Madhya Pradesh High Court
Haji Sayyad Rashid Ali vs The State Of Madhya Pradesh on 28 June, 2012
M.Cr.C. No.4972/12
28/6/2012.
Shri Imtiyaz Hussain, Advocate for the petitioner.
Shri Y. Dwivedi, P.L. for the respondent no.1/State.
Shri Sanjay Patel, Advocate for the respondent no.2. Arguments heard.
This is a petition, under Section 482 of the Code of Criminal Procedure (for short "the Code"), for quashing of -
(i) the order-dated 17/4/2012 passed by Shri
Sunil Kumar Mishra, JMFC, Jabalpur,
under Section 156(3) of the Code,
forwarding the complaint made by
respondent no.2, to SHO, P.S. Cantt.
Jabalpur, for investigation, after recording an FIR against the petitioner in respect of the offence punishable under Section 3 of the Dowry Prohibition Act, 1961 (hereinafter referred to as "the Act").
(ii) the FIR leading to registration of Crime No.161/2012 at the Police Station as well as the consequent proceedings of investigation.
Marriage of the respondent no.2 was solemnized with Shahnaz, the daughter of the petitioner, in the year 2006. On 20/1/2007, they were blessed with a son named Tabrez. Shahnaz has been residing at her parental home since 2009 and in a case initiated on the basis of the FIR lodged by her, the respondent no.2 is facing trial upon the charge of the offence under Section 498-A of the IPC. The complaint is based on the admission said to have been made by the petitioner in his case diary statement as well as in his deposition before the trial Magistrate to the effect that he had given dowry in connection with the marriage of Shahnaz with the respondent no.2.
As rightly contended by learned counsel for the petitioner, while forwarding the complaint for investigation, learned Magistrate completely overlooked the statutory immunity from prosecution in respect of the statement in question provided to him under sub-section (3) of Section 7 of the Act, that reads as under :-
"Notwithstanding anything contained in any law for the time being in force, a statement made by the person aggrieved by the offence shall not subject such person to a prosecution under this Act."
Besides this, the background facts and circumstances of the case, as highlighted above, learned Magistrate could have easily discovered that the complaint was filed as a counter blast to the prosecution launched against the respondent no.2.
Moreover, use of word "may" in Section 156(3) manifests intention of the legislature to make the provision directory and, therefore, forwarding of complaint under the Code is not necessary in every case.
There is yet another aspect of the matter. An admission made by a person whether amounting to a confession or not cannot be split up and part of it can not be used against him.
Thus, even if the allegations made against the petitioner in the FIR are taken at their face value and accepted in their entirety, no offence under the Act would be made out and it is further apparent that the complaint was made maliciously with an ulterior motive of wreaking vengeance due to past animosity with the petitioner and his family members. As such, the case against the petitioner falls under categories (1) and (7) of the cases, as enumerated in State of Haryana v. Bhajan Lal AIR 1992 SC 604, attracting interference under the inherent powers.
The petition is, accordingly, allowed and the order in question, the FIR and the consequent proceedings are hereby quashed.
A copy of this order be forwarded to Sessions Judge, Jabalpur for information and necessary action.
C.C. as per rules.
(R.C. MISHRA) JUDGE