High Court of Allahabad
Citation : 2023 Latest Caselaw 366 SC
Judgement Date : 21 Apr 2023
Case No : Crl.A. No.-001210-001210 / 2023
At, Supreme Court of India
Bench : the honourable Mr. Justice B.R. Gavai & the Honourable Mr. Justice Aravind Kumar
Respondent – State of U.P. and Others
Appellant – ritu tomar
FACTS
The marriage of appellant’s sister Ms. Rekha, daughter of fourth respondent herein with 3rd respondent came to be solemnized on 15.05.2011 as per the prevalent custom and usage which resulted in its consummation and she gave birth to a baby girl who has been since named Tejal. The said marriage had broken down which resulted in disharmony between the two families. Ms. Rekha alleged that she had been thrown out of matrimonial home, sought for maintenance by filing a petition under Section 125 Cr.P.C. She has also lodged an FIR on 15.03.2017 against third respondent for the offences punishable under Section 498A, 406/34 of the IPC read with Sections 3 and 4 of The Dowry Prohibition Act with the Harsh Vihar Police Station, North East Delhi. On the basis of the said FIR , the jurisdictional police have commenced the investigation. The third respondent who is the husband of the appellant’s sister and who had filed an application under Section 156(3) before the Additional Chief Judicial Magistrate-Ist, Gautam Budh Nagar in application No.41 of 2018 has expired during the pendency of the present proceedings. Hence, his name came to be deleted vide Order dated 20.01.2020.
ISSUES RAISED
Mrs. Rekha should be paid maintenance as alleged by her?
The counter FIR filed by the husband of Mrs. Rekha should be allowed on the basis of neighbours’ testimonies ?
On what respect the FIR is quashed?
RESPONDENT CONTENTION
The third respondent ie husband of Mrs Rekha, filed an Application No.41 of 2018 under Section 156(3) of Cr.P.C. alleging that appellant, ie, Rekha’s sister Ms. Ritu,along with her family had forcibly entered his house and with an intention to kill the complainant and his father assaulted them with knife on the head of the applicant when they refused to heed to their demands of shifting to Delhi after selling the village land and house. Report submitted on 11.03.2018 opined that the accused persons including the appellant never visited the house of the complainant and said incident as alleged by the complainant had not occurred.
CONTENTION OF APPEALLANT
The situation had led to the filing of two cases by Ms. Rekha against her husband for maintenance in V. No.230 of 2014 wherein the respondent therein namely husband (the complainant) had been ordered to pay a sum of Rs.5,000/- per month as maintenance to his wife and she had also lodged a report alleging harassment, demand for dowry etc. resulting in Crime No.73 of 2017 being registered against her husband (the complainant i.e., third respondent herein) and his family members.
LAW
S.125 CrPC- If any person having sufficient means neglects or refuses to maintain;
- his wife, unable to maintain herself, or
- his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
- his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
- his father or mother, unable to maintain himself or herself,
A Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct;
S. 482 CrPC- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
S. 3,4 Dowry Prohibition Act – penalty for giving( imprisonment upto 5 years) and demanding dowry( imprisonment upto 6 months with fine ).
Sections 147 (punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object), 452 (House-trespass after preparation for hurt, assault or wrongful restraint), 324 (Voluntarily causing hurt by dangerous weapons or means), 307 (Attempt to murder), 342 (Punishment for wrongful confinement) and 506 (Punishment for criminal intimidation) of IPC.
DEFECT IN LAW
The preliminary investigation of the matter, in some cases, before filing of FIR can be significant to make out the false fabrication if any. But falsehood or truthfulness is considered a post FIR issue by settled law, so as to register any information provided to the police investigating officer so that they may not refuse on their discretion as per S.154 CrPC. So there’s a contradiction or gap herein.
INFERENCE DRAWN BY COURT
HIGH COURT OF ALLAHABAD
the Learned Magistrate by Order dated 03.05.2018, ordered for registration of FIR for the offences noted herein above came to be registered against appellant and others (family) by the second respondent. Jurisdictional police after investigation have also opined that incident projected appears to be false. None have appeared for respondents 1 and 2. Hence, a petition for quashing of the said FIR under Section 482 of CrPC came to be filed before the court and same having been dismissed , appellants approached the supreme court in as the present appeal has been filed.
SUPREME COURT, DELHI- RATIONALE
In this background when the impugned order passed by the Additional Chief Judicial Magistrate which has resulted in jurisdictional Magistrate directing the jurisdictional police, namely 2nd respondent to register an FIR against appellant is perused, it would clearly disclose that report which had been called for by the Magistrate had been submitted on 11.03.2018 where under it has been clearly observed that after investigation it was found that applicant (third respondent herein) on the basis of concocted and baseless facts to mount pressure on his wife and his family members had filed the application and none in the village where the complainant resided have testified about the presence of the appellant and his family members or they having visited the village Khatana and had caused injuries to the complainant and his father on 26.01.2018 as alleged.
The jurisdictional police after investigation have also opined that incident projected appears to be false. However, the impugned order of the learned magistrate does not indicate as to the basis on which said report dated 11.03.2018 was being rejected or why it does not deserve to be accepted. Hence, we quash the proceedings registered under Section 147, 148, 149, 452, 324, 307, 342 and 506 of IPC by the second respondent in so far as appellant is concerned.
The appeal is allowed accordingly.
INTERPETATION
False criminal proceeding cannot be allowed to continue. Quashing petition – In factual background of there being dispute between two families, which had already resulted in filing of two cases by wife resulting in FIR being registered against complainant (third respondent herein) and his family Members and fact that none of villagers including neighbours of complainant having supported or testified about occurrence of any incident as claimed by complainant, irresistible conclusion to be drawn by Supreme Court is to accept report of jurisdictional police where under they have arrived at a conclusion that incident projected by complainant appears to be false, and thereby proceedings against appellant deserves to be quashed – Criminal proceedings quashed. The Supreme Court allowed the appeal and quashed the proceedings against the appellant by the husband against his wife’s sister under Sections 147 (punishment for rioting), 148 (Rioting, armed with deadly weapon), 149 (Every member of unlawful assembly guilty of offence committed in prosecution of common object), 452 (House-trespass after preparation for hurt, assault or wrongful restraint), 324 (Voluntarily causing hurt by dangerous weapons or means), 307 (Attempt to murder), 342 (Punishment for wrongful confinement) and 506 (Punishment for criminal intimidation) of IPC.
This case can form a significant example of misuse of court powers for reversing the burden of blames on the other party when your own fault is out at open. Also regarding how the court , on the basis of investigation report prepared by the police investigating team and oral evidence, in the form of neighbours’ testimonies in this case , can order for quash of FIR if found to be reported on falsely fabricated circumstances, none of which had actually taken place. The case signifies the plight of women in the nation who still have to have a battle to get the bare minimum maintenance from their husbands, on whom the responsibility of his wife is since the solemnization of marriage, along with the children if born. It is due liability of the man to look after the basic requirements of his wife and children. As we know, there have been numerous cases of dowry deaths reported in the nation, violent husbands beating their wives, so much matters have to be investigated into with utmost sincerity. Nevertheless, few women are no less to use such women oriented acts as a sword for false reporting.
References
· Ritu Tomar v/s State of U.P. & Others, lawyerservices.in, Ritu-Tomar-Versus-State-of-UP-and-Others-2023-04-21 (last visited 23 July 2023) .
· Ritu Tomar v/s State of U.P. & Others, casemine.com, judgement/in/6442e8d285c9a05f19641227 (last visited 23 July 2023).
Aastha choudhry
Faculty of ;law, university of Allahabad, prayagraj, UP