Madhya Pradesh High Court
Avinash Upadhyay vs The State Of Madhya Pradesh on 4 April, 2019
Equivalent citations: AIRONLINE 2019 MP 773
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
Gwalior, Dated :04/04/2019
Shri J.P. Kushwaha, Advocate for applicants.
Shri M.M. Tripathi, Public Prosecutor for respondents no.1 to
3/State.
Shri Amit Kumar Goswami, Advocate for respondent no.4.
This petition under Section 482 of Cr.P.C. has been filed for
quashing the FIR in Crime No.224/2017 registered at Police Station
Porsa, District Morena for offence under Section 498-A/34 of IPC
and Section 4 of the Dowry Prohibition Act as well as the charge-
sheet.
2. The necessary facts for disposal of the present petition in short
are that the applicant no.1 is the husband, whereas the applicants
no.2, 3 and 4 are the mother-in-law, father-in-law and sister-in-law of
respondent no.4, respectively. The respondent no.4 had lodged a
written complaint against the applicants for offence under Section
498-A of IPC and under Section 4 of the Dowry Prohibition Act,
which was received by Mahila Police Station, Gwalior at serial
No.0/2017 and the same was forwarded to Police Station Porsa,
District Morena, where the FIR at serial no.224/2017 was registered.
3. A singular contention has been raised by the applicants that the
respondent no.4 had earlier made a complaint to the Superintendent
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
of Police, Gwalior and in the said complaint, no allegation was made
that any part of offence was committed at Porsa, however, it appears
that after receiving the legal advice, the complainant has made a
written complaint on 17/6/2017 to the SHO, Police Station Mahila
Thana, Gwalior, in which an allegation was made that on 5/7/2016
the applicants came to the parental home of the complainant where
they had once again demanded dowry and had threatened her parents
that they would not keep respondent no.4 with them. Thus, it is
submitted by the counsel for the applicants that if the written
complaint made by the complainant/respondent no.4 is considered in
the light of the earlier complaint made by her to the Superintendent
of Police, Gwalior, then it is clear that in the earlier complaint no
allegation was made regarding commission of any offence at Porsa,
but now in order to give jurisdiction to the Police Station Porsa,
District Morena a false averment has been made that the demand of
dowry and threatening was given in Porsa also and thus, it is
submitted that the Police Station Porsa, District Morena did not have
any jurisdiction to investigate the matter and consequently, the
charge-sheet has been filed before a Court, which does not have
territorial jurisdiction.
4. Per contra, it is submitted by the counsel for the State as well
as the counsel for the complainant that so far as the allegation of
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
commission of offence at Porsa is concerned, it is a matter of
evidence and, therefore, at this stage it cannot be decided that
whether there is any improvement in the written complaint made to
the SHO, Police Station Mahila Thana or not .
5. Heard learned counsel for the parties.
6. Before considering the submissions made by the counsel for
the applicant, it would be necessary to consider the scope of powers
under Section 482 of Cr.P.C.
The Supreme Court in the case of Padal Venkata Rama
Reddy Vs. Koveuri Satyanarayana Reddy reported in (2011) 12
SCC 437 has held as under:
"8. Section 482 of the Code deals with inherent
power of the High Court. It is under Chapter 37
of the Code titled "Miscellaneous" which reads
as under:
"482. Saving of inherent powers of High Court.
--Nothing in this Code shall be deemed to limit
or affect the inherent powers of the High Court
to make such orders as may be necessary to
give effect to any order under this Code, or to
prevent abuse of the process of any court or
otherwise to secure the ends of justice."
This section* was added by the Code of
Criminal Procedure (Amendment) Act of 1923
as the High Courts were unable to render
complete justice even if in a given case the
illegality was palpable and apparent. This
section envisages three circumstances in which
the inherent jurisdiction may be exercised,
namely:
1. to give effect to any order under CrPC,
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
2. to prevent abuse of the process of any court,
3. to secure the ends of justice.
9. In R.P. Kapur v. State of Punjab AIR 1960
SC 866 this Court laid down the following
principles:
(i) Where institution/continuance of criminal
proceedings against an accused may amount to
the abuse of the process of the court or that the
quashing of the impugned proceedings would
secure the ends of justice;
(ii) where it manifestly appears that there is a
legal bar against the institution or continuance
of the said proceeding e.g. want of sanction;
(iii) where the allegations in the first
information report or the complaint taken at
their face value and accepted in their entirety,
do not constitute the offence alleged; and
(iv) where the allegations constitute an offence
alleged but there is either no legal evidence
adduced or evidence adduced clearly or
manifestly fails to prove the charge.
10. In State of Karnataka v. L. Muniswamy
(1977) 2 SCC 699 this Court has held as under:
(SCC p. 703, para 7)
"7. ... In the exercise of this wholesome power,
the High Court is entitled to quash a proceeding
if it comes to the conclusion that allowing the
proceeding to continue would be an abuse of the
process of the Court or that the ends of justice
require that the proceeding ought to be quashed.
The saving of the High Court's inherent powers,
both in civil and criminal matters, is designed to
achieve a salutary public purpose which is that a
court proceeding ought not to be permitted to
degenerate into a weapon of harassment or
persecution. In a criminal case, the veiled object
behind a lame prosecution, the very nature of
the material on which the structure of the
prosecution rests and the like would justify the
High Court in quashing the proceeding in the
interest of justice. The ends of justice are higher
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
than the ends of mere law though justice has got
to be administered according to laws made by
the legislature. The compelling necessity for
making these observations is that without a
proper realisation of the object and purpose of
the provision which seeks to save the inherent
powers of the High Court to do justice between
the State and its subjects, it would be impossible
to appreciate the width and contours of that
salient jurisdiction."
11. Though the High Court has inherent power
and its scope is very wide, it is a rule of practice
that it will only be exercised in exceptional
cases. Section 482 is a sort of reminder to the
High Courts that they are not merely courts of
law, but also courts of justice and possess
inherent powers to remove injustice. The
inherent power of the High Court is an
inalienable attribute of the position it holds with
respect to the courts subordinate to it. These
powers are partly administrative and partly
judicial. They are necessarily judicial when they
are exercisable with respect to a judicial order
and for securing the ends of justice. The
jurisdiction under Section 482 is discretionary,
therefore the High Court may refuse to exercise
the discretion if a party has not approached it
with clean hands.
12. In a proceeding under Section 482, the High
Court will not enter into any finding of facts,
particularly, when the matter has been
concluded by concurrent finding of facts of the
two courts below. Inherent powers under
Section 482 include powers to quash FIR,
investigation or any criminal proceedings
pending before the High Court or any court
subordinate to it and are of wide magnitude and
ramification. Such powers can be exercised to
secure ends of justice, prevent abuse of the
process of any court and to make such orders as
may be necessary to give effect to any order
under this Code, depending upon the facts of a
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
given case. The Court can always take note of
any miscarriage of justice and prevent the same
by exercising its powers under Section 482 of
the Code. These powers are neither limited nor
curtailed by any other provisions of the Code.
However, such inherent powers are to be
exercised sparingly, carefully and with caution.
13. It is well settled that the inherent powers
under Section 482 can be exercised only when
no other remedy is available to the litigant and
not in a situation where a specific remedy is
provided by the statute. It cannot be used if it is
inconsistent with specific provisions provided
under the Code (vide Kavita v. State 2000 Cri
LJ 315 and B.S. Joshi v. State of Haryana
(2003) 4 SCC 675). If an effective alternative
remedy is available, the High Court will not
exercise its powers under this section, specially
when the applicant may not have availed of that
remedy.
14. The inherent power is to be exercised ex
debito justitiae, to do real and substantial
justice, for administration of which alone courts
exist. Wherever any attempt is made to abuse
that authority so as to produce injustice, the
Court has power to prevent the abuse. It is,
however, not necessary that at this stage there
should be a meticulous analysis of the case
before the trial to find out whether the case ends
in conviction or acquittal. (Vide Dhanalakshmi
v. R. Prasanna Kumar 1990 Supp SCC 686;
Ganesh Narayan Hegde v. S. Bangarappa
(1995) 4 SCC 41 and Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque (2005) 1
SCC 122.)
15. It is neither feasible nor practicable to
lay down exhaustively as to on what ground the
jurisdiction of the High Court under Section 482
of the Code should be exercised. But some
attempts have been made in that behalf in some
of the decisions of this Court vide State of
Haryana v. Bhajan Lal 1992 Supp (1) SCC 335,
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THE HIGH COURT OF MADHYA PRADESH
M.Cr.C. No.23813/2017
Avinash Upadhyay and others Vs. The State of M.P. and others
Janata Dal v. H.S. Chowdhary (1992) 4 SCC
305, Rupan Deol Bajaj v. Kanwar Pal Singh
Gill (1995) 6 SCC 194 and Indian Oil Corpn. v.
NEPC India Ltd. (2006) 6 SCC 736 .
******
18. In State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC p. 550, para 11) "11. ... It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with."
19. In Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 this Court held as under: (SCC p. 695, para
7) "7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage."
20. This Court, while reconsidering the judgment in Madhavrao Jiwajirao Scindia (1988) 1 SCC 692, has consistently observed that where matters are also of civil nature i.e. matrimonial, family disputes, etc., the Court may consider "special facts", "special features" and quash the criminal proceedings to encourage genuine settlement of disputes between the parties.
21. The said judgment in Madhavrao case (1988) 1 SCC 692 was reconsidered and explained by this Court in State of Bihar v. P.P. Sharma 1992 Supp (1) SCC 222 which reads as under: (SCC p. 271, para 70) "70. Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre (1988) 1 SCC 692 also does not help the respondents. In that case the allegations constituted civil wrong as the trustees created tenancy of trust property to favour the third party. A private complaint was laid for the offence under Section 467 read with Section 34 and Section 120-B IPC which the High Court refused to quash under Section 482. This Court allowed the appeal and quashed the proceedings on the ground that even on its own contentions in the complaint, it would be a case of breach of trust or a civil wrong but no ingredients of criminal offence were made out. On those facts and also due to the relation of the settler, the mother, the appellant and his wife, as the son and daughter-in-law, this Court interfered and allowed the appeal. ... Therefore, the ratio therein is of no assistance to the facts in this case. It cannot be considered that this Court laid down as a proposition of law that in every case the court would examine at the preliminary stage whether there would be ultimate chances of conviction on the basis of allegation and exercise of the power under Section 482 or 9 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others Article 226 to quash the proceedings or the charge-sheet."
22. Thus, the judgment in Madhavrao Jiwajirao Scindia (1988) 1 SCC 692 does not lay down a law of universal application. Even as per the law laid down therein, the Court cannot examine the facts/evidence, etc. in every case to find out as to whether there is sufficient material on the basis of which the case would end in conviction. The ratio of Madhavrao Jiwajirao Scindia (1988) 1 SCC 692 is applicable in cases where the Court finds that the dispute involved therein is predominantly civil in nature and that the parties should be given a chance to reach a compromise e.g. matrimonial, property and family disputes, etc. etc. The superior courts have been given inherent powers to prevent the abuse of the process of court; where the Court finds that the ends of justice may be met by quashing the proceedings, it may quash the proceedings, as the end of achieving justice is higher than the end of merely following the law. It is not necessary for the Court to hold a full-fledged inquiry or to appreciate the evidence, collected by the investigating agency to find out whether the case would end in conviction or acquittal".
The Supreme Court in the case of State of Orissa v. Ujjal Kumar Burdhan reported in (2012) 4 SCC 547 has held as under :
"8. It is true that the inherent powers vested in the High Court under Section 482 of the Code are very wide. Nevertheless, inherent powers do not confer arbitrary jurisdiction on the High Court to act according to whims or caprice. This extraordinary power has to be exercised sparingly with circumspection and as far as possible, for extraordinary cases, where allegations in the complaint or the first information report, taken on its face value and accepted in their entirety do not constitute the 10 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others offence alleged. It needs little emphasis that unless a case of gross abuse of power is made out against those in charge of investigation, the High Court should be loath to interfere at the early/premature stage of investigation.
9. In State of W.B. v. Swapan Kumar Guha, emphasising that the Court will not normally interfere with an investigation and will permit the inquiry into the alleged offence, to be completed, this Court highlighted the necessity of a proper investigation observing thus: (SCC pp. 597-98, paras 65-66) "65. ... An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere with the investigation of a case where an offence has been disclosed. ...
66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. ... If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the 11 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence."
(emphasis supplied)
10. On a similar issue under consideration, in Jeffrey J. Diermeier v. State of W.B.4, while explaining the scope and ambit of the inherent powers of the High Court under Section 482 of the Code, one of us (D.K. Jain, J.) speaking for the Bench, has observed as follows: (SCC p. 251, para 20) "20. ... The section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court; and (iii) to otherwise secure the ends of justice.
Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice."
The Supreme Court in the case of Vinod Raghuvanshi Vs. Ajay Arora, reported in (2013) 10 SCC 581 has held as under :
"30. It is a settled legal proposition that while considering the case for quashing of the criminal proceedings the court should not "kill a stillborn child", and appropriate prosecution should not be stifled unless there are compelling circumstances 12 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others to do so. An investigation should not be shut out at the threshold if the allegations have some substance. When a prosecution at the initial stage is to be quashed, the test to be applied by the court is whether the uncontroverted allegations as made, prima facie establish the offence. At this stage neither can the court embark upon an inquiry, whether the allegations in the complaint are likely to be established by evidence nor should the court judge the probability, reliability or genuineness of the allegations made therein."
The Supreme Court in the case of Smt. Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors. reported in AIR 1976 SC 1947 has held as under:-
"6. ........ The High Court appears to have gone into the whole history of the case, examined the merits of the evidence, the contradictions and what it called the improbabilities and after a detailed discussion not only of the materials produced before the Magistrate but also of the documents which had been filed by the defence and which should not have been looked into at the stage when the matter was pending under Section 202, has held that the order of the Magistrate was illegal and was fit to be quashed.....
7. For these reasons, therefore, we are satisfied that the order of the High Court suffers from a serious legal infirmity and the High Court has exceeded its jurisdiction in interfering in revision by quashing the order of the Magistrate. We, therefore, allow the appeal, set aside the order of the High Court dated December 16, 1975 and restore the order of the Magistrate issuing process against respondents No.1 and 2."
Thus, it is clear that when the entire allegations are accepted on their face value and if they do not disclose the commission of 13 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others offence, only then this Court in exercise of powers under Section 482 of Cr.P.C. can quash the proceedings. It is well established principle of law that the legitimate prosecution should not be stiffled in the mid way and this Court while exercising powers under Section 482 of Cr.P.C. cannot consider the defence of the accused persons.
7. The solitary submission, which has been made by the counsel for the applicants is that in the earlier complaint, which was made by the complainant to the Superintendent of Police, Gwalior as well as before the Parivar Paramarsh Kendra, no allegation was made by respondent no.4 against the applicants of committing any offence at Porsa, however, it appears that because of a legal advice, an improvement has been made in the written complaint dated 17/6/2017, which was made to the SHO, Police Station Mahila Thana Gwalior and the allegation has been made that the demand of dowry and threatening was also given at the matrimonial house of the complainant. Thus, in nutshell the contention of the counsel for the applicants is that since there is an improvement in the subsequent complaint dated 17/6/2017 and, therefore, the said improvement cannot be taken into consideration.
8. Section 145 of the Evidence Act reads as under:-
"145. Cross-examination as to previous statements in writing.--A witness may be cross-14
THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him."
9. Thus, it is clear that unless and until the attention of the witness is drawn towards the omission or improvement, no adverse inference can be drawn against the witness. Thus, whether there was any improvement in the written complaint dated 17/6/2017 or not, is a matter of evidence, which can be considered only after confronting the witness with her previous statement. This Court in exercise of power under Section 482 of Cr.P.C. cannot compare the previous statement of the witness to come to a conclusion that whether there was any omission or improvement in the subsequent statement of the witness or not. This is a disputed question of fact, which cannot be decided by giving a complete go bye to the provisions of Section 145 of the Evidence Act. Even otherwise, while exercising power under Section 482 of Cr.P.C., this Court has to decide the application by accepting the allegations as gospel truth. The defence of the accused cannot be taken into consideration.
10. Even otherwise, the FIR cannot be quashed on the ground that the concerning police station had no jurisdiction to register the FIR 15 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.23813/2017 Avinash Upadhyay and others Vs. The State of M.P. and others as well as the charge-sheet cannot be quashed on the ground that the trial court has no territorial jurisdiction. At the most, the matter can be directed to be tried by a Court having territorial jurisdiction.
Under these circumstances, this Court is of the view that the applicants have failed to establish that the Police Station Porsa had no territorial jurisdiction to investigate the matter and accordingly, the criminal proceedings cannot be quashed on the ground of lack of territorial jurisdiction.
11. Resultantly, this petition fails and is hereby dismissed.
(G.S. Ahluwalia)
Arun* Judge
ARUN KUMAR MISHRA
2019.04.08 17:48:42 +05'30'