•^tfc ^.. 1 l^]te.:'Jy HIGH COURT OF CHHATTISGARH, BILASPUR ^B -^sV?' APPLICANTS: Criminal Misc. Petition No.222 of 2009 Deepak Tiwari and others Versus NON-APPLICANT: State of Chhattisgarh Post for Dronouncementof order on IIth Auqusfc_^Q09 Sd/- T. P. Sharma Judge -^•'ii'^.Vrf^., 1 I \ ^. 7 / HIGH COURT OF CHHATTISGARH, BILASPUR APPLICANTS NQN-APPLICANT: Criminal Misc. Petition No.222 of 2009 1. Deepak Tiwari, aged about 32 years, S/o Ram Kumar Tiwari, R/o Korar, Distt. Kanker (C.G.) 2. Ram Kumar Tiwari, aged about 61 years, S/o Late Mohan Lal Tiwari,Head Master, Middle School, Kokanpur, Distt. Kanker(C.G.) 3. Smt. Rashmi Pathak, aged about 29 years, W/o Vikas Pathak, R/o Bhanpuri, Distt. Bastar (C.G.) 4. Smt. Seema Bajpai, aged about 35 years, W/o Satish Bajpai, R/o Koma Khan, Distt. Mahasamund (C.G.) 5. Satish Bajpai, aged about 35 years, S/o Shri Jageshwar Bajpai, R/o Koma Khan, Distt. Mahasamund (C.G.) Versus State of Chhattisgarh, Through Mahila Police Station, Durg (C.G.) {Applicatibn under Section 482 of the Code of CriminalProcedure, 1973} Present: Mr. Kanak Tiwari, Senior Advocate with Mr. Varun Sharma, Advocate for the petitioners. Mr. Akhil Mishra, Deputy Govt. Advocate with Mr. Rajendra Tripath[,Panel Lawyerfor the State/respondent. Sinale Bench: Hon'ble Mr. T.P. Sharma, J ORDER (Passed on 11th August, 2009) 1. By this petition under Section 482 of the Code of Criminal Procedure, 1973, the petitioners have prayed for quashment of the F.I.R. registered against them .and quashment of further proceeding pending in Criminal CaseNo.207/2009 before the Court of Judicial Magistrate First Class, Durg. 2. Quashment is prayed on the ground that the prosecution has not conducted investigation impartially and has collected theevidence in pick & choose method favourable only to the prosecution. 2 3. Counsel for the parties are heard. Order of Criminal Case ;No.207/2009 for initiation of criminal proceeding against the petitioners for the offence punishable under Section 498A read with Section 34 ofthe I.P.C. and copy ofthe charge sheet perused. 4. Learned Senior Advocate appearing on behalf of the petitioners argued that on the basis of written complaint dated 23-1-2007 made by complainant Arti Tiwari, wife of petitioner No.l Deepak Tiwari, Mahila Thana, Durg has registered F.I.R. in Crime No.2/2007 on 23- 1 -2007 and conducted investigation. During the course of investigation, the Inyestigating Officer has not conducted fair and impartial investigation. The matter was reported by petitioner No.l to the Senior Superintendent of Police, Durg who issued direction to the Investigating Officer vide memo dated 27-2-2007 to conduct impartial investigation, to record the statements of K.K. Mishra, Smt. Arti Tiwari, Dr. Chandravanshi, Dr, Prakash Narayan Shukla & neighbours of the petitioners, and also to investigate that as to why after compromise in divorce case the complainant has not gone to her matrimonial house and how the report has been lodged. Learned Senibr Advocate submits that the Police has recorded the statement of Dr. Prakash Narayan Shukla who has specifically stated that Arti Tiwari is suffering from paranoid schizophrenia (4i'i?i4'i) and he has advised her for treatment as an indoor patient. Divorce petition was filed by husband of the complainant but in reconciliation proceeding conducted by the Family Court, Durg, petitioner No.l Deepak Tiwari & complainant Arti Tiwari entered into compromise. Statements of Arti Tiwari & Deepak Tiwari were recorded by the Judge, Family Court at the time of such compromise in which they agreed to live together at the matrimonial house of the complainant, but when the complainant refused to go with petitioner No.l, petitioner No.l has lodged report on 28-8-2006 before Police Station Kotwali, Durg and also wrote a letter to the complainant, and directed that she should come along with her kid within 15 days failing which he will be compelled to take suitable action. Learned Senior Advocate further argued that on the basis of the factum of compromise, series of litigations and written report lodged by the complainant, this Court has considered the anticipatory bail application filed by petitioner No.l & his parents and granted anticipatory bail to them which supports the claim of the petitioners herein. Learned Senior ISK^ '"'•'•;;. 3 Advocate also argued that the complainant is suffering from serious mental disease of schizophrenia and even she is not in a position to discharge her matrimonial obligations, however, with a view to settle the "problem, petitioner No.l Deepak Tiwari has entered into compromise with the complainant, but the complainant has not complied the terms of compromise and when she was asked to go to her matrimonial house, she has lodged false report against the petitioners. Fair investigation and fairtrial are s/ne qua non for criminal justice. For continuation of criminal proceeding, Court is required to see whether the substantive material for proceeding against the accused persons is there or not, only omnibus & bald statements are not sufficient for continuance of criminal proceeding and that would amount to abuse of the process of the Court. Learned Senior Advocate placed reliance in the matter of Himanshu Singh Sabharwal v. State of M.P. & Ors.1 in which the Apex Court has held that fair trial is the first prerequisite of administration of justice. 5. On theother hand, learned counsel appearing on behalf of the State/ respondent submits that series of litigations show persisfent dispute between the parties. Police has registered the case on the basis of written complaint made by the complainant on 23-1-2007, definitely, after the compromise in divorce case, material collected on behalf of the prosecution is sufficient for initiation of criminal proceeding against the petitioners who are husband & relatives of husband of the complainant. At this stage, the Court is required to see that if the allegation made in the charge sheet is admitted by theaccused persons in its face value, then whether conviction would be possible. At this stage, no meticulous scrutiny of evidence is necessary or no evidentiary value ofthe substance is required to be scrutinized. 6. At the time of granting anticipatory bail to petitioner No.l & his parents, the facts and circumstances of the case, particularly, series of litigations took place between the parties, contents of the written reportand lodgihgof complaint by the complainant were considered, and anticipatory bail was granted to petitioner No.l & his parents. 7. Divorce case and application under Section 18 of the Hindu Adoption & Maintenance Act was decided on the basis of compromise. 1AIR2008SC 1943 /' /' "":~ns>~ -.(! ~\ "»ft. ^^^ 4 Statements of the complainant & petitioner No.l Deepak Tiwari were recorded by the Judge, Family Court. Their statements reveal that the complainant has deposed that she will not commit any cruelty upon her husband and petitioner No.l has deposed that he will not commit cruelty upon his wife. Both the cases were dismissed on the basis of compromise on 26-8-2006, but just after two days, petitioner No.l has lodged report before Police Station Kotwali, Durg that the complainant is not complying the order of compromiseand on 23-1-2007, he has also sent a letter to the complainant in the form Qfnotice. Statement of Dr. Prakash Narayan Shukla has been recorded by the investigating agency but according to the petitioners, it does not find place in the charge sheet. Copies of reports filed on behalf of petitioner No.l Deepak Tiwari reveal that he is lodging report against the complainant since 2002. S.While dealing with the question of jurisdiction under Section 482 of the Cr.P.C. in the case of G. Sagar Suri and another v.State of U.P. and others2, the Apex Court has held that criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. Para 8 ofthe said judgment reads thus, "8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the mater superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminaloffence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends ofjustice." 9. Copy of charge sheet, different reports lodged by petitioner No.l and series of litigations between the parties reveal that in this case, relations between husband & wife were not cordial. Allegations and counter allegations have been made by both the parties. Material collected on behalf of the prosecution reveals prima facie case against the petitioners. If the allegations made in the charge sheet are admitted in its face value, same may be sufficient for conviction. y 2 (2000) 2 SCC636 aS , ^^ ,^ -At this stage, the Court is required to see the prima facie material for initiation of criminal proceeding against the petitioners. Charge sheet has tfeen filed against the petitioners, but the petitioners are not prevented from calling any statements or documents from the possession of the prosecution at appropriate stage. Allegations made in the charge sheet show prima facie ground for initiation of crimina] proceeding against the petitioners. lO.For the foregoing reasons, I do not find this a fit case for invoking the extra ordinary inherent jurisdiction in terms of Section 482 of the Cr.P.C. The petition is,±herefore,dismissed. Sd/- T. P. Sharma Soma