Madhya Pradesh High Court
Rajbahadur Singh vs The State Of Madhya Pradesh on 20 June, 2018
HIGH COURT OF MADHYA PRADESH
M.Cr.C No.7949/2018
(Rajbahadur Singh Vs. State of M.P. & another)
1
Gwalior, Dated : 20.06.2018
Shri Pradeep Katare, learned counsel for the petitioner.
Shri Kamal Jain, learned counsel for the respondent
No.1/State.
Shri R.K. Sharma, learned counsel for the respondent No.2.
This petition under Section 482 of Cr.P.C. has been filed seeking quashment of order dated 07.09.2017 whereby JMFC, Dabra, District Gwalior, has accepted an application under Section 156(3) of Cr.P.C. and has directed the Police Station, Dabra City to register an offence against the petitioner under Sections 363, 366, 376, 493 and 495 of IPC. Petitioner is also aggrieved by registration of Crime No.402/2017 consequent to such directions passed by the JMFC, Dabra.
It is petitioner's contention that he is innocent and the allegations made against him that he has abducted or violated the privacy of the wife of the complainant are not made out. It is submitted that complainant had earlier filed Writ Petition No.1202/2017 seeking writ of habeas corpus. On 02.03.2017 such petition was dismissed as complainant's wife had stated before the Court that she is 30 years of age and is living separately from the complainant on her own volition. She had pleaded ignorance in regard to the present petitioner.
The Writ Appeal was filed challenging the said order passed in the Writ Petition and that too was dismissed vide order dated 15.03.2018. It is further submitted that complainant had filed an application under the provisions of Sections 7 and 10 of the Guardians and Wards Act, 1890, seeking custody of his minor son in which reply was filed by HIGH COURT OF MADHYA PRADESH M.Cr.C No.7949/2018 (Rajbahadur Singh Vs. State of M.P. & another) 2 complainant's wife that she is willing to hand over the custody but before the Court on 29.08.2017 the minor child expressed his desire to remain in the company of his mother, therefore, orders for interim custody were not passed in favour of the complainant. It is further submitted that in the light of the law laid down by Hon'ble Supreme Court in the case of Mrs. Priyanka Srivastava and Another Vs. State of U.P. And Others as reported in 2015(2) Crimes 209(SC), a Magistrate is required to apply his mind as to the nature of allegations before issuing any directions under Section 156 (3) of Cr.P.C.
It has been observed in case of Priyanka Srivastava (supra) that in fact matter was already proceeding under provisions of SARFAESI Act and elaborate procedure has been provided under Recovery of Debts due to Banks and Financial Institutions Act, 1993. More care, caution and circumspection is required in passing the order. Reliance has also been placed on the judgment of this High Court in case of Preeti Vs. State of M.P. and another as reported in 2014 (1) MPLJ (Cri.) 330, wherein again the ratio is that Magistrate is required to form an opinion as to whether facts in complaint discloses the commission of cognizable offence by accused arrayed in the complaint and Magistrate is also required to record his satisfaction about need of investigation by Police. Placing reliance on such judgments, it is submitted that it is a fit case for quashing of the F.I.R. registering Crime No.402/2017.
Shri R.K. Sharma, learned senior advocate duly assisted by Shri M.K. Chaudhary has drawn attention of this Court to the order of custody passed by the First Additional District HIGH COURT OF MADHYA PRADESH M.Cr.C No.7949/2018 (Rajbahadur Singh Vs. State of M.P. & another) 3 Judge, Dabra, vide order dated 10.03.2018 and submitted that ingredients of Section 493 of IPC are clearly made out.
It is also submitted that rejection of an objection for habeas corpus or writ appeal consequent to it, is not sufficient to hold that there was no material for registration of F.I.R. against the petitioner. It is further submitted that commission of cognizable offence has been reported and the documents on record reveal that there is a close nexus between the complainant's wife and the present petitioner. Present petitioner has filed copies of replies and applications under the provisions of Guardians and Wards Act without obtaining their certified copy from the Court. It is submitted that no person worth salt will deliberate illicit relationship of wife with a stranger like the present petitioner. It is submitted that petitioner at the instance of complainant's wife is trying to put dog in the wheels of justice by filing such frivolous petitions.
As far as the present petition is concerned there is no denial to the fact that complainant's wife is now estranged. There are allegations of adultery which needs to be proved in appropriate proceedings before the trial Court. Merely because the petitioner has made accusations will not nullify provisions of Section 156 (3) of Cr.P.C.
As far as law laid down in case of Priyanka Srivastava (supra) is concerned, it is on the availability of alternate statutory remedy and facts of that case are distinguishable. As far as the law laid down in case of Preeti (supra) is concerned, again petitioner has failed to show that there no application of mind while passing impugned order for registration of an F.I.R.
HIGH COURT OF MADHYA PRADESH M.Cr.C No.7949/2018 (Rajbahadur Singh Vs. State of M.P. & another) 4 It is settled principle of law that unless the charges are absurd and beyond imagination so also totally improbable, the Court should be slow in delve into it.
In view of such facts and also in the light of the law laid down by the Hon'ble Supreme Court in case of Sakiri Vasu Vs. State of Uttar Pradesh and Others as reported in (2008) 2 S.C.C. 409, no interference is warranted in the impugned order inasmuch as there appears to be not only application of mind but appropriate deliberation as to the feasibility of the direction to register an F.I.R. There is no direct nexus between the dismissal of petition seeking writ of habeas corpus with the present matter. This petition fails and is dismissed.
(Vivek Agarwal) Judge mani SUBASRI MANI 2018.06.22 17:54:08 +05'30'