Vijay @ Saurabh Shrivastav vs The State Of Madhya Pradesh on 5 April, 2022

[Cites 28, Cited by 4]

Madhya Pradesh High Court

Vijay @ Saurabh Shrivastav vs The State Of Madhya Pradesh on 5 April, 2022

Shri S.S.Rawat, learned counsel for respondent No.2. Petitioners have filed this petition under Section 482 of Cr.P.C. for quashing the F.I.R. dated 19.07.2019 bearing crime No.382/2019 registered at police Station, Kotwali, District Vidisha and the charge sheet dated 22.08.2019, for the offence punishable under Sections 498-A, 506, 34 of IPC and Sections 3 & 4 of the Dowry Prohibition Act as well as other consequential proceedings arising out of the said FIR.

2. In brief, the facts of the case necessary for disposal of this petition are that respondent No.2-Smt. Ritu Khare, who is wife of Abhinav Khare lodged an FIR on 19.07.2019 at Police Station, Kotwali, Vidisha against her husband Abhinav Khare, mother-in-law Vimlesh Khare, Jeth Amit Khare, Jethani Nisha Khare and one Vijay @ Saurav Shrivastava to the effect that her marriage was solemnized on 15.02.2017 as per Hindu rites. During wedlock with Abhinav one girl child was born. Her husband used to drink liquor and play gambling bet (jua satta) and also used to made marpeet with her. 2

IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) Her mother-in-law used to torture her on the instigation of her husband Abbhinav about less dowry. Her Jeth Amit Khare, Jethani Nisha Khare also instigate her mother-in-law for demand of dowry. When she objects, they threatened to leave her. On 6.4.2019 her husband on the pretext of keeping the jewelry in the locker had taken the same and sent her to her parental house. Afterwards, her husband told her that there is no relationship between them. On her complaint, an offence under sections 498-A, 506, 34 of IPC and sections 3 & 4 of Dowry Prohibition Act bearing Crime No.382/2019 was registered. After investigation, charge sheet has been filed.

3. It is argued on behalf of the petitioners that there is no specific allegation against the petitioners in the FIR. It is submitted that there is no allegation against petitioner No.1 for demand of dowry, who is residing at Jhansi. It is further contended that Abhinav Khare, husband of respondent No.2 lodged a complaint against her wherein it is specifically mentioned that she has demanded 50% of the property and threatened that if the property is not transferred into her name, then she will lodge FIR against him and his relatives, which shows the malafide intention of the respondent No.2. Reliance has been placed on the judgment of the Supreme Court in State of 3 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) Haryana and Others Vs. Bhajan Lal and Others reported in 1992 Supp.(1) SCC 335 by submitting that the F.I.R. and aforesaid criminal case should be quashed.

4. Per contra, learned counsel for the State opposed the argument made by the learned counsel for the petitioners and stated that from the perusal of F.I.R., it is apparently clear that the aforesaid offence is prima facie made out against the petitioners. It is submitted that at this stage, it is not probable to consider the defence of the accused. It is the matter of evidence.

5. From the perusal of the FIR, it clearly reflects that only omnibus allegations are levelled against Jeth Amit, Jethani Nisha and Vijay Shrivastava that they instigated mother-in-law Vimlesh Khare for demand of dowry.

6. The Supreme Court in case of Taramani Parakh Vs. 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 4 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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.

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 5 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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 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 6 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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.

27.12. 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 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 7 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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 : 1992 SCC (Cri) 192 : AIR 1991 SC 1260];

Lalmuni Devi v. State of Bihar [(2001) 2 8 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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 anxiety 9 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) 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]."

7. It is already held in large number of cases by the Hon'ble Supreme Court that the husband is having utmost responsibility to maintain his wife and it has become a routine to rope in all the family members of the husband in the case. Please see the decision of the Apex Court in Arnesh Kumar Vs. State of Bihar, (2014) 8 10 IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR MCRC No. 40044 of 2019 (VIJAY @ SAURABH SHRIVASTAV AND OTHERS Vs THE STATE OF MADHYA PRADESH AND OTHERS) SCC 273. The Hon'ble Supreme Court in the case of Taramani Parakh (Supra) has considered the aspect of roping in all the family members in the case.

8. After going through the FIR, it is clear that main allegations are only against the husband and mother-in-law and allegations against Jeth Amit, Jethani Nisha and Vijay Shrivastava are omnibus in nature.

9. In such circumstance, this Court deems it appropriate to quash the FIR and accordingly the F.I.R. bearing Crime No.382/2019 registered at Police Station Kotwali, District Vidisha, for the offence under Sections 498-A, 506, 34 of IPC and Sections 3 & 4 of the Dowry Prohibition Act, the charge sheet dated 22.08.2019 as well as other consequential proceedings arising out of the aforesaid FIR, so far as it relates to the petitioner No.1-Vijay @ Saurabh Shrivastava, petitioner No.2-Amit Khare and petitioner No.3-Nisha Khare are hereby quashed.

With the aforesaid, this petition is partly allowed. No order as to costs.


                                                   (Deepak Kumar Agarwal)
vv                                                         Judge

                     VALSALA
                     VASUDEVAN
                     2022.04.06
                     00:42:34
                     +05'30'

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