Madhya Pradesh High Court
Om Prakash Upadhayay vs The State Of Madhya Pradesh on 26 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.Cr.C.No.7629/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 26th OF FEBRUARY, 2024
MISC. CRIMINAL CASE No. 7629 of 2024
BETWEEN:-
OM PRAKASH UPADHAYAY S/O LATE
SHRI JATA SHANKAR UPADHYAY, AGED
ABOUT 55 YEARS, R/O NEAR PANCHAYAT
BHAWAN GOSALPURD SIHORA DISTRICT
JABALPUR (MADHYA PRADESH)
.....APPLICANT
(BY SHRI VISHNU KUMAR UPADHYAY - ADVOCATE )
AND
1. THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION
ADHARTAL DISTRICT JABALPUR
(MADHYA PRADESH)
2. SMT AKANSHA UPADHYAY D/O SHRI
RAM NARAYAN TIWARI, AGED
ABOUT 20 YEARS, R/O DEEAPK RAI
NEW RAM NAGAR SHATA MATA
MANDIR ADHARTAL JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI S.K.KASHYAP - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE )
...................................................................................................
This petition coming on for admission this day, the court passed
the following:
ORDER
This petition under section 482 of CrPC has been filed seeking the following relief :-
2 M.Cr.C.No.7629/2024"It is most humbly prayed that this Hon'ble Court may kindly be pleased to quash the impugned FIR dated 27-08-2023 registered at Police Station Adhartal District-Jabalpur vide Crime No.1007/2023 as well as entire proceeding of the criminal case, in the interest of justice."
2. The applicant is the father-in-law of the respondent no.2. It is submitted by counsel for applicant that respondent no.2 has lodged a FIR on the ground that she got married to Vipul Upadhyay, son of applicant, on 22.02.2017. After some time her husband Vipin Upadhyay and in-laws namely Om Prakash Upadhyay (applicant/father in-law), Savita Upadhyay (mother-in-law), Vivek Upadhyay (younger brother in-law), Jitendra Pandey (maternal uncle), Ravi Upadhyay alias Babloo Maharaj (uncle) and Anita Upadhyay (Aunty) started making demand. Even prior to the marriage, they started making demand, as a result her father alienated his ancestral property. Just 2 days prior to the engagement, her mother-in-law called her on phone and made an additional demand of dowry, as a result her parents were under immense mental pressure. Her husband started harassing her right from the date of marriage. Her in-laws started insisting that her husband would perform second marriage. Every day they were harassing her mentally and physically. When she was pregnant, she was assaulted by her mother-in-law and younger brother-in-law, as a result she sustained abortion. All the in-laws were saying that since she has not brought a car in her dowry, therefore, they would kill her.
3. Challenging the FIR it is submitted by counsel for applicant that initially the complainant had filed a complaint case no.3507/2022 on 8.12.1017 for offences under sections 313, 323, 294, 506, 34 of IPC and under section 3/4 of Dowry Prohibition Act. The said complaint is still pending. Furthermore, FIR has been lodged on account of divorce 3 M.Cr.C.No.7629/2024 petition filed by son of the applicant. The allegations made in the FIR are false.
4. Heard the learned counsel for the applicant. Pendency of complaint and FIR
5. Section 210 of CrPC takes care of such a position. Thus when it is brought to the notice of the Court that a police investigation is already pending in respect of the allegations, which are the subject matter of the complaint, then the Magistrate shall stay the further proceedings of complaint case awaiting for the outcome of the police investigation.
6. Under these circumstances, this Court is of considered opinion that the FIR cannot be quashed. However, the applicant has an efficacious remedy of making necessary application before the Court where the complaint case is pending.
By way of counter blast on account of filing of divorce petition
7. The contention made by counsel for applicant that the FIR is bad because it has been lodged on account of counter blast to the divorce petition, is misconceived and cannot be accepted. It can be presumed that the complainant under the hope and belief that the things would improve, was not intending to take any action but only when she realized that things have gone beyond reconciliation, only then she might have lodged the FIR.
8. The Supreme Court in the case of Pratibha Vs. Rameshwari Devi reported in (2007) 12 SCC 369 has held as under :-
"8. In State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283] Chandrachud, C.J. (as His Lordship then was) had observed that if the FIR did not disclose the commission of a cognizable offence, the court would be justified in quashing the investigation on the basis of the information as laid or received. In the same judgment, A.N. Sen, J. (as His 4 M.Cr.C.No.7629/2024 Lordship then was) who has written the main judgment, has laid down the legal propositions as follows : (SCC pp. 597-98, paras 65-66) "65. ... the legal position is well settled. The legal position appears to be that if an offence is disclosed, the court will not normally interfere with an investigation into the case and will permit investigation into the offence alleged to be completed; if, however, the materials do not disclose an offence, no investigation should normally be permitted. ... Once an offence is disclosed, an investigation into the offence must necessarily follow in the interests of justice. If, however, no offence is disclosed, an investigation cannot be permitted, as any investigation, in the absence of any offence being disclosed, will result in unnecessary harassment to a party, whose liberty and property may be put to jeopardy for nothing. The liberty and property of any individual are sacred and sacrosanct and the court zealously guards them and protects them. An investigation is carried on for the purpose of gathering necessary materials for establishing and proving an offence which is disclosed. When an offence is disclosed, a proper investigation in the interests of justice becomes necessary to collect materials for establishing the offence, and for bringing the offender to book. In the absence of a proper investigation in a case where an offence is disclosed, the offender may succeed in escaping from the consequences and the offender may go unpunished to the detriment of the cause of justice and the society at large. Justice requires that a person who commits an offence has to be brought to book and must be punished for the same. If the court interferes with the proper investigation in a case where an offence has been disclosed, the offence will go unpunished to the serious detriment of the welfare of the society and the cause of the justice suffers. It is on the basis of this principle that the court normally does not interfere 5 M.Cr.C.No.7629/2024 with the investigation of a case where an offence has been disclosed. ...
66. Whether an offence has been disclosed or not must necessarily depend on the facts and circumstances of each particular case. ... If on a consideration of the relevant materials, the court is satisfied that an offence is disclosed, the court will normally not interfere with the investigation into the offence and will generally allow the investigation into the offence to be completed for collecting materials for proving the offence."
9. In Pratibha Rani v. Suraj Kumar [(1985) 2 SCC 370 : 1985 SCC (Cri) 180] this Court at p. 395 observed as follows : (SCC para 59) "59. ... It is well settled by a long course of decisions of this Court that for the purpose of exercising its power under Section 482 CrPC to quash a FIR or a complaint the High Court would have to proceed entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations."
(emphasis supplied)
10. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234] this Court has reiterated the same principle and laid down that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence.
11. Again in State of Bihar v. Murad Ali Khan [(1988) 4 SCC 655 : 1989 SCC (Cri) 27] Venkatachaliah, C.J. (as His Lordship then was) has laid down that the jurisdiction under Section 482 of the Code has to be exercised sparingly and with circumspection and has observed that in exercising that jurisdiction, the High Court should not embark upon an inquiry whether the 6 M.Cr.C.No.7629/2024 allegations in the complaint are likely to be established by evidence or not.
12. From the principles laid down in the abovementioned decisions, it is clear that the Court is entitled to exercise its inherent jurisdiction for quashing a criminal proceeding or an FIR when the allegations made in the same do not disclose the commission of an offence and that it depends upon the facts and circumstances of each particular case. We also feel it just and proper to refer to a leading decision of this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] in which this Court pointed out certain categories of cases by way of illustrations wherein the inherent power under Section 482 of the Code can be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice. The same are as follows : (SCC pp. 378-79, para 102) "(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 the FIR 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 FIR 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 7 M.Cr.C.No.7629/2024 Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR 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 Act concerned (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 Act concerned, 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 accused and with a view to spite him due to private and personal grudge."
13. Keeping the aforesaid principles in mind and considering the decisions as referred to hereinearlier, let us now apply them in the facts of the present case. But before we do that, it would be apt for us to consider the findings arrived at by the High Court for quashing the FIR which are as under:
(i) The complainant wife left the marital house with her father and brother on 25-5-2001. The divorce petition was filed by the husband on the ground of mental cruelty on 31-7-2001. It was only on 31-12-2001 that the FIR for offences under Sections 498-A and 406 IPC was lodged by the complainant wife;
(ii) A registered letter was sent to the appellant wife for receiving all her articles on 13-8-2001 which was duly received by the father of the appellant;8 M.Cr.C.No.7629/2024
(iii) The Family Court also issued directions to the appellant to receive her articles on 2-2-2002 and the same were declined by her;
(iv) In view of the above and also in view of the detailed report submitted by the investigating officer, even prima facie no offence under Sections 498-A and 406 IPC is made out against the respondent;
(v) The conduct of the appellant wife was deprecable and there had been a continuing effort by her of avoiding the proceedings before the Court;
(vi) The appellant wife levelled false allegations against the Court itself apart from adopting all sorts of unhealthy tactics by creating gimmicks and scenes in the Court;
(vii) Merely because one of the respondents is a judicial officer and others being his family members, it did not preclude them from seeking justice from a court of law;
(viii) The High Court is empowered to quash the FIR to avoid undue harassment and mental agony to the respondents, more so when the divorce petition is still pending before the Family Court.
14. From a plain reading of the findings arrived at by the High Court while quashing the FIR, it is apparent that the High Court had relied on extraneous considerations and acted beyond the allegations made in the FIR for quashing the same in exercise of its inherent powers under Section 482 of the Code. We have already noted the illustrations enumerated in Bhajan Lal case [1992 Supp (1) SCC 335 :
1992 SCC (Cri) 426] and from a careful reading of these illustrations, we are of the view that the allegations emerging from the FIR are not covered by any of the illustrations as noted hereinabove. For example, we may take up one of the findings of the High Court as noted hereinabove. The High Court has drawn an adverse inference on account of the FIR being lodged on 31-12- 9 M.Cr.C.No.7629/2024 2001 while the appellant was forced out of the matrimonial home on 25-5-2001."
9. Accordingly, the contention that the FIR was lodged only because of filing of a divorce petition, is misconceived and is hereby rejected.
10. Whether the allegations made against the in-laws are correct or not?
11. It is well established principle of law that this Court while exercising power under section 482 of CrPC can look into the uncontroverted allegations only. If the uncontroverted allegations do not make out an offence, only then this Court can quash the proceedings. The correctness and genuineness of the allegations cannot be considered at this stage.
12. The Supreme Court in the case of XYZ v. State of Gujarat reported in (2019) 10 SCC 337 has held as under :
14. Having heard the learned counsel for the parties and after perusing the impugned order and other material placed on record, we are of the view that the High Court exceeded the scope of its jurisdiction conferred under Section 482 CrPC, and quashed the proceedings. Even before the investigation is completed by the investigating agency, the High Court entertained the writ petition, and by virtue of interim order granted by the High Court, further investigation was stalled. Having regard to the allegations made by the appellant/informant, whether the 2nd respondent by clicking inappropriate pictures of the appellant has blackmailed her or not, and further the 2nd respondent has continued to interfere by calling Shoukin Malik or not are the matters for investigation. In view of the serious allegations made in the complaint, we are of the view that the High Court should not have made a roving inquiry while considering the application filed under Section 482 10 M.Cr.C.No.7629/2024 CrPC. Though the learned counsel have made elaborate submissions on various contentious issues, as we are of the view that any observation or findings by this Court, will affect the investigation and trial, we refrain from recording any findings on such issues. From a perusal of the order of the High Court, it is evident that the High Court has got carried away by the agreement/settlement arrived at, between the parties, and recorded a finding that the physical relationship of the appellant with the 2nd respondent was consensual. When it is the allegation of the appellant, that such document itself is obtained under threat and coercion, it is a matter to be investigated.
Further, the complaint of the appellant about interference by the 2nd respondent by calling Shoukin Malik and further interference is also a matter for investigation. By looking at the contents of the complaint and the serious allegations made against 2nd respondent, we are of the view that the High Court has committed error in quashing the proceedings.
(Underline supplied)
13. The Supreme Court in the case of State of Tamil Nadu Vs. S. Martin & Ors. reported in (2018) 5 SCC 718 has held as under:-
"7. In our view the assessment made by the High Court at a stage when the investigation was yet to be completed, is completely incorrect and uncalled for ..........."
14. The Supreme Court in the case of Ajay Kumar Das v. State of Jharkhand, reported in (2011) 12 SCC 319 has held as under :
12. The counsel appearing for the appellant also drew our attention to the same decision which is relied upon in the impugned judgment by the High Court i.e. State of Haryana v. Bhajan Lal. In the said decision, this Court held that it may not be possible to lay down any specific guidelines or watertight compartment as to when the power under Section 11 M.Cr.C.No.7629/2024 482 CrPC could be or is to be exercised. This Court, however, gave an exhaustive list of various kinds of cases wherein such power could be exercised. In para 103 of the said judgment, this Court, however, hastened to add that as a note of caution it must be stated that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the first information report or in the complaint and that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice.
15. The Supreme Court in the case of Mohd. Akram Siddiqui v. State of Bihar reported in (2019) 13 SCC 350 has held as under :
5. Ordinarily and in the normal course, the High Court when approached for quashing of a criminal proceeding will not appreciate the defence of the accused; neither would it consider the veracity of the document(s) on which the accused relies. However an exception has been carved out by this Court in Yin Cheng Hsiung v. Essem Chemical Industries; State of Haryana v. Bhajan Lal and Harshendra Kumar D. v.
Rebatilata Koley to the effect that in an appropriate case where the document relied upon is a public document or where veracity thereof is not disputed by the complainant, the same can be considered.
16. The Supreme Court in the case of State of A.P. v. Gourishetty Mahesh reported in (2010) 11 SCC 226 has held as under :
"18. While exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained.12 M.Cr.C.No.7629/2024
That is the function of the trial Judge/Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and brings about its closure without full-fledged enquiry.
19. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Code or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in.
20. Though the powers possessed by the High Court under Section 482 are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherent power should not be exercised to stifle a legitimate prosecution. We make it clear that if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section
482."
17. The Supreme Court in the case of M. Srikanth v. State of 13 M.Cr.C.No.7629/2024 Telangana, reported in (2019) 10 SCC 373 has held as under :
"17. It could thus be seen, that this Court has held, that where the allegations made in the FIR or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute a case against the accused, the High Court would be justified in quashing the proceedings. Further, it has been held that where the uncontroverted allegations in the FIR and the evidence collected in support of the same do not disclose any offence and make out a case against the accused, the Court would be justified in quashing the proceedings."
18. The Supreme Court in the case of CBI v. Arvind Khanna reported in (2019) 10 SCC 686 has held as under :
"17. After perusing the impugned order and on hearing the submissions made by the learned Senior Counsel on both sides, we are of the view that the impugned order passed by the High Court is not sustainable. In a petition filed under Section 482 CrPC, the High Court has recorded findings on several disputed facts and allowed the petition. Defence of the accused is to be tested after appreciating the evidence during trial. The very fact that the High Court, in this case, went into the most minute details, on the allegations made by the appellant CBI, and the defence put forth by the respondent, led us to a conclusion that the High Court has exceeded its power, while exercising its inherent jurisdiction under Section 482 CrPC.
18. In our view, the assessment made by the High Court at this stage, when the matter has been taken cognizance of by the competent court, is completely incorrect and uncalled for."
19. Further, the Supreme Court in the case of State of MP Vs. Kunwar Singh by order dated 30.06.2021 passed in Cr.A. No.709/2021 has held that a detailed and meticulous appreciation of 14 M.Cr.C.No.7629/2024 evidence at the stage of 482 of CrPC is not permissible and should not be done. In the case of Kunwar Singh (supra), the Supreme Court held as under:-
"8........At this stage, the High Court ought not to be scrutinizing the material in the manner in which the trial court would do in the course of the criminal trial after evidence is adduced. In doing so, the High Court has exceeded the well-settled limits on the exercise of the jurisdiction under Section 482 of CrPC. A detailed enquiry into the merits of the allegations was not warranted. The FIR is not expected to be an encyclopedia..........."
20. Similar law has been laid down by the Supreme Court in the cases of Munshiram v. State of Rajasthan, reported in (2018) 5 SCC 678, Teeja Devi v. State of Rajasthan reported in (2014) 15 SCC 221, State of Orissa v. Ujjal Kumar Burdhan, reported in (2012) 4 SCC 547, S. Khushboo v. Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal v. State of U.P., reported in (2019) 2 SCC 336, Amit Kapoor v. Ramesh Chander reported in (2012) 9 SCC 460, Padal Venkata Rama Reddy Vs. Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437, M.N. Ojha v. Alok Kumar Srivastav reported in (2009) 9 SCC 682.
21. Thus, it is clear that only if the un-controverted allegations do not make out an offence, only then the Court can quash the proceedings. The defence of the applicant cannot be considered at this stage.
22. Thus, it is held that un-controverted allegations made in the FIR do make out a cognizable offence. Whether those allegations are correct, credible or reliable, cannot be judged by this Court at this stage. Even otherwise, this application has been filed merely on the 15 M.Cr.C.No.7629/2024 ground of defences, which are required to be proved by applicant during the trial.
23. Considering the totality of the facts and circumstances of the case, this Court is of considered opinion that no case is made out warranting interference.
24. The application fails and is hereby dismissed.
(G.S.AHLUWALIA) JUDGE TG/-
TRUPTI GUNJAL 2024.03.05 18:14:53 +05'30'