Fir failed to make out a prima facie case against accused,

 

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1674 OF 2012

(Arising out of SLP (Crl.) No. 10547/2010)

Geeta Mehrotra & Anr. ..Appellants

Versus

State of U.P. & Anr. . Respondents

J U D G M E N T

GYAN SUDHA MISRA, J.

1. This appeal by special leave in which we

granted leave has been filed by the appellants against

the order dated 6.9.2010 passed by the High Court of

Judicature at Allahabad in Crl. Miscellaneous

Application No.22714/2007 whereby the High Court

had been pleased to dispose of the application moved by

the appellants under Section 482 Cr.P.C. for quashing

the order of the Magistrate taking cognizance against

the appellants under Sections 498A/323/504/506 IPCPage 2

read with Section 3/4 of the Dowry Prohibition Act with

an observation that the question of territorial

jurisdiction cannot be properly decided by the High

Court under Section 482 Cr.P.C. for want of adequate

facts. It was, therefore, left open to the appellants to

move the trial court for dropping the proceedings on

the ground of lack of territorial jurisdiction. The High

Court however granted interim protection to the

appellants by directing the authorities not to issue

coercive process against the appellants until disposal of

the application filed by the appellants with a further

direction to the trial court to dispose of the application

if moved by the appellants, within a period of two

months from the date of moving the application. The

application under Section 482 Cr.P.C. was thus

disposed of by the High Court.

2. The appellants in spite of the liberty granted

to them to move the trial court, have filed this appeal for

quashing the proceedings which had been initiated on

the basis of a case lodged by the respondent No.2 Smt.

Shipra Mehrotra (earlier known as Shipra Seth) against

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her husband, father-in-law, mother-in-law, brother-inlaw and sister-in-law. This appeal has been preferred

by the sister-in-law, who is appellant No.1 and brotherin-law of the complainant, who is appellant No.2.

3. The case emerges out of the first information

report lodged by respondent No.2 Smt. Shipra

Mehrotra under Sections 498A/323/504/506 IPC

read with Section 3/4 of the Dowry Prohibition Act

bearing F.I.R.No. 52/2004. The F.I.R. was registered at

Mahila Thana Daraganj, Allahabad wherein the

complainant alleged that she was married to Shyamji

Mehrotra s/o Balbir Saran who was living at Eros

Garden, Charmswood Village, Faridabad, Suraj Kund

Road at Faridabad Haryana as per the Hindu marriage

rites and customs. Prior to marriage the complainant

and her family members were told by Shyamji Mehrotra

and his elder brother Ramji Mehrotra who is appellant

No.2 herein and their mother Smt. Kamla Mehrotra and

her sister Geeta Mehrotra who is appellant No.1 herein

that Shyamji is employed as a Team Leader in a top I.T.

Company in Chennai and is getting salary of

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Rs.45,000/- per month. After negotiation between the

parents of the complainant and the accused parties,

the marriage of the complainant Shipra Seth (later

Shipra Mehrotra) and Shyamji Mehrotra was performed

after which the respondent-complainant left for the

house of her in-laws.

4. It was stated that the atmosphere in the

house was peaceful for sometime but soon after the

wedding, when all the relatives left, the maid who

cooked meals was first of all paid-off by the aforesaid

four persons who then told the complainant that from

now onwards, the complainant will have to prepare food

for the family. In addition, the above mentioned people

started taunting and scolding her on trivial issues. The

complainant also came to know that Shyamji was not

employed anywhere and always stayed in the house.

Shyamji gradually took away all the money which the

complainant had with her and then told her that her

father had not given dowry properly, therefore, she

should get Rupees five lakhs from her father in order to

enable him to start business, because he was not

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getting any job. When the complainant clearly declined

and stated that she will not ask her parents for money,

Shyamji, on instigation of other accused-family

members, started beating her occasionally. To escape

every day torture and financial status of the family, the

complainant took up a job in a Call Centre at Convergys

on 17.2.2003 where the complainant had to do night

shifts due to which she used to come back home at

around 3 a.m. in the morning. Just on her return from

work, the household people started playing bhajan

cassettes after which she had to getup at 7’o clock in

the morning to prepare and serve food to all the

members in the family. Often on falling asleep in the

morning, Shyamji, Kamla Devi and Geeta Mehrotra

tortured the complainant every day mentally and

physically. Ramji Mehrotra often provoked the other

three family members to torture and often used to make

the complainant feel sad by making inappropriate

statements about the complainant and her parents. Her

husband Shyamji also took away the salary from the

complainant.

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5. After persistent efforts, Shyamji finally got a

job in Chennai and he went to Chennai for the job in

May, 2003. But, it is alleged that there was no change

in his behaviour even after going to Chennai. The

complainant often called him on phone to talk to him

but he always did irrelevant conversation. He never

spoke properly with the complainant whenever he

visited home and often used to hurl filthy abuses. The

complainant states that she often wept and tolerated the

tortures of the accused persons for a long time but did

not complain to her family members, as that would have

made them feel sad. At last, when the complainant

realized that even her life was in danger, she was

compelled to tell everything to her father on phone who

was very upset on hearing her woes. On 15.7.2003

complainant heard some conversation of her mother-inlaw and sister-in-law from which it appeared to her that

they want to kill the complainant in the night only.

Thereupon the complainant apprised her father of the

situation on phone to which her father replied that he

will call back her father-in-law and she should go with

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him immediately and he will come in the morning. The

father-in-law Satish Dhawan and his wife who were

living in NOIDA thereafter came in the night and

somehow took the complainant to their home who also

came to know of everything. The complainant’s father

and brother later went to her matrimonial home on

16.7.2003. On seeing her father and brother, Kamla

Mehrotra and Geeta Mehrotra started speaking loudly

and started saying that Shyamji would be coming by the

evening and so he should come in the evening for

talking to them. Her father and brother then went away

from there. That very day, her husband Shyamji and

brother-in-law Ramji also reached home. On reaching

there, Shyamji abused her on phone and told her to

send her father.

6. When father and brother of the complainant

went home in the evening, they were also insulted by all

the four and video camera and tape were played and in

the end they were told that they should leave from here.

Insulted, they came back from there and then came

back to Allahabad with the complainant. For many

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days the complainant and her family members hoped

that the situation would improve if the matter was

resolved. Many times other people tried to persuade the

in – laws but to no avail. Her brother went to their

house to talk to her in – laws but it came to his

knowledge that the in – laws had changed their house.

After much effort, they came to know that the father-inlaw and mother-in-law started living at B-39, Brahma

cooperative group housing society, block 7, sector-7,

Dwarka, Delhi. On 19.09.04 evening, her father talked

to Kamla Mehrotra and Geeta Mehrotra regarding the

complainant using bad words and it was said that if her

daughter came there she will be kicked out. After some

time Shyamji rang up at complainant’s home but on

hearing the complainant’s voice, he told her abusively

that now she should not come his way and she should

tell her father not to phone him in future. At

approximately 10:30 pm in the night Ramji’s phone

came to the complainant’s home. He used bad words

while talking to her father and in the end said that he

had got papers prepared in his defence and he may do

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whatever he could but if he could afford to give Rs.10

lakhs then it should be conveyed after which he will

reconsider the matter. If the girl was sent to his place

without money, then even her dead body will not be

found.

7. On hearing these talks of the accused, the

complainant believed that her in-laws will not let the

complainant enter their home without taking ten lakhs

and if the complainant went there on her own, she will

not be safe. Hence, she lodged the report wherein she

prayed that the SHO Daraganj should be ordered to do

the needful after registering the case against the

accused Shyam Mehrotra, Ramji Mehrotra, Kamla

Mehrotra and Geeta Mehrotra. Thus, in substance, the

complainant related the bickering at her matrimonial

home which made her life miserable in several ways and

compelled her to leave her in-law’s place in order to live

with her father where she lodged a police case as stated

hereinbefore.

8. On the basis of the complaint, the

investigating authorities at P.S. Daraganj, Allahabad

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started investigation of the case and thereafter the

police submitted chargesheet against the appellants and

other family members of the complainant’s husband.

9. Hence, the appellants who are sister and

brother of the complainant’s husband filed petition

under Section 482 Cr.P.C. for quashing of the

chargesheet and the entire proceedings pending in the

court of learned Judicial Magistrate, Court No.IV,

Allahabad, inter-alia, on the ground that FIR has been

lodged with mala fide intentions to harass the

appellants and that no case was made out against the

appellants as well as other family members. But the

principal ground of challenge to the FIR was that the

incident although was alleged to have taken place at

Faridabad and the investigation should have been done

there only, the complainant with mala fide intention in

connivance with the father of the complainant, got the

investigating officer to record the statements by visiting

Ghaziabad which was beyond his territorial jurisdiction

and cannot be construed as legal and proper

investigation. It was also alleged that the father of the

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complainant got the arrest warrant issued through

George Town Police Station, Allahabad, in spite of the

cause of action having arisen at Allahabad.

10. This appeal has been preferred by Kumari

Geeta Mehrotra i.e. the sister of the complainant’s

husband and Ramji Mehrotra i.e. the elder brother of

the complainant’s husband assailing the order of the

High Court and it was submitted that the Hon’ble High

Court ought to have appreciated that the complainant

who had already obtained an ex-parte decree of divorce,

is pursuing the present case through her father with

the sole purpose to unnecessarily harass the appellants

to extract money from them as all efforts of mediation

had failed.

11. However, the grounds of challenge before

this Court to the order of the High Court, inter alia is

that the High Court had failed to appreciate that the

investigation had been done by the authority without

following due process of law which also lacked territorial

jurisdiction. The relevant documents/parcha diary for

deciding the territorial jurisdiction had been overlooked

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as the FIR has been lodged at Allahabad although the

cause of action of the entire incident is alleged to have

taken place at Faridabad (Haryana). It was, therefore,

submitted that the investigating authorities of the

Allahabad have traversed beyond the territorial limits

which is clearly an abuse of the process of law and the

High Court has failed to exercise its inherent powers

under Section 482 Cr.P.C. in the facts and

circumstances of this case and allowed the proceedings

to go on before the trial court although it had no

jurisdiction to adjudicate the same.

12. It was further averred that the High Court

had failed to examine the facts of the FIR to see

whether the facts stated in the FIR constitute any prima

facie case making out an offence against the sister-inlaw and brother-in-law of the complainant and whether

there was at all any material to constitute an offence

against the appellants and their family members.

Attention of this Court was further invited to the

contradictions in the statement of the complainant and

her father which indicate material contradictions

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indicating that the complainant and her father have

concocted the story to implicate the appellants as well

as all their family members in a criminal case merely

with a mala fide intention to settle her scores and

extract money from the family of her ex-husband

Shyamji Mehrotra and his family members.

13. On a perusal of the complaint and other

materials on record as also analysis of the arguments

advanced by the contesting parties in the light of the

settled principles of law reflected in a catena of

decisions, it is apparent that the High Court has not

applied its mind on the question as to whether the case

was fit to be quashed against the appellants and has

merely disposed of the petition granting liberty to the

appellants to move the trial court and raise

contentions on the ground as to whether it has

territorial jurisdiction to continue with the trial in the

light of the averment that no part of the cause of action

had arisen at Allahabad and the entire incident even as

per the FIR had taken place at Faridabad.

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14. The High Court further overlooked the fact

that during the pendency of this case, the complainantrespondent No.2 has obtained an ex-parte decree of

divorce against her husband Shyamji Mehrotra and the

High Court failed to apply its mind whether any case

could be held to have been made out against Kumari

Geeta Mehrotra and Ramji Mehrotra, who are the

unmarried sister and elder brother of the complainant’s

ex-husband. Facts of the FIR even as it stands indicate

that although a prima facie case against the husband

Shyamji Mehrotra and some other accused persons may

or may not be constituted, it surely appears to be a

case where no ingredients making out a case against

the unmarried sister of the accused Shyamji Mehrotra

and his brother Ramji Mehrotra appear to be existing

for even when the complainant came to her in-law’s

house after her wedding, she has alleged physical and

mental torture by stating in general that she had been

ordered to do household activities of cooking meals for

the whole family. But there appears to be no specific

allegation against the sister and brother of the

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complainant’s husband as to how they could be

implicated into the mutual bickering between the

complainant and her husband Shyamji Mehrotra

including his parents.

15. Under the facts and circumstance of similar

nature in the case of Ramesh vs. State of Tamil

Nadu reported in (2005) SCC (Crl.) 735 at 738

allegations were made in a complaint against the

husband, the in-laws, husband’s brother and sister who

were all the petitioners before the High Court wherein

after registration of the F.I.R. and investigation, the

charge sheet was filed by the Inspector of Police in the

court of Judicial Magistrate III, Trichy. Thereupon, the

learned magistrate took cognizance of the offence and

issued warrants against the appellants on 13.2.2002.

Four of the accused-appellants were arrested and

released on bail by the magistrate at Mumbai. The

appellants had filed petition under Section 482, Cr.P.C.

before the Madras High Court for quashing the

proceedings in complaint case on the file of the Judicial

Magistrate III, Trichy. The High Court by the impugned

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order dismissed the petition observing that the grounds

raised by the petitioners were all subject matters to be

heard by the trial court for better appreciation after

conducting full trial as the High Court was of the view

that it was only desirable to dismiss the criminal

original petition and the same was also dismissed.

However, the High Court had directed the Magistrate to

dispense with the personal attendance of the

appellants.

16. Aggrieved by the order of the Madras High

Court dismissing the petition under Section 482

Cr.P.C., the special leave petition was filed in this Court

giving rise to the appeals therein where threefold

contentions were raised viz., (i) that the allegations are

frivolous and without any basis; (ii) even according to

the FIR, no incriminating acts were done within the

jurisdiction of Trichy Police Station and the court at

Trichy and, therefore, the learned magistrate lacked

territorial jurisdiction to take cognizance of the offence

and (iii) taking cognizance of the alleged offence at that

stage was barred under Section 468(1) Cr.P.C. as it was

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beyond the period of limitation prescribed under

Section 468(2) Cr.P.C. Apart from the subsequent two

contentions, it was urged that the allegations under the

FIR do not make out any offence of which cognizance

could be taken.

17. Their Lordships of the Supreme Court in

this matter had been pleased to hold that the bald

allegations made against the sister in law by the

complainant appeared to suggest the anxiety of the

informant to rope in as many of the husband’s relatives

as possible. It was held that neither the FIR nor the

charge sheet furnished the legal basis for the

magistrate to take cognizance of the offences alleged

against the appellants. The learned Judges were

pleased to hold that looking to the allegations in the

FIR and the contents of the charge sheet, none of the

alleged offences under Section 498 A, 406 and Section 4

of the Dowry Prohibition Act were made against the

married sister of the complainant’s husband who was

undisputedly not living with the family of the

complainant’s husband. Their Lordships of the

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Supreme Court were pleased to hold that the High

Court ought not to have relegated the sister in law to

the ordeal of trial. Accordingly, the proceedings against

the appellants were quashed and the appeal was

allowed.

18. In so far as the plea of territorial jurisdiction

is concerned, it is no doubt true that the High Court

was correct to the extent that the question of territorial

jurisdiction could be decided by the trial court itself.

But this ground was just one of the grounds to quash

the proceedings initiated against the appellants under

Section 482 Cr.P.C. wherein it was also alleged that no

prima facie case was made out against the appellants

for initiating the proceedings under the Dowry

Prohibition Act and other provisions of the IPC. The

High Court has failed to exercise its jurisdiction in so far

as the consideration of the case of the appellants are

concerned, who are only brother and sister of the

complainant’s husband and are not alleged even by the

complainant to have demanded dowry from her. The

High Court, therefore, ought to have considered that

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even if the trial court at Allahabad had the jurisdiction

to hold the trial, the question still remained as to

whether the trial against the brother and sister of the

husband was fit to be continued and whether that

would amount to abuse of the process of the court.

19. Coming to the facts of this case, when the

contents of the FIR is perused, it is apparent that there

are no allegations against Kumari Geeta Mehrotra and

Ramji Mehrotra except casual reference of their names

who have been included in the FIR but mere casual

reference of the names of the family members in a

matrimonial dispute without allegation of active

involvement in the matter would not justify taking

cognizance against them overlooking the fact borne out

of experience that there is a tendency to involve the

entire family members of the household in the domestic

quarrel taking place in a matrimonial dispute specially if

it happens soon after the wedding.

20. It would be relevant at this stage to take

note of an apt observation of this Court recorded in the

matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported

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in (2000) 3 SCC 693 wherein also in a matrimonial

dispute, this Court had held that the High Court should

have quashed the complaint arising out of a

matrimonial dispute wherein all family members had

been roped into the matrimonial litigation which was

quashed and set aside. Their Lordships observed

therein with which we entirely agree that:

“there has been an outburst of matrimonial

dispute in recent times. Marriage is a sacred

ceremony, main purpose of which is to

enable the young couple to settle down in

life and live peacefully. But little

matrimonial skirmishes suddenly erupt

which often assume serious proportions

resulting in heinous crimes in which elders

of the family are also involved with the result

that those who could have counselled and

brought about rapprochement are rendered

helpless on their being arrayed as accused

in the criminal case. There are many reasons

which need not be mentioned here for not

encouraging matrimonial litigation so that

the parties may ponder over their defaults

and terminate the disputes amicably by

mutual agreement instead of fighting it out

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in a court of law where it takes years and

years to conclude and in that process the

parties lose their “young” days in chasing

their cases in different courts.” 

The view taken by the judges in this matter was that the

courts would not encourage such disputes.

21. In yet another case reported in AIR 2003 SC

1386 in the matter of B.S. Joshi & Ors. vs. State of

Haryana & Anr. it was observed that there is no doubt

that the object of introducing Chapter XXA containing

Section 498A in the Indian Penal Code was to prevent

the torture to a woman by her husband or by relatives

of her husband. Section 498A was added with a view

to punish the husband and his relatives who harass or

torture the wife to coerce her relatives to satisfy

unlawful demands of dowry. But if the proceedings are

initiated by the wife under Section 498A against the

husband and his relatives and subsequently she has

settled her disputes with her husband and his relatives

and the wife and husband agreed for mutual divorce,

refusal to exercise inherent powers by the High Court

would not be proper as it would prevent woman from

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settling earlier. Thus for the purpose of securing the

ends of justice quashing of FIR becomes necessary,

Section 320 Cr.P.C. would not be a bar to the exercise

of power of quashing. It would however be a different

matter depending upon the facts and circumstances of

each case whether to exercise or not to exercise such a

power.

22. In the instant matter, when the complainant

and her husband are divorced as the complainant-wife

secured an ex-parte decree of divorce, the same could

have weighed with the High Court to consider whether

proceeding initiated prior to the divorce decree was fit

to be pursued in spite of absence of specific allegations

at least against the brother and sister of the

complainant’s husband and whether continuing with

this proceeding could not have amounted to abuse of

the process of the court. The High Court, however,

seems not to have examined these aspects carefully

and have thus side-tracked all these considerations

merely on the ground that the territorial jurisdiction

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could be raised only before the magistrate conducting

the trial.

23. In the instant case, the question of

territorial jurisdiction was just one of the grounds for

quashing the proceedings along with the other grounds

and, therefore, the High Court should have examined

whether the prosecution case was fit to be quashed on

other grounds or not. At this stage, the question also

crops up whether the matter is fit to be remanded to the

High Court to consider all these aspects. But in

matters arising out of a criminal case, fresh

consideration by remanding the same would further

result into a protracted and vexatious proceeding which

is unwarranted as was held by this Court in the case

of Ramesh vs. State of Tamil Nadu (supra) that such

a course of remand would be unnecessary and

inexpedient as there was no need to prolong the

controversy. The facts in this matter on this aspect

was although somewhat different since the complainant

had lodged the complaint after seven years of delay,

yet in the instant matter the factual position remains

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that the complaint as it stands lacks ingredients

constituting the offence under Section 498A and Section

3/4 Dowry Prohibition Act against the appellants who

are sister and brother of the complainant’s husband

and their involvement in the whole incident appears

only by way of a casual inclusion of their names.

Hence, it cannot be overlooked that it would be total

abuse of the process of law if we were to remand the

matter to the High Court to consider whether there

were still any material to hold that the trial should

proceed against them in spite of absence of prima facie

material constituting the offence alleged against them.

24. However, we deem it appropriate to add by

way of caution that we may not be misunderstood so as

to infer that even if there are allegation of overt act

indicating the complicity of the members of the family

named in the FIR in a given case, cognizance would be

unjustified but what we wish to emphasize by

highlighting is that, if the FIR as it stands does not

disclose specific allegation against accused more so

against the co-accused specially in a matter arising out

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of matrimonial bickering, it would be clear abuse of the

legal and judicial process to mechanically send the

named accused in the FIR to undergo the trial unless of

course the FIR discloses specific allegations which

would persuade the court to take cognisance of the

offence alleged against the relatives of the main accused

who are prima facie not found to have indulged in

physical and mental torture of the complainant-wife. It

is the well settled principle laid down in cases too

numerous to mention, that if the FIR did not disclose

the commission of an offence, the court would be

justified in quashing the proceedings preventing the

abuse of the process of law. Simultaneously, the courts

are expected to adopt a cautious approach in matters of

quashing specially in cases of matrimonial dispute

whether the FIR in fact discloses commission of an

offence by the relatives of the principal accused or the

FIR prima facie discloses a case of over-implication by

involving the entire family of the accused at the

instance of the complainant, who is out to settle her

scores arising out of the teething problem or skirmish of

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domestic bickering while settling down in her new

matrimonial surrounding.

25. In the case at hand, when the brother and

unmarried sister of the principal accused Shyamji

Mehrotra approached the High Court for quashing the

proceedings against them, inter-alia, on the ground of

lack of territorial jurisdiction as also on the ground

that no case was made out against them under

Sections 498A,/323/504/506 including Sections 3/4 of

the Dowry Prohibition Act, it was the legal duty of the

High Court to examine whether there were prima facie

material against the appellants so that they could be

directed to undergo the trial, besides the question of

territorial jurisdiction. The High Court seems to have

overlooked all the pleas that were raised and rejected

the petition on the solitary ground of territorial

jurisdiction giving liberty to the appellants to approach

the trial court.

26. The High Court in our considered opinion

appear to have missed that assuming the trial court

had territorial jurisdiction, it was still left to be decided

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whether it was a fit case to send the appellants for trial

when the FIR failed to make out a prima facie case

against them regarding the allegation of inflicting

physical and mental torture to the complainant

demanding dowry from the complainant. Since the High

Court has failed to consider all these aspects, this

Court as already stated hereinbefore, could have

remitted the matter to the High Court to consider

whether a case was made out against the appellants to

proceed against them. But as the contents of the FIR

does not disclose specific allegation against the brother

and sister of the complainant’s husband except casual

reference of their names, it would not be just to direct

them to go through protracted procedure by remanding

for consideration of the matter all over again by the

High Court and make the unmarried sister of the main

accused and his elder brother to suffer the ordeal of a

criminal case pending against them specially when the

FIR does not disclose ingredients of offence under

Sections 498A/323/504/506, IPC and Sections 3/4 of

the Dowry Prohibition Act.

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27. We, therefore, deem it just and legally

appropriate to quash the proceedings initiated against

the appellants Geeta Mehrotra and Ramji Mehrotra as

the FIR does not disclose any material which could be

held to be constituting any offence against these two

appellants. Merely by making a general allegation that

they were also involved in physical and mental torture

of the complainant-respondent No.2 without

mentioning even a single incident against them as also

the fact as to how they could be motivated to demand

dowry when they are only related as brother and sister

of the complainant’s husband, we are pleased to quash

and set aside the criminal proceedings in so far as

these appellants are concerned and consequently the

order passed by the High Court shall stand overruled.

The appeal accordingly is allowed.

……………………………J

(T.S. Thakur)

……………………………J

(Gyan Sudha Misra)

New Delhi,

October 17, 2012

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