Madhya Pradesh High Court

Prashant Pandey vs The State Of Madhya Pradesh Thr on 10 February, 2022

Author: Rajeev Kumar Shrivastava

                                    1

               The High Court Of Madhya Pradesh
                           Bench Gwalior
                        *****************
         SB:- Hon'ble Shri Justice Rajeev Kumar Shrivastava

                         MCRC 24673 of 2018

               Prashant Pandey vs. State of MP and Anr.


             ==================================
Shri Prashant Sharma, counsel for the petitioner.
Shri Alok Sharma, Panel Lawyer for the respondent No.1/ State.
Shri Ram Kishore Sharma, counsel for the respondent No.2/ complainant.
            ==================================
Reserved on                                   03/02/2022
Whether approved for reporting               ..../.......
               ==================================
                                 ORDER

(Passed on 10/02/2022)

Per Rajeev Kumar Shrivastava, J:-

Petitioner has come up with the present petition u/S. 482 of CrPC

for quashing the FIR bearing Crime No.15 of 2018 registered at Police

Station Kotwali, District Bhind (MP) for offences under Section 498-A of

IPC and under Section 3/4 of the Dowry Prohibition Act and other

consequential criminal proceedings pending before the Court of JMFC,

Bhind in connection with Sessions Trial No.529 of 2018.

(2) It is an undisputed fact that the petitioner is the brother-in-law

(devar) of the complainant/ respondent No.2. As per prosecution case,

complainant respondent No.2 lodged a report at Police Station Kotwali,

Bhind on 08/06/2017 stating therein that she was married to Pravin

Pandey (brother of the petitioner) on 25/11/2013 as per Hindu rites and

rituals. At the time of marriage, her father had given sufficient dowry as

per status. Immediately after marriage, petitioner and her in-laws started

harassing and torturing with regard to demand of Rs.2 lac. They also used

to harass her by passing taunts that in case their demand is not fulfilled,

then she will not be allowed to stay in her matrimonial home. On

08/06/2017, petitioner along with other co-accused persons committed

''marpeet'' with her and thereafter, left her at her parental house in a four-

wheeler vehicle and threatened her that if she fails to fulfil their demand,

then they would not permit her to live in her matrimonial home. On

05/11/2017, her father-in-law and husband came to her parental home and

threatened her that if she does not fulfil their demand, then her husband

would give her divorce and marry with another girl. On 06/01/2018, her

husband also came to her parental home and threatened her that he would

give divorce her as well as take the minor girl child in his possession. On

these allegations, the police has registered the aforesaid Crime against

petitioner and other in-laws of respondent No.2.

(3) Challenging the impugned FIR, it is submitted by counsel for the

petitioner that there are only vague and omnibus allegations against the

petitioner. Petitioner has never committed marpeet with the complainant

and has been falsely implicated. After a minor girl child born out from the

wedlock of the complainant and the brother of petitioner, the attitude of

complainant became unchanged, therefore, a divorce petition has been

filed under Section 13 of Hindu Marriage Act before the Court below. It is

further submitted that the mother of petitioner was suffering from cancer

and the complainant was not taking care of his mother who died on 31 th

May, 2015. From 2007 till 2015 petitioner had remained out of station

who was doing his job at Pune, Bangalore and Mumbai and the petitioner

had never lived at Gwalior or Bhind at the time of incident, therefore, no

cause of action is accrued at Bhind, yet the FIR has been lodged against

him as a counter-blast and it is an afterthought. The allegations of

harassment by the husband's close relations who had been living in

different cities and never visited or rarely visited the place where

complainant wife resided would have have an entirely different

complexion. Such allegations of complainant are required to be scrutinized

with great care and circumspection. In support of contention, the counsel

for the petitioner has relied upon the judgment passed by the Hon'ble Apex

Court in the case of Preeti Gupta and Another vs. State of Jharkhand

and Another, reported in (2010) 7 SCC 667. It is further submitted that

there is an increasing tendency in the society to over-implicate the near

and dear relatives of the husband so as to pressurize them. To buttress his

contention, he has relied upon the judgment of the Hon'ble Apex Court in

the case of Kans Raj Vs. State of Punjab and Others, reported in (2000)

5 SCC 207 in which it has been held as under:-

"In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that Respondents 3 to 5 were roped in the case only on the ground of being close relations of Respondent 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than the husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. 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 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."

(4) On the other hand, it is submitted by the counsel for the State as

well as complainant that the F.I.R. prima facie discloses commission of

offence. Allegations made against petitioner along with other co-accused

are sufficient for their prosecution and a legitimate prosecution may not be

stiffled at the beginning. Counsel for the respondent No.2 submitted that

mere filing of a divorce petition cannot be a ground to quash the criminal

proceedings under Section 482 of CrPC. He has relied upon the judgment

of Hon'ble Supreme Court in the case of Pratibha Vs. Rameshwari Devi

reported in (2007) 12 SCC 369 in which it has been held as under:-

"16. It is pertinent to note that the complaint was filed only when all efforts to return to the matrimonial home had failed and Respondent 2 husband had filed a divorce petition under Section 13 of the Hindu Marriage Act, 1955. That apart, in our view, filing of a divorce petition in a civil court cannot be a ground to quash criminal proceedings under Section 482 of the Code as it is well settled that criminal and civil proceedings are separate and independent and the pendency of a civil proceeding cannot bring to an end a criminal proceeding even if they arise out of the same set of facts. Such being the position, we are, therefore, of the view that the High Court while exercising its powers under Section 482 of the Code has gone beyond the allegations made in the FIR and has acted in excess of its jurisdiction and, therefore, the High Court was not justified in quashing the FIR by going beyond the allegations made in the FIR or by relying on extraneous considerations."

(5) Learned counsel for the respondent No.2/complainant further

submitted that it is settled principle of law that at the time of framing

charge or taking cognizance, accused has no right to produce any

material/evidence/document. There is no provision in the CrPC granting

right to the accused to produce any material/document/evidence at the

stage of framing of charge and that right is granted only at the stage of

trial. In support of his contention, he has relied upon the judgment of

Hon'ble Apex Court in the case of State of Orissa vs. Devendra Nath

Padhi, reported in (2005) 1 SCC 568.

(6) Heard learned Counsel for the parties and perused the documents

available on record.

(7) So far as the question of filing a divorce petition under Section 13

of Hindu Marriage Act, by the brother of the petitioner is concerned, it is

well- established principle of law that the F.I.R. cannot be quashed merely

on the ground that it was lodged after filing of a divorce petition under

Section 13 of Hindu Marriage Act by way of counter-blast or the FIR

lodged against the petitioner along with other co-accused persons is an

afterthought.

(8) So far as the allegations made against petitioner for demand of

dowry and harassment made by him along with other in laws due to non-

fulfillment of said demand is concerned, the Hon'ble Apex Court in the

matter 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.

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, the 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 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 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 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]."

13. In the present case, the complaint is as

follows:

"Sir, it is submitted that I was married on 18.11.09 with Sidharath Parakh s/o Manak Chand Parak, 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, 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 the dowry."

14. From a reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent No.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."

(9) If the allegations made against the petitioner are considered in the

light of the judgment passed by the Hon'ble Apex Curt in the matter of

Taramani Parakh (Supra), then it would be clear that prima facie there are

sufficient material/evidence against the petitioner along with other co-

accused persons warranting their prosecution. In exercise of its jurisdiction

under Section 482 of CrPC this Court cannot take into consideration the

external material/evidence/document produced by petitioner for reaching

at a conclusion that no offence has been disclosed or there is a possibility

of his acquittal as he had never lived either at Gwalior/Bhind at the time of

complaint made by respondent No.2. The aforesaid plea of alibi could

only be considered at the time of defence stage by the petitioner before the

trial Court. Accordingly, no interference is made out for quashing the