Full Text
HIGH COURT OF DELHI
Date of order: 20th February, 2025
RAJNISH KUMAR BISWAKARMA & ORS. .....Petitioners
Through: Mr. Vivek Sharma, Mr. Vikash Sharma and Ms. Devanshi Sharma, Advocates
Through: Mr. Yasir Rauf Ansari, ASC
Vikash Bhardwaj, P. S. M.S. Park Mr. Sudhir Tewatia, Mr. Mehul Gulati, Mr. Tarun Maan, Mr. Ankush and Mr. Ashish Dabas, Advocates for
R-2
CHANDRA DHARI SINGH, J (Oral)
ORDER
1. The instant writ petition has been filed on behalf of the petitioners under Article 226 of the Constitution of India, 1950 read with Section 482 of the Code of Criminal Procedure, 1973 (now Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023), seeking quashing of the FIR bearing NO. 383/2019 registered against the petitioners under Sections 498A/406/34 of the Indian Penal Code, 1860 (hereinafter “IPC”) and Section 4 of the Dowry Prohibition Act, 1961 (“DP Act”) at Police Station - Mansarovar Park, Delhi and the consequential proceedings emanating therefrom.
2. The brief facts of the case, as stated in the petition, are as follows: a. On 6th July, 2018, the marriage between the petitioner no. 1 and the respondent no.2/complainant was solemnized in Delhi according to Hindu rites and customs. From the said wedlock between the two, no child was born. b. It is alleged that the family members of the complainant repeatedly interfered in their matrimonial life. Being aggrieved by the said interference and alleged demand for money, the petitioner no.1 lodged a complaint against the respondent no. 2 with the Commissioner of Police, Delhi on 5th March, 2019. c. Thereafter, on 8th May, 2019, due to some temperamental differences between the petitioner no. 1 and the complainant, the petitioner no. 1 filed a petition under Section 12 of the Hindu Marriage Act, 1955 (hereinafter “HMA”) before the Court concerned seeking a decree of nullity of the marriage solemnized between them. d. Subsequently, on 15th November, 2019, at the instance of the complaint filed by the complainant/respondent no. 2, the instant FIR bearing No. 383/2019 was registered against the petitioners under Sections 498A/406/34 of the IPC at Police Station - Mansarovar Park, Delhi. e. Thereafter, the petitioner No.1 filed the first anticipatory bail application in the said FIR, which was dismissed as withdrawn vide order dated 20th January, 2020 by the Court of learned ASJ, Karkardooma Court, Delhi. f. The petitioner No. 1 subsequently filed a petition before the Coordinate Bench of this Court, bearing Crl.M.C. No. 1838/2020, seeking quashing of the instant FIR and the proceedings emanating therefrom. The said petition was dismissed as withdrawn vide order dated 17th November, 2020. g. On 23rd June, 2021, the petition filed by the petitioner no. 1 under Section 12 of the HMA seeking a decree of nullity of the marriage solemnized between the petitioner no. 1 and the complainant was allowed. Consequently, their marriage was annulled by a decree of nullity under Section 12 of the HMA. h. Thereafter, the petitioner no. 1, in anticipation of a coercive action by the Investigating Officer, filed the second anticipatory bail application dated 9th July, 2021. The said application was also dismissed by the Court concerned vide order dated 29th July, 2021. i. The petitioner no. 1 then filed another anticipatory bail application bearing No. 2896/2021 before the Coordinate Bench of this Court which was disposed of by this Court vide order dated 9th August, 2021, with the direction that the petitioner no.1 shall be served a notice of 7 days prior to his arrest by the investigating officer. j. After conducting investigation into the allegations made in the instant FIR, the investigating agency filed a chargesheet dated 15th October, 2022, wherein, the petitioner no.1 was arrayed as an accused in the present case under Sections 498A/406/34 of the IPC and Section 4 of the DP Act. Being aggrieved by the instant FIR and the consequential proceedings emanating therefrom, the instant petition has been filed before this Court by the petitioners seeking quashing of the same.
3. Learned Counsel appearing on behalf of the petitioners submitted that the allegations made in the present FIR are based on concocted story as the complainant has roped the persons who are not family members of the petitioner no. 1 and were only guests in his marriage.
4. It is submitted that the investigation agency failed to take into consideration that charge under Section 498A of the IPC could not be framed against the petitioner no. 1 since vide the judgment dated 23rd June, 2021, passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 557/2019, the marriage between the petitioner no.1 and the complainant was annulled under Section 12 of the HMA by way of an ex-parte decree of nullity.
5. It is further submitted that considering the non-existence of any legal marriage between the petitioner no.1 and the complainant, the instant FIR and the consequential proceedings emanating thereform are nothing but an abuse of the process of law by the complainant.
6. It is submitted that pursuant to the aforesaid decree dated 23rd June, 2021, the petition under Section 125 of the CrPC filed by the complainant was withdrawn vide order dated 18th November, 2021, passed by the learned Judge, Family Courts, Shahdara, Delhi in Case bearing No. 519/2019.
7. It is submitted that the instant FIR registered against the petitioners is merely an afterthought, based on frivolous claims and a counterblast measure against the complaint made by the petitioner on 5th March, 2019 lodged by the petitioner no.1 before the Commissioner of Police, New Delhi.
8. It is submitted that the petitioner nos. 2 and 3 had merely attended the wedding ceremony of petitioner no.1, after which they never went to the matrimonial house of the petitioner no.1 and the complainant, therefore, the allegations made against them are false.
9. Therefore, in view of the foregoing submissions, it is prayed that the present petition may be allowed, and the reliefs be granted as prayed for.
10. Per Contra, learned ASC appearing on behalf of the State and the learned Counsel appearing for the respondent no.2/complainant vehemently opposed the instant petition submitting to the effect that the same may be dismissed being devoid of any merit.
11. Learned Counsel for the respondent no.2/complainant submitted that the marriage of the petitioner no.1 and the complainant was annulled by fraudulently obtaining an ex parte decree from the learned Family Court as the petitioner no.1 in his petition under Section 12 of the HMA deliberately mentioned the incomplete address of the complainant and resultantly, the said petition was never served to her.
12. It is submitted that the respondent no.2/complainant moved the learned Principal Judge, Family Court, Patna vide Miscellaneous Case NO. 111 of 2022 for setting aside the annulment decree dated 23rd June, 2021 passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 557 of 2019. It is further submitted that the same was dismissed vide Order dated 25th January, 2023 for Non-Pairvi of the respondent no.2.
13. It is submitted that the respondent no.2/complainant has moved an application for restoration of her application seeking setting aside of the annulment decree dated 23rd June, 2021 passed by the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 557 of 2019, which is yet to be decided by the Court concerned.
14. It is submitted that the petitioner no.1 ran away with all the cash, jewellery, clothes and other stridhan which was entrusted to him by the complainant, who received it from her mother, and that the petitioner is still in possession of the same.
15. It is submitted that the petitioner no.1 was given gifts, jewellery and a huge amount of cash in the Tilak ceremony, and even after the marriage between the petitioner no.1 and the complainant was solemnized, the petitioner no.1 continued pressurizing the complainant to get more money from the complainant’s mother.
16. It is submitted that the ex-parte decree of nullity of marriage is under challenge now and therefore, the same cannot be termed as final, thus, the instant FIR may not be quashed on the basis of the same.
17. In view of the foregoing submissions, it is prayed that the instant petition may be dismissed being devoid of any merit.
18. Before adverting to the merits of this case, it is important at this stage to discuss the settled law on the issue of quashing of FIR. In the case of State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335, the Hon’ble Supreme Court had set out the broad categories of cases in which the inherent powers of the Court could be exercised for quashing an FIR. The relevant portion of the judgment is reproduced as under:
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. (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 Act concerned (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 Act concerned, 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.”
19. Upon perusal of the above quoted judgment, it is clear that the inherent powers of the Courts must be exercised sparingly and with great caution. In terms of the settled principles of law, a Court may quash a complaint under Section 482 of the CrPC if it is satisfied that the allegations made against the accused, even when they are taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out a case against the accused. Further, the Court may also invoke its extraordinary powers to quash a complaint if the allegations made in the complaint are so absurd and improbable that no prudent person may reach a conclusion that there is sufficient ground for proceeding against the accused.
20. Therefore, the question of exercise of the Court’s inherent powers under Section 482 of the CrPC to quash criminal proceedings would depend on the facts and circumstances of each case. However, while deciding this question, the Court does not need to determine the genuineness of the allegations, and the evidence placed before it. The Court’s exercise is merely limited to a determination as to whether the allegations when taken at their face value, disclose the commission of the offence in question by the accused.
21. The instant FIR is registered against the petitioner no.1 under Sections 498A/406/34 of the IPC and Section 4 of the DP Act, wherein, it is alleged that the petitioner no.1 committed breach of trust, demanded dowry from the complainant and caused harassment to her. Section 498A of the IPC reads as under: “498A. Husband or relative of husband of a woman subjecting her to cruelty. — Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.—For the purposes of this section, “cruelty” means— (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
22. From a bare perusal of Section 498A of the IPC, it is made out that the said provision provides for punishment against the husband of a woman and his relatives if they cause cruelty to such woman. In Shivcharan Lal Verma v. State of M.P., (2007) 15 SCC 369, the Hon’ble Supreme Court held as under:
as the alleged marriage with Mohini during the subsistence of a valid marriage with Kalindi is null and void. We, therefore, set aside the conviction and sentence under Section 498-A IPC. But so far as the conviction under Section 306 is concerned, the evidence of the three witnesses already referred to, makes it absolutely clear that it is on account of torture by both Kalindi and Shiv Charan that Mohini committed suicide inside the house of Shiv Charan in another room. The learned Sessions Judge as well as the High Court have appreciated the evidence of the aforesaid three witnesses and on going through the evidence of these three witnesses, we do not find any error committed by the courts below either in the matter of appreciation or in their approach relating to the evidence in question. We, therefore, do not find any infirmity with the conviction of the appellants under Section 306 IPC…..”
23. Similarly, in P. Sivakumar v. State, 2023 SCC OnLine SC 1737, the Hon’ble Supreme held as under:
24. From the above-quoted judgments of the Hon’ble Supreme Court, it is made out that the charges under Section 498A of the IPC would not be sustainable against the accused if the marriage between the accused and the complainant is found to be null and void.
25. In the present case, it is not in dispute that vide judgment dated 23rd June, 2021 passed by the learned Principal Judge, Family Court, Patna, the marriage between the petitioner no.1 and the complainant solemnized on 6th July, 2018, was annulled by a decree of nullity. The said judgment was challenged before the learned Principal Judge, Family Court, Patna in Matrimonial Case No. 557 of 2019, however, it was dismissed vide Order dated 25th January, 2023 due to non-prosecution by the respondent no.2. This Court also observes that there is no stay on the operation of the judgment dated 23rd June, 2021 passed by the learned Principal Judge, Family Court, Patna, granting the said decree of nullity.
26. As per the settled law, charges under Section 498A of the IPC cannot be sustained if the marriage between the accused (husband and/or his relatives) and the complainant (wife) is declared null and void.
27. In the case at hand, it is observed that the decree, vide which the marriage between the petitioner no. 1 and the respondent no. 2 had been declared null and void, is final as of now, and the respondent no. 2 or the investigation agency has been unable to prove otherwise. Therefore, in the absence of any material to suggest that the decree has been set aside, this Court cannot presume otherwise. Accordingly, since the marriage of the petitioner no.1 and the complainant was annulled by a decree of nullity, no charges under Section 498A of the IPC can be sustained against the petitioners in light of the settled principles of law. Moreover, it is held that the investigation agency failed to add the charge under Section 498A of the IPC considering the observations made herein above.
28. Therefore, in view of the discussions made in the preceding paragraphs, this Court is inclined to quash the charge under Section 498A of the IPC in the instant FIR and the consequential proceedings emanating therefrom.
29. Moving to the next charge, the petitioner no.1 is charged under Section 406 of the IPC for the commission of the offence of criminal breach of trust. The said provision reads as under:
30. The offence of criminal breach of trust is defined under Section 405 of the IPC, which reads as under:
31. In the case of Delhi Race Club (1940) Ltd. v. State of U.P., (2024) 10 SCC 690, the Hon’ble Supreme Court held that the elements of the offence of criminal breach of trust are multifold. Firstly, it includes that there must be entrustment with a person of property or dominion over property and secondly, the person so entrusted (a) dishonestly misappropriated or converted the property to his own use, or (b) dishonestly used or disposed of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract touching the discharge of such trust.
32. It is well-established in law that every act of breach of trust will not result in the commission of the offence of criminal breach of trust, unless there is clear evidence of a manipulating act of fraudulent misappropriation of a property which the accused was entrusted.
33. However, at this stage, this Court merely has to determine if a prima facie view can be taken that the allegations against the accused disclose the commission of the offence of criminal breach of trust under Section 406 of the IPC.
34. Upon perusal of the instant FIR and the chargesheet, this Court notes that the allegation made against the petitioner no.1 is that he ran away with the jewellery, cash, clothes and other stridhan that he was entrusted with by the complainant/respondent no. 2.
35. The allegations against the petitioner no.1, when taken at their face and accepted in their entirety, show that he was entrusted with property which was used by him in a dishonest manner.
36. Therefore, this Court finds that the allegations made against the petitioner no.1 disclose that a prima facie case is made out against him for the commission of the offence of criminal breach of trust under Section 406 of the IPC, which requires determination by way of trial before the Court concerned in light of the evidence adduced by the parties.
37. At this stage, this Court deems it imperative to discuss the next charge against the petitioner under Section 4 of the DP Act which reads as under:
38. As is evident from the Hon’ble Supreme Court’s ruling in P. Sivakumar v. State (supra), charges under Section 4 of the DP Act can be proceeded with despite the annulment of marriage by a decree of nullity. Therefore, the fact that in the instant case, marriage between the petitioner no.1 and the complainant was annulled vide judgment dated 23rd June, 2021 passed by the learned Principal Judge, Family Court, Patna, has no bearing on the issue of quashing of charges under Section 4 of the DP Act.
39. Section 4 of the DP Act provides for penalty for directly or indirectly demanding dowry from the parents/relatives/guardian of the bride or bridegroom.
40. Upon perusal of the instant FIR and the chargsheet, it is made out that the allegation leveled against the petitioner is that he pressurized the complainant to ask her mother for more money even after their marriage was solemnized. Further, as per the allegations in the instant FIR, the petitioner no.1 was given gifts, jewellery and a huge amount of cash at the time of Tilak ceremony.
41. This Court finds that the allegations against the petitioner no.1, when accepted in their entirety and taken at their face value, disclose that a prima facie case for the commission of the offence under Section 4 of the DP Act is made out, which needs to be determined in trial before the Court concerned in light of the evidence adduced by the parties.
42. Summarily stated, in the preceding paragraphs this Court has held that the charge against the petitioner under Section 498A of the IPC does not survive considering the peculiar facts and circumstances as well as the law posited by the Hon’ble Supreme Court on this point. However, this Court does not find any merit in the contentions of the petitioners qua the other charges levelled against them in the FIR and the chargesheet.
43. In view of the discussions held hereinabove, the instant FIR bearing No. 383/2019 registered at Police Station - Mansarovar Park, Delhi and the consequential proceedings emanating therefrom including the chargesheet dated 15th October, 2022 stands quashed to the limited extent of charge under Section 498A of the IPC. It is made clear that the consequential proceedings emanating from other charges in the instant FIR, i.e., Section 406/34 of the IPC and Section 4 of the DP Act shall take its lawful course.
44. Accordingly, the instant writ petition is partly allowed and stands disposed of along with pending applications, if any.
45. It is made clear that the observations made herein are made only for the purpose of deciding the instant petition and shall not be taken as an expression of this Court on the merits of the case.
46. The order to be uploaded on the website forthwith.