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Judgment
By this writ petition, the petitioners have challenged order dated 29Â08Â2017, passed by the Court of Additional Sessions Judge, Nagpur (trial
Court), whereby the application filed on behalf of the petitioners seeking discharge has been rejected. Heard counsel for petitioners and respondent
no.2, as also learned APP for the respondent no.2ÂState.
Rule. Rule returnable forthwith. Heard finally with consent of counsel for the parties.
In the present case, the respondent no.2 (original complainant) lodged a First Information Report (FIR) against her husband and inÂlaws under
Sections 498ÂA read with Section 34 of the Indian Penal Code (IPC) as also provisions of the Dowry Prohibition Act, 1961. She also made a specific
allegation that one of her brothers in law had raped her and therefore, offence under Section 376 of the IPC was also registered. The petitioners
herein are; petitioner no.1 (father in law), petitioner no.2 (mother in law) and petitioner no.3 (another brother in law of respondent no.2 against whom
the allegation of rape has not been made). A perusal of FIR and the oral report (on the basis of which the FIR was registered), shows that the
allegations against the petitioners herein are general in nature to the effect that they used to harass the respondent no.2 and that a demand of Rs.
50,000/Â was made by the accused including the petitioners, pursuant to which the mother of respondent no.2 had made payment of the said amount.
In the oral report, leading to the FIR, specific allegations have been made by the respondent no.2 against her husband about physical beating and
harassment as also an allegation of rape against another brother in law, by giving a specific date on which date the said incident was said to have
occurred.
Pursuant to registration of FIR, the Police recorded the statements of the parents and the brother of respondent no.2, as also neighbours who lived
in the neighborhood of the matrimonial house. On the basis of such material, an application was made on behalf of the petitioners before the trial Court
for discharge, submitting that the petitioners are the residents of Kalyan (Mumbai) and that they have nothing to do with the nature of allegations
which were made by respondent no.2 concerning offences under the provisions of the IPC and the Dowry Prohibition Act, 1961, registered at the
Police Station Kamptee. It was pointed out that the contents of the FIR and the nature of statements made by the parents, brother and neighbours
even if accepted, did not show any kind of incriminating material against the petitioners herein.
But, by the impugned order, the trial Court rejected the application for discharge made by the petitioners. Although the trial Court accepted the fact
that the petitioners were residing at Mumbai, which was evident from the statements of the witnesses and no overtÂact was attributable to them, yet
the trial Court found that the respondent no.2 had alleged that she had been subjected to physical and mental harassment and that she was beaten in
connection with demand of dowry and that the said allegations were made against the petitioners, due to which the relief claimed could not be granted.
On this basis, the application stood rejected.
Shri S. Zia Qazi, learned Counsel appearing on behalf of the petitioners submitted that a perusal of the FIR and the aforesaid statements of the
witnesses would show that false allegation was made by the respondent no.2 to rope in the petitioners in the crime, although they cannot be connected
with the allegations and the offences registered in the present case. It is pointed out that in the oral report leading to the FIR, only a very general and
vague statement has been made against the petitioners herein, regarding harassment, as compared to specific allegations made against her husband
and other brother in law by the respondent no.2. It was pointed that the statements of the aforesaid witnesses recorded by the Police did not bring on
record an iota of incriminating material against the petitioners. The learned Counsel further stated that this was fit case for discharge. Reliance was
placed on the judgment of the Hon'ble Supreme Court in the case of Geeta Mehrotra and another vs State of Uttar Pradesh and another, reported at
(2012) 10 SCC 741 and the judgment of this Court in the case of Shashikant Pawar and others vs The State of Maharashtra and another passed in
Criminal Application No.718 of 2016 decided on 24Â02Â2017.
On the other hand, Shri M.S. Wakil, learned Counsel appearing on behalf of the respondent no.2 submitted that since the allegations of harassment
and demand of Rs. 50,000/Â were made against the accused (husband) including all the petitioners in the oral report leading to the FIR, there was
sufficient material on record to proceed against the petitioners. It was pointed out that the statements of the parents and brother of respondent no.2
when read with the statements of the neighbours clearly demonstrated that the petitioners herein did visit the matrimonial house at Kamptee from
Mumbai intermittently every 4 to 6 months and therefore, it was a matter of trial as the petitioners could be acquitted if they were able to prove their
claim before the trial Court
In the judgment in the case of Geeta Mehrotra and another (supra) relied upon by the learned Counsel for the petitioners, the Hon'ble Supreme
Court held as follows :
“25. 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 coÂaccused
specially in a matter arising out 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 cognizance 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
complainantÂwife. 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 overÂimplication 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 domestic bickering while
settling down in her new matrimonial surrounding.â€
The said position of law does make it clear that if there is a case of false implication by the complainant by involving the entire family and there are
no specific allegations made, it could become a situation for exercise of power by the Court for quashing of FIR against the said accused. In the
present case, the question of discharge of the petitioners is involved.
In the judgment of the Division Bench of this Court in the case of Shashikant Pawar and others (supra), while considering the allegations that were
similar to those made against the petitioners in the present case, the Court held as follows :Â
“7. Upon careful perusal of the allegations as against present Applicants, neither any specific date of incident nor any specific allegations qua each
of the Applicant have been mentioned. Admittedly, Applicant Nos. 3 and 4 are residing of Rajkot District situate in Gujrat State. Merely because there
is allegation that they used to visit the matrimonial place during summer vacation and used to illÂtreat and harass Respondent No.2, in absence of any
overtÂact attributed qua each of the Applicant or in absence of any specific allegations, in our considered view, it will be exercise in futility to cause
further investigation of such allegations. As already observed, there is delay of about 18 months in lodging the First Information Report.â€
In this judgment, the Division Bench has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Geeta Mehrotra and another
(supra) 11. A perusal of the oral report leading to the registration of FIR in the present case shows that the respondent no.2 has referred to and
mentioned the petitioners in general terms at one place as being responsible for demand of Rs. 50,000/Â and also claimed that after about 2/4 days of
such demand the said amount was paid by her mother. The other contents of the report show that the fact of marriage, which was solemnized on
07Â12Â2012, has been stated and specific allegations have been made against husband regarding physical beating, harassment and demand of dowry
and a specific allegation has been made against the other brotherÂinÂlaw of having raped the respondent no.2 on a specific date stated in the FIR.
Therefore, insofar as the petitioners herein are concerned, other than a general one line statement about they also being involved in demanding the
amount of Rs. 50,000/Â, there is no specific allegation as compared to specific allegations made against the husband and other brotherÂinÂlaw by
respondent no.2. Apart from this, the statements of the parents and the brother of respondent no.2 recorded by the Police does not bring out any
incriminating material against the petitioners, although there is reference to registration of the said FIR against the petitioners at Police Station,
Kamptee. The statements of the said witnesses pertain to physical beating and harassment of respondent no.2 by the accused who are not before this
Court. The statements of the neighbours are almost identical wherein they have only stated that a report had been lodged in the Police Station at
Kamptee, where the case is registered against the accused i.e. the petitioners herein. It was also stated that the petitioner nos. 1 and 2 i.e father in
law and mother in law used to visit Kamptee every 4 to 6 months.
If the statements of the neighbours are taken into account, nothing incriminating appears on record. In this situation, it would not be in the interest
of justice that the petitioners are made to face trial. In fact, the trial Court also in the impugned order has recorded a finding that the material on
record shows that the petitioners are residents of Mumbai, occasionally visiting Kamptee and that specific overt act has not been alleged by the
respondent no.2 against them. Thereafter, the trial Court has gone to hold that there was material to show that the petitioners had subjected the
respondent no.2 to physical and mental harassment and beating for demand of dowry. This is not borne out by the record. Even otherwise, the
allegations regarding Rs. 50,000/Â demanded by the petitioners and actually paid by the mother of respondent no.2, does not even find mention in the
statements of the parents and the brother of respondent no.2.
In such a situation, it becomes clear that that trial Court erred in not exercising its power to allow the application for discharge on behalf of the
petitioners. It is evident that in the present case, the respondent no.2 made vague allegations against the petitioners. The petitioners cannot be made to
face the stress of criminal trial on the basis of vague allegation made in the FIR. This is a clear case of overÂimplication of all family members by the
respondent no.2. The accused against whom specific allegations have been made i.e. husband and the other brotherÂinÂlaw of respondent no.2 are
not before this Court. The petitioners cannot be placed in the same category, as no specific allegation has been made against them in the FIR and
even the statements of witnesses recorded by the Police have not brought any incriminating material against them.
In the context of scope of power of the Court to discharge accused under Section 227 of the Code of Criminal Procedure, the Hon'ble Supreme
Court in the case of Yogesh alias Sachin Jagdish Joshi vs State of Maharashtra, reported in (2008) 10 SCC 394, held as follows :Â
“15. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section
209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time
to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report
and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is ""sufficient ground"" to proceed against
the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
It is trite that the words ""not sufficient ground for proceeding against the accused"" appearing in the Section postulate exercise of judicial mind on
the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in
assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case
against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither
feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied
that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge
the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on
record, if unrebutted, makes a conviction reasonably possible. (See State of Bihar Vs. Ramesh Singh (1977) 4 SCC 39 and Prafulla Kumar Samal
(1979) 3 SCC 4)â€
Applying the said position of law to the facts of the present case, it becomes evident that the petitioners herein are entitled for discharge.
In the light of the above, the present writ petition is allowed. The impugned order passed by the trial Court is quashed and set aside. The
application for discharge filed on behalf of the petitioners is allowed. Rule made absolute in above terms.