Madhya Pradesh High Court

Sundar Singh Gahlod vs The State Of Madhya Pradesh on 27 April, 2022

Author: Gurpal Singh Ahluwalia

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            THE HIGH COURT OF MADHYA PRADESH
                      M.Cr.C. No.18966/2022
     Sundar Singh Gahlod and others Vs. State of M.P. and another

Gwalior, Dated:27/04/2022

        Shri S.K. Mishra, Advocate for applicants.

        Shri A.K. Nirankari, Public Prosecutor for respondent

no.1/State.

This application under Section 482 of Cr.P.C. has been filed for

quashment of FIR in Crime No.99/2019 registered at Police Station

Mahila Thana, District Gwalior for offence under Sections 498-A,

506, 294, 34 of IPC and Section 4 of the Dowry Prohibition Act.

2. The applicant no.1 is the father-in-law, applicant no.2 is the

mother-in-law and applicant no.3 is the younger brother-in-law

(Devar) of the respondent no.2.

3. It is submitted by the counsel for the applicant that the husband

of respondent no.2 has died during corona period, however, there is

nothing on record to substantiate the said submission.

4. According to the prosecution case, the respondent no.2 lodged

a report on the allegations that on 18/4/2016 she was married to

Monu Singh Gahlod in accordance with Hindu rites and rituals. Her

husband was posted in 116 Unit E Company of CRPF at Pahalgaon

and a cash amount of Rs.11,00,000/- apart from the household

articles and gold and silver ornaments were given. Total amount of

Rs.15,00,000/- was spent in the marriage, however, immediately after

the incident, her in-laws started harassing her with cruelty on account

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of less dowry. Her husband as well as the applicants were in the habit

of using foul language as well as in the habit of abusing her. The

applicant no.2 was all the time passing taunts that her father has not

given sufficient dowry and accordingly, the applicants as well as the

husband of the respondent no.2 were demanding Rs.5,00,000/-. When

the respondent no.2 refused to do so, then at the instigation of the

applicant no.2, she was beaten by her husband. In the meanwhile, she

was ousted by her in-laws from her matrimonial house on the ground

of non-fulfillment of their demand of dowry, but somehow her

parents succeeded in pacifying the situation. However, the atrocities

of the applicants continued and with a hope and belief that her

married life would improve, she was tolerating the atrocities. Her

husband was constantly demanding Rs.5,00,000/-. On 7/12/2016 the

applicant no.2 started claiming that she would remarry her son,

otherwise the respondent no.2 should bring Rs.5,00,000/- and when

she refused to do so, then her husband as well as the applicants beat

her very badly and when she started shouting, then she was dragged

inside the room and there also she was beaten by fists and blows.

Somehow she managed to inform her father. On the next day, her

father came to her matrimonial house and also tried to convince the

applicant no.2, but the applicants as well as her husband misbehaved

with him also and also had a scuffle with him and after snatching all

THE HIGH COURT OF MADHYA PRADESH M.Cr.C. No.18966/2022 Sundar Singh Gahlod and others Vs. State of M.P. and another

her gold and silver ornaments, she too was ousted from her

matrimonial house. The applicant no.2 had also extended a threat that

now she would remarry her son and thereafter, the respondent no.2

came back to her parental home at Gwalior, but her husband did not

come to take her back and was all the time threatening that he would

remarry. On 21/3/2017 the applicants came to her parental home at

Gwalior and again demanded Rs.5,00,000/- and on account of non-

fulfillment of the demand, she was beaten by fists and blows. When

she requested her husband to take her to her matrimonial home, then

he assured that he would keep her in a separate home and whenever

he would come back on leave, he would stay with her. Accordingly, a

rented room was provided by her husband and after leaving her in the

rented room, her husband also went back to Morena and stayed there.

Whenever she went to her matrimonial house, she was not permitted

by the applicants to enter inside the matrimonial house and she was

threatened that her husband would not keep her and he would

remarry and ultimately by abusing her filthily she was ousted from

her matrimonial home and even her husband is not making payment

of maintenance. Whenever her husband comes on leave, he goes to

his house and does not stay with her and whenever she tried to talk to

him, he always gives threatening that neither he would keep her nor

would pay the maintenance amount. On 16/5/2019 when she talked to

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her husband, then he specifically refused to keep her as well as to pay

the maintenance amount. Accordingly, on 25/1/2017 reconciliation

proceedings were taken up, but there was no solution.

5. It is submitted by the counsel for the applicants that the

allegations levelled against them are false. As per the FIR, it is

alleged that on 21/3/2017 and 7/12/2016 the applicant no.1 had also

treated her with cruelty, but in fact the applicant no.1 was on his duty,

which is evident from the certificate issued by his employer. It was

further pleaded that even the husband of respondent no.2 was on duty

on 7/12/2016 and 21/3/2017. Thus, it is clear that the allegations are

false. Furthermore, in the case of Lalita Kumari Vs. Government of

U.P. & Ors. reported in (2014) 2 SCC 1, it has been held by the

Supreme Court that in case of a family dispute, a preliminary enquiry

is desirable, but in the present case no preliminary enquiry was

conducted. No independent witness has been examined by the

Investigating Officer. The allegations against the applicants are vague

and omnibus and it is well established principle of law that the near

and dear relatives of the husband of the complainant/wife should not

be compelled to face the ordeal of trial.

6. Heard learned counsel for the applicants.

7. So far as the principle of plea of alibi is concerned, the burden

heavily lies on the accused to prove that he was not present on the

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spot at the time of the incident. The burden has to be discharged by

leading cogent and reliable evidence. It is a matter of defence, which

cannot be adjudicated by this Court while exercising its power under

Section 482 of Cr.P.C. Whether the applicant no.1 was on his duty or

not can only be proved by examining his employer as well as by

proving the documents.

8. So far as the allegations against the applicants are concerned,

the FIR clearly discloses that specific allegations have been made

against each of the applicants. Further, the respondent no.2 is

residing in her parental home. Compelling a married woman to reside

in her parental home on account of non-fulfillment of demand of

dowry itself amounts to cruelty, as held by the Supreme Court in the

case of Rupali Devi vs. State of U.P. reported in (2019) 5 SCC 384,

wherein it has been held as under:-

14. "Cruelty" which is the crux of the offence under Section 498-A IPC is defined in Black's Law Dictionary to mean "the intentional and malicious infliction of mental or physical suffering on a living creature, esp. a human; abusive treatment; outrage (abuse, inhuman treatment, indignity)". Cruelty can be both physical or mental cruelty. The impact on the mental health of the wife by overt acts on the part of the husband or his relatives; the mental stress and trauma of being driven away from the matrimonial home and her helplessness to go back to the same home for fear of being ill-treated are aspects that cannot be ignored while understanding the meaning of the expression "cruelty" appearing in Section 498-A

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of the Penal Code. The emotional distress or psychological effect on the wife, if not the physical injury, is bound to continue to traumatise the wife even after she leaves the matrimonial home and takes shelter at the parental home. Even if the acts of physical cruelty committed in the matrimonial house may have ceased and such acts do not occur at the parental home, there can be no doubt that the mental trauma and the psychological distress caused by the acts of the husband including verbal exchanges, if any, that had compelled the wife to leave the matrimonial home and take shelter with her parents would continue to persist at the parental home. Mental cruelty borne out of physical cruelty or abusive and humiliating verbal exchanges would continue in the parental home even though there may not be any overt act of physical cruelty at such place.

9. So far as non-holding of preliminary enquiry is concerned, it is

sufficient to mention here that preliminary enquiry is only an enquiry

to gather prima facie information to register an FIR and not an

investigation under the Code of Criminal Procedure. The Supreme

Court in the case of State of Jammu & Kashmir and others Vs. Dr.

Saleem Ur Rehman by judgment dated 29/10/2021 passed in

Criminal Appeal No.1170/2021 has held as under:-

13. So far as the submission on behalf of the respondent that in the present case by conducting a Preliminary Enquiry, detailed investigation has been made and only thereafter the FIR is registered and that at the time of Preliminary Enquiry, investigation is not permissible since the FIR is lodged is concerned, the aforesaid submission seems to be attractive but has no substance.

While holding a Preliminary Enquiry under Clause 3.16, whatever is conducted will be in the form of enquiry into the allegations to consider whether any

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prima facie case is made out or not which requires further investigation after registering the FIR or not. While considering the prima facie case for the purpose of registering the FIR, some enquiry/investigation is bound to be there, however, the same shall be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR only. Whatever enquiry is conducted at the stage of Preliminary Enquiry, by no stretch of imagination, will be considered as investigation under the code of criminal procedure which can only be after registration of the FIR. Even otherwise, merely because while holding a Preliminary Enquiry a detailed enquiry is made into the allegations made against the respondent which, as observed hereinabove, can be said to be only for the purpose of finding out a prima facie case for the purpose of registration of the FIR and merely because some more time is taken in conducting the Preliminary Enquiry before registering the FIR, the entire criminal proceedings cannot be quashed. There shall not be any prejudice caused to the accused at the stage of holding Preliminary Enquiry which as observed hereinabove shall only be for the purpose of satisfying whether any prima facie case is made out with respect to the allegations made in the complaint which requires further investigation after registering the FIR or not. Therefore, the High Court has materially erred in holding and declaring Clause 3.16 as ultra vires.

10. Furthermore, holding of a preliminary enquiry is not

mandatory. The Supreme Court in the case of CBI Vs. Thommandru

Hannah Vijayalakshmi alias T.H. Vijayalakshmi and Another

reported in 2021 SCC online 923 has held as under:-

34. If a Preliminary Enquiry is necessary, it is covered by Chapter 9 of the CBI Manual. Para 9.1 notes:

"9.1 When, a complaint is received or information is available which may, after verification as enjoined in this Manual, indicate

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serious misconduct on the part of a public servant but is not adequate to justify registration of a regular case under the provisions of Section 154 Cr.P.C., a Preliminary Enquiry may be registered after obtaining approval of the Competent Authority...When the verification of a complaint and source information reveals commission of a prima facie cognizable offence, a Regular Case is to be registered as is enjoined by law. A PE may be converted into RC as soon as sufficient material becomes available to show that prima facie there has been commission of a cognizable offence. When information available is adequate to indicate commission of cognizable offence or its discreet verification leads to similar conclusion, a Regular Case must be registered instead of a Preliminary Enquiry. It is, therefore, necessary that the SP must carefully analyze material available at the time of evaluating the verification report submitted by Verifying Officer so that registration of PE is not resorted to where a Regular Case can be registered..."

(emphasis supplied)

11. Furthermore, the Supreme Court in the case of Taramani

Parakh Vs. State of M.P. 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 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.

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11 and 12. XXXXXX

13. In the present case, the complaint is as follows:

"Sir, it is submitted that I was married on 18-11- 2009 with Sidharath Parakh s/o Manak Chand Parakh r/o Sarafa Bazar in front of Radha Krishna Market, Gwalior according to the Hindu rites and customs. In the marriage my father had given gold and silver ornaments, cash amount and household goods according to his capacity. After the marriage when I went to my matrimonial home, I was treated nicely by the members of the family. When on the second occasion I went to my matrimonial home, my husband, father-in-law and mother-in-law started harassing me for not bringing the dowry and started saying that I should bring from my father 25-30 tolas of gold and Rs 2,00,000 in cash and only then they would keep me in the house otherwise not. On account of this my husband also used to beat me and my father-in- law and my mother-in-law used to torture me by giving the taunts. In this connection I used to tell my father Kundanmal Oswal, my mother Smt Prem Lata Oswal, uncle Ashok Rai Sharma and uncle Ved Prakash Mishra from time to time. On 2-4-2010 the members of the family of my matrimonial home forcibly sent me to the house of my parents in Ganj Basoda along with my brother Deepak. They snatched my clothes and ornaments and kept with them. Since then till today my husband has been harassing me on the telephone and has not come to take me back. Being compelled, I have been moving this application before you. Sir, it is prayed that action be taken against husband Sidharath Parakh, my father-in-law Manak Chand Parakh and my mother-in-law Smt Indira Parakh for torturing me on account of demanding dowry."

14. From a reading of the complaint, it cannot be held that even if the allegations are taken as

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proved no case is made out. There are allegations against Respondent 2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has in fact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible."

12. Considering the allegations made against the applicants, this

Court is of the considered opinion that no case is made out

warranting quashment of the FIR.