Smt. Prem Rastogi and Another vs State of U.P. and Others

B.K. Rathi, J.—This is a petition u/s 482. Code of Criminal Procedure to quash the proceedings of Case No. 747 of 1999 against the applicants pending in the Court of C.J.M., Farrukhabad and also to quash the non-bailable warrants issued against the applicants. The facts giving rise to this petition are as follows:

The husband of applicant No. 1 Sri Bhagwan Das Rastogi had two sons, namely, Manoj Rastogi and Atul Rastogi. The applicant No. 2 is wife of Manoj Rastogi. The second son, Atul Rastogi was married to opposite party No. 3 on 30.11.1995. That after the marriage with opposite party No. 3, she came to the house of the applicants. It transpired that she is not a normal lady of sound mind but is a chronic patient of mental disorder and is suffering with disease schizophrenia. That accordingly, her parents were informed. The father of opposite party No. 3 is a Senior Judicial Officer, presently posted as District Judge. They took the opposite party No. 3 on 5.12.1995. That the marriage was performed by suppressing the facts and, therefore, a Matrimonial Suit No. 4 of 1996 was filed on 1.1.1996 by the husband of opposite party No. 3 to declare the marriage as void on the ground of insanity of the opposite party No. 3. In that suit, the opposite party No. 3 has been directed to pay the maintenance and her husband is paying the maintenance regularly and till now has paid about Rs. 90.000.

That the father of opposite party No. 3 being District Judge is well conversant with the law and, therefore, he lodged an F.I.R. against the applicants and her other family members for offences under Sections 498A, 323, 506, I.P.C. and 3/4 of Dowry Prohibition Act. That the F.I.R. was lodged in order to put pressure to withdraw the matrimonial suit. That opposite party No. 3 lived at the house of the applicants only for five days and went on 5.12.1995. The F.I.R. was lodged after long delay on 5.3.1999 and it has been filed as a lever to; terrorise the applicants. That the applicants filed a petition in this Court, in which their arrest was stayed. That, however, now the charge-sheet has been filed and therefore, the applicants have prayed for quashing of the F.I.R. and charge-sheet.

As against this, the contention of the learned Counsel for the opposite party No. 3 is that she was being harassed and was tortured in connection with the demand of Maruti Car, Frost Free Refrigerator, Videocon T.V., Bazooka and Washing Machine. That certain amounts were paid by the father of the opposite party No. 3 but he was not able to meet all the demands. That it was totally false that the opposite party No. 3 is a person of unsound mind and suffering from any disease. That she has passed High School and Intermediate examinations in 1st Division and in B.A. she obtained 50% marks and is now doing M.A. in English. That the applicants are trying to remarry the husband of the opposite party No. 3 and, therefore, she also filed a suit which is pending. That, therefore, there is no ground to quash the charge-sheet.

I have heard Sri R.B. Sahai. learned Counsel for the applicants, Sri S.C. Verma, learned Counsel for opposite party No. 3 and the learned A.G.A. and have gone through the record.

Whether the opposite party No. 3 is a patient of schizophrenia and is a lady of mental disorder or the dispute between the parties took place in connection with the demand of dowry is purely a question of fact and cannot be decided in these proceedings. Even prima facie, the allegations of the applicants cannot be accepted because the opposite party No. 3 is an educated lady, passed all examinations in first divisions and now doing M.A. (Final) in English Literature. Therefore, it is not a case where prima facie contention of the applicants may be accepted that she is a lady of unsound mind. This point, therefore, can be decided by the Court after recording the evidence of the parties.

It is true that F.I.R. was lodged after long delay on 5.3.1999 whereas the opposite party No. 3 left the matrimonial home on 5.12.1995. However, the F.I.R. is not barred by time and for the reason that the F.I.R. is delayed, the case of the complainant cannot be thrown because it was a matrimonial dispute and in Indian society lady is always treated at some lower level with the husband. It is of common experience after divorce the man is able to get remarry very easily, but it became very difficult for a lady to find suitable match after she has been branded as a divorcee. The lady has to live with her first husband happily, therefore, it is of common experience that every attempt is made by the lady to make the marriage successful so as to save her life being ruined. There are very little chances of remarriage of a divorced lady. In these circumstances, it is also a matter of common experience that the lady is always slow in taking legal steps against the husband or other family members as thereafter there will be a point of no return and question of conciliation becomes remote. For this reason, it may be said that the F.I.R. was lodged after long delay and from the delay in F.I.R., it cannot be inferred that the allegations of the opposite party No. 3 are false and should be discarded without examining them after the opportunity of evidence.

It may also be mentioned that it cannot be said that the F.I.R. has been lodged with the sole purpose of harassing as it has been lodged in Farrukhabad where admittedly the applicants are residing there with their family and opposite party No. 3 is not residing there. Therefore arguments that the proceedings are wholly mala fide and abuse of the process of the Court cannot be accepted.

It is also contended that the opposite party No. 3 has also filed a complaint in the Court of C.J.M., Farrukhabad under Sections 494, 109, I.P.C. Even if it is so, no inference can be drawn that the case if false. It is settled law that power u/s 482, Code of Criminal Procedure should be exercised very sparingly in rare cases. Hon''ble Supreme Court in the case J.P. Sharma v. Vinod Kumar Jain and Ors. 1986 SCC 216 has held that offence made out on the basis of allegation made in the complaint without going into truth or otherwise of the allegations, the High Court cannot exercise its powers u/s 482, Code of Criminal Procedure In the case of State of Bihar v. Rajendra Agrawalla 1996 SCC 628, it was observed by the Apex Court that the power u/s 482, Code of Criminal Procedure should be exercised very sparingly and cautiously and the High Court should not appreciate the evidence and come to the conclusion that no prima facie case is made out. It is not necessary to refer the other authorities in this case. On the basis of the above discussions no conclusion can be drawn that the complaint has simply been filed in order to harass the applicants and is abuse of the process of the Court and no case is made out.

The correctness of the allegations can be decided only after the evidence. I do not find any ground to quash the proceedings.

The petition is dismissed.