Delhi High Court
Ashtha Narang vs Gaurav Bhasin on 21 September, 2022
[1]
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
BEFORE
HON'BLE MR. JUSTICE PURUSHAINDRA KUMAR KAURAV
+ CRIMINAL MISCELLANEOUS CASE 4229 OF 2011 & &
CRL.M.A. 19506/2011
Between:-
SMT. ASHTHA NARANG @ ASHTHA ARORA
W/O SUNNY ARORA,
R/O B-33, KIRTI NAGAR,
NEW DELHI. ........PETITIONER
(Through: Mr. Ashish Nischal, Mr. Arun Nischal & Mr.
Rinku Shah, Advocates)
AND
GAURAV BHASIN,
S/O SHRI SUDESH KUMAR BHASIN,
R/O J-1260, MAIN SECTOR ROAD,
PALAM VIHAR, GURGOAN
HARYANA. ........ RESPONDENT
(Through: Respondent ex-parte)
(Mr. Amit Ahlawat, APP)
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% Pronounced on : 21.09.2022
JUDGMENT
PURUSHAINDRA KUMAR KAURAV, J.
1. This petition under Section 482 of Cr.P.C. is directed against the
order dated 24.08.2011 passed by the learned Metropolitan Magistrate,
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By:PRATIMA
Signing Date:26.09.2022
11:29:36
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(West), Tis Hazari Courts, Delhi in Criminal Complaint No. 340/2003,
whereby, the learned Magistrate has directed for issuance of summons
against the petitioner for the offence punishable under Section 211 of IPC
in a complaint case filed by the respondent.
2. This petition was taken up for hearing on 16.12.2011, when notice
was directed to be issued to the respondent and the operation of the
impugned order was stayed. On 04.09.2012, the respondent appeared and
prayed for supply of the paper book. The matter was thereafter taken up
on various dates and on 25.10.2013, in the presence of both the counsel,
the petition was admitted and directed to be listed in the category of
'Regulars' in due course and the interim order granted earlier was made
absolute. On 15.07.2022 when the matter was taken up in 'Regulars',
none had appeared on behalf of the parties and this court had directed for
issuance of court notice. The court notice was served on the parties. On
01.08.2022, the petitioner was represented by her counsel, however, no
one had appeared on behalf of the respondent. On 31.08.2022, again
there was no representation on behalf of the respondent, therefore, this
court proceeded ex-parte against him. Shri Amit Ahlawat, learned APP
for the State was requested to assist this court on the merits of the case
and the matter was directed to be listed for hearing on 06.09.2022.
3. Learned counsel appearing on behalf of the petitioner submits that
the petitioner and respondent both have remarried after dissolution of
their marriage vide judgment decree dated 29.05.2010. According to him,
this might be the reason for the non-appearance of the respondent as with
the passage of time, he might have lost his interest. Be that as it may.
Since the order of issuance of summons is under challenge, this court
would proceed to decide the same on its own merit.
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By:PRATIMA
Signing Date:26.09.2022
11:29:36
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4. The facts of the case show that the marriage of the petitioner was
solemnized with respondent on 07.07.2007. On 23.10.2007, the
respondent-husband filed a petition under Section 13(1)(i)(a) of the
Hindu Marriage Act, 1955. On 17.04.2008, the petitioner-wife made a
complaint to CAW Cell (Crime Against Women) stating therein that she
has been subjected to cruelty on account of non-fulfilment of demand of
dowry and she was also forced to return of Istridhan etc. On 19.08.2008,
the CAW Cell closed the complaint. On 11.11.2009, the respondent-
husband filed a complaint case under Section 200 of Cr.P.C. for
commission of alleged offence under Section 211 of IPC before the court
of learned CMM. On 29.05.2010, the petition filed by the respondent for
dissolution of marriage was accepted and a decree of divorce was granted
by the court of learned Additional District Judge.
5. The learned Metropolitan Magistrate vide impugned order dated
24.08.2011 directed for issuance of summons against the petitioner for
alleged commission of offence under Section 211 of IPC which was
served on the petitioner on 27.11.2011 and, therefore, the petitioner is
before this Court.
6. Learned counsel appearing on behalf of the petitioner submits that
the impugned order for issuance of summons is absolutely perverse. The
same is in violation of the settled legal position, inasmuchas, filing of a
complaint before CAW Cell would not constitute any offence of
initiation of criminal proceedings and hence, no offence at all under
Section 211 of IPC is attracted. According to him, even if the entire
allegation made in the complaint is accepted, the fact that would remain
to be considered is that there was no FIR at all registered against the
respondent. He placed reliance on a decision of this court in the case of
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By:PRATIMA
Signing Date:26.09.2022
11:29:36
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M.K. Razdan v. State and Ors. 1and the decision of the Hon'ble Supreme
Court in the matter of Raj Talreja v. Kavita Talreja2.
7. Shri Amit Ahlawat, learned APP opposes the prayer made in the
petition. He submits that the mandate of law does not require for
registration of an FIR or for institution of a case in the court of law.
According to him as per law before taking up the matter to the concerned
police station, it is incumbent upon the victim to first approach the Crime
Against Women Cell. While referring to various paragraphs of the
complaint, he submits that the offence under Section 211 of IPC is
prima-facie made out.
8. I have heard learned counsel for the petitioner and Shri Amit
Ahlawat, learned APP, who has been requested to assist this court.
9. Before dealing with the matter, it would be appropriate to
reproduce Section 211 of the IPC, which is reproduced as under:-
211. False charge of offence made with intent to injure.--
Whoever, with intent to cause injury to any person, institutes
or causes to be instituted any criminal proceeding against
that person, or falsely charges any person with having
committed an offence, knowing that there is no just or lawful
ground for such proceeding or charge against that person,
shall be punished with imprisonment of either description
for a term which may extend to two years, or with fine, or
with both;
and if such criminal proceeding be instituted on a false
charge of an offence punishable with death, [imprisonment
for life], or imprisonment for seven years or upwards, shall
be punishable with imprisonment of either description for a
term which may extend to seven years, and shall also be
liable to fine.
MANU/DE/0385/2008
(2017) 14 SCC 194
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By:PRATIMA
Signing Date:26.09.2022
11:29:36
[5]
10. The Hon'ble Supreme Court in the case of Santokh Singh v. Izhar
Hussain and Anr3 had an occasion to consider the scope and ambit of
Section 211 of the IPC. It has been held therein that the essential
ingredients of an offence under Section 211 of IPC is to institute, or
cause to be instituted any criminal proceedings against a person with
intent to cause him injury or with similar intent to falsely charge any
person with having committed an offence, knowing that there is no just
or lawful ground for such proceeding or charge. Instituting or causing to
institute false criminal proceedings assume false charge but false charge
may be preferred even when no criminal proceedings result. It has also
been held that false charge must refer to the original or initial accusation
putting or seeking to put in motion the machinery of criminal
investigation and not when seeking to prove the false charge by making
deposition in support of the charge framed in the trial. It is thus seen that
there may be a charge which does not amount to the institution of a
criminal proceedings and there may be criminal proceedings which do
not necessarily involve a charge of any offence. That itself may not
attract the provision of Section 211 of IPC but what would attract the
provision of Section 211 of IPC is that there has to be a charge having
known that there is no just lawful ground for making a charge against the
person concerned. The complaint must have been given with an intention
to cause injury to a person. In other words, it must be embodied either in
a complaint or in a report of cognizable offence to the police officer or
an officer having the authority over the person against whom the
allegations are made. The statement in order to constitute the charges
should be made with the intention and object of setting criminal law in
3 (1973) 2 SCC 406
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Signing Date:26.09.2022
11:29:36
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motion. The view taken by the Hon'ble Supreme Court in the case of
Santokh Singh (supra) has further been considered and affirmed by the
Hon'ble Supreme Court in its recent pronouncement in the case of
Himanshu Kumar and Ors. v. State of Chattisgarh & Ors. 4 . Para 94 of
the same is being reproduced as under:
"94. Thus, as explained by this Court in Santokh Singh v. Izhar
Hussain (supra), the essential ingredient of an offence under
Section 211 IPC is to institute or cause, to be instituted any
criminal proceeding against a person with intent to cause him
injury or with similar intent to falsely charge any person with
having committed an offence, knowing that there is no just or
lawful ground for such proceeding or charge. Instituting or
causing to institute false criminal proceedings assume false
charge but false charge may be preferred even when no
criminal proceedings result. Now, the expression "falsely
charges" in this section, in our opinion, cannot mean giving
false evidence as a prosecution witness against an accused
person during the course of a criminal trial. "To falsely
charge" must refer to the original or initial accusation putting
or seeking to put in motion the machinery of criminal
investigation and not when seeking to prove the false charge
by making deposition in support of the charge framed in that
trial. The words "falsely charges" have to be, read along with
the expression "institution of criminal proceeding". Both these
expressions, being susceptible of analogous meaning should be
understood to have been used in their cognate sense. They get
as it were their colour and content from each other. They seem
to have been used in a technical sense as commonly
understood in our criminal law. The false charge must,
therefore, be made initially to a person in authority or to
someone who is in a position to get the offender punished by
appropriate proceedings. In other words, it must be' embodied
either in a complaint or in a report of a cognizable offence to
the police officer or to an officer having authority over the
person against whom the allegations are made. The statement
4 (2022) SCC OnLine SC 884
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Signing Date:26.09.2022
11:29:36
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in order to constitute the "charges" should be made with the
intention and object of setting criminal law in motion.
11. If the facts of the case in hand are perused the same would
demonstrate that the marriage of the petitioner was solemnized with the
respondent on 07.07.2007 and as per record, just after two days of the
marriage, the petitioner eloped with her friend Sunny on 10.07.2007.
The father of the petitioner lodged a missing report on 10.07.2007 at
Police Station Kirti Nagar, Delhi, whereas, the father of the respondent
also lodged a missing report on 11.07.2007 at Police Station Palam
Vihar, Gurgaon. It is seen from the record that on 16.07.2007 an officer
from Police Station Kirti Nagar informed the respondent that the
petitioner had returned to her parental house and accordingly the
respondent attended the police station on 17.07.2007. On 17.07.2007,
the petitioner was present at the Police Station and she refused to join the
respondent and in the presence of members of both the families she
signed settlement agreeing therein that all dowry articles were to be
taken back by her, which was done on 17.07.2007 itself and she would
continue to live with Sunny and shall marry him. She, thereafter filed a
maintenance petition. However, the same was dismissed on 16.04.2009.
It is seen that despite the fact that she entered into a settlement, she filed
a complaint before CAW cell on 17.04.2008 alleging therein that the
respondent and in-laws are harassing the petitioner on account of non-
fulfilment of demand of dowry. However, the said complaint after
inquiry was closed by CAW cell on 19.08.2008. It is also to be noted
that a decree of divorce was granted at the instance of respondent vide
judgment and decree dated 29.05.2010 where the court had given a
categorical finding that the petitioner was having an affair with Sunny
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By:PRATIMA
Signing Date:26.09.2022
11:29:36
[8]
and she did not live with the respondent-husband and the marriage was
not consummated.
12. The Magistrate by impugned order, after due application of mind,
has noted the entire circumstances and found that the petitioner had
made complaint with an intention and object to set criminal law in
motion knowing well that the allegations made in the complaint are
false. Such an act was done with an intent to injure the respondent and,
therefore, the learned MM recorded that prima-facie case for issuance of
summons for commission of offence under Section 211 of IPC is made
out.
13. It is a settled law that the Magistrate is not expected to weigh the
evidence meticulously as if he was to conduct trial. Only preliminary
inquiry is necessary to ascertain whether there exist sufficient ground for
proceeding against the accused.
14. The law with respect to exercise of power under Section 482 of
Cr.P.C. is also well settled. The court should not, except in extra ordinary
circumstances, exercise its jurisdiction under Section 482 of Cr.P.C., so
as to quash the proceedings after they have been initiated. The power of
quashing a criminal proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases. The court
will not be justified in embarking upon an inquiry as to the reliability and
genuineness or reliability of the allegations made in the complaint.
15. So far as the judgment relied upon by learned counsel for the
petitioner in the case of M.K. Razdan (supra) is concerned, in that case
this court has held that false charge of offence with intention to cause
injuries to any person would not mean as if an FIR is lodged against any
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Signing Date:26.09.2022
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person. It has been held that a person cannot be held to be liable under
Section 211 of IPC, only on the basis of filing of an FIR. What is
required under the law is to prove that the FIR is false. Under the facts of
that case it was found that no FIR was registered on the complaint made
therein and, therefore, no offence under Section 211 of IPC was found.
As stated above, this court, at this stage, is not examining as to whether
the offence under Section 211 of IPC is fully established or not. The
court has to examine whether the learned Magistrate has committed any
error while issuing summons to the petitioner and whether there exists
any prima facie case to proceed against the petitioner or not. Under the
facts of the present case, there appears to be sufficient material to
proceed against the petitioner and accordingly no fault is found in the
order of issuing summons to the petitioner
16. Taking into consideration the overall facts and circumstances of
the case, this court does not find it appropriate to exercise its power
under Section 482 of Cr.P.C., and accordingly the petition stands
dismissed.
17. This court has not expressed any opinion on the merits of the case.
(PURUSHAINDRA KUMAR KAURAV)
JUDGE
SEPTEMBER 21, 2022
p'ma
Signature Not Verified
Digitally Signed
By:PRATIMA
Signing Date:26.09.2022
11:29:36
