Patna High Court
Swopnajeet Mohapatra vs The State Of Bihar Through The Sect. Home ... on 29 January, 2024
Author: Rajeev Ranjan Prasad
Bench: Rajeev Ranjan Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.542 of 2022
Arising Out of PS. Case No.-138 Year-2021 Thana- MAHILA P.S. District- Patna
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1. Swopnajeet Mohapatra, Son of Shri Sushil Kumar Mahapatra, Occ.-
Services, Residing at A-404, Reverscape CHS, Casa Rio Palava City, Kalyan
Shil Road, Dombivli East- 421 204, Maharashtra.
2. Shri Sushil Kumar Mohapatra, S/o Late Ramkrishna Mohapatra, Occ.-
Retired, Residing at A-404, Reverscape CHS, Casa Rio Palava City, Kalyan
Shil Road Dombivli East- 421 204, Maharashtra.
3. Smt. Harpriya Das, W/o Shri Sushil Kumar Mahapatra, Occ.- Retired,
Residing at A-404, Reverscape CHS, Casa Rio Palava City, Kalyan Shil
Road Dombivli East- 421 204, Maharashtra
... ... Petitioners
Versus
1. The State of Bihar through the Secretary, Home Department, New
Secretariat, Patna, Bihar at the instance of Mahila Police Thana,
Gardanibaug, P.S.- Patna, Bihar.
2. The City SP, Gandhi Maidan Road, Muradpur, Patna, Bihar- 800001.
3. The Inspector of Mahila Police Thana @ IO Smt. Usha Sinha, Gardani
Baug, Patna.
4. Smt. Neetu Prasad, Address in Dombivli- Flat No. 202, Utopia B, Casa
Bella Gold, Kayan Shil Road, Dombivli East- 421201, Address in Patna-
4031, Sunny Towers Mohalla, Buddha Colony Hospito India K. South,
District- Patna, Mob.- 9987091360, 8433985041
... ... Respondents
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Appearance :
For the Petitioners : Mr. Pravashankar Mishra, Advocate
For the State : Ms. Divya Verma, AC to AAG-3
For the Resp No. 4 : Mr. Arun Kumar, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date : 29-01-2024
This writ application has been preferred invoking the
extraordinary writ jurisdiction of this Court to quash and cancel the
first information report being Mahila P.S. Case No. 138 of 2021
registered for the offences alleged under Sections 323, 498A read
with 34 of the Indian Penal Code and Section 3/4 of the Dowry
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
2/14
Prohibition Act. The petitioners also prayed for providing protection
as they have imminent threat to their life and liberty.
Brief facts of the case
2. The writ application was initially filed on behalf of
three petitioners. The petitioner no. 1 is the husband of the
respondent no. 4. According to the statements made in the writ
application, he is having a brilliant academic and professional career
throughout his life. He is currently the Organization Head designated
as Vice President (Head of Strategy, CEO's Office), Nayara Energy
Limited at Mumbai.
3. The petitioner no. 2 is a Retired District & Session
Judge, Bhubaneswar who has served in various districts of Orissa as
a Judicial Officer for thirty-five long years having a very successful
and unblemished career record throughout. He is the father of
petitioner no. 1 and father-in-law of respondent no. 4. Petitioner no. 3
is a retired School Teacher of Government Girls High School,
Badasankha, Puri, Orissa. She is the mother of petitioner no. 1 and
mother-in-law of respondent no. 4.
4. It is the case of the petitioners that there was a love-
cum-arranged marriage of petitioner no. 1 with respondent no. 4
according to the Hindu Rites and Customs. The respondent no. 4
came to Mumbai after spending two weeks' time in Bhubaneshwar
and started living together in a rented house. They got a baby born
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
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out of the wedlock. It is stated that petitioner no. 1 and respondent
no. 4 together purchased a flat at Mumbai with a booking amount of
Rs.27,000/-. The petitioner no. 1 was traveling to various countries
for business, hence, he used to transfer the money to the informant so
that she can arrange for the builder's payments directly. The interior
of the flat was completed in the year 2016 thereafter they shifted to
new house in March, 2016. At this stage, petitioner nos. 2 and 3 were
invited to attend the house warming ceremony.
5. It seems that over the period, the petitioner no. 1 and
respondent no. 4 fell apart. At this stage, this Court need not take
note of each and every detail furnished by the petitioners in the writ
application. Suffice is to say that petitioner no. 1 filed a petition in
the learned Principal Judge, Family Court, Bhubaneshwar, Orissa for
dissolution of marriage and according to him, two summons were
served upon respondent no. 4 but she did not appear in the court,
instead she went to Patna, Bihar to her father's place and lodged a
complaint with Mahila Police Station with her ulterior motive of
merely harassing the petitioners and bring disrepute by lowering the
relation.
Contents of the complaint
6. It is stated in the FIR that respondent no. 4 is employed
on the post of General Manager in Reliance Industries Limited since
the year 2007 and at the time of lodging of the FIR, she was residing
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
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at Patna in the residence of her father, it was Covid-19 period and she
was working from home. According to her complaint, the marriage
between the petitioner no. 1 and the informant was solemnized on
19.08.2008
at Patna whereafter the informant went to her husband's
place at Bhubaneshwar and lived with him for few days. It is stated
that thereafter she came to her work place at Mumbai and was living
with her husband.
It is alleged that over the period, since the father-in-law and
mother-in-law of the informant had retired from service, they were
called at Mumbai and they started living together. It is alleged that
during their stay, the mother-in-law and father-in-law started
interfering with day-to-day affairs of the informant which led to
domestic disturbances. At this stage, it is alleged by way of an
example that the informant purchased a flat at Mumbai from her own
earning and she paid consideration money from her bank account but
her father-in-law got the name of her husband entered in the sale
deed as first purchaser and name of the informant as second
purchaser. Then, it is alleged that the mother-in-law and father-in-law
took control of all the ornaments worth Rs.8,00,000/- which she had
received from her parents. It is further alleged that during the period
2008-2017, her mother-in-law and father-in-law took about
Rs.36,00,000/- from her and all these amounts were given to them
through bank account. On demand allegedly made by the informant,
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
her husband, father-in-law and mother-in-law started torturing her to
the extent of giving her beating and since last four years, they were
pressurizing her to get her name expunged from the sale deed of the
flat in question and when the informant did not agree for the same, all
the three left the flat, started living in a rented flat. While leaving the
flat, they also took away the daughter of the informant and they were
not allowing her to meet her daughter.
Efforts to settle the dispute through mediation
7. At this stage, let it be recorded that when this writ
application was taken up for consideration, learned counsel for the
petitioners and learned counsel for the informant as also petitioner
no. 1 requested this Court to send the records to the Mediation Center
attached to this Court for taking efforts for amicable settlement.
Learned counsel for the informant submitted that the informant may
visit the Mediation Center after twenty days, therefore, they made a
request to fix the case after 26th of September, 2022. This Court
agreed with the request of the parties and fixed 10 th of October, 2022
at 12:30 pm for the informant and petitioner no. 1 to appear before
the Mediator.
8. Subsequently, when this case was taken up on
29.11.2022, this Court was informed that the mediation could not
take place but considering the best interest of the girl child, this
Court requested Ms. Nivedita Nirvikar, learned Senior Counsel for
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
the petitioners and Ms. Soni Srivastava, learned counsel for the
respondent no. 4 to take their time in talking to the girl child so as to
make her understand her interest in being in touch with her mother
also.
9. Both learned counsel assured this Court that they will
try their best to talk to the girl child in this regard and apprise this
Court. The record would show that the case was adjourned on some
more days on the request of the parties. In the meantime, the police
submitted a charge-sheet and this Court has been informed that
learned court below has passed an order taking cognizance.
Petitioner no.1 withdraws
10. When this writ application was taken up for
consideration on 02.01.2024, at the outset, learned counsel for the
petitioners submitted that he would not press this application on
behalf of the petitioner no. 1 at this stage and would reserve his right
to seek his remedy in accordance with law at appropriate stage.
Petition was argued on behalf of petitioner nos. 2 and 3 only. This
Court permitted learned counsel for the petitioners to withdraw this
application on behalf of petitioner no. 1 with liberty as prayed for.
Submissions on behalf of petitioner nos. 2 and 3
11. In course of submissions, learned counsel for the
petitioners would submit that on a bare reading of the first
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
information report, it would appear that both the husband and wife
are highly educated and well-placed in career as a professional.
12. Learned counsel for the petitioner nos. 2 and 3 submits
that these two petitioners are 77 years and 73 years old respectively
who live at Bhubaneshwar. The marriage between the petitioner no. 1
and respondent no. 4 was a love marriage. They were fully grown up
and well-placed in life, the petitioner nos. 2 and 3 simply endorsed
their proposal of marriage. There is no allegation that at the time of
marriage, there was any demand of dowry.
13. Learned counsel submits that although in the FIR, a
false and flimsy allegation has been made that between the year 2008
and 2017, the respondent no. 4 had transferred Rs.36,00,000/- in the
account of the petitioner nos. 2 and 3, the fact is that for purpose of
purchase of flat at Mumbai, certain transactions had taken place.
Jewelries of the respondent no. 4 are kept in the Bank locker with her
consent and the allegation that those were taken control by the
petitioner nos. 2 and 3 is a mere concocted story. They are not in
control of her jewelries.
14. Learned counsel submits that the kind of allegations
made in the FIR would not be believable as the petitioner nos. 2 and
3 who are old aged people living at Bhubaneshwar after their
retirement cannot be said to be involved in torturing the respondent
no. 4 and giving her a beating. The respondent no. 4 is spending most
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
of her time abroad and she earns a handsome yearly salary in crores.
She has no interest in her daughter and the daughter is willingly
living with her father.
15. Learned counsel submits that it is one of those cases in
which the old aged parents of the husband have been made accused
just to harass them and torture the husband as well as her near kith
and kin.
16. Learned counsel for the petitioners has relied upon the
judgment of the Hon'ble Supreme Court in the case of Kahkashan
Kausar alias Sonam and Others Vs. The State of Bihar and
Others reported in (2022) 6 SCC 599 wherein the Hon'ble Supreme
Court has held that the Court should be careful in proceeding against
the distant relatives in crimes pertaining to matrimonial disputes and
dowry deaths and must keep in mind that the relatives of the husband
should not be roped in on the basis of omnibus allegations unless
specific instances of their involvement in the crime are made out. In
the F.I.R. itself it is stated that all the three had left the flat and
started living in a rented accommodation, therefore much before
lodging of this case at Patna admittedly her husband was living
separately. Prior to lodging of this F.I.R. no complaint was ever
lodged at Mumbai or Bhubaneshwar.
17. Learned counsel has further relied upon the judgment
of the Hon'ble Supreme Court in the case of Preeti Gupta and
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
Another Vs. State of Jharkhand and Another reported in (2010) 7
SCC 667.
18. It is submitted that in this case, the marriage was
solemnized in the year 2008 and a daughter was born out of the said
marriage to the parties in the year 2011. The flat in question was
purchased in joint name and both the parties are claiming that they
have contributed to the purchase of the flat from their respective
accounts. The FIR in this case has been lodged in the year 2021 after
about fourteen years of the marriage making completely baseless
allegations, hence, it would be appropriate to exercise extraordinary
power of this Court to quash the FIR and charge-sheet so as to stop
the abuse of the process of the Court and harassment of the
petitioners.
19. On the other hand, learned counsel for respondent no.
4 has opposed the writ application. It is submitted that on 03.11.2022,
in the third sitting of the Mediation, considering that the possibility
of restoration of matrimonial relationship was a remote possibility,
one time settlement of the issues was also discussed but once again,
owing to the arrogant stand of the petitioner, amicable settlement of
the dispute could not materialize. The petitioner no.1 and respondent
no.4 had participated in the mediation.
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
20. Learned counsel for the respondent no. 4 submits that
there being allegations against petitioner nos. 2 and 3 and now that a
charge-sheet has already been filed against them, this Court need not
interfere with the criminal proceeding and the petitioner nos. 2 and 3
must face the trial. A copy of the charge-sheet has been placed on the
record with the counter affidavit of respondent no. 2.
Consideration
21. Having heard learned counsel for the parties and on
perusal of the records, this Court finds that in this case, the marriage
between the petitioner no. 1 and respondent no. 4 had been a love
marriage out of their own will and volition. Both of them were
employed in reputed organizations at senior positions and had
independent source of income. There is no allegation that for the
purpose of marriage or thereafter, there was any demand of dowry,
though it is alleged after fourteen years of marriage that the petitioner
nos. 2 and 3 had received Rs.36,00,000/- in their accounts from the
respondent no. 4 and her father.
22. Given the kind of transactions done between the
parties in which a flat was also purchased at Mumbai in joint name
and this allegation is being made after 14 years of marriage after the
petitioner no.1 had already moved a competent court of law at
Mumbai seeking dissolution of marriage by a decree of divorce, this
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
Court is of the opinion that the allegations levelled against them are
mere pretext to rope them in the present case.
23. From the FIR itself, it appears that the petitioner no. 1
and respondent no. 4 were living together at Mumbai, they had
purchased a flat in the year 2011 and had a daughter out of the
marriage born in the year 2011. The tone and tenor of the first
information report lodged in the year 2021 clearly demonstrate that
the parents of the petitioner no. 1 have been implicated in this case
only because they are the kith and kin of the husband of respondent
no. 4. The allegations made in the FIR are highly improbable, the
petitioner nos. 2 and 3 are old aged people who have been living
separately at Bhubaneshwar after their retirement from service.
Petitioner no. 2 has served as Judicial Officer for thirty five years in
the State of Orissa whereas petitioner no. 3 is a retired Teacher from
a Government School.
24. In the case of State of Haryana and Others Vs.
Bhajan Lal and Others reported in 1992 Supp (1) SCC 335, the
Hon'ble Supreme Court has laid down the principles which are
required to be taken care of for the purpose of quashing of the first
information report. Paragraph '102' from the said judgment is quoted
hereunder for a ready reference:-
"102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and
of the principles of law enunciated by this Court in a
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
series of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercised.
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their entirety
do not prima facie constitute any offence or make out
a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying the
FIR do not disclose a cognizable offence, justifying
an investigation by police officers under Section
156(1) of the Code except under an order of a
Magistrate within the purview of Section 155(2) of
the Code.
(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.
(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient ground
for proceeding against the accused.
(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is instituted)
to the institution and continuance of the proceedings
and/or where there is a specific provision in the Code
or the concerned Act, providing efficacious redress
for the grievance of the aggrieved party.
(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."
25. In the given facts of this case, this Court has no iota of
doubt that the petitioner nos. 2 and 3 have been involved in this case
only with a malafide intention to harass them, allegations are flimsy
and are coming after fourteen years of marriage. On the basis of such
allegations, the petitioner nos. 2 and 3 are being sought to be
prosecuted at their old age and evening of their life. This Court is,
therefore, of the considered opinion that it is a case of malafide
prosecution and is liable to be quashed to stop the abuse of the
process of the Court as well as in the interest of justice.
26. This Court is, therefore, quashing the first information
report of Mahila P.S. Case No. 138 of 2021 as well as charge-sheet
Patna High Court CR. WJC No.542 of 2022 dt.29-01-2024
filed in this case as regards petitioner nos. 2 and 3. Consequent upon
this, the further proceeding shall stand vitiated.
27. This writ application stands allowed in respect of
petitioner nos. 2 and 3.
(Rajeev Ranjan Prasad, J)
lekhi/-avin/-
AFR/NAFR
CAV DATE 02.01.2024
Uploading Date 29.01.2024
Transmission Date 29.01.2024
