Pushpendra Singh Bhadoriya vs The State Of Madhya Pradesh on 28 November, 2019

[Cites 22, Cited by 15]

Madhya Pradesh High Court

Pushpendra Singh Bhadoriya vs The State Of Madhya Pradesh on 28 November, 2019

The present petition has been filed by the petitioner under Section 482 of Cr.P.C. for quashment of FIR vide Crime No.219/2018 registered at Police Station Umri, District Bhind for alleged offences punishable under Sections 498-A of IPC and Sec. 3/4 of Dowry Prohibition Act as well as consequential proceedings in R.C.T. No. 278/2019 pending before J.M.F.C, Bhind registered against the petitioner on the compliant being made by respondent No.2.

2. It is alleged by learned counsel for the petitioner that a false case has been filed by the respondent No. 2 against the present petitioner. He has drawn attention of this Court to Annexure P/2 which is an application under Section 13(1) and 13(1-A) of Hindu Marriage Act which was filed on 03.11.2017. Notices were issued on the aforesaid application vide order dated 18.05.2018, the respondent No. 2 has given her appearance before the trial Court. Thereafter, on 18.07.2018, an FIR has been registered against the present applicant.

It is alleged that the FIR has been registered after thought which is total abuse of process of law. The respondent No. 2 was well aware of THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 2 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) proceeding under Section 13(1), 13(1-A) of HMA and just to counter blast of the aforesaid, an FIR has been registered against the present applicant. He has relied upon the judgment passed by Hon'ble Supreme Court in the cases of Varala Bharath Kumar vs The State Of Telangana reported in (2017) 9 SCC 413, Sundar Babu & Ors vs State Of Tamil Nadu reported in (2009) 14 SCC 244 and State Of Haryana And Ors vs Ch. Bhajan Lal And Ors reported in 1992 AIR

604. Therefore, he prays for quashment of the FIR as well as consequential proceedings.

3. Per contra, learned counsel for respondent/State has opposed the prayer and has submitted that initial complaint was made by the respondent No. 2/wife on 27.04.2018 at Mahila Police Station, i.e. the complaint was made in the month of April, 2018 itself, thereafter, the proceedings under Section 13(1) & 13(1-A) of HMA has been filed by the husband, therefore, it cannot be said that registration of FIR is after thought and wife has already initiated the proceedings in the month of April 2018 regarding cruelty and demand of dowry against the present petitioner. He has argued that the proceedings initiated by the husband under Section 13(1) and 13(1-A) of HMA after thought. It is further argued that he has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Arnesh Kumar Ve. State of Bihar, reported in AIR 2014 SC 2756, wherein the Hon'ble Supreme THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 3 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) Court has given a liberty in such matters which is available to the petitioner, therefore, there is no reasons for quashing the impugned order. He has relied upon the judgment passed by the Hon'ble Supreme Court in the case of Amit Kapoor vs Ramesh Chander & Anr. reported in (2012) 9 SCC 460, wherein it is held that power under Section 482 of Cr.P.C for quashment of FIR, should be used sparingly and with utmost care and caution.

4. Heard learned counsel for parties and perused the documents.

5. From perusal of the record, it is seen that initial complaint was made on 27.04.2018 i.e. much prior to the registration of the case under Section 13(1) & 13(1-A) of H.M.A. Admittedly, proceedings of Hindu Marriage Act was registered on 03.11.2017 and notices were served upon to give her appearance before the Court on 08.05.2018 and compliant was made with respect to harassment in April, 2018.

Thus, it is clear the case to show that the respondent No. 2/wife is not aware the proceedings of HMA, thus it cannot be said that complaint made by the wife is an after thought.

6. Even otherwise, protection is granted to the petitioner by the Supreme Court in the case of Arnesh Kumar (Supra) which reads as under:-

"7.1. From a plain reading of the provision u/S.41 Cr.P.C., it is evident that a person accused of an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 4 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) arrested by the police officer only on his satisfaction that such person had committed the offence punishable as aforesaid. A police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts. 7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. The law further requires the police officers to record the reasons in writing for not making the arrest.

7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required ? What purpose it will serve ? What object it will achieve ? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. Before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 Cr.P.C.

9. Another provision i.e. Section 41-A Cr.P.C. aimed to avoid unnecessary arrest or threat of arrest looming large on the accused requires to be vitalised. This provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1) Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police officer is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid."

7. The Supreme Court in the case of Taramani Parakh Vs. State of Madhya Pradesh, reported in (2015) 11 SCC 260, has held as under :-

"10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 5 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) the Court does not go into reliability or otherwise of the version or the counter-version. In matrimonial cases, the Courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.

11. Referring to earlier decisions, in Amit Kapoor vs. Ramesh Chander (2012) 9 SCC 460, it was observed (SCC pp. 482- 84, para 27):

"27.1. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, he 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 of the Code 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 loath 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 the Code 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 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 THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 6 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) 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 therewith 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 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) of the Code, 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 the Code or that the 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.

(Ref. State of W.B. v. Swapan Kumar Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 : AIR 1982 SC 949]; Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234]; Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 :

1993 SCC (Cri) 36 : AIR 1993 SC 892]; Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC 636 : 2000 SCC (Cri) 513]; Ajay Mitra v. State of THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 7 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) M.P. [(2003) 3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri) 1400 : AIR 1998 SC 128]; State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; Ganesh Narayan Hegde v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC (Cri) 634]; Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri) 283]; Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson Belthissor v. State of Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma v. State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC (Cri) 356]; Chunduru Siva Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3 SCC (Cri) 1297]; Sheonandan Paswan v.

State of Bihar [(1987) 1 SCC 288 : 1987 SCC (Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 :

1992 SCC (Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2 SCC 17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001) 8 SCC 645 :

2002 SCC (Cri) 19]; Savita v. State of Rajasthan [(2005) 12 SCC 338 : (2006) 1 SCC (Cri) 571] and S.M. Datta v.

State of Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16. These are the principles which individually and preferably cumulatively (one or more) 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 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."

12. In Kailash Chandra Agrawal & Anr. vs. State of U.P. (2014) 16 SCC 51, it was observed: (SCC p. 553, paras 8-9): "8. 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 relationship of the appellants with the husband of the complainant is distant. In Kans Raj vs. State of Punjab [(2000) 5 SCC 207], it was observed:- (SCC p.217, para

5) "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 THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 8 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) 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 material. 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.

9. 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. Ramakrsihna and Ors. vs. State of Bihar [(2000) 8 SCC 547], Pepsi Foods Ltd. v. Judicial Magistrate [(1998) 5 SCC 749], State of Haryana v. Ch. Bhajan Lal [(1992) Supp (1) SCC 335] and Asmathunnisa v. State of A.P.[(2011) 11 SCC 259]."

8. Thus, from the facts and circumstances of the case, this Court is of the considered view that not only the allegations made in the FIR/complaint primafacie discloses commission of offence and the criminal proceedings are rightly initiated and cannot be quashed against the petitioner, at this stage. The same is a matter of evidence, and cannot be quashed.

9. By way of caution, it is made clear that any observation made in this order should not come in the way of the Trial Court while deciding the trial on merits. As the arguments were raised by the counsel for the petitoners, therefore, in order to consider those arguments, in the light of limited Scope of powers of High Court THE HIGH COURT OF MADHYA PRADESH MCRC-30460-2019 9 (PUSHPENDRA SINGH BHADORIYA Vs THE STATE OF MADHYA PRADESH) under Section 482 of CrPC, the above mentioned observations have been made.

10. The Trial Court should not get influenced by any of the observations made in this order and should decide the trial/case on the basis of evidence which would ultimately come on record.

11. Accordingly, this petition fails and is hereby dismissed.

(VISHAL MISHRA) JUDGE LJ* LOKENDRA JAIN 2019.12.07 12:51:37 +05'30'

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