Dileep Bhatnagar vs The State Of Madhya Pradesh
2021 Latest Caselaw 5042 MP

   1     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.44285/2021
  Dileep Bhatnagar Vs. The Superintendent of Police Gwalior
                         and others

Gwalior, Dated:06/09/2021
     Shri Abhishek Mishra, Advocate for applicant.

       Shri A.K. Nirankari, Public Prosecutor for State.

       This application under Sections 482 and 483 of Cr.P.C. has

been filed for quashing the FIR registered in Crime No.95/2021 for

offence under Sections 354, 294, 506 of IPC at Police Station

Maharajpura, District Gwalior.

       It is the case of the applicant that he is aged about 53 years and

a false FIR has been registered against him. The allegation of the

complainant is that on 21/2/2021 the complainant made a complaint

regarding the incidents dated 7/9/2020 and 18/10/2020 alleging that

her husband has died and thereafter the applicant used to visit her

house. He gave an assurance that the complainant would get a job in

Government Services and the applicant would keep her as his wife

with full respect and dignity. When the complainant refused to accept

the promise made by the applicant, then he caught hold of her hand.

After hearing her cries, her children came their and the applicant

went away from the house. Again on 18/10/2020 when she was going

to hospital, the applicant came nearer and caught hold of her hand

and also tried to press her breast and was using abusive language. It

is submitted by the counsel for the applicant that in fact the applicant

has lodged an FIR in Crime No.88/2021 against the respondent no.3

    2     THE HIGH COURT OF MADHYA PRADESH
                   M.Cr.C. No.44285/2021

Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

on the allegation that the respondent no.3 was to play witchcraft and

since the wife of the applicant wanted to have a boy, therefore, the

respondent no.3 persuaded her that in case if she acts in accordance

with her dictates, then she would be blessed with a boy. It was

alleged that from the year 2014 to 2020 the respondent no.3 has taken

Rs.20,00,000/- from her wife as well as her gold and silver

ornaments on the pretext of prayers. The applicant was informed by

his wife in the month of June, 2020 that the respondent no.3 has

already taken Rs.20,00,000/- as well as gold and silver ornaments on

the pretext of prayers and when he inquired from his wife as to why

she has paid money to the respondent no.3, then she said that

respondent no.3 used to hypnotize her and also used to threat her that

in case if she does not act in accordance with her dictates, then some

untoward incident would happen with her. It was further alleged in

the FIR that the said money was kept by the applicant for the purpose

of purchasing plot after borrowing from his brothers and some of the

money was of the applicant. Since the applicant went in depression,

therefore, he went to the house of his brothers for sometime and some

photographs of offering prayer by the applicant were taken by his

wife from her mobile.

By referring to the afore-mentioned FIR, it is submitted by the 3 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.44285/2021 Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

counsel for the applicant that the FIR in question has been lodged by

way of counterblast. The applicant had lodged FIR on 18/2/2021,

whereas the respondent no.3 has lodged the FIR on 22/2/2021, i.e.

after four days of the FIR lodged by the applicant and in view of the

judgment passed by the Supreme Court in the case of State of

Haryana Vs. Bhajan Lal reported in 1992 Supp (1) SCC 335, when

the criminal proceeding is manifestly attended with malafide 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, then the FIR/investigation can be

quashed.

Per contra, the counsel for the State vehemently opposed the

prayer made by the applicant.

In order to verify as to whether the FIR lodged by respondent

no.3 can be said to be the counterblast of FIR lodged by the applicant

or not, this Court has gone through the FIR lodged by the applicant.

On a query put by the Court, it was informed by the counsel for the

applicant that the applicant is working on the post of Surveyor. Thus,

it is clear that the applicant is not holding a high post. When the

counsel for the applicant was asked to disclose the monthly salary of

the applicant, then he flatly replied that the income of the applicant 4 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.44285/2021 Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

has nothing to do with the allegations. When the Court clearly

pointed out that it is incorrect to say that the income of the applicant

has nothing to do with the case, still then the counsel for the

applicant did not point out the monthly salary of the applicant.

Be that whatever I tmay.

The allegations made by the applicant in his FIR are that from

the year 2014 to 2020, on the pretext of offering prayer, the

respondent no.3 has taken an amount of Rs.20,00,000/- as well as

gold and silver ornaments of the wife of the applicant. Since the

applicant is holding a Class-III post and even for the sake of

arguments if it is presumed that take home salary of the applicant

even after implementation of the recommendation of 6 th Pay

Commission is Rs.35,000/- per month, then his yearly income would

come to Rs.4,20,000/- and his income for seven years, i.e. from 2014

to 2020, would come to Rs.29,40,000/-. It is the case of the applicant

that in different installments at different point of time his wife has

given Rs.20,00,000/- and her gold and silver ornaments. It is not the

case of the applicant that he has any other independent source of

income. Thus, if an amount of Rs.20,00,000/- is deducted from the

total salary of the applicant from the year 2014 to 2020, then the

applicant will be having only Rs.9,40,000/- in his pocket. If this 5 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.44285/2021 Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

amount of Rs.9,40,000/- is divided by 84 months, then it would be

clear that the monthly salary in the hands of the applicant would

come to Rs.11,190/-. It is beyond imagination that when the monthly

take home salary of a person is Rs.35,000/- and he is getting only

Rs.11,000/-, then he would not ask about the remaining amount from

his wife. From the explanation which has been given by the applicant

in his FIR that for the purpose of purchasing a plot he has taken

money from his brothers and the same was kept in his house and

some of the amount is that of the applicant, it is clear that since the

payment of Rs.20,00,000/- is alleged to have been made within a

period of seven years since 2014 to 2020, then the explanation given

by the applicant that he had borrowed some money from his brothers

for the purpose of purchasing plot would be false even to the

knowledge of the applicant. If the applicant had borrowed money

from his brothers for the purpose of purchasing plot, then instead of

keeping the same in his house, he would have purchased the plot.

Thus, prima facie the explanation given by the applicant appears to

be false.

Be that whatever it may.

The Supreme Court in the case of Renu Kumari Vs. Sanjay

Kumar reported in (2008) 12 SCC 346 has held as under:-

  6     THE HIGH COURT OF MADHYA PRADESH
                 M.Cr.C. No.44285/2021

Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

"9. "8. Exercise of power under Section 482 Cr.P.C. in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of Cr.P.C. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under Cr.P.C., (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognises and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle of "quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest" (when the law gives a person anything, it gives him that without which it cannot exist). While exercising the powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section, though wide, has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has the power to prevent abuse.

  7     THE HIGH COURT OF MADHYA PRADESH
                 M.Cr.C. No.44285/2021

Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers the court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the report, the court may examine the question of fact. When a report is sought to be quashed, it is permissible to look into the materials to assess what the report has alleged and whether any offence is made out even if the allegations are accepted in toto.

9. xxxxxx

10. xxxxxx

11. As noted above, the powers possessed by the High Court under Section 482 Cr.P.C. are very wide and the very plenitude of the power requires great caution in its exercise. The court must be careful to see that its decision, in exercise of this power, is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be 8 THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.44285/2021 Dileep Bhatnagar Vs. The Superintendent of Police Gwalior and others

proceeded with. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (1992 Supp (1) SCC 222), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995(6) SCC 194) , State of Kerala v. O.C. Kuttan (1999(2) SCC 651), State of U.P. v. O.P. Sharma (1996 (7) SCC 705), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397), Satvinder Kaur v. State (Govt. of NCT of Delhi) (1999 (8) SCC 728) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259)] The above position was again reiterated in State of Karnataka v. M.Devendrappa (2002(3) SCC 89), State of M.P. v. Awadh Kishore Gupta (2004(2) SCC 691) and State of Orissa v. Saroj Kr. Sahoo (2005(13) SCC 540)."

Thus, if the allegations make out a cognizable offence, then the

malafides of the informant becomes secondary. If the FIR lodged

against the applicant is considered, then it is clear that it discloses

commission of cognizable offence. Under these circumstances, this

Court does not find it to be a fit case for quashing the FIR, thereby

killing an unborn baby.

Accordingly, the application fails and is hereby dismissed.

(G.S. Ahluwalia) Judge Arun* ARUN KUMAR MISHRA 2021.09.08 18:19:18 +05'30'