Manoj Mahavir Prasad Khaitan vs Ram Gopal Poddar & Anr

who is the daughter-in-law of the respondent No. 1

herein, is also the sister of the appellant herein.

After the marriage allegedly she was harassed by her

in-laws for dowry. She, therefore, proceeded to file a

complaint for the offences punishable under Sections

498A, 406 of the Indian Penal Code (IPC) read with 2 Section 4 of the Dowry Prohibition Act against Ram

Gopal Poddar, respondent No. 1 herein, who is her

father-in-law. The respondent No. 1 was arrested for

those offences on 15.7.2004 and was released on bail on

the next day i.e. 16.7.2004. In pursuance of this

complaint, the police officers from Nerul Police

Station and also from Rajasthan had gone to the

matrimonial home at Mumbai for investigation, with whom

the present appellant was also present. The police

conducted a raid at the matrimonial house on 14.7.2004

when the appellant herein was also present. They

probably wanted to seize the passport of the sister of

the appellant.

4. On 17.7.2004, a written complaint came to be filed

in Nerul Police Station alleging that the appellant had

stolen some gold ornaments during that raid. However,

the police did not take the cognizance of that

complaint. A criminal complaint, therefore, came to be

filed after about six months i.e. on 17.3.2005 in the

Court of 1st Class Judicial Magistrate at Vashi for the

offence punishable under Section 379 IPC against the

appellant alone. The cognizance was taken of this 3

complaint on 2.4.2005 for the offence punishable under

Section 379 IPC and process came to be issued.

5. The appellant, therefore, challenged the order

issuing process by way of a Criminal Revision

Application dated 5.7.2006 before the Sessions Judge at

Thane. This Criminal Revision Application, however,

was withdrawn on 7.5.2007, though the withdrawal

application was opposed by the complainant-respondent.

According to the appellant, this was done without his

knowledge or consent and he had not put his signatures

on the withdrawal application. By order dated

7.5.2007, the Sessions Judge permitted withdrawal.

6. The appellant, therefore, moved Bombay High Court

by way of a petition under Section 482 of the Criminal

Procedure Code (Cr.P.C.), challenging the whole

proceedings. He also proceeded to file a complaint

against his lawyers in the Bar Council of Maharashtra

for misconduct. The High Court, however, dismissed his

petition holding that the only remedy left for the

appellant was to again go before the Sessions Judge and

get the matter restored. It is this judgment of the

High Court which is sought to be challenged before us

by way of the present appeal.

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7. Indisputably, there was a background against the

complaint filed involving the present appellant and

that was the prosecution by the daughter-in-law of

respondent No. 1 herein who was also the sister of the

appellant herein. There can be no dispute that in the

complaint there were allegations made of the theft of

two gold bangles (Patli) weighing about 60 grams. We

have also seen the verification statement recorded by

Ram Gopal Poddar, respondent No. 1, wherein he has

stated that it was the accused (appellant herein) who

accompanied ASI Shri Gupta and Hawaldar Jaiprakash

Singh from Nerul Police Station. It is admitted that

these police officers and the appellant/accused had

come to the house of Ram Gopal Poddar, respondent No. 1

in connection with the criminal prosecution instituted

by the daughter-in-law of Ram Gopal Poddar, respondent

No. 1, who was the sister of the accused/appellant. It

is then stated that the accused/appellant forced ASI

Shri Gupta to take search of cupboards for seizing the

passport of Smt. Rekha Poddar, daughter-in-law of

respondent No. 1. The appellant asked respondent No. 1

for key of cupboard and opened the cupboard and in the

absence of Ram Gopal Poddar, respondent No. 1, "they"

stole two gold bangles weighing 60 grams. Therefore, 5

it was obvious that the criminal complaint was in

retaliation of the criminal prosecution which was being

faced by the respondent No. 1 herein. It was on the

basis of the complaint and the verification statement

of the complainant/respondent No. 1 alone that the

Judicial Magistrate, Vashi took cognizance and issued

summons.

8. It is undoubtedly true that the appellant herein

challenged it by way of a criminal revision before the

Sessions Judge, Thane and very significantly, the said

revision came to be withdrawn. There does not appear

to be any reason for such sudden and inexplicable

withdrawal. We have seen the reply to the revision

filed by Ram Gopal Poddar, respondent No. 1. From

there, it becomes apparent that the same role is

ascribed and it is admitted therein that the passport

was seized by the police officer. It is also suggested

that thereafter, the appellant/accused locked the

cupboard and handed over the keys to the respondent No.

1 who kept the same in his pocket and thereafter, he

was arrested and taken to Rajasthan. It is then

suggested that key alongwith other things were handed

over to the lawyer of the respondent No. 1. On this 6

basis, it is suggested that it was the

appellant/accused alone who had stolen the gold

bangles, which fact probably came to the notice of the

respondent No. 1 only after coming back to Bombay.

9. The only material on the basis of which the

Magistrate issued the summons was the complaint and the

verification statement. Beyond the allegations which

we have already mentioned, there are no other

allegations. We feel on the face of it the allegations

were absurd and without any basis. It is absurd to

think that the appellant herein who was present with

the police party (2 in No.) would venture to pocket the

bangles in their presence. Further, admittedly, after

locking the locker, the keys were handed over to the

respondent No. 1. Neither is it known nor has it been

made clear as to when the respondent No. 1 opened the

locker again to find that the two gold bangles were

stolen. Be that as it may, the very look of the

complaint is enough to convince one about the absurdity

of the allegations. When the complaint is seen on the

backdrop of the prosecution of the respondent No. 1 for

offences under Section 498 IPC and the allied offences,

the absurdity becomes all the more prominent. Again 7

there is no complaint against the two accompanying

police officers. They have not been made accused in

the complaint. There can be no doubt, therefore, that

the complaint wholly lacks the bona fides and it was

obviously with the indirect motive for hounding the

appellant who was none else but the brother of the

daughter-in-law of respondent No. 1 who had started the

criminal proceedings.

10. The learned Counsel for the appellant is,

therefore, right in contending that the complaint had

to be quashed, firstly, because it was absurd and

secondly, because the complainant/respondent No. 1

wholly lack the bona fides in filing such complaint

which was absurd. The learned Counsel for the

respondent No. 1 vehemently argued that at this stage,

what was to be seen was only the contents of the

complaint and if there appeared the basic contentions

indicating committing of crime by the

appellant/accused, then the Courts would not interfere

with the same and leave the parties to lead evidence

during the ensuing trial, relying on the oft-quoted

decision in State of Haryana & Ors. Vs. Bhajan Lal &

Ors. [1992 Supp. (1) SCC 335]. There can be no dispute 8

about the law laid down in that case. However, where

on the face of it the absurd charges are levelled and

there is a whole lack of the bona fides of the

complainant/respondent No.1, in our opinion, there

would be no fetter in using the powers under Section

482 Cr.P.C.

11. It was pointed out that the criminal revision

against the issuance of summons was withdrawn. We

were, therefore, taken to the High Court's judgment,

where the High Court has found itself to be powerless

in view of the withdrawal of the criminal revision and

had advised the parties to go back to the revisional

Court and get it restored. We do not think that the

High Court was justified in advising the appellant to

go back to the Sessions Judge and to get the criminal

revision revived without going into the question

whether such revision could have been revived in law or

not. We observe that the High Court was not powerless.

The High Court itself was exercising its jurisdiction

under Section 482 Cr.P.C., where the High Court could

pass any order in the interests of justice. This power

was available only to the High Court in

contradistinction to the Sessions Judge who was only 9

entertaining the revision application of the appellant

under Section 397 Cr.P.C. The High Court should have,

therefore, applied its mind to the fact situation. It

should have been realized that the complaint was wholly

covered under the 7th circumstance in the case of State

of Haryana & Ors. Vs. Bhajan Lal & Ors. (cited supra),

which is as under:-

"7. 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 and personal grudge."

It was also covered under 3rd circumstance in the

case of State of Haryana & Ors. Vs. Bhajan Lal & Ors.

(cited supra), which suggests:-

"3. 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."

We reiterate that when the criminal Court looks

into the complaint, it has to do so with the open mind.

True it is that that is not the stage for finding out

the truth or otherwise in the allegations; but where

the allegations themselves are so absurd that no

reasonable man would accept the same, the High Court

could not have thrown its arms in the air and expressed 10

its inability to do anything in the matter. Section

482 Cr.P.C. is a guarantee against injustice. The High

Court is invested with the tremendous powers thereunder

to pass any order in the interest of justice.

Therefore, this would have been a proper case for the

High Court to look into the allegations with the

openness and then to decide whether to pass any order

in the interests of justice. In our opinion, this was

a case where the High Court ought to have used its

powers under Section 482 Cr.P.C.

12. In view of the fact, we ordinarily would have sent

the matter back to the High Court, but there is no

point now in remanding the matter back to the High

Court in view of the pendency of this matter for last

six years. In that view, we allow this appeal, set

aside the order of the High Court and quash the

criminal proceedings started by the respondent No. 1

vide criminal case No. 194 of 2005.

13. In view of this order, it will not be necessary to

pass any order in the transfer petition which seeks the 11

transfer of the very complaint which we have quashed

herein.

............................J. [V.S. Sirpurkar]

.............................J.

[Cyriac Joseph] New Delhi;

October 8, 2010.

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