QUASH - 498a - ABUSE OF PROCESS - Sanjay Vs Bihar

QUASH  - 498a - ABUSE OF PROCESS 

Patna High Court

Sanjay Kumar And Ors.

v

State Of Bihar And Anr. on 19 December, 2005

Equivalent citations: 2 (2006) DMC 171
Author: R M Prasad
Bench: R M Prasad

ORDER Radha Mohan Prasad, J.

1. This misc. application has been filed for quashing the entire criminal proceeding against the petitioners arising out of Pirbahore P.S. Case No. 120/2000 and for setting aside the order dated 3.5.2002 passed by learned Sessions Judge, Patna in Criminal Revision No. 817 of 2001 by which the Sessions Judge dismissed the said revision filed against the order dated 7.9.2001 passed by learned Sub-Divisional Judicial Magistrate, Patna, rejecting the prayer of the petitioners to discharge them under the provisions of Section 293 of the Code of Criminal Procedure.

2. Renu Kumari, opposite party No. 2, who is wife of Rajesh Kumar (petitioner No. 3) lodged a case in Pirbahore Police Station being Pirbahore P.S. Case No. 120/2000 on 29,4.2000 under Section 498-A, I.P.C. and Section 3/4 of the Dowry Prohibition Act, against the petitioners, who are family members of her in-laws.

3. According to the case of the petitioners, the aforesaid case being Pirbahore P.S. Case No. 120 of 2000 is a counter-blast with a view to pressurise the petitioners, who earlier on 15.3.2000 filed Matrimonial Case No. 49/2000. The aforesaid matrimonial case has been filed for divorce on the ground of cruelty and adultery. It is stated that on 28.8.2001 petitioners filed discharge petition under Section 239 of the Code of Criminal Procedure before the learned Sub-Divisional Judicial Magistrate, Patna, who vide order dated 7.9.2001 rejected the same. Thereafter, petitioners filed Criminal Revision No. 817 of 2001 against the aforesaid order of learned Sub-Divisional Judicial Magistrate before learned Sessions Judge, Patna, who vide order dated 3.5.2002 dismissed the same. It is further stated that the allegation made in the First Information Report against the petitioners is general and vague and cannot be sustained in the eyes of law. It is further stated that the aforesaid criminal case has been lodged against all the family members with a view to harass the petitioners and to get the matrimonial case withdrawn which was filed earlier against the informant by her husband, Rajesh Kumar (petitioner No. 3).

4. This Court vide order dated 22.2.2005 permitted learned Counsel for the petitioners to add the informant as opposite party No. 2 and issued notice to opposite party No. 2 to show cause as to why this misc. application be not admitted and finally disposed of at this stage itself.

5. Opposite party No. 2 appeared and filed counter affidavit in which it has been stated that there was constant and persistent demand by the petitioners for dowry of rupees one lac and Vespa scooter from the very day of her Bidai. It has been further alleged that she was subjected to cruelty and torture by the petitioners because of non-fulfilment of demand of dowry. It is stated that despite the direction of the Principal Judge, Family Court, Patna vide order dated 18.3.2002 in Divorce Case No. 49 of 2000 to pay monthly maintenance of Rs. 2000 along with litigation cost of Rs. 5,000 but till the date of filing of the counter affidavit she has not been paid single farthing. However, it is stated that Misc. Case No. 12 of 2001 has been filed by petitioner No. 6 against execution of the aforesaid order of maintenance, which is pending and. as such, the matter of maintenance is lingering for more than three years. It is further submitted that Matrimonial Case No. 49/2000 has been dismissed on 12.10.2004 and thereafter opposite party No. 2 filed Maintenance Case No. 14(M)/2005 under Section 125, Cr. P.C. which has been admitted and pending for ad interim maintenance. Under such circumstances, learned Counsel for the opposite party No. 2 submitted that the power under Section 482, Cr. P.C. is not to be exercised in such matters where the allegation made against the accused constitute offences. The details can be gone into only on talking evidence at the trial.

6. On the other hand, learned Counsel for the petitioners contended that the entire criminal proceeding against the petitioners is bad and sheer abuse of the process of the Court. The present case has been brought by the informant-opposite party No. 2 with malice in order to take revenge as well as to put pressure upon the petitioners. He further contended that the Apex Court in the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. reported in I (2006) CCR 209 (SC) : A1R 1992 SC 604, has held that where the criminal proceedings is a maliciously instituted with an ulterior motive for wreaking vengeance on the accused, the High Court may in exercise of its jurisdiction under Section 482, Cr. P.C. interfere to prevent abuse of the process of the Court.

7. I find force in the submission of learned Counsel for the petitioners. There cannot be any dispute that the powers under Section 482, Cr. P.C. are to be exercised by the Court in exceptional circumstances and very sparingly. The Court is not expected to embark upon the enquiry about the guilt or otherwise of the case in a petition under Section 482, Cr. P.C. But, if on the face of the record itself it appears that the accused cannot be called upon to answer any criminal liability, it will be just and proper for this Court to exercise its power under Section 482, Cr. P.C. to prevent the abuse of the process of the Court. In the case of State of Haryana and Ors. v. Ch. Bhajan Lal and Ors. (supra), the Supreme Court laid down seven criteria in which circumstances the High Court may in exercise of its jurisdiction under Section 482, Cr. P.C. interfere to prevent abuse of the process of the Court or otherwise to secure the ends of justice and one of the criteria is "Where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings 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." The present case is a glaring example of mala fide, where the proceeding has been maliciously instituted with ulterior motive for wreaking vengeance on the accused and with a view to spite them due to private and personal grudge.

8. It appears that marriage of informant-opposite party No. 2 and petitioner e No. 3 was solemnised on 1.7.1998 and out of their wedlock they were blessed with a girl child on 15.6.1999. On 15.3.2000 petitioner No. 3 filed matrimonial (divorce) case on the ground of cruelty and aduitery and thereafter opposite party No. 2 filed the present case under Sections 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act against the entire family of petitioner No. 3, her husband leveling general and vague allegation against them. It has been stated that the allegation made in the First Information Report does not find place in the written statement filed by the informant-opposite party No. 2 in Matrimonial Case No. 49/ 2000, which was filed earlier to lodging of the FIR, which fact has not been disputed in the counter affidavit. The facts aforementioned goes to show that the present case has been maliciously instituted by the informant with ulterior motive for wreaking vengeance due to personal grudge.

9. Thus, in my opinion, continuance of criminal proceeding against the petitioners will be sheer abuse of the process of the Court.

10. In the result, this criminal misc. application is allowed. The entire criminal proceeding against the petitioners arising out of Pirbahore P.S. Case No. 120/2000 is hereby quashed