Madhya Pradesh High Court
Abhishek Sharma vs The State Of Madhya Pradesh on 17 February, 2017
1
M.Cr.C.No.2682/2016
(Abhishek Sharma & Ors. v. State of M.P. & Ano.)
17/02/2017
Shri A.S. Bhadoriya, counsel for the applicants.
Mohd. Irshad, Panel Lawyer for the respondent
No.1/State.
None for the respondent No.2.
This petition under Section 482 of CrPC has been filed for quashing the FIR in Crime No.588/2015 registered by Police Station Gwalior, District Gwalior under Sections 498A, 34 of IPC and Section 3/4 of Dowry Prohibition Act as well as the criminal proceedings pending in the Court of JMFC, Gwalior in Criminal Case No.1484/2016.
The necessary facts for the disposal of the present application in short are that the respondent No.2 lodged a report against the applicants alleging that they are demanding Rs.3 lacs and because of non-fulfillment of their demand of dowry, she is being harassed. It was alleged that on 3.2.2014, she was married to the applicant No.1 who is the resident of Rewa and dowry to the tune of Rs.10 lacs was given. Immediately after the marriage, the applicants started saying that the applicant No.1 is working as Assistant Professor and her parents have not given anything. They were also saying that they have got one Maruti Wagon-R financed and, therefore, her parents should give Rs.3 lacs. She stayed in her matrimonial house at Rewa for about 10 days and, thereafter, came back to her parents' house. On 22.03.2014, the applicant No.1 came to Gwalior in order to take her back, at that time also, he had quarreled with her parents. However, the respondent No.2 was sent along with the applicant No.1 to Bhopal. At Bhopal 2 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) also, the behaviour of the applicant No.1 did not improve and he used to beat her and she was treated with cruelty, as a result of which, she fell ill and was admitted on 31.03.2014 in ICU of R.K. Hospital, Bhopal. She remained in hospital for about 3 days and thereafter her parents took her back to Gwalior. For about 5 months, she remained in her parents' house and the applicants did not try to contact her. On the Deepawali festival of the last year, her parents after talking to her in-laws send her to Rewa where again a demand of money was made and she was mentally and physically tortured. Her ornaments were kept by the applicants and she was sent back to Gwalior and said that now she should not come and they were also talking about divorce. From thereafter she is residing in her parents' house and in the meanwhile her parents went to Rewa and Bhopal on two occasions for convincing them but they misbehaved with her parents, as a result of which, she was forced to make a complaint in Mahila Police Station, Gwalior and the applicants were called for conciliation proceedings. On 25.10.2015, the applicant No.1 and applicant No.2 came to Mahila Police Station. When no result could be achieved in the conciliation proceedings, the applicant No.1 & 2 after coming out of the police station quarreled with the complainant and her parents and said that now they would not keep her in their house and would take divorce. Accordingly, the FIR was lodged.
It is submitted by the counsel for the applicants that before the reconciliation proceedings which took place between the parties at Gwalior, the applicant No.1 3 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) had already approached the Parivar Paramarsh Kendra at Rewa and a notice was issued to the respondent No.2 on 17.10.2015. Even referring to the reconciliation proceedings which took place on 25.10.2015 at Mahila Police Station, the counsel for the applicants submitted that although the parties were advised to live peacefully with each other but the respondent No.2 was not ready to reside with the applicant No.1 whereas the applicant No.1 is ready and willing and ready to keep the respondent No.2 as his wife. It was further submitted that the respondent No.2 has filed a petition under Section 13 of Hindu Marriage Act, therefore, the basic intention of the respondent No.2 is to somehow obtain divorce from the applicant No.1 and because of that she has made false allegations against the applicants.
The counsel for the State submitted that even in the reconciliation proceedings which took place at Mahila Police Station, the respondent No.2 had specifically alleged that she is being harassed mentally and physically because of non-fulfillment of demand of dowry and even on the first night of the marriage, the applicants had picked up a quarrel with the respondent No.2 on the question of inadequacy of dowry.
Heard the learned counsel for the parties and perused the documents filed along with the petition.
In the FIR, it is specifically mentioned that the respondent No.2 is being harassed physically as well as mentally because of non-fulfillment of demand of dowry. Even in the reconciliation proceedings which took place on 25.10.2015, the respondent No.2 has specifically stated that she was being harassed mentally as well as 4 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) physically because of non-fulfillment of demand of dowry. Because of the unnatural conduct of the applicant No.1 she is afraid of him and she cannot live with applicant No.1 and she wants her Stridhan back. Although, in the reconciliation proceedings an observation has been made by the members that the respondent No.2 does not want to reside with her husband but it is not the finding of the members that without any reasonable reasons the respondent No.2 does not want to reside with the applicant No.1. Even in the reconciliation proceedings, the respondent No.2 had disclosed the reasons as to why she does not want to reside with the applicant No.1.
It is not expected of a girl to stay back in her matrimonial house in spite of mental and physical torture because of non-fulfillment of demand of dowry as well as inspite of unnatural conduct of her husband against the consent of the wife.
Under these circumstances, if the respondent No.2 had expressed her unwillingness to reside with the applicant No.1 then it cannot be said that it is the respondent No.2 who is at fault.
Similarly, pointing out the cruelty and harassment at the hands of her in-laws if the respondent No.2 has filed a petition for divorce then it would not mean that since the respondent No.2 wants divorce from the applicant No.1, therefore, false allegations have been made. On the contrary, the filing of petition under Section 13 of Hindu Marriage Act by the respondent No.2 prima-facie establishes and substantiates her allegations made in the FIR.
5 M.Cr.C.No.2682/2016(Abhishek Sharma & Ors. v. State of M.P. & Ano.) The Supreme Court in the case of Taramani Parakh v. State of Madhya Pradesh 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 vs. Ramesh Chander (2012) 9 SCC 460, 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 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.6 M.Cr.C.No.2682/2016
(Abhishek Sharma & Ors. v. State of M.P. & Ano.) 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. 27.5. 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 7 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) the basis of which the case would end in a 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 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 8 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) 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 W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; 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 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; 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 : AIR 2000 SC 1869]; 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 :9 M.Cr.C.No.2682/2016
(Abhishek Sharma & Ors. v. State of M.P. & Ano.) 1992 SCC (Cri) 192 : AIR 1991 SC 1260]; 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 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."
12. In Kailash Chandra Agrawal & Anr.
vs. State of U.P. (2014) 16 SCC 51, it was observed: (SCC p. 553, paras 8-9):
"8. We have gone through the FIR and the criminal complaint. In the FIR, the appellants have not been named and in the criminal complaint they have been named without attributing any specific role to them. The relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab [(2000) 5 SCC 207], it was observed:- (SCC p.217, para 5) "5. ... A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and 10 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.
9. The parameters for quashing proceedings in a criminal complaint are well known. If there are triable issues, the Court is not expected to go into the veracity of the rival versions but where on the face of it, the criminal proceedings are abuse of Court's process, quashing jurisdiction can be exercised. Reference may be made to K. Ramakrsihna and Ors. vs. State of Bihar [(2000) 8 SCC 547], Pepsi Foods Ltd. v. Judicial Magistrate [(1998) 5 SCC 749], State of Haryana v. Ch. Bhajan Lal [(1992) Supp (1) SCC 335] and Asmathunnisa v. State of A.P.[(2011) 11 SCC 259]."
13. In the present case, the complaint is as follows:
"Sir, it is submitted that I was married on 18.11.09 with Sidharath Parakh s/o Manak Chand Parak, 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 11 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) 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, 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 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 the 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 No.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 12 M.Cr.C.No.2682/2016 (Abhishek Sharma & Ors. v. State of M.P. & Ano.) safety and proper environment in the matrimonial home. The question whether the appellant has infact 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 facts and circumstances of the case and in the light of the judgment passed by the Supreme Court in the case of Taramani Parakh (supra), this Court is of the view that the FIR as well as the criminal proceedings initiated against the applicants cannot be quashed at this stage.
Accordingly, the petition fails and is hereby dismissed.
(G.S.Ahluwalia)
(ra) Judge