Jharkhand High Court

Purnima Kumari vs The State Of Jharkhand on 4 August, 2023

       IN      THE HIGH COURT OF JHARKHAND AT RANCHI
                            Cr.M.P. No. 2594 of 2012
      1. Purnima Kumari
      2. Kuleshwar Sao
      3. Sanjay Kumar
      4. Mukesh kumar Sao @ Manish Kumar @ Raja
      5. Chameli Devi
      6. Ram Kumar Sao                                ..... ... Petitioners
                                  Versus
      1. The State of Jharkhand.
      2. Dharmsheela Devi                             ..... ...     Opposite Parties
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CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioners : Mr. Prabhat Kumar Sinha, Advocate. For the State : Mr. Sunil Kumar Dubey, A.P.P.

      For the O.P. No. 2        :        None.
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08/ 04.08.2023 It appears that the notice upon the O.P. No. 2 has been effected and the name of Mr. Rakesh Kumar Gupta, learned counsel is reflected in the cause list on behalf of the O.P. No. 2. On 29.11.2022, the O.P. No. 2 was not present and by way of last chance, the matter was adjourned with a view to provide an opportunity to the O.P. No. 2 and observation was made that on the next date, if the O.P. No. 2 shall not appear, appropriate order shall be passed on the basis of the materials available on record. Today also when the matter was taken up in spite of repeated calls, nobody has responded on the behalf of the O.P. No. 2. Accordingly, this petition is being heard in absence of O.P. No. 2.

2. Heard Mr. Prabhat Kumar Sinha, learned counsel appearing for the petitioners and Mr. Sunil Kumar Dubey, learned A.P.P. appearing for the State.

3. This petition has been filed for quashing of the entire criminal proceedings including the order taking cognizance dated 05.09.2011, by which, cognizance for the offences under Sections 147, 341, 323, 379 /34 of the Indian Penal Code has been taken against the petitioners, in connection with Telaiya P.S. Case No. 265 of 2011 corresponding to G.R. No. 549 of 2011, pending in the court of learned Additional Chief Judicial Magistrate, Koderma.

4. The FIR was lodged alleging therein that the informant has submitted a written report to the Officer-in-Charge, Telaiya Police Station, alleging therein that she is an old ailing lady and is having five sons out of which only two stay at the home whereas rest of the sons are residing out of station for their employment. Her eldest son namely Binay Kumar is a

lecturer at Bishnugarh Inter College since 1988 and was married with petitioner no. 1 namely Purnima Kumari, who is residing at Krishna Nagar, North Shivpuri since 2003 alongwith her four daughters and one son. There is dispute between the husband and wife and for that the son and the informant was thrown out of the house on 4.4.2011 by some antisocial elements The reason is that the two granddaughters of the informant namely Puja and Neha, who are aged about 20 and 18 years respectively are having illicit relation with the consent of their mother with some persons and as because the son of the informant objected the same he was thrown out of the house with the help of antisocial elements.

It is further alleged that on 7 June 2011 petitioner Purnima Kumari threatened the informant to give half share of the properties of Telaiya or be ready for dire consequences. The informant, when tried to explain her that she is having five sons who have equal shares and requested her to get the matter settled on which she threatened her of dire consequences. Thereafter on 12.6.2011 at about 12 hours all the petitioners alongwith two other persons started abusing the informant and manhandled her as such she felt down and committed theft in the house after breaking the lock of the boxes, and fled away before the sons of the informant came to the house.

5. Learned counsel appearing for the petitioners submits that the petitioner No. 1 is the eldest daughter-in-law of the informant, petitioner No. 2 is brother-in-law (Bahnoi) of petitioner No. 1, petitioner No. 4 is brother of the petitioner No. 1, petitioner No. 6 is the wife of petitioner No. 4, petitioner No. 3 is son of the petitioner No. 4 and petitioner No. 5 is also related with petitioner No. 1 and all the petitioners are related with petitioner No. 1 and also they have been falsely implicated in the case to put pressure upon the petitioner No. 1. He further submits that the petitioner No. 1 lodged an FIR against the informant and other in-laws including her husband, being Katkamsandi (Pelawal) P.S. Case No. 74 of 2011 for the offence under Sections 341, 323, 498-A / 34 and Section 3/4 of the Dowry Prohibition Act. He further submits that the husband of the petitioner No. 1 namely Binay Kumar filed anticipatory bail application, which was sent for conciliation on 30.05.2011, wherein he has agreed for compromise on certain terms and condition, but when the said terms and conditions were reduced in writing, he refused to sign on the same and left the place. He further submits that thereafter the said anticipatory bail was

rejected. He further submits that the husband of the petitioner No. 1 again preferred the anticipatory bail application and in the meantime, the present case has been filed. He further submits that none of the petitioners have ever visited Telaiya on 12.06.2011. He also submits that in Katkamsandi (Pelawal) P.S. Case No. 74 of 2011, the husband of the petitioner No. 1 executed the bond mentioning therein that he will not torture the petitioner No. 1 and her children and to take care of her children and in the said case, the chargesheet has been submitted and thereafter in the present case, the cognizance has been taken. He submits that even today the husband of the petitioner No. 1 is not maintaining the petitioner No. 1 and her children, for which, a civil case is also pending. On these grounds, learned counsel appearing for the petitioners submits that the entire criminal proceedings against the petitioners may kindly be quashed. To buttress his arguments, he relied in the case of Manoj Mahavir Prasad Khaitan Versus Ram Gopal Poddar & Anr. reported in (2010) 10 SCC 673, wherein in paras-9 to 13, the Hon'ble Supreme Court has held as follows:-

"9. The only material on the basis of which the Magistrate issued the summons was the complaint and the verification statement. Beyond the allegations which we have already mentioned, there are no other allegations. We feel on the face of it the allegations were absurd and without any basis. It is absurd to think that the appellant herein who was present with the police party (2 in No.) would venture to pocket the bangles in their presence. Further, admittedly, after locking the locker, the keys were handed over to the respondent No. 1. Neither is it known nor has it

opened the locker again to find that the two gold bangles were stolen. Be that as it may, the very look of the complaint is enough to convince one about the absurdity of the allegations. When the complaint is seen on the backdrop of the prosecution of the respondent No. 1 for offences under Section 498 IPC and the allied offences, the absurdity becomes all the more prominent.

Again there is no complaint against the two accompanying police officers. They have not been made accused in the complaint. There can be no doubt, therefore, that the complaint wholly lacks the bona fides and it was obviously with the indirect motive for hounding the appellant who

was none else but the brother of the daughter-in- law of respondent No. 1 who had started the criminal proceedings.

10. The learned Counsel for the appellant is, therefore, right in contending that the complaint had to be quashed, firstly, because it was absurd and secondly, because the complainant/respondent No. 1 wholly lack the bona fides in filing such complaint which was absurd. The learned Counsel for the respondent No. 1 vehemently argued that at this stage, what was to be seen was only the contents of the complaint and if there appeared the basic contentions indicating committing of crime by the appellant/accused, then the Courts would not interfere with the same and leave the parties to lead evidence during the ensuing trial, relying on the oft-quoted decision in State of Haryana & Ors. Vs. Bhajan Lal & Ors. [1992 Supp. (1) SCC 335]. There can be no dispute about the law laid down in that case. However, where on the face of it the absurd charges are levelled and there is a whole lack of the bona fides of the complainant/respondent No.1, in our opinion, there would be no fetter in using the powers under Section 482 Cr.P.C.

11. It was pointed out that the criminal revision against the issuance of summons was withdrawn. We were, therefore, taken to the High Court's judgment, where the High Court has found itself to be powerless in view of the withdrawal of the criminal revision and had advised the parties to go back to the revisional Court and get it restored. We do not think that the High Court was justified in advising the appellant to go back to the Sessions Judge and to get the criminal revision revived without going into the question whether such revision could have been revived in law or not. We observe that the High Court was not powerless. The High Court itself was exercising its jurisdiction under Section 482 Cr.P.C., where the High Court could pass any order in the interests of justice. This power was available only to the High Court in contradistinction to the Sessions Judge who was only entertaining the revision application of the appellant under Section 397 Cr.P.C. The High Court should have, therefore, applied its mind to

the fact situation. It should have been realized that the complaint was wholly covered under the 7th circumstance in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. (cited supra), which is as under:-

"102 (7). Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

It was also covered under 3rd circumstance in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. (cited supra), which suggests:-

"102(3). Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused."

12. We reiterate that when the criminal Court looks into the complaint, it has to do so with the open mind. True it is that that is not the stage for finding out the truth or otherwise in the allegations; but where the allegations themselves are so absurd that no reasonable man would accept the same, the High Court could not have thrown its arms in the air and expressed its inability to do anything in the matter. Section 482 Cr.P.C. is a guarantee against injustice. The High Court is invested with the tremendous powers thereunder to pass any order in the interest of justice. Therefore, this would have been a proper case for the High Court to look into the allegations with the openness and then to decide whether to pass any order in the interests of justice. In our opinion, this was a case where the High Court ought to have used its powers under Section 482 Cr.P.C.

13. In view of the fact, we ordinarily would have sent the matter back to the High Court, but there is no point now in remanding the matter back to the High Court in view of the pendency of this matter for last six years. In that view, we allow this appeal, set aside the order of the High Court and quash the criminal proceedings started by the respondent No. 1 vide Criminal Case No. 194 of 2005."

6. Learned A.P.P. appearing for the State submits that the learned court has rightly taken the cognizance and there is no illegality in that cognizance order.

7. In view of the above submissions of the parties, the court finds that the petitioner No. 1 has filed Katkamsandi (Pelawal) P.S. Case No. 74 of 2011 against her husband and O.P. No. 2 and thereafter the O.P. No. 2, who happened to be the mother of the husband of the petitioner No. 1 and filed the present case arraying the relatives of petitioner No. 1, which suggests that only to make out a pressure, the present case has been filed as a counter blast of Katkamsandi (Pelawal) P.S. Case No. 74 of 2011. The husband of the petitioner No. 1 is not maintaining the petitioner No. 1 and her children for that a civil case is already pending before the competent court of civil jurisdiction.

8. Looking into the contents of the present case, so far as the other petitioners, except petitioner No. 1 are concerned there are no allegation and only allegation made against the petitioner No. 2, which, suggests that maliciously the present case has been filed and in this background, the case of the petitioners are fully covered in light of the judgment of the Hon'ble Supreme Court in the case of Manoj Mahavir Prasad Khaitan (Supra).

9. Accordingly, the entire criminal proceedings including the order taking cognizance dated 05.09.2011, by which, cognizance for the offences under Sections 147, 341, 323, 379 /34 of the Indian Penal Code has been taken against the petitioners, in connection with Telaiya P.S. Case No. 265 of 2011 corresponding to G.R. No. 549 of 2011, pending in the court of learned Additional Chief Judicial Magistrate, Koderma, are hereby, quashed.