Madhya Pradesh High Court
Komal Singh Malviya vs The State Of Madhya Pradesh on 10 August, 2017
1 M.Cr.C. No.7139/2017
10/08/2017 :-
Petitioners in person.
Shri V. Khadav, learned Government Advocate for the
respondent No.1/State.
Shri K.K. Gupta, learned counsel for the respondent No.2.
Heard finally with the consent of parties.
ORDER
Being aggrieved by registration of FIR No.125/2016 by Mahila Police Thana, Indore under Section 498-A, 323/34 of the IPC, the petitioners have come before this Court for quashment of FIR and all subsequent proceedings taken pursuant thereto.
2. Background facts sans un-necessary details are as follows: petitioner No.1 and respondent No.2 got married on 06/12/2014 at Indore as per Hindu rites and rituals. Their marriage could not run successfully. Soon after the marriage, they developed differences. Respondent No.2 filed an application before the police alleging that soon after marriage the petitioners started torturing her for demand of dowry, they used to beat her. Tounting her for non-fulfillment of demand of costly Car. Husband refused to bear her expenses and expenses of her would be child. He did not take-care, even did not take her to Doctor, when she was pregnant. Attempts of reconciliation arranged by the Police gone in vain. She again filed complaint before the Police on 23/07/2016 which was forwarded to the Pariwar Paramarsh Kendra but without any any success. Third application was filed on 09/08/2016 which 2 M.Cr.C. No.7139/2017 also met with the same fate. She then submitted fourth application on 11/08/2016 making the same allegations regarding torture (physical and mental both), ill-treatment, mishaviour, harassment etc. on account of demand of dowry. She alleged that the petitioners demanded Car or half share in her parental house.
3. On this fourth application, the Police registered a criminal case as stated above and after completing investigation, filed the charge-sheet. A case No.33459/2016 was registered and the learned trial Court framed the charges on 03/03/2017.
4. During all these procedure, petitioner No.1 filed an application under Section 9 of Hindu Marriage Act on 24/06/2016 for restitution of conjugal rights, which is pending.
5. The petitioners have come before this Court on the grounds that respondent No.2 has filed a complaint against the husband and his family members only to harass them. She has gradually increased the allegations in all her four applications, which shows their falsity. The learned trial Court has erroneously taken cognizance against them. Prima facie no case is made out against them. FIR has been registered with an ulterior motive even then he was redy to keep Respondent with him but reconciliation proceedings failed due to adamant attitude of respondent No.2. It is further submitted by the petitioners that respondent No.2 never stayed with her in-laws, due to service of petitioner No.1 at Satna and Jabalpur. Whatever time she stayed, stayed with him at Satna and Jabalpur. Allegations of abortion are also false. Respondent 3 M.Cr.C. No.7139/2017 No.2 went on the death of her brother-in-law (Jijaji) on 30/10/2015 while according to her, abortion happened on 04/11/2015, therefore, the petitioners cannot be held responsible for the same.
6. Citing judgments of Y. Abrahim and others vs. Inspector of Police, Chennai and others AIR 2004 SC 4286, Kamlabai and others vs. State of M.P. and others 2009 (2) MPLJ (page number missing), (name missing) and others vs. N.C.T., Delhi and others (2007) DMC 805, Rajkumar Khanna vs. N.C.T., Delhi (2002) DMC 200 (D.B.), Manish Ratan and others vs. State of M.P. and others 2007 (1) JLJ 198, Swapnil Kumar and others vs. State of M.P. AIR 2011 Supreme Court Judgment Criminal Appeal No.1144/2014 in support of their contentions, the petitioners prayed for quashing of the FIR and all subsequent proceedings.
7. In arguments put-forth by petitioner No.1 himself, he reiterated the grounds stated above. Repetition is not required.
8. In reply, learned counsel for respondent No.2 drew my attention towards prayer clause (ii) and page No.6 of the petition and submitted that charge-sheet has already been filed by the police and after taking cognizance, the learned trial Court has framed the charges against the petitioners on 03/03/2017, therefore, the present petition is not maintainable. He further denied all the contentions of the petitioners and supported the allegations made in the complaint filed by respondent No.2.
4 M.Cr.C. No.7139/20179. I have considered the rival contentions of both the parties and have gone through the record.
10. First, I would like to consider the objection of respondent No.2 regarding maintainability of the petition.
11. Learned counsel for respondent No.2 placed reliance on State of Rajasthan vs. Fatehkaran Mehdu (2017) 2 SCC (Cri.) 40 but in this judgment, the Hon'ble Supreme Court only speaks about the conditions to use of power for quashing criminal proceedings and it is directed by Hon'ble Supreme Court that such powers should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. Thus the judgment is not related to the issue raised by respondent.
12. It is very clearly held by Hon'ble the Supreme Court in Satish vs. State of Delhi AIR 2013 SC 506 that powers under 482 of Cr.P.C. can be exercised at threshold as well as on advance stage of trial, therefore, contentions of learned counsel for the respondent No.2 is not sustainable.
13. Coming back to the case in hand, I find that since beginning of the complaints filed by respondent No.2, she has made certain allegations regarding demand of dowry and consequent cruelty and harassment. There is little variation in the allegation, due to way of expression or due to time gap but in all these complaints, substance is the same, therefore, on some insignificant contradictions, it cannot be accepted particularly at this stage that all the allegations are false and frivolous. Allegations made by the prosecutrix against the 5 M.Cr.C. No.7139/2017 petitioners, if taken at it's face value are sufficient to disclose prima facie case against them.
14. The power under Section 482 of Cr.P.C. is extra ordinary in nature and it is settled proposition of law that this power has to be exercised sparingly and only in the cases where attaining facts and circumstances satisfy that possibilities of miscarriage of justice will arise in case of non-use of power. The Court can interfere in such exceptional cases where it appears that the if not interfered then it would cause great injustice to someone. where the proceedings are capricious and arbitrary or based on no evidence or material at all available on record or the proceedings are based on such evidence or material which is wholly irrelevant or arbitrary. At this stage sifting or weighing of the evidence is neither permitted nor expected and the Court need not enter into meticulous considerations of evidence and materials at that stage.
15. In Krishnanan Vs. Krishnaveni (1997 AIR SCW 950 : AIR 1997 SC 987) it is held that when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under 6 M.Cr.C. No.7139/2017 such circumstances, to exercise the inherent power but it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings.
16. In Bhajan Lal's case (State of Haryana Vs. Ch. Bhajan Lal and others AIR 1992 SUPREME COURT 604) Hon'ble the Supreme Court has prepared a guideline in this regard. Para 108 of the judgment reads thus:
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
1. Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
2. Where the allegations in the First Information Report and other materials, if any, accompanying 7 M.Cr.C. No.7139/2017 the F. I. R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
3. Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
5. Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/ or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the 8 M.Cr.C. No.7139/2017 accused and with a view to spite him due to private and personal grudge.
17. In a recent judgment of State of Rajasthan vs. Fatehkaran Mehdu (2017) 2 SCC (Cri.) 40 the Hon'ble Supreme Court speaks about the use of power for quashing criminal proceedings and it is directed by Hon'ble the Supreme Court that such powers should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.
18. No such situation appears in the present case. There are certain allegations in all the complaints made by the prosecutrix, which are prima facie sufficient to initiate the prosecution against the petitioners.
19. The petitioners have raised objection regarding registration of FIR at Indore, stating that no incident took place at Indore, therefore, Indore Police had no jurisdiction to register the case or investigate or to file the charge-sheet but in the complaints filed by respondent No.2, there are certain allegations that at Indore also the petitioners demanded Car or half share in her parental house from the father of the respondent No.2. Therefore, the objection is not tenable.
20. Similar is the position regarding objection that respondent No.2 never lived with her in-laws but the allegations are there that she lived with her in-laws. Whether allegations are true or false is a matter of fact and cannot be determined at this stage.9 M.Cr.C. No.7139/2017
21. The judgments cited by the petitioners either states that in what condition offence of 498-A IPC is not made out or that which Police/Court has jurisdiction to investigate/try the case.
The petitioner's case does not fall under both the parameters, therefore, benefit cannot be extended to the petitioners on the basis of these judgments. On the contrary, judgment reported in (2007) DMC 805 (supra) states that in case the Police has no jurisdiction to investigate the case, then, FIR should be sent to the Police who has jurisdiction. This shows that even in case of lack of jurisdiction, the FIR or the subsequent proceedings pursuant thereto cannot be quashed on this ground alone.
22. Keeping in view the settled proposition of law and the evidence available on record against the petitioners, I do not find any ground to quash the proceedings at the present stage. This Court can not usurp jurisdiction of the trial court. Present petition being bereft of merit, liable to be and is dismissed accordingly.
(Virender Singh) Judge Aiyer