Madhya Pradesh High Court
Asharam Rithoriya vs The State Of Madhya Pradesh Thr on 18 July, 2019
Equivalent citations: AIRONLINE 2019 MP 920
-( 1 )- MCRC No. 5014/2018
Asharam Rithoriya & Ors. vs. State of MP & Anr.
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
Misc. Criminal Case No. 5014/2018
Asharam Rihtoriya & ors. ..... APPLICANTS
Versus
State of MP and Another ..... RESPONDENTS
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri Arvind Dwivedi, learned counsel for the petitioners.
Shri Mukesh Sharma, learned Public Prosecutor for the
respondent/State.
Shri Vijay Sundaram, learned counsel for respondent No.2/
complainant.
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Whether approved for Reporting : No
Reserved on : 04.07.2019
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ORDER
(Passed on 18th July, 2019) -( 2 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
This petition under Section 482 of the Code of Criminal Procedure has been preferred by the applicants for quashing of First Information Report against the applicants by Police Station Dabra, Dehat, District Gwalior in connection with Crime No.211/2017 for the offence punishable under Sections 498-A, 294, 506, 34 of IPC.
2. The facts leading to filing of present application are that on 23.9.2017, complainant's husband and his family members came to her parental house and demanded dowry. On refusing to fulfill their demand by the complainant's father, her husband beaten the complainant and caused criminal intimidation by giving threat to cause death or grievous hurt to the complainant and her family members. On previous occasion, A FIR was also lodged regarding dowry demand and inhuman treatment. On the basis of above, the Police registered the aforementioned case against the petitioner.
3. Learned counsel for the petitioners has contended that false allegations have been levelled in the complaint. The petitioners have not demanded any dowry and they have been falsely implicated. The husband of the complainant had filed a petition for divorce before the Family Court, Gwalior, wherein notice had been issued, therefore, as a counter blast the complainant has filed -( 3 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
false petition against the petitioners. There are general and omnibus allegations in the FIR which do not constitute the offence under Section 498-A of IPC against the petitioners. On these premises, learned counsel for the petitioner prays for quashing of the FIR registered at Crime No. 211/2017 and its consequential proceedings.
4. Learned Public Prosecutor appearing for the State as well as counsel for the complainant opposed the submissions of learnend counsel for the petitioners and prayed for dismissal of the petition filed under Section 482 of Cr.P.C.
5. Heard learned counsel for the parties and perused the material available on record.
6. Allegations have been made against the petitioners that they are demanding dowry and misbehaving with the complainant for no reason. The complainant was pregnant at the time of filing of FIR. It is submitted by learned counsel for the petitioner that the FIR was lodged by the complainant after filing petition under Section 13(1) of Hindu Marriage Act for getting divorce from the complainant Mamta. Therefore, it has been submitted that the FIR is a counter blast of aforesaid divorce petition filed by Ajendra Singh, husband of the complainant.
7. In Amit kapoor Vs. Ramesh Chander and Anr. (2012) 8 -( 4 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
SCC 460, the Hon. Apex Court has observed as under:-
27.1. 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.
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 loathe 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 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.
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 -( 5 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
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 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 with 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 -( 6 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
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)CrPC, 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 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.
27.16. These are the principles which individually and preferably cumulatively (one or more) are to 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 Court 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."
8. In Kailash Chandra Agrawal and anr. vs. State of U.P. and Ors. (Criminal Appeal No.2055 of 2014 decided on 06.09.2014), it was observed as under:-
"9. 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 -( 7 )- MCRC No. 5014/2018 Asharam Rithoriya & Ors. vs. State of MP & Anr.
relationship of the appellants with the husband of the complainant is distant. In Kans Raj v. State of Punjab and Ors. [(2000) 5 SCC 207], it was observed:-
"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 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 mataerial. 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.
10. 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. Ramakrishna and Ors. v. State of Bihar and Anr. [(2000) 8 SCC 547], Pepsi Foods Ltd. And Anr. v. Special Judicial Magistrate and Ors.[(1992) Suppl 1SCC 335] and Asmathunnisa v. State of A.P. represented by the Public Prosecutor, High Court of A.P. Hyderabad and Anr. [(2011) 11SCC 259]".
-( 8 )- MCRC No. 5014/2018Asharam Rithoriya & Ors. vs. State of MP & Anr.
9. In the present case, the allegations are not so patently absurd and inherently improbable that a prudent person can ever reach a conclusion and where the basic ingredients of a criminal offence are satisfied then the Court should not interfere. Apart that, in the present case, meticulous examination of the evidence is needed for considering whether the case would end in conviction or not.
10. In view of the aforesaid discussion, looking to the offences charged against the petitioners, I am of the view that no ground is made out for quashing the FIR or to quash the charges. The petition under Section 482 of Cr.P.C. sans substance and is hereby dismissed being devoid of merit.
(Rajeev Kumar Shrivastava) Judge vv VALSALA VASUDEVAN 2019.07.19 VALSALA VASUDEVAN 2018.10.26 15:14:29 -07'00' 10:31:53
-07'00'