or till the chargesheet/final report under Section 173 Cr.P.C is filed. As observed hereinabove, it is the statutory right and even the duty of the police to investigate into the cognizable offence and collect the evidence during the course of investigation. There may be requirement of a custodial investigation for which the accused is required to be in police custody (popularly known as remand).

Therefore, passing such type of blanket interim orders without assigning reasons, of not to arrest and/or "no coercive steps" would hamper the investigation and may affect the statutory right/duty of the police to investigate the cognizable offence conferred under the provisions of the Cr.P.C. Therefore, such a blanket order is not justified at all. The order of the High Court must disclose reasons why it has passed an ad-interim direction during the pendency of the proceedings under Section 482 Cr.P.C. Such reasons, however brief must disclose an application of mind.

The aforesaid is required to be considered from another angle also. Granting of such blanket order would not only adversely affect the investigation but would have far reaching implications for maintaining the Rule of Law. Where the investigation is stayed for a long time, even if the stay is ultimately vacated, the subsequent investigation may not be very fruitful for the simple reason that the evidence may no longer be available. Therefore, in case, the accused named in the FIR/complaint

apprehends his arrest, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. and on the conditions of grant of anticipatory bail under Section 438 Cr.P.C being satisfied, he may be released on anticipatory bail by the competent court. Therefore, it cannot be said that the accused is remediless. It cannot be disputed that the anticipatory bail under Section 438 Cr.P.C. can be granted on the conditions prescribed under Section 438 Cr.P.C. are satisfied. At the same time, it is to be noted that arrest is not a must whenever an FIR of a cognizable offence is lodged. Still in case a person is apprehending his arrest in connection with an FIR disclosing cognizable offence, as observed hereinabove, he has a remedy to apply for anticipatory bail under Section 438 Cr.P.C. As observed by this Court in the case of Hema Mishra v. State of Uttar Pradesh, (2014) 4 SCC 453, though the High Courts have very wide powers under Article 226, the powers under Article 226 of the Constitution of India are to be exercised to prevent miscarriage of justice and to prevent abuse of process of law by the authorities indiscriminately making pre-arrest of the accused persons. It is further observed that in entertaining such a petition under Article 226, the High Court is supposed to balance the two interests. On the one hand, the Court is to ensure that such a power under Article 226 is not to be exercised liberally so as to convert it into Section 438 Cr.P.C.

proceedings. It is further observed that on the other hand whenever the High Court finds that in a given case if the protection against pre-arrest is not given, it would amount to gross miscarriage of justice and no case, at all, is made for arrest pending trial, the High Court would be free to grant the relief in the nature of anticipatory bail in exercise of its powers under Article 226 of the Constitution of India, keeping in mind that this power has to be exercised sparingly in those cases where it is absolutely warranted and justified. However, such a blanket interim order of not to arrest or "no coercive steps" cannot be passed mechanically and in a routine manner.

17. So far as the order of not to arrest and/or "no coercive steps" till the final report/chargesheet is filed and/or during the course of investigation or not to arrest till the

investigation is completed, passed while dismissing the quashing petitions under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India and having opined that no case is made out to quash the FIR/complaint is concerned, the same is wholly impermissible.

18. This Court in the case of Habib Abdullah Jeelani (supra), as such, deprecated such practice/orders passed by the High Courts, directing police not to arrest, even while declining to interfere with the quashing petition in exercise of powers under Section 482 Cr.P.C. In the aforesaid case before this Court, the High Court dismissed the petition filed under Section 482 Cr.P.C. for quashing the FIR. However, while dismissing the quashing petition, the High Court directed the police not to arrest the petitioners during the pendency of the investigation. While setting aside such order, it is observed by this Court that such direction amounts to an order under Section 438 Cr.P.C., albeit without satisfaction of the conditions of the said provision and the same is legally unacceptable. In the aforesaid decision, it is specifically observed and held by this Court that "it is absolutely inconceivable and unthinkable to pass an order directing the police not to arrest till the investigation is completed while declining to interfere or expressing opinion that it is not appropriate to stay the investigation". It is further observed that this kind of order is really inappropriate and unseemly and it has no sanction in law. It is further observed that the courts should oust and obstruct unscrupulous litigants from invoking the inherent jurisdiction of the Court on the drop of a hat to file an application for quashing of launching an FIR or investigation and then seek relief by an interim order. It is further observed that it is the obligation of the court to keep such unprincipled and unethical litigants at bay.

In the aforesaid decision, this Court has further deprecated the orders passed by the High Courts, while dismissing the applications under Section 482 Cr.P.C. to the effect that if the petitioner-accused surrenders before the trial Magistrate, he shall be admitted to bail on such terms and conditions as deemed fit and appropriate to be imposed by the Magistrate concerned. It is

observed that such orders are de hors the powers conferred under Section 438 Cr.P.C. That thereafter, this Court in paragraph 25 has observed as under:

25. Having reminded the same, presently we can only say that the types of orders like the present one, are totally unsustainable, for it is contrary to the aforesaid settled principles and judicial precedents. It is intellectual truancy to avoid the precedents and issue directions which are not in consonance with law. It is the duty of a Judge to sustain the judicial balance and not to think of an order which can cause trauma to the process of adjudication. It should be borne in mid that the culture of adjudication is stabilised when intellectual discipline is maintained and further when such discipline constantly keeps guard on the mind."

12. Reverting to the facts of the case in light of the aforesaid legal

proposition, It is quite clear that serious allegations have been

levelled against the petitioner including that of demand of money

and use of filthy languages and abusive remarks in whatsapp chat.

The petitioner and her husband, the son of respondent No.1, have

filed various cases against each other before Katni and Raipur

District Courts, which are pending consideration and are yet to be

decided. The submission of learned counsel for the petitioner that

the present FIR is a counter-blast to the cases filed by the petitioner

against the respondent No.1 and her son also appears to be

unreasonable, as it is crystal clear from various documents that

relations of both the parties are very bitter and they have filed