Madhya Pradesh High Court
Smt.Malti Kushwaha vs State Of M.P on 8 September, 2017
1 MCRC Nos.10636/2013 &
10708/2013
M.Cr.C. No. 10636/2013
Smt. Malti Kushwaha & Ors. vs. State of M.P. & Anr.
&
M.Cr.C. No. 10708/2013
Mohit Kumar vs. State of M.P. & Anr.
08.09.2017
Shri Prabal Pratap Singh Solanki and Shri A.R.
Shivhare, Counsel for the applicants.
Shri Prakhar Dhengula, Public Prosecutor for the
respondent No.1/State.
Shri P.S. Bhadoriya, Counsel for the respondent No.2. This order shall dispose of M.Cr.C. No. 10636/2013 filed by Smt. Malti Kushwaha & Ors. and M.Cr.C.No.10708/2013 filed by Mohit Kumar.
This application under Section 482 of Cr.P.C. has been filed by the applicants and Mohit Kumar for quashing the FIR in Crime No.589/2013 registered by Police Station City Kotwali, District Morena in Criminal Case No.3108/2013 pending in the Court of CJM, Morena for offence under Sections 498-A, 506 Part-II of IPC.
The necessary facts for the disposal of the present application in short are that the respondent No.2/complainant made a written report on 12.7.2013 on the allegation that she was married to the applicant Mohit Kumar on 10.2.2012 as per Hindu rites and rituals and the applicants and her husband Mohit Kumar were demanding four wheeler vehicle, A.C. etc. and since her parents were not in a position to give the said articles, therefore, the applicants and her husband started harassing her mentally as well as physically. On 9.6.2013, she was turned out of 2 MCRC Nos.10636/2013 & 10708/2013 her matrimonial house and from thereafter she is residing in her parents home. On 7.7.2013 the applicants came to her house and extended the threat to her life and accordingly the report was made.
It is submitted by the counsel for the applicants that the applicant Mohit Kumar has filed a petition under Section 13 of Hindu Marriage Act for dissolution of marriage and in fact by way of counterblast the FIR was lodged. It is further submitted that in fact the applicant Mohit Kumar had transferred a handsome amount to the account of the respondent No.2/complainant from time to time and has also placed the copy of the bank statements on record. It is submitted that in fact the parents of the respondent No.2/complainant are poor and the applicant Mohit Kumar had financially helped them on various occasions. It is further submitted that the divorce petition was filed on 17.6.2013 and the applicant No.2-Virendra Kushwaha had already made a written complaint to the police on 6.7.2013 expressing his apprehension of false implication by the respondent No.2/complainant. It is further submitted that the respondent No.2/complainant has herself filed a petition under Section 9 of Hindu Marriage Act on 4.9.2013 which clearly shows that she was never harassed either mentally or physically nor there was any demand of dowry. So far as the applicant No.3- Smt. Nidhi and applicant No.4-Ms. Navita @ Namita in the present case are concerned, they are the sister-in-laws of the respondent No.2/complainant. The respondent No.3 is a married woman residing at Bangalore whereas the respondent No.4 who is unmarried is also residing at 3 MCRC Nos.10636/2013 & 10708/2013 Bagalore. It is further submitted that the respondent No.2/complainant had resided with her husband Mohit Kumar at Pune whereas the applicants No.1 and 2 are the resident of Gwalior and they have nothing to do with the family affairs of the applicant Mohit Kumar and his wife respondent No.2/complainant. It is further submitted that against the near and dear relatives of the husband, omnibus and vague allegations are not sufficient to compel them to face prosecution and unless and until any specific allegation is made, they may not be compelled to face the ordeal of trial. The tendency of over implicating or falsely implicating the near and dear relatives of the husband is increasing day by day and the Supreme Court as well as this Court on several occasions has expressed its concern over the misuse of Section 498-A of IPC.
Per contra, it is submitted by the counsel for the respondents that the trial is going on and the evidence of the parties are being recorded and, therefore, at this stage, this petition under Section 482 of Cr.P.C. may not be entertained. It is further submitted that specifically allegations have been made against all the applicants and, therefore, the legitimate prosecution may not be stiffled at this stage.
The Supreme Court in the case of Satish Mehra Vs. State (NCT of Delhi) reported in (2012) 13 SCC 614 has held as under:
"13. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code 4 MCRC Nos.10636/2013 & 10708/2013 has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v. State of Punjab wherein the parameters of exercise of the inherent power vested by Section 561-A of the repealed Code of Criminal Procedure, 1898 (corresponding to Section 482 CrPC, 1973) had been laid down in the following terms: (AIR p. 869, para 6) (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction; (iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the 5 MCRC Nos.10636/2013 & 10708/2013 agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused. 15. The above nature and extent of the power finds an exhaustive enumeration in a judgment of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 which may be usefully extracted below : (SCC pp. 702-03) "7. The second limb of Mr Mookerjee's argument is that in any event the High Court could not 6 MCRC Nos.10636/2013 & 10708/2013 take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that: * * * This section is contained in Chapter XVIII called "Trial Before a Court of Session". It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that: * * * In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue 7 MCRC Nos.10636/2013 & 10708/2013 would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction." 16. It would also be worthwhile to recapitulate an earlier decision of this court in Century Spinning & Manufacturing Co. vs. State of Maharashtra (1972) 3 SCC 282 noticed in L. Muniswamy's case (Supra) holding that: (SCC p. 704, para 10) "10 .... the order framing a charge affects a person's liberty substantially and therefore it is the duty of the court to consider judicially whether the materials warrant the framing of the charge. It was also held that the court ought not to blindly accept the decision of the prosecution that the accused be asked to face a trial."
The Supreme Court in the case of Umesh Kumar 8 MCRC Nos.10636/2013 & 10708/2013 vs. State of Andhra Pradesh reported in (2013) 10 SCC 591 has held as under:-
"20. The scope of Section 482 CrPC is well defined and inherent powers could be exercised by the High Court to give effect to an order under CrPC; to prevent abuse of the process of court; and to otherwise secure the ends of justice. This extraordinary power is to be exercised ex debito justitiae. However, in exercise of such powers, it is not permissible for the High Court to appreciate the evidence as it can only evaluate material documents on record to the extent of its prima facie satisfaction about the existence of sufficient ground for proceedings against the accused and the Court cannot look into materials, the acceptability of which is essentially a matter for trial. Any document filed along with the petition labelled as evidence without being tested and proved, cannot be examined. The law does not prohibit entertaining the petition under Section 482 CrPC for quashing the charge-sheet even before the charges are framed or before the application of discharge is filed or even during the pendency of such application before the court concerned. The High Court cannot reject the application merely on the ground that the accused can argue legal and factual issues at the time of the framing of the charge. However, the inherent power of the Court should not be exercised to stifle the legitimate prosecution but can be exercised to save the accused from undergoing the agony of a criminal trial. (Vide Pepsi Foods Ltd. v. Judicial Magistrate [(1998) 5 SCC 749], Ashok Chaturvedi v. Shitul H. Chanchani [(1998) 7 SCC 698], G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636] and Padal Venkata Rama Reddy v. Kovvuri Satyanarayana Reddy [(2011) 12 SCC 437]."
In the case of Ravikant Dubey and Others Vs. State of M.P. and another reported in 2014 Cr.L.R. (M.P.) 162 has held as under :
"8. In view of the above, the questions of law which requires consideration are as follows:9 MCRC Nos.10636/2013 & 10708/2013
(i) Whether petition preferred by the petitioners under Section 482 of the Code for quashing the FIR can be entertained, when trial has been started and evidence of some witnesses have also been deposed before the Trial Court ?
(ii) Whether evidence recorded by Trial Court during trial can be considered for quashing the FIR ?
(iii) Whether any ground is available for quashing the FIR in view of the facts and laws available on record ?
Regarding question of law no. (i) :-
9. Learned Senior Counsel for the petitioners submitted that inherent powers can be used at any stage to prevent abuse of process of any Court or otherwise to secure the ends of justice. It makes no different whether trial has been started or not and whether some evidence has been deposed before the Trial Court or not. In support of his contention he placed reliance in the case of Sathish Mehra (supra) and Joseph Salvaraja Vs. State of Gujrat and others, (2011) 7 SCC 59.
* * * *
12. Therefore, in the considered view of this Court this petition is maintainable also even when trial is at advance stage. The question is answered accordingly."
Thus, it is held that during the pendency of the petition under Section 482 of Cr.P.C., if the charges have been framed and even if some of the witnesses have been examined, the petition can be decided on merits.
So far as the allegations made against the applicants are concerned, there is a specific allegation against the applicant Mohit Kumar, that he had harassed and treated the respondent No.2/complainant with cruelty because of non-fulfillment of his demand of four wheeler vehicle as 10 MCRC Nos.10636/2013 & 10708/2013 well as A.C. and other household articles. So far as the transfer of funds from the Bank account of the applicant Mohit Kumar to the Bank account of the respondent No/2complinant is concerned, the same is required to be proved at the trial. So far as the fact that the FIR was lodged subsequent to filing of petition under Section 13 of Hindu Marriage Act by the applicant Mohit Kumar is concerned, it cannot be said that the FIR was lodged by way of counterblast. Even otherwise the FIR cannot be quashed merely on the ground that the same was lodged after a petition for divorce was filed.
The Supreme Court in the case of Pratibha v. Rameshwari Devi and Ors. reported in (2007) 12 SCC 369 has held as under:-
"16. It is pertinent to note that the complaint was filed only when all efforts to return to the matrimonial home had failed and Respondent 2 husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955. That apart, in our view, filing of a divorce petition in a civil court cannot be a ground to quash criminal proceedings under Section 482 of the Code as it is well settled that criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts. Such being the position, we are, therefore, of the view that the High Court while exercising its powers under Section 482 of the Code has gone beyond the allegations made in the FIR and has acted in excess of its jurisdiction and, therefore, the High Court was not justified in quashing the FIR by going beyond the allegations made in the FIR or by relying on extraneous considerations."
Accordingly, this Court is of the considered opinion that there is sufficient material against the applicant Mohit 11 MCRC Nos.10636/2013 & 10708/2013 Kumar warranting his prosecution and accordingly the application filed by Mohit Kumar which has been registered as M.Cr.C.No.10708/2013 is dismissed.
So far as the case of the applicants No.1 and 2 in M.Cr.C.No.10636/2013 is concerned, they are the parents- in-law of the complainant. It is the case of the applicants No.1 and 2 that they are residing at Gwalior whereas the respondent No.2/complainant had resided at Pune along with the applicant Mohit Kumar. If the allegations made against the applicants No.1 and 2 are concerned, it is clear that the respondent No.2 has alleged that the applicants No.1 and 2 had passed taunts for not bringing four wheeler vehicle and A.C. and she was turned out of her matrimonial house by the applicants No.1 & 2.
The Supreme Court in the case of Taramani Parakh v. State of M.P. 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 12 MCRC Nos.10636/2013 & 10708/2013 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 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 13 MCRC Nos.10636/2013 & 10708/2013 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 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 14 MCRC Nos.10636/2013 & 10708/2013 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 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 SCC 17 : 2001 SCC (Cri) 275]; M. 8 MCRC.6606/2015 Krishnan v. Vijay Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19];
15 MCRC Nos.10636/2013 & 10708/2013Savita 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."
Considering the law laid down by the Supreme Court in the case of Taramani Parakh (supra) the application filed by the applicant No.1 namely Smt. Malti Kushwaha and applicant No.2 Virendra Kushwaha is dismissed.
So far as the allegations against the applicant No.3 Smt. Nidhi is concerned, the applicants have filed the documents to show that she is residing separately at Bangalore along with her husband. The respondent No.2/complainant had either stayed at Gwalior or at Pune and, therefore, it can certainly be said that the applicant No.3 Smt. Nidhi is residing separately at Bangalore along with her in-laws as the factum of separate residence of the applicant No.3 Smt. Nidhi has not been disputed by the counsel for the respondent No.2/complainant. Further more there are no specific allegation against the applicant No.3 Smt. Nidhi except saying that she too had scolded, harassed the respondent No.2/complainant for a four wheeler vehicle and A.C. 16 MCRC Nos.10636/2013 & 10708/2013 So far as the allegations against the applicant No.4 Ms. Navita @ Namita is concerned, it is submitted by the counsel for the applicant that she too is residing separately at Bangalore and is a married woman. However, this fact has been disputed by the counsel for the respondent No.2/complainant. It is submitted that no document has been filed by the applicants to show the separate residence of Ms. Navita @ Namita. It is submitted that in fact she is a spinster and is residing alongwith her parents i.e. applicants No.1 and 2.
By relying on judgments passed by the Supreme Court in cases of Geeta Mehrotra Vs. State of U.P. reported in (2012) 10 SCC 741, Preeti Gupta Vs. State of Jharkhand, reported in (2010) 7 SCC 667, it is submitted by the Counsel for the applicants that there should be some what specific and clear allegations against the relatives of the husband. There is an increasing tendency in the society to over implicate the near and dear relatives of the husband so as to pressurize the husband.
The Supreme Court in the case of Kansraj Vs. State of Punjab, (2000) 5 SCC 207, has held as under :
"In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that Respondents 3 to 5 were roped in the case only on the ground of being close relations of Respondent 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts 17 MCRC Nos.10636/2013 & 10708/2013 attributed to persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. 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 overenthusiasm and 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 Supreme Court in the case Monju Roy Vs. State of West Bengal, reported in (2015) 13 SCC 693, has held as under :
"8. While we do not find any ground to interfere with the view taken by the courts below that the deceased was subjected to harassment on account of non-fulfillment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not ruled out. In Kans Raj v. State of Punjab, (2000) 5 SCC 207, this Court observed : (SCC p. 215, 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 to seek conviction for maximum people, the 18 MCRC Nos.10636/2013 & 10708/2013 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. In Raja Lal Singh vs. State of Jharkhand, (2007) 15 SCC 415, it was observed : (SCC p. 419, para 14) "14. No doubt, some of the witnesses e.g. PW 5 Dashrath Singh, who is the father of the deceased Gayatri, and PW 3 Santosh Kr. Singh, brother of the deceased, have stated that the deceased Gayatri told them that dowry was demanded by not only Raja Lal Singh, but also the appellants Pradip Singh and his wife Sanjana Devi, but we are of the opinion that it is possible that the names of Pradip Singh and Sanjana Devi have been introduced only to spread the net wide as often happens in cases like under Sections 498-A and 394 IPC, as has been observed in several decisions of this Court e.g. in Kamesh Panjiyar v. State of Bihar [(2005) 2 SCC 388], etc. Hence, we allow the appeal of Pradip Singh and Sanjana Devi and set aside the impugned judgments of the High Court and the trial court insofar as it 19 MCRC Nos.10636/2013 & 10708/2013 relates to them and we direct that they be released forthwith unless required in connection with some other case."
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11. The Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. At the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. In such case, apart from general allegation of demand of dowry, the court has to be satisfied that harassment was also caused by all the named members."
The Supreme Court in the case of Chandralekha & Ors. v. State of Rajasthan & Anr. reported in 2013 (1) UC 155 has held as under:-
"8. We must, at the outset, state that the High Court's view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months.
Thereafter, respondent 2 took no steps to file any complaint against the appellants.20 MCRC Nos.10636/2013 & 10708/2013
Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3."
Recently, the Supreme Court in the case of Rajesh Sharma & others Vs. State of U.P. & another by order dated 27-7-2017 passed in Cr.A.No.1265/2017 has held as under:-
"We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August 2012, 140th Report of the Rajya Sabha Committee on Petitions (September,2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent. To remedy the situation, we are of the 21 MCRC Nos.10636/2013 & 10708/2013 view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sanitized. It is also necessary to facilitate closure of proceedings where as genuine settlement has been reached instead of parties being required to move High Court only for that purpose.'' Joint residence or separate residence may be one of the considerations for ascertaining the role played by a near relative of the husband, for harassing the complainant but that cannot be a sole criteria to either disbelieve the complainant or to prosecute the relatives as it is being realized by the courts that the provision of Section 498-A of IPC is being misused without realizing the implications and complications of false implications of near relatives as it may adversely affect the possibility of reconciliation. Even assuming that the applicant No.4 Ms. Navita @ Namita is a spinster and is residing along with her parents at Gwalior then unless and until a specific role or overt act is assigned to her by the complainant/respondent No.2, this Court is of the considered opinion that a girl who is yet to get married and who has to go to her matrimonial house and who may also face the same situation would not involve herself in demand of dowry or harassment of her sister-in-law (Bhabhi). In the present case, even in the case diary statements, the complainant/respondent No.2 has not specifically stated any overt act on the part of the applicant No.4 Ms. Navita @ Namita. The only allegations are that she along with others was demanding a four 22 MCRC Nos.10636/2013 & 10708/2013 wheeler vehicle and A.C. etc. and because of that she was harassing her continuously. Considering the allegations made against the applicant No.4 Ms. Navita @ Namita, this Court is of the view that the allegation against the applicants No.3 and 4 are not sufficient to continue their prosecution for offences under Sections 498-A, 506 Part-II of IPC. Accordingly, the application filed by the applicant No.3 Smt. Nidhi and the applicant No.4 Ms. Navita @ Namita are allowed. The FIR in Crime No.589/2013 registered by Police Station Kotwali, District Morena for offence under Sections 498-A, 506-B of IPC as well as the further proceedings in Criminal Case No.3108/2013 pending in the Court of CJM, Gwalior qua the applicant No.3 Smt. Nidhi as well as the applicant No.4 Ms. Navita @ Namita are hereby quashed.
The M.Cr.C.No.10636/2013 succeeds in part and is accordingly partly allowed.
(G.S. Ahluwalia)
(alok) Judge