Sonu Gupta vs Deepak Gupta & Ors

The parties have been heard in detail and they have also filed written submissions. Appellant is wife of respondent no.1 and is complainant in Criminal Complaint No.1213/2011 before Court of Judicial Magistrate, First Class, Raipur. The respondents are accused in this Complaint Case which was filed on 07.12.2010 for alleged offences under Section 464, 468 and 471 of the Indian Penal Code (IPC).

The appellant and respondent no.1 are undergoing a protracted matrimonial dispute. It is the case of appellant as well as respondent no.1 that they were married in February 1997. A girl child was born to the appellant in May 1998 and in 2001 the appellant gave informations on various dates to several police authorities regarding alleged torture and harassment inflicted on her by respondent nos.1 to 8 for dowry as well as for giving birth to a girl child. It is appellant's case that in April 2001 itself there was pressure by the common relatives and friends leading to appellant withdrawing her allegations against respondent no.1 who in turn withdrew Divorce Petition No.496/2000 and the same was dismissed as withdrawn by order of Additional District Judge, Delhi dated 30th April 2001. The differences between the spouses got settled amicably in April-May 2001. The appellant gave birth to another girl child in August 2002 much to the dislike of accused persons.

The substance of the accusation in the instant complaint case is that anticipating legal action by the appellant against renewed mental torture and harassment by the respondent no.1 and his other relations named as accused, as a stratagem and outcome of a conspiracy, one of her earlier letters of complaint to some police officials which had been withdrawn by the appellant in April-May 2001, was changed and tampered as per convenience and a photocopy of such undated complaint making out a weak case against the respondents which was bound to fail, was got registered at the instance of the accused persons themselves with the help of some police officials as Criminal Case (FIR No.73/2002) on 06.10.2002 in the Mahila Thana, Raipur by the Town Inspector of this Thana under pressure of accused no.9, Additional Director General of Police, PHQ, Raipur. According to the complaint petition, the appellant informed the concerned court that the FIR No.73/2002 was neither filed by her nor signed by her and this FIR facilitated her husband and his relations who were accused to obtain anticipatory bail not only in FIR No.73/2002 but also in the case genuinely filed by the appellant against accused nos.1 to 8 under Sections 498A and 406, IPC in Women's Cell, Kirti Nagar, Delhi registered as Complaint No.372/2004 on 15.06.2004. The appellant was also surprised to receive in July 2003 a notice of Divorce Petition filed by respondent no.1 in a Delhi court on 19.5.2003. The appellant approached various authorities and tried to get an investigation into her allegations that FIR No.73/2002 was fraudulently registered to benefit the accused nos.1 to 8 and the appellant had no role in registering the same. Ultimately, even after a CID investigation in favour of appellant's case, when no action was taken against the culprits and no copy of the CID report was made available to the appellant, she filed a Writ Petition No.1488/2005 before the High Court of Chhattisgarh at Bilaspur seeking the record of investigation report of CID and registration of a criminal case against the accused as well as investigation by CBI. In terms of directions of the High Court issued while disposing of the writ petition on 24.06.2010, the appellant was provided with copy of the CID investigation report and was also permitted to inspect the entire connected record. Thereafter appellant could find that the Station House Officer of Mahila Thana, Raipur as well as accused no.9, Additional Director General of Police, PHQ, Raipur also had played a role in fraudulent registration of FIR No.73/2002 and hence she filed the instant criminal complaint before the Court of Judicial Magistrate, First Class, Raipur on 07.12.2010.

682. In that case a complaint filed against the appellants who were bank officials was quashed because the Court found that it was a counter-blast to action taken by them in their official capacity for realizing the loan amount due from the complainant. On facts of that case, it was easy to hold that the complaint was clearly an abuse of judicial process and it was also found that averments and allegations in complaint did not disclose commission of any offence by appellants. The Magistrate had failed to apply his mind to the case of the appellants and the High Court had erred in not even adverting to the basic facts. The factual situation in the present case is quite otherwise. Reliance was also placed on behalf of respondents upon judgment in the case of State of Karnataka v. Muniswamy & Ors. (1977) 2 SCC 699. In that case, the accused persons pleaded for discharge before the Sessions Court which was not accepted but the High Court quashed the proceedings on the ground that there was no material on the record on the basis of which any tribunal could reasonably come to the conclusion that the accused were in any manner connected with the incident leading to the prosecution. This Court agreed with the views of the High Court on the basis of peculiar facts of that case showing lack of any data or material which could create a reasonable likelihood of conviction for any offence in connection with attempted murder of the complainant. That judgment also is of no help to the respondents herein in the light of allegations made in the complaint, the statement of the complainant on solemn affirmation and the CID Report of investigation on which the complainant placed reliance and which was perused by the learned Magistrate.

These appeals are therefore allowed, the judgment and order under appeal passed by the High Court is set aside. We also set aside the orders passed by the learned Sessions Court dated 30.11.2011 whereby summoning order was set aside in respect of accused nos.6 to 8 and accused no.9. In other words, the order of summoning passed by learned Magistrate dated 02.05.2011 is restored. Before parting with the order we make it clear that any observations in this order shall not prejudice the case of either of the parties before the court below and the criminal complaint case of the appellant must proceed on its own merits strictly in accordance with law. Although we have set aside the order granting relief to accused nos.6 to 9 by the Sessions Court, in the interest of justice, we direct that in the facts of the case accused nos.6 to 9 shall be granted benefit of bail by the learned Magistrate if they appear within 10 weeks and apply for same. The Magistrate shall of course be at liberty to set reasonable conditions for such grant.

February 11, 2015.