As part of Division Bench Justice S. B. Pd. Singh sets aside judgment, decree by Principal Judge, Family Court, Gopalganj

"The essential ingredients in an offence of adultery are that: (i) There should be an act of sexual intercourse outside the marriage, and (ii) that such intercourse should be voluntary."

In Kiran Devi vs. Akhilesh Mishra & Anr. (2025), a miscellaneous appeal, Patna High Court's Division Bench of Acting Chief Justice P. B. Bajanthri and Justice S. B. Pd. Singh passed a 17-page long judgement dated September 1, 2025 setting aside the judgment and decree dated February 25, 2019 passed by the Principal Judge, Family Court, Gopalganj in M.M. Case No. 176 of 2011 M.M. Case No. 176 of 2011 stands and dismissed the case. The judgement was authored by Justice Singh. 

The appeal was filed under Section 19(1) of the Family Court Act, 1984 impugning the judgment and decree dated February 25, 2019 passed by Principal Judge, Family Court, Gopalganj, whereby the matrimonial suit, preferred by Akhilesh Mishra, the respondent No. 1, for a decree of divorce, on dissolution of marriage, was allowed subject to payment of Rs. 2,50,000/- as permanent alimony for life support of the appellant. The case of the respondent No. 1 as per petition filed before the Family Court was that the marriage of the appellant was solemnized with respondent No.1 in the month of May, 2005 as per the Hindu Rites and Custom. After the marriage, the appellant came to her matrimonial house and stayed there for few months and thereafter, she went to her parents’ house and stayed there for a year. The respondent-husband and his father made several attempts to take the appellant to her matrimonial house, but all the efforts went in vein. At last in June, 2006 the respondent No. 1 went to his Sasural along with some relatives on promise of his father-in-law and brother-in-law to sent the appellant with him but she did not come with the respondent No. 1. Subsequently, the respondent-husband came to know that appellant has illicit relationship with Ashok Sharma, the respondent No. 2 who often used to visit the house of the appellant. The respondent-husband also came to know that appellant was pregnant and a female child was born who died just after the birth. The respondent-husband made several attempts to reconcile the matter with the appellant but all his efforts went in vein. The appellant, thereafter filed complaint case in 2009 against the respondent-husband and other family members which was registered as Bhore P.S. case of 2010 under Sections 498(A), 406, 34 of the Indian Penal Code. In the this case, the respondent-husband and his father were rotting in jail for 6-7 months and ultimately after some time, on the intervention of relatives, a compromise was filed in the said case and appellant came to her Sasural but after sometime, the appellant went away from her Sasural with respondent No. 2. The respondent-husband also alleged that appellant and respondent-husband never cohabited since their marriage and appellant had completely deserted the matrimonial life of the respondent-husband. The respondent-husband, therefore, prayed that the marriage between the appellant and respondent No. 1 be declared dissolved and a decree of divorce be passed in his favour. 

In response to the summon/notice issued by the Court, appellant/O.P No. 1 appeared and filed her reply/written statement. In her written statement/reply, the respondent No. 1 had stated all the allegations levelled by the appellant against her is false, concocted and without any basis. She also stated that after the marriage in the year 2005, she went to the house of respondent-husband and started living in her matrimonial house but after sometimes, her in-laws family members started demanding dowry and torture
was inflicted for non-fulfillment of dowry demand. The appellant, in the meanwhile, conceived and a female child was born who died after birth. Thereafter, the respondent- husband and other family members started pressurizing the appellant for motorcycle and colour T.V. and ultimately, on April 20, 2009 they badly assaulted and ousted her from the matrimonial house. The father of the appellant and other relatives made several attempts and requested the respondent-husband and other in-laws to keep her at her matrimonial house but they denied to keep her at her matrimonial house. The appellant, thereafter filed Complaint Case No. 2761 of 2009 against the respondent-husband and other family members which was registered as Bhore P.S. Case No. 2 of 2010 under Sections 498(A), 406, 34 of the Indian Penal Code. The respondent-husband, thereafter filed a divorce case in 2009. In this case, a compromise took place and the respondent-husband was directed to keep the appellant with full dignity and honour. The appellant went to her matrimonial house and started living there but in the meantime, the respondent-husband got a job in Dubai and again appellant was tortured for demand of dowry. The respondent-husband again filed a divorce case in 2011 on the same very facts.

The issues which were framed by the Trial Court are:-
1. Whether the case as framed is maintainable?
2. Whether the appellant has cause of action to file this case?
4. Whether the applicant is entitled to get decree for dissolution of marriage against the O.P ?
5. Whether the petitioner is entitled to any other relief or reliefs?

The High Court considered the following points for determination in this appeal:-
(i) Whether the appellant is entitled to the relief sought for in his petition/appeal.
(ii) Whether the impugned judgment of Principal Judge, Family Court, Patna is just, proper and sustainable/tenable in the eyes of law.

Justice Singh observed:"we find that respondent-husband has deposed in his evidence that appellant-wife always used to make quarrel with him and his family members but no any specific instance of date has been mentioned in the plaint as well as in his evidence. He has also admitted in his evidence that prior to filing of this divorce case, there were no relationship between the appellant and respondent No. 1. The respondent-husband has also not brought on record any proof regarding illicit relationship of appellant with respondent No. 2. The respondent-husband has also not brought on record any cogent and reliable evidence which could show that appellant and respondent No. 2 are living in adultery. The respondent-husband has also not filed petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights which would reflect that he was interested to resume conjugal life with the appellant. The respondent-husband has also not explained as to why he has filed second divorce petition with same allegation as records show that before filing of the present divorce petition, the respondent-husband has also filed M.M Case No. 62 of 2009 which was compromised. So far as allegation of adultery is concerned, the record clearly suggests that only in order to make a legal ground in the divorce case, these baseless allegations have been levelled by the respondent-husband."

The High Court in relied on Supreme Court's decision in Samar Ghose vs. Jaya Ghose reported in 2007 (4) SCC 511 that a sustained unjustifiable conduct and behaviour of one spouse actually affecting physical and mental health of the other spouse. The treatment complained of and the resultant danger or apprehension must be very grave, substantial and weighty. More trivial irritations, quarrel, normal wear and tear of the married live which happens in day-to-day live would not be adequate for grant of divorce on the ground of mental cruelty.

It referred to the Supreme Court's decision in case of Narain Ganesh Dastane vs. Sucheta Naraih Dastane reported in, AIR 1975, SC, 1534. The relevant paragraph reads: 
"One other matter which needs to be clarified is that though under Section 10(1) (b), the apprehension of the petitioner that it will be harmful or injurious to live with the other party has to be reasonable, it is wrong, except in the context of such apprehension, to import the concept of a reasonable man as known to the law of negligence of judging of matrimonial relations. Spouses are undoubtedly supposed and expected to conduct their joint venture as best as they might but it is no function of a court inquring into a charge of cruelty to philosophise on the modalities of married life. Some one may want to keep late hours of finish the day's work and some one may want to get up early for a morning round of golf. The court cannot apply to the habits or hobbies of these the test whether a reasonable man situated similarly will behave in a similar fashion. 'The question whether the misconduct complained of constitutes cruelty and the like for divorce purposes is determined primarily by its effect upon the particular person complaining of the acts. The question is not whether the conduct would be cruel to a reasonable person or a person of average or normal sensibilities, but whether it would have that effect upon the aggrieved spouse. That which may be cruel to one person may be laughed off by another, and what may not be cruel to an Individual under one set of circumstances may be extreme cruelty under another set of circumstances". The Court has to deal, not with an ideal husband and ideal wife (assuming any such exist) but with the particular man and woman before it. The ideal couple or a near-ideal one will probably have no occasion to go to a matrimonial court for, even if they may not be able to draw their differences, their ideal attitudes may help them overlook or gloss over mutual faults and failures."

Justice Singh observed:"....it is crystal clear that respondent-husband has failed to prove the cruel behaviour of the appellant towards him and his family members by the strength of cogent, relevant and reliable evidence, while burden of proof of cruelty rests upon the respondent-husband. Not even single incident with reference to specific date of alleged cruelty has been urged in the plaint before the Family Court. Moreover, wife (appellant) is still ready to live with the respondent-husband. Furthermore, alleged certain flimsy act or omission or using some threatening and harsh words may occasionally happen in the day-to-day conjugal life of a husband and wife to retaliate the other spouse but that cannot be a justified/sustainable ground for taking divorce. Some trifling utterance or remarks or mere threatening of one spouse to other cannot be construed as such decree of cruelty, which is legally required to a decree of divorce. The austerity of temper and behaviour, petulance of manner and harshness of language may vary from man to man born and brought up in different family background, living in different standard of life, having their quality of educational qualification and their status in society in which they live. 23. Thus, considering the above entire aspects of this case and evidence adduced on behalf of both the parties, we find that respondent-husband has failed to prove the allegation of cruelty, much less, the decree of cruel behaviour of appellant which is legally required for grant of decree of divorce under section 13(1) (ia) of the Hindu Marriage Act." 

The High Court's judgement reads: "24. So far as ground of adultery is concerned, adultery may be defined as the act of a married person having sexual intercourse with a person of opposite gender other than the wife or husband of the person. Under the present Hindu Marriage Act, adultery is laid down as one of the grounds for divorce or judicial separation.....26. The respondent-husband has not brought on record any proof to show that appellant was having illicit relationship with the respondent No. 2 nor he has proved that they were living in adultery and only in order to make a valid ground in the divorce petition, these allegations were levelled against the appellant without any supporting material evidence.

Supreme Court modifies conditional order of bail delivered by Justice Prabhat Kumar Singh because dispute is civil in nature

 

In Prince Raj vs. The State of Bihar and Anr. (2025), Supreme Court's 3-judge bench of Justices Vikram Nath, Sanjay Karol and Sandeep Mehta modified order of Single judge Justice Prabhat Kumar Singh of Patna High Court dated September 20, 2022 to set aside the condition of deposit. The second respondent was Rajeev Kumar. 

The case is related to police station Jakkanpur, Patna. Rajeev Kumar, the petitioner had approached the High Court apprehending arrest in a case registered for the offence punishable under sections 420, 406, 506 and 34 of the Indian Penal Code. By filing supplementary affidavit dated September 16, 2022, the counsel for the petitioner had submitted that the petitioner is ready to pay the remaining amount of Rs. 85 lacs to the informant in next 15 months in installments. The petitioner stated that amount claimed by the informant in the First Information Report is also the subject matter of title suit no. 211 of 2021. The counsel for the informant had submitted that payment made by the petitioner may not prejudice case of the informant. Considering the undertaking of the petitioner given in the supplementary allowed. In the event of arrest/surrender within six week, the High Court had enlarged the petitioner on bail on furnishing bail bond of Rs.10,000/- (ten thousand) with two sureties of the like amount each to the satisfaction of Additional Chief Judicial Magistrate I cum Sub-Judge I, Patna in Jakkanpur Police Station Case No. 367 of 2021, subject to the conditions laid down under section 438(2) of the Code of Criminal Procedure along with following conditions:
Receipt of payment of Rs. 5 lacs to the informant would be furnished by the petitioner at the time of processing of bail bond.
Rest amount of Rs. 80 lacs would be paid by the petitioner in next 15 months in installments.

The High Court made it clear that if the petitioner violates the conditions of the bail order, the court below shall cancel his bail bonds.

The Supreme Court's 3-page long order dated May 7, 2025 reads:"we are, prima facie, of the view that the dispute is civil in nature and, as such, the High Court has rightly granted protection to respondent no.2. 6. Since the appellant himself has expressed that the condition of deposit is prejudicing his right, we accordingly set aside the condition of deposit. However, the relief of interim protection granted by the High Court to respondent no.2 shall remain as it is. The impugned order passed by the High Court stands modified to the above extent."

The grievance of the appellant was that the High Court having directed respondent no.2 to make the deposit is in effect prejudicing the right of the appellant in a suit for specific performance pending before the Civil Court. 

Supreme Court exploring mediated settlement in case of Vedacharya Sankat Mochan Tripathi and his wife Sukanya Pandey after Patna High Court rejected anticipatory bail application

In a case arising out of impugned judgment and order dated September 30, 2024 by Justice Satyvrat Verma of Patna High Court in Sankat Mochan Tripathi vs. The State of Bihar & Anr (2025), Supreme Court's 3-Judge Bench comprising of Justices Abhay S. Oka, Ahsanuddin Amanullah and Augustine George Masih ordered: "the petitioner shall not be arrested in connection with Complaint Case No.1031/2023 pending before the Chief Judicial Magistrate, Kaimur at Bhabhua, Bihar subject to condition that the petitioner shall cooperate with the investigation....Prima facie, this may be an appropriate case where the petitioner and the second respondent should try to resolve the dispute between them through a mediated settlement." The second respondent is Sukanya Pandey @Beauty. The order was passed on October 24, 2024. 

The order of March 3, 2025 reads:"We are of the view that the petitioner should come out with a better offer than what he is proposing. To enable the petitioner to come out with a reasonable offer, list the Petition on 24th March, 2025. In the meanwhile, the interim relief granted earlier by this Court to continue." On December 6, 2024, the Court's order recorded: "The petitioner and the second respondent are residing separately from the year 2021. Therefore, we refer the dispute between the parties to the Supreme Court Mediation Centre. Accordingly, we direct the parties to remain present before the Coordinator, Supreme Court Mediation Centre on 19th December, 12024 at 2.30 p.m. The first meeting with the coordinator shall be virtual. The learned Mediator appointed by the Supreme Court Mediation Centre is requested to conduct the proceedings, as far as possible, through the medium of video conference. In the event, the learned Mediator desires personal presence of the parties, the petitioner shall pay the requisite amount to the respondent no.2 towards travelling charges and stay in Delhi, as may be suggested by the learned Mediator. Mediation Report to be submitted within two months. List the matter immediately after receipt of the report." On February 14, 2025, the Court had directed the petitioner and Sukanya Pandey, the second respondent to remain present through video conference on March 3, 2025.

The High Court had not extended "the privilege of anticipatory bail application of the petitioner. It had rejected the anticipatory bail application of the petitioner." Apprehending his arrest in a Complaint Case registered for the offence punishable under Sections 498A, 323, 420, 406 of the Indian Penal Code and Sections ¾ of the Dowry Prohibition Act, 1961, Sankat Mochan Tripathi, the petitioner had approached the Court. The petitioner had submitted that petitioner husband has been falsely implicated in the instant case by Sukanya Pandey @Beauty. The petitioner was married to the complainant on May 7, 2021. She has alleged that after marriage the accused persons including the petitioner were demanding a bullet motorcycle and a golden chain. When the demand was not met, she was ousted from her matrimonial home after assaulting her. The petitioner is a Vedacharya, recognized by Banaras Bidwat Parishad. It was submitted it does not appear probable that a person of that stature would indulge in such an act.

The petitioner has filed a divorce case which is pending adjudication. The counsel of the wife had submitted that petitioner right was never interested in keeping his wife with honour and dignity from the very outset. It was further submitted that till the time divorce application is decided in favour of the petitioner, Suknaya Pandey will  remain his legally wedded wife who is suffering in absence of any financial support from the petitioner. She ousted and is completely dependent on her parents and the petitioner till date has not paid anything towards her maintenance.

 

Supreme Court quashes Patna High Court's decision and FIR, stops criminal proceedings against HDFC Bank

In HDFC Bank vs. The State of Bihar, Supreme Court's bench of Justices B.R. Gavai and K.V. Viswanathan quashed and set aside the judgment and order dated June 8, 2022 passed by Justice Partha Sarthy, the Single Bench of Patna High Court. The Supreme Court's judgement dated October 22, 2024 reads: "We are of the considered view that the continuation of the criminal proceedings against the appellant-bank would cause undue hardship to the appellant-bank." Besides the State of Bihar, there were four respondents namely, DGP, Patna, SP, Patna, the Officer In Charge and Priyanka Sharma, Deputy Director of Income Tax (INV). 

The Court also quashed and set aside the First Information Report being Case No. 549 of 2021 registered at Gandhi Maidan Police Station, Patna on November 22, 2021, against certain officials of the appellant-bank working at its Exhibition Road Branch, Patna for the offences punishable under Sections 34, 37, 120B, 201, 206, 217, 406, 409, 420 and 462 of the Indian Penal Code (IPC), 1860. Notably, a written complaint to the SHO, Gandhi Maidan Police Station seeking to register an FIR against Sunita Khemka and the concerned bank officials on the ground that the order dated October 5, 2021 had been violated owing to the unlawful operation of the locker of Sunita Khemka. 

On October 5, 2021, an order under Section 132(3) of the  Income Tax (IT) Act, 1961 was served upon the Branch Manager of the appellant-bank at its Exhibition Road Branch, Patna by the concerned Authorized Officer, thereby directing the said branch of the appellant-bank to stop the operation of any bank lockers, bank accounts and fixed deposits standing in the names of Sunil Khemka (HUF), Sunita Khemka and Shivani Khemka, among several other individuals and entities, with immediate effect. It was further clarified that contravention of the order would render the Branch Manager liable under Section 275A of the IT Act and the same would result in penal action. In compliance of the aforesaid order, the appellant-bank stopped the operation of the bank accounts, bank lockers and fixed deposits of the individuals/entities mentioned in the order. Further, on 7th October,2021, the appellant-bank blocked the bank accounts of the income-tax assesses named in the order and also sealed the bank locker bearing No. 462 belonging to Smt. Sunita Khemka.

Later, on November 1, 2021, Priyanka Sharma, Deputy Director of Income Tax (INV), the respondent No. 5 had issued an order to the Branch Manager of the appellant-bank directing the appellant-bank to revoke the restraint put on the bank accounts of Sunita Khemka and three other persons, in view of the restraining order dated October 5, 2021 passed under Section 132(3) of the IT Act. Accordingly, the said persons, including Sunita Khemka, were to be allowed to operate their bank accounts. The said order was received by the concerned Branch Manager of the appellant-bank on November 8, 2021 at 4:00 p.m. However, on November 2, 2021 at 11:24 a.m., an email was sent to the Branch Manager which contained the same order. Thereafter, on November 9, 2021, the concerned branch of the appellant-bank allowed Sunita Khemka to operate her bank locker bearing No. 462 and proper entries recording the operation of the locker were made in the bank’s records. After that on November 20, 2021, Respondent No. 5 conducted a search and seizure operation at the aforementioned bank locker in the concerned branch of the appellant-bank wherein it was found that Sunita Khemka had operated her bank locker with the assistance of the concerned officers of the appellant-bank. This was validated by the entry made in the bank’s records and the CCTV footage of the bank. 

As a result, the concerned officials of the aforementioned branch of the appellant-bank were found to have breached the restraining order dated October 5, 2021. On November 20, 2021, Respondent No. 5 issued summons under Section 131(1A) of the IT Act to Abha Sinha-Branch Manager, Abhishek Kumar-Branch Operation Manager and Deepak Kumar-Teller Authoriser being the concerned officials of the appellant-bank. These officials attended the office of Respondent No. 5 and their statements were recorded wherein Abha Sinha and Abhishek Kumar stated that there had been an inadvertent error on the part of the bank officials and they had misinterpreted the order dated November 1, 2021. Since the said order pertained to the bank accounts of the concerned individuals including Sunita Khemka, the bank officials had misread the order to understand /assume that the revocation of the restraint extended to the bank lockers as well. Having misunderstood the order, the bank officials under a bona fide assumption that bank locker had been released as well, allowed Sunita Khemka to operate the same. The statement of Sunita Khemka was also recorded wherein she stated that her accountant Surendra Prasad, after speaking with Deepak Kumar, had informed her that the restraint on the aforementioned bank locker had been revoked and she could operate the said locker. This was specifically denied by Deepak Kumar in his statement. Dissatisfied with the said explanations, Respondent No. 5 submitted a written complaint to the SHO, Gandhi Maidan Police Station seeking to register an FIR against Sunita Khemka and the concerned bank officials on the ground that the order dated October 5, 2021 had been violated owing to the unlawful operation of the aforementioned locker. 

On the basis of the complaint, an FIR was registered against Sunita Khemka and the staff of the appellant-bank on November 22, 2021 for the offences punishable under Sections 34, 37, 120B, 201, 207, 217, 406, 409, 420 and 462 of the IPC. HDFC bank preferred a Criminal Writ Jurisdiction Case to invoke the inherent power of the High Court under Section 482 of the Code of Criminal Procedure, 1973 for the quashing of the FIR. The High Court had dismissed the writ petition finding it to be devoid of merit.

The Supreme Court's judgement reads:"In the present case, the FIR does not show that the appellant-bank had induced anyone since inception. For bringing out the offence under the ambit of Section 420 IPC, the FIR must disclose the following ingredients: (a) That the appellant-bank had induced anyone since inception; (b) That the said inducement was fraudulent or dishonest; and (c) That mens rea existed at the time of such inducement."

It observed: "The appellant-bank is a juristic person and as such, a question of mens rea does not arise. However, even reading the FIR and the complaint at their face value, there is nothing to show that the appellant-bank or its staff members had dishonestly induced someone deceived to deliver any property to any person, and that the mens rea existed at the time of such inducement. As such, the ingredients to attract the offence under Section 420 IPC would not be available."

With regard to the provisions of Section 409 of IPC, the following ingredients will have to be made out:
(a) That there has been any entrustment with the property, or with any dominion over property on a person in the capacity of a public servant or banker, etc.; (b) That the said person commits criminal breach of trust in respect of that property.

For bringing out the case under criminal breach of trust, it will have to be pointed out that a person, with whom entrustment of a property is made, has dishonestly misappropriated it, or converted it to his own use, or dishonestly used it, or disposed of that property.

The Court noted that "In the present case, there is not even an allegation of entrustment of the property which the appellant-bank has misappropriated or converted for its own use to the detriment of the respondent No.5. As such, the provisions of Section 406 and 409 IPC would also not be applicable." It also noted that "since there was no entrustment of any property with the appellant-bank, the ingredients of Section 462 IPC are also not applicable."

The Court observed that "since the offences under Section 206, 217 and 201 of the IPC requires mens rea, the ingredients of the said Sections also would not be available against the appellant-bank. The FIR/complaint also does not show that the appellant-bank and its officers acted with any common intention or intentionally cooperated in the commission of any alleged offences. As such, the provisions of section 34, 37 and 120B of the IPC would also not be applicable."

The Court relied on the observations made in the case of State of Haryana and others v. Bhajan Lal and others (1992). It observed: “In the backdrop of the interpretation of the various relevant provisions of the
Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(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.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
(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."

In Bhajan Lal's case, the Supreme Court said: "We also give a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases; that the court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice.” 

Notably, High Court too had referred to the decision in the Bhajan Lal case. Drawing on Court's decision in Pratibha Rani v. Suraj Kumar [(1985)2 SCC 370], the High Court had noted that while exercising its power to quash an FIR or a complaint, the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. It had also relied on the decision in the case of State of Kerala v O.C. Kuttan [(1999)2 SCC 251], wherein the Supreme Court held that the power of quashing the criminal proceedings was to be exercised very sparingly and the Court was not to embark upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. It recalled the judgment in Superintendent of Police, CBI v. Tapan Kumar Singh [(2003) 6 SCC 175] wherein the Supreme Court has held that the first information report is not an encyclopedia, which must disclose all facts and details relating to the offence reported. What was significant was that the information given must disclose the commission of a cognizable offence and the information so lodged must provide a basis for the police officer to suspect the commission of a cognizable offence. It also took note of in M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra and others (judgment dated 13.4.2021 in Criminal Appeal no. 330 of 2021) wherein the Supreme Court held that it cannot thwart an investigation into a cognizable offences which is the statutory right and duty of the police under the Code of Criminal Procedure. The Court also cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint and quashing of a complaint/FIR should be an exception which is exercised sparingly with circumspection.

In the HDFC case, unlike the High Court, the Supreme Court observed: "We find that the present case would squarely fall within categories (2) and (3) of the law laid down by this Court in the case of Bhajan Lal and others (supra)." It stopped continuation of the criminal proceedings against the appellant-bank.

Cognizance order of Judicial Magistrate, 1st Class, Chapra quashed and set aside

Patna High Court's Justice Chandra Shekhar Jha quashed and set aside the cognizance order of Judicial Magistrate, 1st Class, Chapra in Rajiv Kumar Sinha v State of Bihar on March 27, 2024. The Court drew on the decision of Supreme Court in the case of State of Haryana v. Bhajan Lal (1992). 

The paragraph no. 102 of the Supreme Court's decision reads:  “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first informant report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(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.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent persons can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(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.”

The High Court factored in the guiding note of Guideline Nos. 1, 5 and 7 of Bhajan Lal case to quash and set aside the order of taking cognizance dated June 10, 2015 of the Judicial Magistrate, 1st Class, Chapra with all its consequential proceedings. in connection with Tr. No. 980/2015 arising out of complaint case No. 709/2015. 

The petition was filed for quashing of cognizance order dated June 10, 2015 whereby the Magistrate had taken cognizance for offences under Sections 323, 504 and 406 of the Indian Penal Code against petitioner. The complaint case was lodged by one Lal Jharia Devi. She made the following allegations:-

(i) It is alleged that the complainant and her husband, namely, Sona Lal Bhagat purchased a policy bearing No. 537138740 through the LIC agent, namely, Kameshwar Ram and thereafter, her husband gave Rs. 10,000/- per year to the LIC agent for deposit in his policy. Later on, they gave Rs. 23,060/- to Kameshwar Ram for deposit in the LIC but it was not deposited with the LIC. When the complainant and her husband went to demand her money back, the LIC agent, Kameshwar Ram refused to return the amount and snatched her belongings. When the complainant went along with some villagers at the residence of the agent, he refused to repay the amount.

(ii) It is further alleged that when the complainant intimated the Branch Manager (petitioner) about the conduct of the agent, he did not extend any cooperation rather told that the policy has lapsed.

The petitioner's counsel had submitted that the entire occurrence of abuse and assault as alleged were taken place between O.P. No. 2 and main co-accused namely, Kameshwar Ram, against whom the thrust of allegations are available, who was the agent of LIC with whom the husband of O.P. No. 2 deposited Rs.23,060/- to deposit it further with Policy No. 537138740 of LIC. It was submitted that from the face of complaint, it can be gathered easily that no prima facie case as alleged can be gathered against petitioner for the reasons that no allegation of abuse and assault is available against petitioner. It was submitted that maximum incriminating narrations what available against this petitioner is to reply O.P. No. 2 during course of conversation that no such amount as claimed was ever deposited with this branch of LIC. Itwas also submitted that there is no concept of vicarious liability in criminal proceedings, where implication of petitioner appears only for his vicarious liability being manager of the Marhawra Branch of LIC. It was further submitted that amount in issue was also alleged to be deposited with co-accused, Kameshwar Ram and as such present proceeding against petitioner is liable to be quashed.