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Judgment
Lok Pal Singh, J
By means of present criminal misc. application u/s 482 Cr.P.C., applicants seek to quash the summoning order dated 03.08.2011 passed by Special Judicial Magistrate, C.B.I., Dehradun and the entire proceedings of criminal misc. case no.M-8618/2010 Beena Sharma vs. Arvind Sharma and another, under Section 411 of IPC.
Brief facts of the case are that the applicant Arvind Kumar Sharma got married to second respondent Beena Sharma on 22.02.1992 at Dehradun. Out of the wedlock, a daughter was born on 16.6.1993. For some time, the parties to the matrimony lived peacefully but thereafter some dispute arose between them. The first applicant thus filed a divorce petition u/s 13 of The Hindu Marriage Act which was dismissed by Family Judge, Dehradun on 17.08.2006, whereagainst the first applicant preferred a First Appeal before this Court being F.A. No.98 of 2006. A Division Bench of this Court, vide judgment dated 18.9.2008, passed a decree of divorce in favour of the first applicant and the marriage between the parties was dissolved on the condition that the appellant shall pay to the second respondent (wife) one time lump sum alimony amounting to Rs.5,00,000/-within a period of 60 days. In compliance of said judgment, the first applicant paid Rs.5,00,000/- to the second respondent, through a Draft. Said amount was accepted by the second respondent and the judgment thus attained finality and the marriage between the parties has thus dissolved. On 16.4.2010, second respondent filed an application u/s 156(3) of Cr.P.C. before the Judicial Magistrate, C.B.I., Dehradun, stating that on 10.2.2001, when she and her daughter had gone to school, the applicants after breaking the locks entered into the house and, without their permission, loaded all the goods of the respondent no.2 and her daughter in a truck and took it to an unknown place. On the application of the respondent no.2, Judicial Magistrate, treated the application as complaint case and directed the second respondent to give the statement u/s 202 Cr.P.C. Second respondent got examined herself u/s 200 Cr.P.C. and his daughter u/s 202 Cr.P.C. After hearing the complainant and on perusal of record, Special Judicial Magistrate, C.B.I., Dehradun, vide order dated 03.8.2011, summoned the applicants to face trial u/s 411 of IPC.
Learned counsel appearing for the applicants would submit that the marriage between the parties had already been dissolved by a decree of divorce but even thereafter the second respondent was illegally occupying the house allotted to the first applicant by the department. In this regard, an application was also moved by the first applicant to his Department, whereupon, on 10.02.2010 the Department had taken possession of the house. It is also submitted that in counterblast of aforesaid proceeding, the second respondent moved an application u/s 156(3) of Cr.P.C. Lastly, it is submitted that no case u/s 411 of IPC is made out against the applicants.
On the other hand, learned counsel appearing for second respondent would submit that the learned Magistrate has rightly summoned the applicants u/s 411 of IPC inasmuch the first applicant had no authority to evict the second respondent from the premises without due process of law. He would also submit that the applicants have committed theft as per Section 378 of IPC.
I have heard learned counsel for the parties and have perused the entire material available on record.
On a perusal of the record, it transpires that it is not a simple case of removing goods from the possession of the second respondent without her consent, as has been alleged by the second respondent. Admittedly, a decree of divorce was passed and the marriage between the parties was dissolved. The decree was also satisfied by the first applicant by paying an amount of Rs.5,00,000/- towards alimony. The amount was also accepted by the second respondent. That being the position, the second respondent had no right to reside in the official accommodation of the first applicant, and that too, when the first applicant had already moved an application to the Department, so as to surrender the said official accommodation. For the sake of arguments, if the allegations made in the complaint are taken as true, in that case also, dishonest intention of the first applicant in removing the goods is not found. Intention and mens rea is relevant to summon the applicants u/s 411 of IPC. In the case at hand, there might be intention of the first applicant to remove the goods but dishonest intention is missing. Rather, what appears to the Court is patent abuse of process of law on the part of the second respondent.
Besides above, this Court cannot loose sight of the fact that on the application of the second respondent, Judicial Magistrate had directed to P.S. Raipur, Dehradun to make an enquiry and submit the report, whereupon an enquiry was conducted and the P.S. Raipur, Dehradun submitted a detailed report dated 22.4.2010 indicating that the second respondent had shifted to her own house in April 2009 but had illegally kept some of her goods in the Government Quarter allotted to the first applicant. In such circumstances also, the summoning order passed by the Magistrate appears to be unjustified.
The allegations made in the complaint appear to be absurd and inherently improbable and do not disclose the commission of any offence and do not make out a case against the applicant. In the present case, criminal proceeding has been manifestly lodged with mala fide intention and ulterior motive for wreaking vengeance on the accused and with a view to spite him due to personal grudge.
In the case of State of Haryana and others vs. Bhajan Lal and others, 1992 Supreme Court Cases (Cri) 426, the Apex Court has reiterated the principle that the Courts can exercise their inherent jurisdiction of quashing a criminal proceeding, only when the allegations made in the FIR/ complaint do not disclose the commission of any offence and make out a case against the accused. Hon'ble Apex Court has categorized cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice :-
i) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
ii) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
iii) 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.
iv) 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.
v) 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.
vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.
vii) 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 or personal grudge.
In view of the above well settled proposition of law, this Court has no hesitation in invoking its inherent powers under section 482 Cr.P.C in allowing the instant petition. Allegations made in the complaint do not constitute any offence. Present complainant is nothing but an abuse of process of law. Consequently, the impugned summoning order dated 03.08.2011 passed by Special Judicial Magistrate, C.B.I., Dehradun in criminal misc. case no.M-8618/2010 Beena Sharma vs. Arvind Sharma and the criminal proceedings emanating thereform are hereby quashed.
Present C482 application stands allowed.