Madhya Pradesh High Court
Dr. Sant Kumar Namdev vs The State Of Madhya Pradesh on 6 March, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.CR.C.No.52736/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF MARCH, 2024
MISC. CRIMINAL CASE No. 52736 of 2023
BETWEEN:-
DR. SANT KUMAR NAMDEV S/O SHRI
SUNNILAL NAMDEV, AGED ABOUT 38
YEARS, OCCUPATION: DEPUTY MANAGER
SBI R/O VILLAGE KHAPTAHA
DEVENDRANAGAR DISTRICT PANNA
(MADHYA PRADESH)
.....APPLICANT
(BY SHRI SAHIL BILLA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION BODHAR
DISTRICT SHAHDOL (MADHYA
PRADESH)
2. SHIVKANT NAMDEV S/O NOT
MENTION, AGED ABOUT 29 YEARS, R/O
NEAR RAMJANKI MANDIR BODHAR
SHAHDOL (MADHYA PRADESH)
.....RESPONDENTS
(SHRI GAJENDRA PARASHAR - PANEL LAWYER FOR THE
RESPONDENT NO.1/STATE )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
2 M.CR.C.No.52736/2023 In the first round when the case was called, the counsel for applicant submitted that yesterday they have filed the Vakalatnama on behalf of the applicant, therefore, the case may be adjourned.
I.A.No.6226/2024 has been filed by the earlier counsel pointing out that the file has been withdrawn from his office on 04.03.2024.
Since the counsel for applicant had filed his Vakalatnama and has accepted the brief, therefore, no good ground was made out for adjournment. Accordingly, he was requested to argue the matter.
The counsel for applicant prayed for 15 minutes time to prepare the case. Accordingly, the hearing was deferred and the case was taken up after 15 minutes. Even after 15 minutes, it was submitted by counsel for applicant that he has not prepared the case but later on, realizing that this Court is inclined to mention that in spite of request made by this court, the counsel for applicant has refused to argue the matter, he submitted that he may be permitted to argue the matter. While his arguments were going on, it was submitted by counsel for applicant that he has no instructions to argue the matter from the applicant.
The conduct of the counsel for applicant clearly shows that the solitary intention is the Bench Hunting, which cannot be encouraged under any circumstances. Accordingly, once again counsel for applicant was requested to argue with a clear understanding that otherwise this Court will decide the matter after going through the case diary, which is available with the State counsel as well as after hearing him. It was submitted by Shri Sahil Billa that he has no instructions to argue.
3 M.CR.C.No.52736/2023Under these circumstances, this Court was left with no other option but to go through the grounds raised in the application under section 482 Cr.P.C., case diary as well as to hear the State.
Heard the learned counsel for the State.
1. This petition under section 482 of CrPC has been filed for quashment of FIR dated 09.05.2020 in Crime No.351/2020, registered at Police Station Budhar, District Shahdol for offence under sections 294, 323 and 506 of IPC as well as order dated 22.08.2023 passed by JMFC, Budhar, District Shahdol by which charges under sections 294, 323, 452, 506 (2 counts) Part-II IPC have been framed.
2. It is mentioned in the application that complainant Shivkant Namdeo had lodged an FIR on 09.05.2020 to the effect that at about 1:00 p.m. he received a call from his sister i.e. wife of the applicant that the applicant has come to their house and is threatening her to go along with him to her matrimonial house or else he would kill her. Thereafter, the complainant came back to his house and requested the applicant to leave the house on the ground that the matter is pending in the Court. Thereafter, the applicant got furious and started abusing him in the name of mother and sister. When the complainant objected to it then applicant assaulted him by fists and blows. He picked up a chair lying there and assaulted him. After coming out of the house, he picked up a stone and threw on him, which was stopped by him by his right hand. Another stone hit on his chest. The complainant received injuries on his chest, wrist of his left hand, fingers of his right hand. After hearing the hue and cry, his sister Lakshmi Namdeo, mother Sunita Namdeo, father Shiv Prasad Namdeo, who had seen the incident, intervened in the matter. The 4 M.CR.C.No.52736/2023 applicant was threatening that in case if he is ousted from the house then he would kill them. The complainant was sent for medical examination and total 5 injuries were found i.e (i) abrasion on right index finger admeasuring 3 x 2 cm, (ii) abrasion on right thumb admeasuring 1 x 1 cm, (iii) swelling of size 3 x 2 cm on right middle finger, (iv) bruise on left cubital region and tenderness on left hand. It was also pointed out that the patient has complain of pain on the left side of chest but no external injury was seen.
3. All the injuries were opined to have been caused by hard and blunt object and they were alleged to be simple in nature, caused within a period of 6 hours.
4. The police, after completing the investigation, filed a charge- sheet and by order dated 28.02.2023 passed by JMFC, Budhar, District Shahdol charges under sections 294, 323, 452 and 506 IPC have been framed.
5. It is mentioned in the application that the allegations, which have been mentioned in the FIR, are completely bogus and fallacious and in fact the applicant was brutally assaulted by the complainant, as a result the applicant sustained grievous injuries on various parts of the body and accordingly he also lodged an FIR bearing Crime No.350/2020, which has been placed on record as Annexure A-3. It is mentioned in the application that the applicant is a government servant and he has been made to run from pillar to post and fallacious and bogus FIR has been registered against him. The applicant had submitted representations before the concerning authority and had prayed for an opportunity before registration of FIR but no opportunity was given to him. The FIR, which has been lodged by the complainant, is nothing but a counter blast and 5 M.CR.C.No.52736/2023 afterthought to the applications filed by the applicant under sections 156(3) of CrPC against his wife and brother-in-law. Prior to this incident the applicant has no criminal history and the disputes are owing to the matrimonial dispute. FIR has been lodged at the instance of his brother-in-law. Even otherwise the applicant had earlier made number of complaints wherein he had categorically stated that the compliment and his family members are consistently threatening him that they will drag him in a fallacious case and the said apprehension has come true as the false and fallacious FIR in question has been lodged. The applicant had also submitted a representation to the SHO, Police Station, Budhar, District Shahdol complaining the false allegations against him but nothing was done by the police and ultimately charge-sheet was filed and now charges have been framed.
6. It is further mentioned in the application that so far as the offence under section 294 IPC is concerned, abusing or defamatory words are not necessarily obscene and are not punishable under section 294 (b) of IPC. So far as the offence under section 506 of IPC is concerned, an empty threat with no intention is not suffice to constitute an offence. No offence under section 452 of IPC is made out because it is not the case of the complainant that the applicant had entered inside the house. It has also been specifically mentioned that after coming out of the house, the applicant had pelted stones. The applicant is an educated person with no criminal record. It is also mentioned in the application that it is to be seen by the Court that whether the uncontroverted allegations made in the FIR, prima facie make out an offence or not and whether it is expedient and in the interest of justice to permit a prosecution to continue. It is 6 M.CR.C.No.52736/2023 claimed that there is no evidence to indicate that the applicant was in any manner involved in the offence. It is the duty of the Court to separate chaff from the husk and to dredge the truth from the pandemonium of statements of prosecution witnesses and the case at hand is a fit case wherein there are material contradictions, embellishments and loopholes in the FIR as well as in the statement of complainant/respondent no.2 recorded under section 161 of CrPC.
7. It is further pleaded that dual aspect of actus reus and mens rea are clearly absent in the instant case, which is a sine qua non to implicate any individual as an accused. The allegations made in the FIR are absurd. Even if the entire prosecution is treated as gospel truth, still no offence would be made out. The entire proceedings are manifestly attended with malafide for wreaking vengeance and in such a situation the Court should quash the entire proceedings without hesitation. The FIR is liable to be set aside because the allegations are based on surmises and conjectures and there is nothing on record to check the veracity of the same. The complainant has no evidence even for the namesake against the applicant and a new story has been cooked up by the complainant in order to falsely allege against the applicant.
8. Per contra, the application is vehemently opposed by counsel or State.
9. Considered the grounds raised by the applicant in the application.
10. As already pointed out, the only intention of the applicant was to somehow avoid the hearing of the case before this Bench and this conduct of the applicant in getting himself involved in Bench Hunting cannot be appreciated and it has to be deprecated and has to 7 M.CR.C.No.52736/2023 be dealt with iron hands. In spite of multiple opportunities and requests, the counsel for the applicant did not argue and under these circumstances, this Court is left with no other option but to consider the grounds raised in the application.
11. It appears that this application has been filed mainly on the following grounds :-
1. The FIR in question, which has been lodged against the applicant, is by way of counter blast.
2. The applicant has no criminal history and is an officer working in SBI.
3. The allegations made against the applicant are false.
4. Even if the entire allegations are taken on their face value, still no offence would be made out.
5. No offence under section 452 IPC is made out because it is nobody's case that the incident took place within the four walls of the house.
6. An empty threat would not make out an offence under section 506 of IPC.
7. No offence under section 294 IPC would be made out because the abusive or defamatory words are not necessarily obscene and are not punishable under section 294 (b) of IPC.
8. The applicant has given multiple applications to the Investigating Officer, but without considering the same the charge-sheet was filed.
9. Even prior to the incident, the applicant had given multiple applications to the police authorities 8 M.CR.C.No.52736/2023 expressing his apprehension that he may be falsely implicated, however, no heed was paid.
Whether the FIR can be quashed on the ground that it has been lodged by way of counter blast or not?
12. The undisputed facts are that sister of the complainant is married to the applicant and matrimonial dispute is going on and sister of the complainant is residing in her parental home and it appears that certain cases are also pending in the Court between the parties.
13. The FIR in question was lodged by the complainant on 09.05.2020 at 15:40 hours. The applicant has also filed a copy of the FIR, which was lodged by him as Annexure A-3. The FIR lodged by the applicant bears Crime No.350/2020, registered at Police Station Budhar, District Shahdol and it was lodged at 15:00 hours. Thus, both the FIRs have been lodged with a time gap of 40 minutes only. In the FIR, which has been lodged by the applicant, it has been alleged by him that he is the working on the post of Field Officer in State Bank of India, Tendukheda. He got married to Laxmi Namdeo in the year 2009. He is blessed with two children, aged about 9 years and 7 years respectively. His wife is residing in her parental house since 28.11.2018. He received information that his child is not well and, therefore, on 09.05.2020, he went to the parental house of his wife at Budhar. The door of the house was locked. He went to the room of his father-in-law, which is situated on the ground floor. His father-in-law made the applicant to talk to Shrikant Namdeo, his son who is working as Income Tax Officer on phone. The applicant requested him that since his son is not medically fit, therefore, he may be allowed to meet him. In the meanwhile, his younger brother-
9 M.CR.C.No.52736/2023in-law Shivant Namdeo came there and started abusing him and also assaulted him by fists and blows. He also assaulted him by a wooden plank, as a result he sustained injuries on his face. He has pain in the upper jaw. He has sustained injury on the wrist of his left hand. He has also received injury on his right knee. By raising hue and cry, he ran outside the house and sat in the vehicle. His brother-in-law also damaged the glass of the vehicle by wooden plank, as a result he has sustained loss. His brother-in-law was threatening that in case if he again visits his house then he would be killed. The incident was seen by Manoj Soni and others.
14. Thus, it is clear that there is a matrimonial dispute between the applicant and his wife and his wife is residing in her parental home from the month of November, 2018. Another undisputed fact is that the applicant went to the parental home of his wife i.e. at Budhar, District Shahdol; whereas the applicant is posted in Tahsil Tendukheda, District Damoh. The permanent address of the applicant is Village Khaptaha, Police Station Devendra Nagar, District Panna.
15. It is further clear that some dispute arose when the applicant went to meet his wife. From the contents of the FIR lodged by the applicant, it is clear that when he rushed outside the house and sat in the vehicle, then the complainant of this case had allegedly damaged the glass of the car by a wooden plank.
16. The FIR lodged by the applicant reads as under :-
"eSa xzke [kiVgk Fkkuk nsoUs æuxj ftyk iUuk ¼e-ç-½ dk jgus okyk gw¡ LVsV cSad rsna £ q sMk es QhYM vkfQlj ds in ij inLr gw¡ esjh 'kknh y{eh ukenso fuoklh jketkudh eafnj ds ikl cq<kj ds lkFk o"kZ 2009 esa gqbZ Fkh ftlls esjs nks yM+ds cM+k+ yM+dk ikjl mez 09 o"kZ NksVk yM+dk Js;'k mez 7 o"kZ dk gS esjh ifRu 28 ucEcj o"kZ 2018 ls vius ek;ds cq<kj es jg jgh gS eq>s lwpuk feyh dh cPps dh rch;r [kjkc gS 10 M.CR.C.No.52736/2023 rc eS ijeh'ku ysdj viuh ifRu ls feyus ds fy, cq<kj vk;k Fkk vkt fnuk¡d 09-05-20 dks viuh ifRu y{eh ukenso ls feyus cq<kj muds ?kj x;k rks ?kj dk njoktk can Fkk eSa uhps okys ?kj esa vius llqj ls feyus x;k rc esjs lqlqj us cMs lkys Jhdkar ukenso tks tcyiqj esa bude VSDl vkfQlj gS muls Qksu ls ckr djk;k rc eSa muls cksyk dh cPps dh rch;r [kjkc gS eq>s feyok nhft, brus esa esjk NksVk lkyk f'ko dkar ukenso vk;k vkSj eq>s ek¡ cgu dh cqjh cqjh xkfy;k nsdj gk¡Fk eqDds ls ekjihV djus yxk ogha ikl iMs ydM+h ds VqdM+s ls ekjk ekjihV ls esjs gksB ds Åij [kwu vkywnk pksV] Åij ds nk¡r es nnZ] ck;s gk¡Fk ds dykbZ es pksV] nkfgus iSj ds ?kqVus esa pksV nnZ gS rc eS gYyk xksgkj djrk ckgj Hkkxdj vk;k vkSj xkM+h esa cSB x;k rc esjk lkyk gkFk es j[ks ydM+h ls xkM+h dh dk¡p esa ekjdj dk¡p rksM fn;k ftlls dh esjk uqdlku gqvk gS cksy jgk Fkk dh eknjpksn nksckjk esjs ?kj vk;s rks tku ls [kRe dj nwaxk ?kVuk dks eksgYys ds eukst lksuh ,c muds HkkbZ yksx ns[ks lqus gS fjiksVZ djrk gw¡ dk;Zokgh dh tk,A fjiksVZ ij vijk/k lnj dk;e dj tk¡p esa fy;k x;kA""
17. From the perusal of aforesaid FIR, one thing is clear that it was the applicant, who went to the parental home of his wife. Whether he was an aggressor or whether the complainant was aggressor, is a disputed question of fact, which can be decided only after the trial is conducted and the evidence of the parties are tested on the anvil of their cross-examination.
18. This Court in exercise of power under section 482 of CrPC cannot give a finding to the effect that the impugned FIR, which has been lodged by the complainant against the applicant, is by way of counter blast. Merely because the FIR lodged by the complainant was lodged after 40 minutes of the FIR lodged by the applicant, it would not mean that the FIR lodged by the complainant against the applicant is by way of counter blast. There appears to be some incident took place in the house of the complainant.
19. Furthermore, this Court in exercise of power under section 482 of CrPC cannot quash the proceedings on the ground that FIR in question was lodged by way of counter blast for the simple reason 11 M.CR.C.No.52736/2023 that no such finding can be recorded by this Court in this proceedings.
20. Accordingly, the first contention made by the applicant in his application under section 482 of CrPC is hereby rejected. Whether the claim made by the applicant that he has no criminal history, can be a ground to quash the FIR.
21. It is the claim of the applicant in his application filed under section 482 of CrPC that since he has no criminal history, therefore, the FIR is false. By no stretch of imagination such a ground can be utilized for quashing the proceedings. Whenever a case is registered for the first time, an accused will always claim that since he has no criminal background, therefore, the FIR should be quashed. The FIR has to be quashed only when the uncontroverted allegations do not make out a cognizable offence.
22. Under these circumstances, the ground raised by the applicant about his clean criminal background, is hereby rejected.
Whether the allegations made in the FIR are false or not?
23. The aforesaid grounds raised by the applicant in his application filed under section 482 of CrPC are dependent upon the appreciation of evidence. A self-proclaimed ground cannot be a basis for quashment of FIR. Unless and until the evidence of the parties are recorded and their evidence is tested on the anvil of cross- examination, no Court can give a finding that the allegations made in the FIR or in the charge-sheet, are false.
24. Even otherwise for exercising power under section 482 of CrPC, this Court has to consider as to whether the uncontroverted allegations made against the accused make out any offence or not?
12 M.CR.C.No.52736/2023This Court cannot conduct a roving inquiry to verify the correctness and genuineness of the allegations.
25. 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 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 13 M.CR.C.No.52736/2023 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)
26. 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 ..........."
27. 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 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.
28. The Supreme Court in the case of Mohd. Akram Siddiqui v.
14 M.CR.C.No.52736/2023State 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.
29. 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 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 15 M.CR.C.No.52736/2023 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 is open to the High Court to quash the same in exercise of inherent powers under Section
482."
30. 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."
31. The Supreme Court in the case of CBI v. Arvind Khanna 16 M.CR.C.No.52736/2023 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 cognizance of by the competent court, is completely incorrect and uncalled for."
32. 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..........."17 M.CR.C.No.52736/2023
33. Similar law has been laid down by the Supreme Court in the cases of Munshiram v. State of Rajasthan, reported in (2018) 5 SCC 678, Teeja Devi v. State of Rajasthan reported in (2014) 15 SCC 221, State of Orissa v. Ujjal Kumar Burdhan, reported in (2012) 4 SCC 547, S. Khushboo v. Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC 336, Amit Kapoor v. 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 v. Alok Kumar Srivastav reported in (2009) 9 SCC 682.
34. Accordingly, the contention that the allegations made in the FIR are false, is hereby rejected.
Whether the allegations made in the FIR made out an offence under sections 452, 506 and 294 IPC.
35. Counsel for the applicant was right in claiming in the application itself that this Court can quash the proceedings only if uncontroverted allegations do not make out a cognizable offence.
36. So far as the contention of the applicant that an empty threat to life given by an accused would not be an offence under section 506 IPC is concerned, it is suffice to mention here that it is necessarily a disputed question of fact, which can be adjudicated and decided by the trial court only after recording the evidence of the parties. Whether the applicant had intention to execute a threat or not, cannot be adjudicated by this Court while exercising power under section 482 Cr.P.C.
37. So far as the contention raised by the applicant in his application under section 482 CrPC that no offence under section 452 IPC is made out is concerned, the same is also misconceived.
18 M.CR.C.No.52736/2023Laxmi Namdeo has stated in her statement under section 161 CrPC that she got married to the applicant in the year 2009. For the last two years the applicant was in habit of assaulting her, as a result for last one year she was residing in her parental home along with her children and has instituted cases against her husband in the Court. In spite of that, the applicant had visited her parental home on multiple occasions and had created ruckus. On 09.05.2020 she was in her house and the applicant at about 11-12 AM came and entered inside the house and started searching for her. She was inside the room where the applicant came and started threatening her. When she informed the incident to her brother, then her brother requested him to leave the house. However, the applicant started abusing her brother and also assaulted him by fists and blows and also assaulted him by a plastic chair. When her brother came out of the house, then applicant assaulted him by stones. Even Shivkanth has also stated in his statement under section 161 CrPC that when he came out of the house, then applicant picked up stones and assaulted him. Thus, it is clear that there is a specific allegation against the applicant that he entered inside the house and abused and threatened his wife and when complainant tried to intervene, he was assaulted by fists and blows. The applicant also assaulted him by a plastic chair. Thus, there is sufficient material on record to prime facie show that the incident took place inside the house and under these circumstances, offence under section 452 IPC would be made out. Whether the offence under section 294 IPC is made out or not, is a question of fact which is to be adjudicated by the trial court. In the FIR it was specifically alleged that applicant had abused the complainant in the name of his her mother and sister. Thus, prime facie an offence 19 M.CR.C.No.52736/2023 under section 294 IPC is made out.
38. So far as offence under section 323 IPC is concerned, the applicant has not raised any ground in that regard in his application filed under section 482 CrPC. Thus, it is clear that the applicant has not challenged the charge framed under section 323 IPC. Even otherwise, 'Hurt' has been defined under section 319 IPC, which means; whoever causes bodily pain, disease or infirmity to any person.
39. Even otherwise as per the MLC of the complainant, 6 injuries were found including the complaint of pain on the chest. However, the other 5 injuries have already been reproduced in the previous paragraph. Thus, prime facie an offence under section 323 IPC is made out.
Whether the application made by the applicant against registration of FIR should have been considered by the Investigating Officer or not.
40. This Court in the case of Prabal Dogra vs. Superintendent of Police, Gwalior and State of M.P. by order dated 30.11.2017 passed in M.Cr.C.No.10446/2017 has held as under:-
"(21) It is well established principle of law that the free trial is the fundamental right of the accused as well as of the complainant. If the Court supervises the investigation by issuing directions to the investigating officer, and compels the investigating officer to form his opinion based on the directions of the Court, then nothing would be left in the Trial Court.
The Supreme Court in the case of Manohar Lal Sharma (Supra) has held as under :
''39. However, the investigation/inquiry monitored by the court does not mean that the court supervises such investigation/ inquiry. To supervise would mean to observe and direct the execution of a task whereas to 20 M.CR.C.No.52736/2023 monitor would only mean to maintain surveillance. The concern and interest of the court in such "Court directed" or "Courtmonitored" cases is that there is no undue delay in the investigation, and the investigation is conducted in a free and fair manner with no external interference. In such a process, the people acquainted with facts and circumstances of the case would also have a sense of security and they would cooperate with the investigation given that the superior courts are seized of the matter. We find that in some cases, the expression "Court-monitored" has been interchangeably used with "Courtsupervised investigation". Once the court supervises an investigation, there is hardly anything left in the trial. Under the Code, the investigating officer is only to form an opinion and it is for the court to ultimately try the case based on the opinion formed by the investigating officer and see whether any offence has been made out. If a superior court supervises the investigation and thus facilitates the formulation of such opinion in the form of a report under Section 173(2) of the Code, it will be difficult if not impossible for the trial court to not be influenced or bound by such opinion. Then trial becomes a farce. Therefore, supervision of investigation by any court is a contradiction in terms. The Code does not envisage such a procedure, and it cannot either. In the rare and compelling circumstances referred to above, the superior courts may monitor an investigation to ensure that the investigating agency conducts the investigation in a free, fair and time bound manner without any external interference.'' (22) If the facts of this case are considered, then it would be clear that no allegations have been made by the applicant against the investigating officer, but on the contrary, the basic allegations are that he is being falsely implicated by the complainant.
The Supreme Court in the case of Lalita Kumari Vs. State of U.P. reported in (2014) 2 SCC 1 has held as under :-
''120. In view of the aforesaid discussion, we hold:
120.1. The registration of FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable offence and no preliminary 21 M.CR.C.No.52736/2023 inquiry is permissible in such a situation. 120.2. If the information received does not disclose a cognizable offence but indicates the necessity for an inquiry, a preliminary inquiry may be conducted only to ascertain whether cognizable offence is disclosed or not. 120.3. If the inquiry discloses the commission of a cognizable offence, the FIR must be registered. In cases where preliminary inquiry ends in closing the complaint, a copy of the entry of such closure must be supplied to the first informant forthwith and not later than one week.
It must disclose reasons in brief for closing the complaint and not proceeding further.
120.4. The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed. Action must be taken against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
120.5. The scope of preliminary inquiry is not to verify the veracity or otherwise of the information received but only to ascertain whether the information reveals any cognizable offence.
120.6. As to what type and in which cases preliminary inquiry is to be conducted will depend on the facts and circumstances of each case. The category of cases in which preliminary inquiry may be made are as under:
(a) Matrimonial disputes/family disputes
(b) Commercial offences
(c) Medical negligence cases
(d) Corruption cases
(e) Cases where there is abnormal delay/laches in initiating criminal prosecution, for example, over 3 months' delay in reporting the matter without satisfactorily explaining the reasons for delay.
The aforesaid are only illustrations and not exhaustive of all conditions which may warrant preliminary inquiry. 120.7. While ensuring and protecting the rights of the accused and the complainant, a preliminary inquiry should be made timebound and in any case it should not exceed 7 days. The fact of such delay and the causes of it must be reflected in the General Diary entry. 120.8. Since the General Diary/Station Diary/Daily Diary is the record of all information received in a police 22 M.CR.C.No.52736/2023 station, we direct that all information relating to cognizable offences, whether resulting in registration of FIR or leading to an inquiry, must be mandatorily and meticulously reflected in the said diary and the decision to conduct a preliminary inquiry must also be reflected, as mentioned above.'' (23) Thus, where a complaint is made disclosing the commission of cognizable offence, then it is mandatory on the part of the police to register the F.I.R. In the present case, the allegations made in the F.I.R., do disclose the commission of cognizable offence. Thus, the police did not commit any mistake by registering the F.I.R. in the matter. Whether the allegations made in the F.I.R. or case diary statements of the witnesses are worth reliable or not, it is for the investigating officer to form its opinion after concluding the investigation. This Court cannot supervise the investigation by issuing directions as to in what manner the investigation is to be done. It is the prerogative of the investigating officer unless and until, it is shown that the investigating officer is doing a biased investigation because of some extraneous considerations or mala fides. This Court in exercise of powers under Section 482 of Cr.P.C. cannot direct the police to investigate the case from a particular point of view also. There is no allegation against the investigating officer with regard to dereliction from duties. Even the investigating officer has not been made a party to this petition. Even the Doctor who had examined the complainant and has given the M.L.C. report, has not been made a party to this application, therefore, the allegations of mala fides against him cannot be considered. No allegations of mala fides have been made against the concerning Doctor, except by mentioning that a false M.L.C. report has been prepared in connivance with the Doctor. Further more, whether the M.L.C. report was right or manipulated, can be proved during Trial while cross examining the concerning witness."
23 M.CR.C.No.52736/202341. The Supreme Court in the case of Romila Thapar and others vs. Union of India and others reported in (2018) 10 SCC 753 has held as under:-
"24. Turning to the first point, we are of the considered opinion that the issue is no more res integra. In Narmada Bai v. State of Gujarat, in para 64, this Court restated that it is trite law that the accused persons do not have a say in the matter of appointment of investigating agency. Further, the accused persons cannot choose as to which investigating agency must investigate the offence committed by them. Para 64 of this decision reads thus:
(SCC p. 100) "64. ... It is trite law that the accused persons do not have a say in the matter of appointment of an investigating agency. The accused persons cannot choose as to which investigating agency must investigate the alleged offence committed by them."
(emphasis supplied)
25. Again in Sanjiv Rajendra Bhatt v. Union of India, the Court restated that the accused had no right with reference to the manner of investigation or mode of prosecution. Para 68 of this judgment reads thus: (SCC p. 40) "68. The accused has no right with reference to the manner of investigation or mode of prosecution. Similar is the law laid down by this Court in Union of India v. W.N. Chadha, Mayawati v. Union of India, Dinubhai Boghabhai Solanki v. State of Gujarat, CBI v. Rajesh Gandhi, CCI v. SAIL and Janata Dal v. H.S. Chowdhary."
(emphasis supplied)
26. Recently, a three-Judge Bench of this Court in E. Sivakumar v. Union of India, while dealing with the appeal preferred by the "accused" challenging the order of the High Court directing investigation by CBI, in para 10 observed: (SCC pp. 370-71) "10. As regards the second ground urged by the petitioner, we find that even this aspect has been duly considered in the impugned judgment. In para 129 of the impugned judgment, reliance has been placed on Dinubhai Boghabhai Solanki v. State of 24 M.CR.C.No.52736/2023 Gujarat, wherein it has been held that in a writ petition seeking impartial investigation, the accused was not entitled to opportunity of hearing as a matter of course. Reliance has also been placed on Narender G. Goel v. State of Maharashtra, in particular, para 11 of the reported decision wherein the Court observed that it is well settled that the accused has no right to be heard at the stage of investigation. By entrusting the investigation to CBI which, as aforesaid, was imperative in the peculiar facts of the present case, the fact that the petitioner was not impleaded as a party in the writ petition or for that matter, was not heard, in our opinion, will be of no avail. That per se cannot be the basis to label the impugned judgment as a nullity."
27. This Court in Divine Retreat Centre v. State of Kerala, has enunciated that the High Court in exercise of its inherent jurisdiction cannot change the investigating officer in the midstream and appoint an investigating officer of its own choice to investigate into a crime on whatsoever basis. The Court made it amply clear that neither the accused nor the complainant or informant are entitled to choose their own investigating agency, to investigate the crime, in which they are interested. The Court then went on to clarify that the High Court in exercise of its power under Article 226 of the Constitution can always issue appropriate directions at the instance of the aggrieved person if the High Court is convinced that the power of investigation has been exercised by the investigating officer mala fide.
28. Be that as it may, it will be useful to advert to the exposition in State of West Bengal and Ors. Vs. Committee for Protection of Democratic Rights, West Bengal and Ors.13 In paragraph 70 of the said decision, the Constitution Bench observed thus:
"70. Before parting with the case, we deem it necessary to emphasise that despite wide powers conferred by Articles 32 13 (2010) 3 SCC 571 38 and 226 of the Constitution, while passing any order, the Courts must bear in mind certain self- imposed limitations on the exercise of these Constitutional powers. The very plenitude of the 25 M.CR.C.No.52736/2023 power under the said articles requires great caution in its exercise. Insofar as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations."
29. In the present case, except pointing out some circumstances to question the manner of arrest of the five named accused sans any legal evidence to link them with the crime under investigation, no specific material facts and particulars are found in the petition about mala fide exercise of power by the investigating officer. A vague and unsubstantiated assertion in that regard is not enough. 39 Rather, averment in the petition as filed was to buttress the reliefs initially prayed (mentioned in para 7 above) - regarding the manner in which arrest was made. Further, the plea of the petitioners of lack of evidence against the named accused (A16 to A20) has been seriously disputed by the Investigating Agency and have commended us to the material already gathered during the ongoing investigation which according to them indicates complicity of the said accused in the commission of crime. Upon perusal of the said material, we are of the considered opinion that it is not a case of arrest because of mere dissenting views expressed or difference in the political ideology of the named accused, but concerning 26 M.CR.C.No.52736/2023 their link with the members of the banned organization and its activities. This is not the stage where the efficacy of the material or sufficiency thereof can be evaluated nor it is possible to enquire into whether the same is genuine or fabricated. We do not wish to dilate on this matter any further lest it would cause prejudice to the named accused and including the co-accused who are not before the Court. Admittedly, the named accused have already resorted to legal 40 remedies before the jurisdictional Court and the same are pending. If so, they can avail of such remedies as may be permissible in law before the jurisdictional courts at different stages during the investigation as well as the trial of the offence under investigation. During the investigation, when they would be produced before the Court for obtaining remand by the Police or by way of application for grant of bail, and if they are so advised, they can also opt for remedy of discharge at the appropriate stage or quashing of criminal case if there is no legal evidence, whatsoever, to indicate their complicity in the subject crime.
30. In view of the above, it is clear that the consistent view of this Court is that the accused cannot ask for changing the Investigating Agency or to do investigation in a particular manner including for Court monitored investigation....................."
42. Thus it is clear that an accused has no right to dictate the Investigating Officer to investigate the matter in a particular manner. In absence of any right to the applicant to compel the Investigating Officer to investigate the matter in a particular manner, this Court is of considered opinion that the Investigating Officer did not commit any mistake by filing charge sheet and by not considering the defence of the applicant.
Whether the act of the applicant in expressing apprehension of his false implication is indicative of false registration of offence or not?
27 M.CR.C.No.52736/202343. As already pointed out, the applicant himself has lodged an FIR against the complainant, admitting that his wife is residing separately from the month of November, 2018. It is also admitted that the applicant, although he is posted in Tendukheda, he went to the parental home of his wife, which is in Budhar, District Shahdol. It is also an admitted position that the applicant had a talk with his father-in-law. It is also an admitted position that complainant had also come over there. Furthermore, the applicant himself has alleged in the FIR that when he ran outside the house and sat in the vehicle, then the glass of the car was damaged by the complainant by a wooden plank. When most of the allegations leveled by the complainant in the impugned FIR have already been admitted by the applicant while lodging his FIR, then it cannot be said that the FIR in question is a complete bundle of falsehood. The apprehension expressed by the applicant on earlier occasion that he may be implicated in a false case clearly indicates that the relationship between the applicant and his in-laws and his wife, are not cordial. It is also clear from various applications given by the applicant that on earlier occasions also he had complained that an offence under section 498-A IPC has already been registered against him, for which he is facing trial, which is evident from Annexure A-4, which is at page 43.
44. Thus, it is clear that there are multiple cases against the applicant and the relationships are not cordial and even the applicant had given multiple applications for registration of offence against his in-laws. When the parties are at loggerheads, then it cannot be held by this Court while exercising power under section 482 CrPC that the applicant has been falsely implicated and he has already 28 M.CR.C.No.52736/2023 expressed his apprehension about the said fact. No other ground has been raised by the applicant in the application filed under section 482 CrPC.
45. So far as argument of framing charges is concerned, roving inquiry into the allegations are not required. Even if strong suspicion is made out from the allegations made in the FIR, then the charges are to be framed.
46. The Supreme Court in the case of M.E. Shivalingamurthy v. CBI, Bengaluru, reported in (2020) 2 SCC 768 has held as under :-
17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions viz. P. Vijayan v. State of Kerala [P. Vijayan v. State of Kerala, (2010) 2 SCC 398 : (2010) 1 SCC (Cri) 1488] and discern the following principles:
17.1. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the trial Judge would be empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the instance of the prosecution. 17.3. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the police or the documents produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial". 17.5. It is open to the accused to explain away the materials giving rise to the grave suspicion. 17.6. The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic 29 M.CR.C.No.52736/2023 infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. 17.8. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
18. The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 CrPC (see State of J&K v. Sudershan Chakkar [State of J&K v. Sudershan Chakkar, (1995) 4 SCC 181 : 1995 SCC (Cri) 664 :
AIR 1995 SC 1954] ). The expression, "the record of the case", used in Section 227 CrPC, is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the police (see State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 :
2005 SCC (Cri) 415 : AIR 2005 SC 359] ).
47. The Supreme Court in the case of Soma Chakravarty v. State, through CBI, reported in (2007) 5 SCC 403 has held as under :-
10. It may be mentioned that the settled legal position, as mentioned in the above decisions, is that if on the basis of material on record the court could form an opinion that the accused might have committed offence it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. At the time of framing of the charges the 30 M.CR.C.No.52736/2023 probative value of the material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true at that stage.
Before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commitment of offence by the accused was possible. Whether, in fact, the accused committed the offence, can only be decided in the trial.
***
19. Some of the questions, however, which have been raised by the appellant are of some importance and it may be necessary to deal therewith. The learned trial Judge, it appears, did not properly apply its mind in regard to the different categories of the accused while framing charges. It ought to have been done. Charge may although be directed to be framed when there exists a strong suspicion but it is also trite that the court must come to a prima facie finding that there exist some materials therefor. Suspicion cannot alone, without anything more, it is trite, form the basis therefor or held to be sufficient for framing charge.
48. The Supreme Court in the case of State (NCT of Delhi) v. Shiv Charan Bansal, reported in (2020) 2 SCC 290 has held as under :-
39. The court while considering the question of framing charges under Section 227 CrPC has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case has been made out against the accused. The test to determine prima facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. The court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face 31 M.CR.C.No.52736/2023 value disclose the ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the judgment of this Court in State of Bihar v. Ramesh Singh [State of Bihar v. Ramesh Singh, (1977) 4 SCC 39 : 1977 SCC (Cri) 533] where it has been held that at the stage of framing charges under Sections 227 or 228 CrPC, if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused had committed the offence, then the court should proceed with the trial.
40. In a recent judgment delivered in Dipakbhai Jagdishchandra Patel v. State of Gujarat [Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547] decided on 24-4-2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction.
49. The Supreme Court in the case of State of Rajasthan v. Fatehkaran Mehdu, reported in (2017) 3 SCC 198 has held as under :-
26. The scope of interference and exercise of jurisdiction under Section 397 CrPC has been time and again explained by this Court. Further, the scope of interference under Section 397 CrPC at a stage, when charge had been framed, is also well settled. At the 32 M.CR.C.No.52736/2023 stage of framing of a charge, the court is concerned not with the proof of the allegation rather it has to focus on the material and form an opinion whether there is strong suspicion that the accused has committed an offence, which if put to trial, could prove his guilt. The framing of charge is not a stage, at which stage final test of guilt is to be applied. Thus, to hold that at the stage of framing the charge, the court should form an opinion that the accused is certainly guilty of committing an offence, is to hold something which is neither permissible nor is in consonance with the scheme of the Code of Criminal Procedure.
50. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
51. Before parting with this order, this Court would like to mention that this application has been decided in the light of limited scope of interference and any finding recorded by this Court in this order should not be treated as a conclusive finding and should not prejudice or influence the mind of the trial court and the trial court must decide the trial strictly in accordance with evidence, which would come on record.
52. Accordingly the application fails and is hereby dismissed.
(G.S.AHLUWALIA) JUDGE TG/-
HEMANT SARAF 2024.03.11 18:10:04 +05'30'