Madhya Pradesh High Court
Manjeet Singh vs State Of M.P. on 13 October, 2015
CRR.54/2011 1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
JUSTICE SUJOY PAUL.
Criminal Revision No. 54/2011
Manjit Singh & another
Vs.
State of M.P.
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Shri Arvind Dwivedi, Advocate for the petitioners.
Shri A.S. Rathore, Panel Lawyer for the
respondent/State.
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ORDER
( 13 / 10 /2015 ) This criminal revision is filed under Section 397 r/w Section 401 of Cr.P.C. against the order dated 31.10.2010, whereby the court below has framed charge against the petitioners.
2. Shri Arvind Dwivedi, learned counsel for the petitioners contends that as per story of prosecution, FIR is lodged by Police Station Incharge, Ater in which it is urged that deceased Mamta died in suspicious circumstances. She was physically and mentally tortured by the present petitioners. The present petitioners demanded dowry and when the said demand was not fulfilled, she was tortured which resulted into her death. Thus, offences under Section 302, alternatively 306, 304-B, 498-A, 34 IPC and 3/4 of Dowry Prohibition Act were alleged against the petitioners. However, the court below by order dated 31.10.2010, found that allegations under Section 304-B are not established and petitioners were rightly exonerated from the said offence.
3. Criticizing the order impugned, it is urged that although there was no material before the court below CRR.54/2011 2 to indicate exact date of marriage of deceased, it was clear that two children of deceased were born on 19.07.2002 and 26.08.2005 respectively. Thus, marriage had admittedly taken place before the birth of said children. Thus, death has taken place after 10 years from the date of marriage. It is submitted that prosecution has not filed any document nor narrated anything to show that during these last 10 years, any complaint was made by deceased or by her parents about any kind of demand of dowry or torture arising thereto. The story of prosecution is not trustworthy. He relied on AIR 2002 SC 1998 (Sanju alias Sanjay Singh Sengar vs. State of Madhya Pradesh), (2006) 1 SCC 463 (Harjit Singh Vs. State of Punjab), Shailendra Singh Vs. State of M.P. 2005 (I) MPWN-34, Meera Bai and another Vs. State of M.P. 2009 (I) MPWN 70 and Parmal Singh Vs. State of M.P. 2011 (I) MPLJ 340, it is submitted that necessary ingredients for attracting Section 306 IPC are not available in the present case. Hence, the impugned order is liable to be interfered with.
4. Shri Dwivedi during the course of his arguments, placed heavy reliance on dying declaration (Page 12), he submits that this declaration is recorded by the concerned Tehsildar. On the strength of this declaration, no case is made out against the petitioners.
5. Prayer is opposed by Shri Rathore, learned Panel Lawyer for the respondent/State. He submits that at this stage when prosecution is yet to lead evidence and prove the charge, no interference can be made. He supported the order impugned.
6. No other point is pressed by parties.
7. I have heard learned counsel for the parties at length and perused the record.
8. This is trite law that normally prosecution should be permitted to proceed and prove its case on merits. Interference can be made sparingly and in exceptional CRR.54/2011 3 cases. Shri Dwivedi during the course of his argument contended that even if allegations mentioned in FIR are accepted on its face value, no offence is made out against the petitioners. He relied on said judgments to contend that no case is made out under Section 306 IPC.
9. A plain reading of FIR shows that there are specific allegations against the petitioners that they have threatened, physically and mentally tortured the deceased and she died in suspicious circumstances. Hence, offences under Section 302, alternatively under Section 306 IPC are made out against the petitioners. The petitioners have relied on dying declaration dated 12.03.2010. Despite repeated query from learned counsel for the petitioners, he is unable to show that said dying declaration is recorded by the Tehsildar/Executive Magistrate. The declaration does not indicate that it was recorded by Tehsildar. Thus, I find no reason to interfere on the basis of this dying declaration. It is for the court below to examine the genuineness and impact of this document at appropriate stage. This document cannot be a reason for acquittal of the petitioners at this stage.
10. As noticed, scope of interference at this stage is very limited. The Apex Court has culled out following principles in (2012) 9 SCC 460 (Amit Kapoor vs. Ramesh Chander):-
1. Though there are no limits of the powers of the Court under Section 482 CrPC 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 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
2. The court should apply the test as to whether the uncontroverted allegations as made from the CRR.54/2011 4 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.
3. 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.
4. 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.
5. 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 loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.
6. Where there is an express legal bar enacted in any of the provisions of CrPC 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.
7. 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.
8. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose.
9. 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. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a CRR.54/2011 5 complaint or quash such proceedings in exercise of its inherent or original jurisdiction.
10. 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.
11. 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.
12. 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.
13. 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 with by the prosecution.
14. 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.
15. Where the charge-sheet, report under Section 173(2)CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge.
16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that 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.
17. These are the principles which individually and CRR.54/2011 6 preferably cumulatively (one or more) are to be taken into consideration.
11. If present case is examined on the anvil of said principles, it will be clear that at this stage, the aforesaid litmus test is not satisfied. This is also settled in law that FIR is recorded in order to give a brief picture of the case so that the prosecution may proceed with the matter. FIR cannot contain each and every detail. In (2003) 6 SCC 175 ( Superintendent of Police, CBI & Ors. Vs. Tapan Kumar Singh) and (2009) 9 SCC 719 (Jarnail Singh & Ors. Vs. State of Punjab), the Apex Court held that FIR is not an encyclopedia which will contain every detail of the incident. It is further held that even if particular section of an offence is not mentioned in the FIR, it is not conclusive and it is for the court to frame charge having regard to the material on record.
12. The Apex Court in Sanju @ Sanjay Singh Sengar (supra) dealt with the aspect of Section 306 of IPC. In the peculiar facts of the said case, the interference was made. In the said case, there was a particular suicide note, on the strength of which findings were recorded by Supreme Court.
13. In the present case, there was no suicide note. The genuineness of dying declaration is yet to be established before the court below at appropriate stage. The prosecution has every right to lead evidence to establish its story/case. The facts of the present case are different than that of Sanju @ Sanjay Singh Sengar (supra). Hence that judgment has no application in the present case. In Harjit Singh (supra) also, the allegations were under Sections 306 and 304-B of IPC. In the present case, as noticed, the petitioners are already acquitted from Section 304-B of IPC. Prosecution is yet to lead evidence to establish offences under Section 302/306 IPC. On the basis of facts narrated in the FIR and CRR.54/2011 7 material available on record, it cannot be said that story of prosecution is like house of cards or even if that story is accepted, no offence is made out. It is noteworthy that deceased in the present case found burnt at her in- laws' place. She lateron died because of burn injuries. In this factual backdrop, prosecution has every right to lead evidence to establish the alleged offences against the petitioners. Since incident had taken place at different place, the family members/parents of deceased cannot give actual description or narration of facts which became reason of the death of Mamta. The judgment of Harjit Singh (supra) is based on different factual matrix and cannot be mechanically applied in the present case.
14. The same is the position about the judgment of this Court in Shailendra Singh, Meera Bai and Parmal Singh (supra). In these cases, this court basically dealt with Section 306 IPC. At the cost of repetition, in the present case it is yet to be examined by the court below whether prosecution is able to make out a case under Section 302 IPC. The judgment of Meera Bai (supra) is arising out of judgment rendered by the Sessions Judge. This is not applicable at the interlocutory stage.
15. As noticed above, the necessary ingredient on which interference at this stage can be made, are not available in the present case. Thus, I find no reason to interfere in this matter.
16. Revision fails and is hereby dismissed.
(Sujoy Paul)
(alok) Judge