Manoj Mahavir Prasad
Khaitan Vs Ram Gopal Poddar & Anr.
J U D G M E N T
V.S. SIRPURKAR, J.
1.
Leave
granted.
2.
This
judgment will also dispose of the Transfer Petition being T.P. (Crl.) No.
259/2008 filed on behalf of Smt. Rekha Kailash Poddar who is the daughter-in-law
of Ram Gopal Poddar, respondent No. 1 herein.
3.
The
facts are very peculiar. Smt. Rekha Poddar who is the daughter-in-law of the respondent
No. 1 herein is also the sister of the appellant herein. After the marriage
allegedly she was harassed by herein-laws for dowry. She, therefore, proceeded
to file a complaint for the offences punishable under Sections498A, 406 of the
Indian Penal Code (IPC) read with Section 4 of the Dowry Prohibition Act against
RamGopal Poddar, respondent No. 1 herein, who is her father-in-law. The
respondent No. 1 was arrested for those offences on 15.7.2004 and was released
on bail on the next day i.e. 16.7.2004. In pursuance of this complaint, the police
officers from Nerul Police Station and also from Rajasthan had gone to the
matrimonial home at Mumbai for investigation, with whom the present appellant
was also present. The police conducted a raid at the matrimonial house on 14.7.2004when
the appellant herein was also present. They probably wanted to seize the
passport of the sister of the appellant.
4.
On
17.7.2004, a written complaint came to be filed in Nerul Police Station
alleging that the appellant had stolen some gold ornaments during that raid. However,
the police did not take the cognizance of that complaint. A criminal complaint,
therefore, came to be filed after about six months i.e. on 17.3.2005 in the
Court of 1st Class Judicial Magistrate at Vashi for the offence punishable
under Section 379 IPC against the appellant alone. The cognizance was taken of
this complaint on 2.4.2005 for the offence punishable under Section 379 IPC and
process came to be issued.
1.
2.
3.
4.
5.
5.
The appellant, therefore, challenged the orderissuing process by way of a Criminal
Revision Application dated 5.7.2006 before the Sessions Judge at Thane. This
Criminal Revision Application, however, was withdrawn on 7.5.2007, though the
withdrawal application was opposed by the complainant-respondent. According to
the appellant, this was done without his knowledge or consent and he had not
put his signature son the withdrawal application. By order dated7.5.2007, the
Sessions Judge permitted withdrawal.
6.
The
appellant, therefore, moved Bombay High Court by way of a petition under
Section 482 of the Criminal Procedure Code (Cr.P.C.), challenging the whole
proceedings. He also proceeded to file a complaint against his lawyers in the
Bar Council of Maharashtra for misconduct. The High Court, however, dismissed his
petition holding that the only remedy left for the appellant was to again go
before the Sessions Judge and get the matter restored. It is this judgment of the
High Court which is sought to be challenged before us by way of the present
appeal.
7.
Indisputably,
there was a background against the complaint filed involving the present appellant
and that was the prosecution by the daughter-in-law of respondent No. 1 herein
who was also the sister of the appellant herein. There can be no dispute that
in the complaint there were allegations made of the theft of two gold bangles
(Patli) weighing about 60 grams. We have also seen the verification statement
recorded by Ram Gopal Poddar, respondent No. 1, wherein he has stated that it
was the accused (appellant herein) who accompanied ASI Shri Gupta and Hawaldar
Jaiprakash Singh from Nerul Police Station. It is admitted that these police officers
and the appellant/accused had come to the house of Ram Gopal Poddar, respondent
No. 1in connection with the criminal prosecution instituted by the
daughter-in-law of Ram Gopal Poddar, respondent No. 1, who was the sister of
the accused/appellant. It is then stated that the accused/appellant forced ASI Shri
Gupta to take search of cupboards for seizing the passport of Smt. Rekha Poddar,
daughter-in-law of respondent No. 1. The appellant asked respondent No. 1for
key of cupboard and opened the cupboard and in the absence of Ram Gopal Poddar,
respondent No. 1, "they “stole two gold bangles weighing 60 grams. Therefore,
it was obvious that the criminal complaint was in retaliation of the criminal
prosecution which was being faced by the respondent No. 1 herein. It was on the
basis of the complaint and the verification statement of the complainant/respondent
No. 1 alone that the Judicial Magistrate, Vashi took cognizance and issued summons.
8.
It
is undoubtedly true that the appellant herein challenged it by way of a
criminal revision before the Sessions Judge, Thane and very significantly, the said
revision came to be withdrawn. There does not appear to be any reason for such sudden
and inexplicable withdrawal. We have seen the reply to the revision filed by
Ram Gopal Poddar, respondent No. 1. From there, it becomes apparent that the same
role is ascribed and it is admitted therein that the passport was seized by the
police officer. It is also suggested that thereafter, the appellant/accused locked
the cupboard and handed over the keys to the respondent No.1 who kept the same
in his pocket and thereafter, hews arrested and taken to Rajasthan. It is then
suggested that key along with other things were handed over to the lawyer of
the respondent No. 1. On this basis, it is suggested that it was the appellant/accused
alone who had stolen the gold bangles, which fact probably came to the notice
of the respondent No. 1 only after coming back to Bombay.
9.
The
only material on the basis of which the Magistrate issued the summons was the
complaint and the verification statement. Beyond the allegations which we have
already mentioned, there are no other allegations. We feel on the face of it
the allegations were absurd and without any basis. It is absurd to think that
the appellant herein who was present with the police party (2 in No.) would
venture to pocket the bangles in their presence. Further, admittedly, after
locking the locker, the keys were handed over to the respondent No. 1. Neither
is it known nor has it been made clear as to when the respondent No. 1 opened the
locker again to find that the two gold bangles were stolen. Be that as it may, the
very look of the complaint is enough to convince one about the absurdity of the
allegations. When the complaint is seen on the backdrop of the prosecution of
the respondent No. 1 for offences under Section 498 IPC and the allied offences,
the absurdity becomes all the more prominent. Again there is no complaint against
the two accompanying police officers. They have not been made accused in the
complaint. There can be no doubt, therefore, that the complaint wholly lacks
the bona fides and it was obviously with the indirect motive for hounding the
appellant who was none else but the brother of the daughter-in-law of
respondent No. 1 who had started the criminal proceedings.
10.
The
learned Counsel for the appellant is, therefore, right in contending that
the complaint had to be quashed, firstly, because it was absurd and
secondly, because the complainant/respondent No. 1 wholly lack the bona
fides in filing such complaint which was absurd. The learned Counsel for the
respondent No. 1 vehemently argued that at this stage, what was to be seen was
only the contents of the complaint and if there appeared the basic contentions
indicating committing of crime by the appellant/accused, then the Courts
would not interfere with the same and leave the parties to lead evidence during
the ensuing trial, relying on the oft-quoted decision in State of Haryana
& Ors. Vs. Bhajan Lal &Ors. [1992 Supp. (1) SCC 335]. There can be no
dispute about the law laid down in that case. However, where on the face of it
the absurd charges are leveled and there is a whole lack of the bona fides of
the complainant/respondent No.1, in our opinion, there would be no fetter
in using the powers under Section482 Cr.P.C. It was pointed out that the criminal
revision against the issuance of summons was withdrawn. We were, therefore,
taken to the High Court's judgment, where the High Court has found itself to be
powerless in view of the withdrawal of the criminal revision and had advised
the parties to go back to the revisional Court and get it restored. We do not
think that the High Court was justified in advising the appellant to go back to
the Sessions Judge and to get the criminal revision revived without going into
the question whether such revision could have been revived in law or not. We
observe that the High Court was not powerless. The High Court itself was
exercising its jurisdiction under Section 482 Cr.P.C., where the High Court could
pass any order in the interests of justice. This power was available only to the
High Court in contradistinction to the Sessions Judge who was only entertaining
the revision application of the appellant under Section 397 Cr.P.C. The High
Court should have, therefore, applied its mind to the fact situation. It should
have been realized that the complaint was wholly covered under the 7th
circumstance in the case of State of Haryana & Ors. Vs. Bhajan Lal &
Ors. (cited supra),which is as under:-
11.
"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." It was also covered under 3rd circumstance in the case
of State of Haryana & Ors. Vs. Bhajan Lal & Ors.(cited supra), which
suggests:-"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." We
reiterate that when the criminal Court looks into the complaint, it has to do
so with the open mind. True it is that that is not the stage for finding out
the truth or otherwise in the allegations; but where the allegations themselves
are so absurd that no reasonable man would accept the same, the High Court
could not have thrown its arms in the air and expressed its inability to do
anything in the matter. Section482 Cr.P.C. is a guarantee against injustice. The
High Court is invested with the tremendous powers there under to pass any order
in the interest of justice. Therefore, this would have been a proper case for
the High Court to look into the allegations with the openness and then to
decide whether to pass any order in the interests of justice. In our opinion,
this was a case where the High Court ought to have used its powers under
Section 482 Cr.P.C. In view of the fact, we ordinarily would have sent the
matter back to the High Court, but there is nonpoint now in remanding the
matter back to the High Court in view of the pendency of this matter for last
six years. In that view, we allow this appeal, set aside the order of the High
Court and quash the criminal proceedings started by the respondent No. 1vide
criminal case No. 194 of 2005.
12.
In
view of this order, it will not be necessary to pass any order in the transfer
petition which seeks the transfer of the very complaint which we have quashed
herein
.
............................J. [V.S. Sirpurkar]
.............................J.
[Cyriac Joseph]
New
Delhi;
October
8, 2010.
Back
