Jharkhand High Court

Kalawati Pandey vs The State Of Jharkhand on 2 May, 2022

                                                1

                     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                               Cr.M.P. No. 1403 of 2016
                  Kalawati Pandey, wife of Shri Keshav Prasad Pandey, resident of 21-C,
                  Gate No.1, Road No.1, Ashok Nagar, P.O. & P.S. Argora, District-
                  Ranchi                                              ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand
             2.   Anupama Pandey, wife of Vikram Pandey, D/o Shri B.K. Pandey,
                  resident of New Nagratoli, P.O. & P.S. Lalpur, District- Ranchi
                                                                     ... Opposite Parties
                                                With
                                     Cr.M.P. No. 3046 of 2018
                  Keshav Prasad Pandey, aged about 60 years, son of late Lalta Prasad
                  Pandey, resident of 21/C, Park Road, 1/A, Road No.1, Ashok Nagar,
                  P.O. Ashok Nagar, P.S. Argora, District- Ranchi (Jharkhand)
                                                                      ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand
             2.   Anupama Pandey, wife of Vikram Pandey, D/o Shri B.K. Pandey,
                  resident of New Nagratoli, P.O. & P.S. Lalpur, District- Ranchi
                  (Jharkhand)                                        ... Opposite Parties
                                                With
                                       Cr.M.P. No. 3378 of 2018
                  Vikram Pandey, aged about 35 years, son of Keshav Prasad Pandey,
                  presently residing in the house of Dhananjay Prasad, 14/46, 2 nd Floor,
                  Subhash Nagar, P.O. Rajouri Garden, P.S. Subhash Nagar, Delhi
                                                                      ... Petitioner
                                          -Versus-
             1.   The State of Jharkhand
             2.   Anupama Pandey, wife of Vikram Pandey, D/o Shri B.K. Pandey,
                  resident of New Nagratoli, P.O. & P.S. Lalpur, District- Ranchi
                  (Jharkhand)                                        ... Opposite Parties
                                            -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                            -----

For the Petitioners : Mr. Rahul Kumar, Advocate (In Cr.M.P.-1403/16) Ms. Apoorva Singh, Advocate : Mr. A.K. Kashyap, Sr. Advocate (In Cr.M.P.-3046/18 & 3378/18) For the State : Mr. S.K. Jha, A.P.P. (In all cases) For O.P. No.2 : Mr. Nilesh Kumar, Advocate (In all cases) Ms. Sonal Sodhani, Advocate

-----

16/02.05.2022. Heard Mr. Rahul Kumar assisted by Ms. Apoorva Singh, learned

counsel for the petitioner in Cr.M.P. No.1403 of 2016 and Mr. A.K. Kashyap,

learned senior counsel appearing for the petitioners in Cr.M.P. Nos.3046 of

2018 and 3378 of 2018, Mr. S.K. Jha, learned counsel for the State in all the

cases and Mr. Nilesh Kumar assisted by Ms. Sonal Sodhani, learned counsel

for opposite party no.2 in all the cases.

2. In all these petitions, common question of facts and laws are involved

and that is why with the consent of the parties, these petitions are heard

together.

3. In Cr.M.P. No.1403 of 2016, the petitioner is the mother-in-law of

opposite party no.2, in Cr.M.P. No.3046 of 2018, the petitioner is the father-

in-law of opposite party no.2 and in Cr.M.P. No.3378 of 2018, the petitioner

is the husband of opposite party no.2.

4. In all the cases, the prayer has been made for quashing the order

dated 26.02.2016 passed by the learned S.D.J.M., Ranchi including the

entire criminal proceeding initiated against the petitioners in connection

with Complaint Case No.2052 of 2013, pending in the court of the learned

S.D.J.M., Ranchi.

5. The opposite party no.2 has filed complaint case alleging therein that

her marriage was solemnized with Vikram Pandey, who is working as

Assistant Manager, IDBI Bank at Hotel BNR Chanakya, Ranchi on

19.04.2012. It was further alleged that after the date of marriage was fixed

and the same was communicated to friends and relatives of the

complainant, the accused persons started demanding Rs.12 Lacs in cash

from the father of the complainant failing which her daughter's marriage

would not be materialized upon which the complainant's father succumbed

to their aforesaid demands, burdening himself from loans to avoid

cancellation of her daughter marriage and for protecting the family

culture and marriage took place on 19.04.2012. It was also alleged that

about 35.6 grams of gold and ornaments, Rs.40,000/- worth of silver

ornaments and about Rs.1 Lac of clothes was gifted to the

complainant at the time of bidai by her father. Post marriage, complaint was

made by the husband and mother-in-law of complainant regarding non

gifting of car and for the same, the father-in-law of the complainant insulted

the father of the complainant and husband and mother-in-law

started mental cruelty on the complainant. On 21.04.2012, the

complainant heard her husband speaking with another lady and telling her

that no one can take her place and complainant would be send home

and on enquiry it was disclosed that he was talking to his lover Sonu Kalra

@ Meenakshi and told her that he had married her under family pressure

and that she should get used to living with Sonu Kalra @ Meenakshi and on

the same night they had physical relationship. The complainant

informed her in-laws and her father-in-law made lewd comments.

Thereafter, the complainant's husband had to go to Delhi for which his

parents demanded that the Delhi house of the husband be furnished and

decorated by her parents and to force her to accept their demands, they

stopped her from using all gadgets like TV, washing machine, AC, etc. she

was also prevented from appearing in her MA exams but still she appeared

on for the exam on 24.04.2012 and 27.04.2012 for which her books were

torn and was threatened with dire consequences. It was further alleged that

on 29.04.2012, the complainant's husband left for Delhi and the

complainant was left alone with her father-in-law and mother-in-law. In the

same night, when she went to bed, she left her room unlocked and at

midnight she felt some one touching her whereupon she woke up and found

her father-in-law half naked trying to undress her and she tried to shout but

her father-in-law pressed her mouth and told her that while his son will live

with his girlfriend, he will fulfil her needs and make her the queen of the

house. However, she broke free and locked herself in the bathroom and

next morning informed her mother who came and took her away to her

residence at new Nagratoli. Thereafter on 16.05.2012, she alongwith her

mother-in-law went to Delhi. In the night of 15th May, again demand for

furnishing the Delhi house was made by her mother-in-law and on refusal,

the complainant was assaulted. On reaching Delhi, she found her insisting

that she too will have to stay in the house where her husband and his friend

Dhiraj Verma were residing. In Delhi, she was relentlessly tortured and on

pretext of giving medicine for pain, she was daily given some drug for which

she lost her mental balance and became mentally sick and used to remain

in semi conscious. She was then brought to Ranchi on 23.06.2012 by air

and dropped at the airport where her parents received her and she was

treated by various doctors who asserted that her condition was due to

consumption of wrong medicine. Effort to reconcile the matter failed

whereupon on 12.08.2013 she made report with Lalpur Police Station who

advised her to go Argora Police Station. The demand of her personal things

were refused and hence a complaint was lodged.

6. At the outset, preliminary objection has been made by Mr. Nilesh

Kumar, learned counsel for opposite party no.2 on the point that now the

charge has already been framed and three prosecution witnesses have been

examined in the trial court and that is why at this stage, this Court may not

interfere and quash the entire criminal proceeding as there is no stay

granted earlier in the petitions whereas one of the case has been filed in the

year 2016 itself.

7. Mr. Rahul Kumar, learned counsel appearing for the petitioner in

Cr.M.P. No.1403 of 2016 submits that this Court has got ample power to

exercise its jurisdiction under Section 482 Cr.P.C., at any stage and this

aspect of the matter is well settled in light of the judgment passed by the

Hon'ble Supreme Court in the case of Satish Mehra v. State (NCT of

Delhi) and another, reported in AIR 2013 SC 506 and in the case of

Joseph Salvaraj A. v. State of Gujarat , reported in (2011) 7 SCC 59.

He further submits that considering these two judgments of the Hon'ble

Supreme Court, recently the Madhya Pradesh High Court has interfered with

the case and quash the entire criminal proceeding in the case of Ravi Kant

Dubey & others v. State of M.P. & another, reported in 2014 SCC

OnLine MP 1981. He also submits that so far as the petitioner in Cr.M.P.

No.1403 of 2016 is concerned, there are omnibus allegation against her and

this Court is having power to quash the entire criminal proceeding. He

further submits that the petition filed under Section 125 Cr.P.C. by opposite

party no.2 has been decided by the competent court whereby the said

petition has been dismissed and in view of Sections 140 and 141 C.P.C., if a

competent court of civil jurisdiction has passed the order that can be looked

into by the Court while dealing with the criminal matter also. To buttress

this argument, he relied upon the judgment passed by the Hon'ble Supreme

Court in the case of K.G. Premshanker v. Inspector of Police, reported

in (2002) 8 SCC 87.

8. Paragraphs 14, 15, 16, 17, 30 and 31 of the said judgment are quoted

herein below:

"14. It is the submission of learned Senior Counsel Mr Dholakia that in view of the well-settled principle, the High Court ought to have dropped the prosecution against the

appellant as the civil court has dismissed the suit for damages filed against the appellant.

15. Learned Additional Solicitor-General Shri Altaf Ahmed appearing for the respondents submitted that the observation made by this Court in V.M. Shah case that "the finding recorded by the criminal court, stands superseded by the finding recorded by the civil court and thereby the finding of the civil court gets precedence over the finding recorded by the criminal court"

is against the law laid down by this Court in various decisions. For this, he rightly referred to the provisions of Sections 41, 42 and 43 of the Evidence Act and submitted that under the Evidence Act to what extent judgments given in the previous proceedings are relevant is provided and therefore it would be against the law if it is held that as soon as the judgment and decree is passed in a civil suit the criminal proceedings are required to be dropped if the suit is decided against the plaintiff who is the complainant in the criminal proceedings.

16. In our view, the submission of learned Additional Solicitor-General requires to be accepted. Sections 40 to 43 of the Evidence Act provide which judgments of courts of justice are relevant and to what extent. Section 40 provides for previous judgment, order or a decree which by law prevents any court while taking cognizance of a suit or holding a trial, to be a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial. Section 40 is as under:

"40. Previous judgments relevant to bar a second suit or trial.--The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit or to hold such trial."

17. Section 41 provides for relevancy of certain judgments in probate, matrimonial, admiralty or insolvency jurisdiction and makes it relevant or conclusive as provided therein.

xxx xxx xxx

30. What emerges from the aforesaid discussion is -- (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case, Section 300 CrPC makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.

31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act

then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is -- whether judgment, order or decree is relevant, if relevant -- its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case."

9. Mr. Rahul Kumar further submits that after discussing entire facts, the

learned court below has dismissed the petition filed by opposite party no.2

under Section 125 Cr.P.C and on that ground, he submits that this Court

may entertain the petition considering the judgment passed in the case of

K.G. Premshanker (supra). He also submits that the petition filed by

opposite party no.2 under Section 9 of the Hindu Marriage Act has also

been decided by the same judgment. He further submits that Section 498A

I.P.C. has been considered in the case of Sushil Kumar Sharma v. Union

of India & others , reported in 2005 SCC OnLine SC 1055.

10. Paragraph 19 of the said judgment is quoted herein below:

"19.The object of the provision is prevention of the dowry menace. But as has been rightly contended by the petitioner many instances have come to light where the complaints are not bona fide and have been filed with oblique motive. In such cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely because the provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreak personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt with. Till then the courts have to take care of the situation within the

existing framework. As noted above the object is to strike at the roots of dowry menace. But by misuse of the provision a new legal terrorism can be unleashed. The provision is intended to be used as a shield and not as an assassin's weapon. If the cry of "wolf" is made too often as a prank, assistance and protection may not be available when the actual "wolf" appears. There is no question of the investigating agency and courts casually dealing with the allegations. They cannot follow any straitjacket formula in the matters relating to dowry tortures, deaths and cruelty. It cannot be lost sight of that the ultimate objective of every legal system is to arrive at the truth, punish the guilty and protect the innocent. There is no scope for any preconceived notion or view. It is strenuously argued by the petitioner that the investigating agencies and the courts start with the presumptions that the accused persons are guilty and that the complainant is speaking the truth. This is too wide and generalised a statement. Certain statutory presumptions are drawn which again are rebuttable. It is to be noted that the role of the investigating agencies and the courts is that of a watchdog and not of a bloodhound. It should be their effort to see that an innocent person is not made to suffer on account of unfounded, baseless and malicious allegations. It is equally undisputable that in many cases no direct evidence is available and the courts have to act on circumstantial evidence. While dealing with such cases, the law laid down relating to circumstantial evidence has to be kept in view."

11. Mr. Rahul Kumar further submits that since all these materials are on

the record, at any stage this Court is competent to quash the entire criminal

proceedings.

12. Mr. A.K. Kashyap, learned senior counsel appearing for the father-in-

law and husband of opposite party no.2 in Cr.M.P. Nos. 3046 of 2018 and

3378 of 2018 submits that bald allegation is made against the petitioners.

What has been alleged against the father-in-law, that is not possible as it

has been alleged on 19.04.2012 i.e. in one month of marriage. He further

submits that the husband of opposite party no.2 has filed divorce petition at

Delhi on 27.05.2013 in which notice has been issued upon opposite party

no.2 on 30.05.2013 and thereafter the complaint case has been filed in

Ranchi on 19.08.2013. He further submits that recently Section 498A IPC

was the subject matter before the Hon'ble Supreme Court in the case of

Kahkashan Kausar @ Sonak and others v. State of Bihar and

others, reported in 2022 SCC OnLine SC 162 particularly in paragraph

22 of the judgment.

13. Paragraph 22 of the said judgment is quoted herein below:

"22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged."

14. Mr. A.K. Kashyap, learned senior counsel appearing for the petitioners

also relied upon the judgment passed by this Court in the case of

Sangeeta Devi @ Puttu Devi & others v. The State of Jharkhand &

another, reported in 2021 4 JCR 499 Jhr and submits that this Court

has interfered in the case of in-laws and quash the entire criminal

proceeding.

15. Rest of the arguments advanced by Mr. Rahul Kumar has been

supported by Mr. A.K. Kashyap, learned senior counsel for the petitioners.

16. Per contra, Mr. Nilesh Kumar learned counsel for opposite party no.2

submits that so far as the case against the petitioners is concerned, that is

at advanced state before the trial court. He further submits that one of the

petition has been filed in the year 2016 and no stay has yet been granted in

that petition. He further submits that the divorce petition filed by the

husband of opposite party no.2 at Delhi was transferred by the order of the

Court to the Court of Ranchi and the Ranchi Court has dismissed the said

divorce petition for non-prosecution. He further submits that all the

petitioners have filed discharge petition before the trial court which was

rejected and subsequently the same was challenged before the learned

Sessions Judge and the learned Sessions Judge has also dismissed the

discharge petition filed by the petitioners.

17. In view of the above facts and considering the submission of the

learned counsel for the parties, this Court has gone through the materials

on the record. It appears that one of the petition has been filed in the year

2016 and subsequently on different dates when the matter was listed the

learned counsel for the petitioners as well as opposite party no.2 have took

time. There is no stay granted in favour of the petitioners by this Court.

Subsequently, during the pendency of the petitions, the petitioners have

also invoked jurisdiction of discharge by way of filing a petition under

Section 245 Cr.P.C., which has been rejected by the learned trial court. The

petitioners have challenged that order before the learned Sessions Judge,

who affirmed the order passed by the trial court. The rejection of the

discharge petition by the learned trial court has been brought on record by

way of filing I.A. No.8933 of 2019 filed by the petitioner in Cr.M.P. No.1403

of 2016. On perusal of the order dated 19.08.2019 passed by the learned

trial court in discharge petition, it appears that the learned trial court has

looked into the entire materials and thereafter passed the order, which is a

well speaking order and even the witnesses and what are the allegations

and what are the parameters of Section 498A IPC, has also been dealt with

by the trial court while dismissing the discharge petition, which has been

affirmed later on by the learned Sessions Judge. The order passed by the

learned Sessions Judge in criminal revision has not been brought on record

by the petitioners. In the cases in hand, there are disputed question of facts

involved in the petitions, which are the subject matter of trial. Learned

counsel for the petitioners at the earlier stage had not made out the case of

stay and that is why the stay was not granted and subsequently the

petitioners have availed the provision of Section 245 Cr.P.C. by way of filing

discharge petition, which has been rejected and subsequently it has been

affirmed by the learned Sessions Judge. The order passed by the learned

Sessions Judge has not been brought on record. However, the order passed

by the trial court in discharge petition has been challenged by way of filing

I.A. No.8933 of 2019 in Cr.M.P. No.1403 of 2016 which has not been

allowed as yet. So far as jurisdiction under Section 482 Cr.P.C. is concerned,

that is not in dispute. This Court is competent to quash the entire criminal

proceeding, at any stage, but in particular facts and circumstances of the

case and it will apply from case to case. The judgment relied by Mr. Rahul

Kumar in the case of Ravi Kant Dubey and Satish Mehra (supra) are not

helping the petitioners. The judgment relied by Mr. Rahul Kumar, learned

counsel for the petitioner in the case of K.G. Premshanker (supra) is also

not in dispute in view of the fact that it is well settled that in such a

situation, when the judgment is passed by a competent civil court, the

prayer can be looked into and the case can be decided. However, in the

cases in hand as discussed supra, there are disputed question of facts

particularly considering this aspect of the matter that the discharge petition

filed by the petitioners has been rejected, which has been affirmed by the

learned Sessions Judge and that has not been even brought on record. This

Court is not in a position to appreciate what is the finding of the learned

Sessions Judge while affirming the order passed by the trial court in the

discharge petition. Section 498A IPC is the subject matter in different cases

and in appropriate cases, the Hon'ble Supreme Court and this Court have

interfered and quash the criminal proceeding where omnibus allegations are

there against the father-in-law, mother-in-law, brother-in-law etc.

18. The judgment relied by Mr. A.K. Kashyap learned senior counsel for

the petitioners in the case of Sangeeta Devi @ Puttu Devi (supra) is on

different footing and in that case no discharge petition was filed and the

Court on the materials on the record has exercised power under Section 482

Cr.P.C. In the cases in hand, on the one hand the petitioners have filed

these criminal miscellaneous petitions before this Court which were allowed

to be kept pending and thereafter the discharge petition was filed under

Section 245 Cr.P.C. before the trial court which was rejected and later on the

same was affirmed by the revisional court. These facts are not the subject

matter in the case of Sangeeta Devi @ Puttu Devi (supra).

19. It is well-settled that where trial is at fag end, the High Court should

refrain from exercising its power as trial court would be in a position to

decide the matter on merits. A Reference in this regard may be made to the

judgment passed by the Hon'ble Supreme Court in the case of Narinder

Singh v. State of Punjab, reported in (2014) 6 SCC 466. Paragraph

29.7 of the said judgment is quoted herein below:

"29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge- sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution

evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime."

20. In view of the above facts and considering entire aspects of the

matter, it appears that there is disputed question of fact, which cannot be

appreciated by this Court while sitting under Section 482 Cr.P.C., which are

the subject matter of trial. Moreover, the trial has already been proceeded

and three witnesses have already been examined on behalf of the

prosecution.