Madhya Pradesh High Court
Mohd. Iliyas vs The State Of Madhya Pradesh on 20 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 20th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 30505 of 2019
BETWEEN:-
1. MOHD. ILIYAS S/O SHEKH IKRAR, AGED
ABOUT 37 YEARS, OCCUPATION: GOVT.
EMPLOYEE BEHIND PLATFORM NO.5 NEW
RAILWAY COLONY HOUSE NO. RBI 153/2
THANA KOTWALI (MADHYA PRADESH)
2. SHEKH IKRAR S/O DEEN MOHMMAD,
AGED ABOUT 59 YEARS, OCCUPATION:
UNEMPLAYED BEHIND PLATFORM NO.5
NEW RAILWAY COLONY HOUSE NO. RBI
153/2 THANA KOTWALI (MADHYA
PRADESH)
3. ZAHID BEGUM W/O SHEKH IKRAR, AGED
ABOUT 57 YEARS, OCCUPATION:
HOUSEWIFE BEHIND PLATFORM NO.5
NEW RAILWAY COLONY HOUSE NO. RBI
153/2 THANA KOTWALI (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI PANKAJ TIWARI - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH THR.
P.S. DHANPURI SHAHDOL (MADHYA
PRADESH)
2. SHAHIN BANO D/O MOHD. HUSSAIN, AGED
ABOUT 31 YEARS, WARD NO. 16 KACHHI
MOHALLA JAMA MASJID KE PAAS
DHANPURI (MADHYA PRADESH)
.....RESPONDENTS
2
(RESPONDENT NO.1 BY SHRI K.S.BAGHEL - GOVT. ADVOCATE)
(RESPONDENT NO.2 BY SHRI ATUL UPADHYAYA - ADVOCATE)
This application coming on for admission this day, the court
passed the following:
ORDER
1. This application under section 482 Cr.P.C. has been filed for quashment of charge-sheet filed by the Police against the applicants for the offence under section 498-A/34 of the I.P.C. and section 4 of the Dowry Prohibition Act.
2. Facts necessary for disposal of the present application, in short, are that the respondent No.2 has lodged an FIR against her husband Mohd. Iliyas, mother-in-law Zahida Behum and father-in-law Sheikh Ikrar on the allegations that they are always scolding, abusing and taunting respondent no.2 that she has brought less dowry and, therefore, she should bring an Innova car, an amount of Rs.5 lacs, 100 gm. gold and a house in Katni. When she objected to it, then applicants abused her and assaulted her. When this incident was narrated by her to her parents, then they used to tell the complainant that with passage of time, the things would improve. All the applicants used to scold her that she is of dark complexion and is not beautiful; therefore, they would perform second marriage of their son. On 8.1.2017, the applicants called her brother and sent the complainant along with her brother to her parental home. Since then she is residing in her parental home. On 6.1.2019, the applicants came to her parental home in Dhanpuri and demanded dowry and also informed her that they may be given an Innova vehicle, Rs.5 Lacs and a house with gold and silver 3 ornaments, only then they would take her back to her matrimonial house.
3. Challenging the FIR lodged by the complainant, it is submitted by counsel for the applicants that F.I.R. has been lodged on false grounds. Complainant was never humiliated or harassed, either mentally or physically, by the applicants. In fact, the applicant has filed an application for divorce on 26.10.2018 and only thereafter, the complainant has lodged the FIR by way of counter blast. It is further submitted that according to the FIR, she was ousted from her matrimonial house on 8.1.2017 whereas the FIR was lodged on 21.2.2019 which shows that there is a considerable delay in lodging FIR, which has not been plausibly explained.
4. Heard the learned counsel for the applicants.
5. So far as question of delay in lodging FIR is concerned, it is suffice to mention here that the same cannot be a ground to quash the criminal proceedings. An FIR can be relied upon if it has been plausibly explained. The explanation has to be given by the complainant before the trial court which shall be tested on the anvil of cross examination. Even otherwise, in family disputes where the first effort of the lady is to save her marital life, it is not expected that she should lodge the FIR immediately after she was ousted from her matrimonial house. Therefore, if the respondent No.2 kept silent for approximately two years, then it cannot be said that there is a delay in lodging FIR, warranting quashment of the prosecution.
46. So far as the submission made by counsel for the applicants that the FIR has been lodged by way of counter blast is concerned, the same is misconceived and is hereby rejected.
7. The Supreme Court is the case of Pratibha v. Rameshwari Devi, reported in (2007) 12 SCC 369 as held as under :-
14. From a plain reading of the findings arrived at by the High Court while quashing the FIR, it is apparent that the High Court had relied on extraneous considerations and acted beyond the allegations made in the FIR for quashing the same in exercise of its inherent powers under Section 482 of the Code. We have already noted the illustrations enumerated in Bhajan Lal case [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] and from a careful reading of these illustrations, we are of the view that the allegations emerging from the FIR are not covered by any of the illustrations as noted hereinabove. For example, we may take up one of the findings of the High Court as noted hereinabove. The High Court has drawn an adverse inference on account of the FIR being lodged on 31-12-2001 while the appellant was forced out of the matrimonial home on 25-5-2001.
15. In our view, in the facts and circumstances of the case, the High Court was not justified in drawing an adverse inference against the appellant wife for lodging the FIR on 31-12-2001 on the ground that she had left the matrimonial home at least six months before that. This is because, in our view, the High Court had failed to appreciate that the appellant and her family members were, during this period, making all possible efforts to enter into a settlement so that Respondent 2 husband would take her back to the matrimonial home. If any complaint was made during this period, there was every possibility of not entering into any settlement with Respondent 2 husband.
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 5 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. .......
22. For the reasons aforesaid, we are inclined to interfere with the order of the High Court and hold that the High Court in quashing the FIR in the exercise of its inherent powers under Section 482 of the Code by relying on the investigation report and the findings made therein has acted beyond its jurisdiction. For the purpose of finding out the commission of a cognizable offence, the High Court was only required to look into the allegations made in the complaint or the FIR and to conclude whether a prima facie offence had been made out by the complainant in the FIR or the complaint or not.
8. Therefore, it is clear that lodging of FIR after the petition for divorce was filed clearly indicates that wife, after having realized that all chances of reconciliation have come to an end, decided to lodge an FIR pointing out the cruelty met out to her. Therefore, it cannot be said that it is by way of counter blast. On the contrary, the silence maintained by the wife indicates that instead of prosecuting her husband and in-laws, she was interested in saving her marital life.
69. So far as the submission that the allegations made in the FIR are incorrect is concerned, it is suffice to mention here that this Court, while exercising power under section 482 Cr.P.C., cannot embark upon an enquiry to find out the correctness of the allegations. While exercising power under section 482 Cr.P.C. this Court has to take uncontroverted allegations on their face value and after going through the same, if the Court comes to a conclusion that no cognizable offence is made out, only then the proceedings can be quashed. However, the defence taken by the suspect or the contention that the allegations are false are beyond the scope of interference at this stage.
10. The Supreme Court in the case of XYZ v. State of Gujarat reported in (2019) 10 SCC 337 has held as under :
14. Having heard the learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings.
Even before the investigation is completed by the investigating agency, the High Court entertained the writ petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 CrPC. Though the learned counsel have made elaborate submissions on various 7 contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated. Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings.
(Underline supplied)
11. The Supreme Court in the case of State of Tamil Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC 718 has held as under:-
"7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for ..........."
12. The Supreme Court in the case of Ajay Kumar Das v. State of Jharkhand, reported in (2011) 12 SCC 319 has held as under :
12. The counsel appearing for the appellant also drew our attention to the same decision which is relied upon in the impugned judgment by the High Court i.e. State of Haryana v. Bhajan Lal. In the said decision, this Court held that it may not be possible to lay down any specific guidelines or watertight compartment as to when the power under Section 482 CrPC could be or is 8 to be exercised. This Court, however, gave an exhaustive list of various kinds of cases wherein such power could be exercised. In para 103 of the said judgment, this Court, however, hastened to add that as a note of caution it must be stated 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 for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or in the complaint and that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
13. The Supreme Court in the case of Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350 has held as under :
5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v.
Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v. Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.
14. The Supreme Court in the case of State of A.P. v. Gourishetty Mahesh reported in (2010) 11 SCC 226 has held as under :
18. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation 9 of it accusation would not be sustained. That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.
19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.
20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it 10 is open to the High Court to quash the same in exercise of inherent powers under Section 482.
15. The Supreme Court in the case of M. Srikanth v. State of Telangana, reported in (2019) 10 SCC 373 has held as under :
17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings.
16. The Supreme Court in the case of CBI v. Arvind Khanna reported in (2019) 10 SCC 686 has held as under :
17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.
18. In our view, the assessment made by the High Court at this stage, when the matter has been taken 11 cognizance of by the competent court, is completely incorrect and uncalled for."
17. Further, the Supreme Court in the case of State of MP Vs. Kunwar Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that a detailed and meticulous appreciation of evidence at the stage of 482 of CrPC is not permissible and should not be done. In the case of Kunwar Singh (supra), the Supreme Court held as under:-
"8........At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to be an encyclopedia..........."
18. Similar view has been taken by Supreme Court in the cases of Munshiram Vs. State of Rajasthan reported in (2018) 5 SCC 678, Teeja Devi Vs. State of Rajasthan reported in (2014) 15 SCC 221, State of Orissa Vs. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547, S. Khushboo Vs. Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal Vs. State of U.P. reported in (2019) 2 SCC 336, Amit Kapoor Vs. Ramesh Chander reported in (2012) 9 SCC 460, Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437, M.N. Ojha Vs. Alok Kumar Srivastav reported in (2009) 9 SCC 682.
1219. Thus, it is clear that in case if uncontroverted allegations do not make out an offence, then this Court can quash the proceedings. The defence of the accused cannot be taken into consideration at this stage. This Court cannot adjudicate upon the correctness of the allegations made in the FIR. The allegations made in the FIR are required to be taken as gospel truth and only then this Court can quash the FIR if uncontroverted allegations do not make out an offence.
20. The Supreme Court in the case of Taramani Parakh Vs. State of Madhya Pradesh and Others reported in (2015) 11 SCC 260 has held as under:-
"10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counter-version. In matrimonial cases, the courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.
11. Referring to earlier decisions, in Amit Kapoor v. Ramesh Chander, (2012) 9 SCC 460 : (2013) 1 SCC (Cri) 986 : (2012) 4 SCC (Civ) 687, it was observed : (SCC pp. 482-84, para
27) "27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in 13 invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
27.2. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere.
27.3. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.
27.4. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
1427.5. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused.
27.6. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender.
27.7. The process of the court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
27.8. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of the evidence.
27.9. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a 15 conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.
27.10. It is neither necessary nor is the court called upon to hold a full-
fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction.
27.11. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed therewith by the prosecution.
27.13. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to 16 marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.
27.14. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
27.15. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that the interest of justice favours, otherwise it may quash the charge.
The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exist.
[Ref. State of State of W.B. v. Swapan Kumar Guha, (1982) 1 SCC 561 : 1982 SCC (Cri) 283, Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692 : 1988 SCC (Cri) 234, Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 : 1993 SCC (Cri) 36, Rupan Deol Bajaj v. Kanwar Pal Singh Gill, (1995) 6 SCC 194 :
1995 SCC (Cri) 1059, G. Sagar Suri v. State of U.P. , Ajay Mitra v. State of M.P., (2003) 3 SCC 11 : 2003 SCC (Cri) 703, Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 :
171998 SCC (Cri) 1400, State of U.P. v. O.P. Sharma, (1996) 7 SCC 705 : 1996 SCC (Cri) 497, Ganesh Narayan Hegde v. S. Bangarappa, (1995) 4 SCC 41 : 1995 SCC (Cri) 634, Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque, (2005) 1 SCC 122 : 2005 SCC (Cri) 283, Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd., (2000) 3 SCC 269 : 2000 SCC (Cri) 615, Shakson Belthissor v. State of Kerala, (2009) 14 SCC 466 :
(2010) 1 SCC (Cri) 1412, V.V.S. Rama Sharma v. State of U.P., (2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356, Chunduru Siva Ram Krishna v. Peddi Ravindra Babu, (2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297, Sheonandan Paswan v. State of Bihar, (1987) 1 SCC 288 : 1987 SCC (Cri) 82, State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192, Lalmuni Devi v. State of Bihar, (2001) 2 SCC 17 : 2001 SCC (Cri) 275, M. Krishnan v. Vijay Singh, (2001) 8 SCC 645 : 2002 SCC (Cri) 19, Savita v. State of Rajasthan, (2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571 and S.M. Datta v. State of Gujarat, (2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201.] 27.16. These are the principles which individually and preferably cumulatively (one or more) be 18 taken into consideration as precepts to exercise of extraordinary and wide plenitude and jurisdiction under Section 482 of the Code by the High Court. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence."
* * *
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.
15. The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Neelu Chopra v. Bharti, (2009) 10 SCC 184 :
(2010) 1 SCC (Cri) 286, the parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court found no cogent material against the other accused. In Manoj Mahavir 19 Prasad Khaitan v. Ram Gopal Poddar, (2010) 10 SCC 673 : (2011) 1 SCC (Cri) 94, the appellant before this Court was the brother of the daughter-in-law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier Section 498-A IPC case. This Court found the said case to be absurd. In Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741 : (2013) 1 SCC (Civ) 212 : (2013) 1 SCC (Cri) 120, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused.
21. It is next contended by counsel for the applicants that, as per the FIR, the applicants went to parental house of the respondent No.2 at Dhanpuri on 6.1.2019. However, it is the claim of the applicants that on 6.1.2019 the applicant No.1 was present on his duty.
22. Before considering the submission, this Court would like to mention here that the plea of alibi has to be proved by the accused, not by preponderance of probabilities, but, by beyond reasonable doubt. Therefore, it is a highly disputed question of fact, which can only be proved by leading cogent and reliable evidence. Even otherwise, from the duty chart which has been placed on record by the applicant, it is clear that the applicant no.1 was on duty on 6.1.2019 from 20.00 hrs. to 20 8:00 AM, i.e. from 8.00 in the night to 8.00 in the morning. The incident took place on 6.1.2019. The alibi means a person cannot reach to a place of incident where the incident is alleged to have taken place. According to the counsel for the State, the distance between Dhanpuri and Katni is approximately 140 kilometres, that means a person can go to Dhanpuri from Katni in two and half hours and again can return back to Katni, in two and half hours. Therefore, around five hours are required for to and fro journey from Katni to Dhanpuri. For the entire day on 6.1.2019 the applicant was free because he was on night duty. Therefore, it was possible for the applicant to go to Dhanpuri and come back to Katni, and then to perform his official duty also.
23. Under these circumstances, this court is of considered opinion that no case is made out warranting interference.
24. The application fails and is hereby dismissed.
(G.S. AHLUWALIA) JUDGE HEMANT SARAF 2024.03.05 17:59:17 +05'30' HS