Madhya Pradesh High Court
Smt. Saroj Upadhyay vs The State Of Madhya Pradesh on 24 March, 2021
Equivalent citations: AIRONLINE 2021 MP 251
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.34338/2019
Smt. Saroj Upadhyay and others Vs. State of M.P. and another
Gwalior, Dated:24/03/2021
Shri H.K. Shukla, with Shri Manish Nayak, for the applicants.
Smt. Uma Kushwaha, Counsel for the State.
Shri A.S. Bhadoria, Counsel for the respondent no.2.
With the consent of the parties, the case is heard finally. This application under Section 482 of Cr.P.C. has been filed for quashing the F.I.R. in Crime No.385/2019 registered at Police Station Ambah, Distt. Morena for offence under Sections 498-A, 323, 294, 506, 34 of I.P.C., and under Section 3/4 of Dowry Prohibition Act and consequential criminal proceedings.
The undisputed facts are that the applicant no.1 is the mother- in-law, the applicant no.2 is the father-in-law and the applicant no.3 is the husband.
The facts necessary for disposal of the present application in short are that the respondent no.2, lodged a F.I.R. on 3-8-2019 on the allegations that, she got married to the applicant no.3 on 12-7-2016. Her father gave sufficient dowry as per his financial condition. Immediately after the marriage, the applicants started demanding a four wheeler and AC. Accordingly, they started harassing the complainant for the same. When the complainant came back to her parental house after 20 days of marriage, then she narrated the incidents of demand and harassment to her father. Thereafter, her 2 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another father and brother came to her matrimonial house and tried to convince the applicants and informed, that the father of the complainant is not in a position to fulfill their demands. But the harassment of the complainant by the applicants continued and She was beaten and was mentally and physically harassed. On 22-5-2019, her husband as well as her father-in-law and the mother-in-law, brought her to Morena Tiraha and gave beating to her. Accordingly, She informed her father and brother, who also came on the spot. They were also abused by the applicants. The applicants thereafter went back, after leaving the complainant.
Challenging the F.I.R. lodged against the applicants, it is submitted by the Counsel for the applicants, that the complainant had filed an application under Section 125 of Cr.P.C., in which substantially different allegations were made. Further, the applicants no.1 and 2 are residing separately. The F.I.R. was lodged after the petition for divorce was filed by the applicant no.3. Further, there are no specific allegations against the applicants, and omnibus and vague allegations are not sufficient for prosecution of the applicants.
Per contra, the application is vehemently opposed by the Counsel for the State and the complainant.
Heard the learned Counsel for the parties.
So far as the question of separate residence is concerned, the 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another applicant no.1 had filed an application under Section 12 of the Protection of Women from Domestic Violence Act, against the applicant no.3 and the complainant. In the said application, She has specifically stated that the applicants no.1 and 2 are residing jointly with the applicant no.3 and the complainant. Thus, it is clear that the defence of the applicants no.1 and 2 that they are residing separately is false and baseless.
It is the next contention of the Counsel for the applicants, that since, the applicant no.1 had filed an application under Section 12 of The Protection of Women From Domestic Violence Act (In short "DVA"), therefore, it is clear that in fact it is the complainant, who was harassing the applicants.
Considered the submission.
The fact that the applicant no.1 had filed the complaint under Section 12 of DVA, makes it is clear that the relationship between the applicants and the complainant were not cordial. The applicants were making allegations against the complainant. Whether the allegations made by the applicants are correct or whether the allegations made by the complainant are correct, cannot be decided by this Court at this stage, while exercising power under Section 482 of Cr.P.C. It is a disputed question of fact, which can be decided only after the evidence is recorded. Further, the Counsel for the applicants was 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another unable to apprise this Court about the stage of the complaint filed by the applicant no.1 under Section 12 of DVA.
So far as the contention of the Counsel for the applicants, that the F.I.R. has been lodged after the divorce petition was filed by the husband is concerned, the question is no more res integra.
The Supreme Court in the case of Pratibha Vs. Rameshwari Devi reported in (2007) 12 SCC 369 has held as under :
16. It is pertinent to note that the complaint was filed only when all efforts to return to the matrimonial home had failed and Respondent 2 husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955. That apart, in our view, filing of a divorce petition in a civil court cannot be a ground to quash criminal proceedings under Section 482 of the Code as it is well settled that criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts. Such being the position, we are, therefore, of the view that the High Court while exercising its powers under Section 482 of the Code has gone beyond the allegations made in the FIR and has acted in excess of its jurisdiction and, therefore, the High Court was not justified in quashing the FIR by going beyond the allegations made in the FIR or by relying on extraneous considerations.
So far as the contention of the applicants, that there is material difference in the allegations of demand of dowry made by the complainant in her application under Section 125 of Cr.P.C. and in the FIR is concerned, this Court is of the considered opinion, that this Court while exercising power under Section 482 of Cr.P.C. cannot 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another compare the allegations to come to a conclusion that which allegation is false and which allegation is true. The applicants shall be free to contradict and confront the complainant, during her examination.
It is well settled principle of law that the High Court can quash the F.I.R., only if the un-controverted allegations do not make out an offence.
If the F.I.R. is read in its entirety, then it is clear that it discloses commission of cognizable offence.
The Supreme Court in the case of Taramani Parakh Vs. State of M.P. reported in (2015) 11 SCC 260 has held as under :
13. In the present case, the complaint is as follows:
"Sir, it is submitted that I was married on 18- 11-2009 with Sidharath Parakh s/o Manak Chand Parakh r/o Sarafa Bazar in front of Radha Krishna Market, Gwalior according to the Hindu rites and customs. In the marriage my father had given gold and silver ornaments, cash amount and household goods according to his capacity. After the marriage when I went to my matrimonial home, I was treated nicely by the members of the family. When on the second occasion I went to my matrimonial home, my husband, father-in-law and mother-in-law started harassing me for not bringing the dowry and started saying that I should bring from my father 25-30 tolas of gold and Rs 2,00,000 in cash and only then they would keep me in the house otherwise not. On account of this my husband also used to beat me and my father-in-law and my mother-in-law used to torture me by giving the taunts. In this connection I used to tell my
6 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another father Kundanmal Oswal, my mother Smt Prem Lata Oswal, uncle Ashok Rai Sharma and uncle Ved Prakash Mishra from time to time. On 2-4-2010 the members of the family of my matrimonial home forcibly sent me to the house of my parents in Ganj Basoda along with my brother Deepak. They snatched my clothes and ornaments and kept with them.
Since then till today my husband has been harassing me on the telephone and has not come to take me back. Being compelled, I have been moving this application before you. Sir, it is prayed that action be taken against husband Sidharath Parakh, my father-in-law Manak Chand Parakh and my mother-in-law Smt Indira Parakh for torturing me on account of demanding dowry."
14. From a reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent 2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has in fact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.
Considering the allegations made against the applicants, this Court is of the considered opinion, that it is not a fit case for quashment of FIR in crime No.385/2019 registered at Police Station Ambah, Distt. Morena for offence under Sections 498-A, 323, 294, 506, 34 of I.P.C., and under Section 3/4 of Dowry Prohibition Act as 7 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.34338/2019 Smt. Saroj Upadhyay and others Vs. State of M.P. and another well as consequential criminal proceedings.
Accordingly, the application fails and is hereby Dismissed.
(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.03.25 14:56:39 +05'30'