Durga Sharan @ Deepak Singh vs The State Of Madhya Pradesh
2022 Latest Caselaw 3459 MP

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

MCRC 19937 of 2019

Durga Sharan @ Deepak Singh & Anr.

Vs.

State of MP and Anr.

============================== Shri Ravindra Dixit, counsel for the petitioners.

Shri Dheeraj Budholiya, Panel Lawyer for the respondent No.1/ State. Shri Ankit Saxena, counsel for the respondent No.2.

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Reserved on                                   22/02/2022
Whether approved for reporting               ......../........
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                                 O R D ER
                         (Passed on 11/03/2022)

Per Rajeev Kumar Shrivastava, J

Petitioners are calling in question the impugned FIR vide Crime

No.437 of 201921 registered at Police Station Kotwali, Morena (MP) by

which, offences have been registered against petitioners along with other

co-accused under Sections 498A, 506, 34 of IPC and Section 3/4 of

Dowry Prohibition Act.

(2) Facts leading to filing of present petition, in short, are that on

12/04/2019, complainant respondent No.2 lodged a report at Police

Station Kotwali, Morena stating therein that on 08/04/2016 her marriage

was solemnized with one Pradip Singh Sikarwar, resident of Gopalpura,

Morena as per Hindu rites and customs. At the time of marriage, cash of

Rs.7.5 lac along with household articles, worth Rs.2,50,000/-; and

clothes, worth Rs.50,000/- were given by her father. For one to two

months of the marriage, her in-laws kept her living in peace and then

first of all, her husband, father-in-law and mother-in-law used to torture

her and their behaviour remains changed and they started taunting on

her and even did not provide food to her properly. They were telling her

to bring AC, Car and Rs.10 lac as dowry and when she objected to it,

they use to ''marpeet'' with her. Her sister-in-law and brother in law

(Nanand and Nanandoi) both usually to visit her in-laws house and

induced her husband to torture her in regard to bringing the aforesaid

dowry. On 30/04/2018, her husband, mother-in-law, sister-in-law (herein

petitioner no.2) committed ''marpeet'' with her and tried to turn out of

house by saying that, if she fails to bring the car and money, they should

not keep her in house and they would kill her. This fact was narrated by

the complainant to her father by phone and called him. Thereafter, she

went along with her father and she started living at Bhopal in her parents

house. Her parents and relatives tried to convince her in-laws family, but

same could not get succeeded. On the basis of allegation of demand of

dowry as well as cruelty, the impugned FIR has been lodged against the

petitioners and other co-accused for offences as mentioned in para 1 of

this order.

(3) It is submitted by counsel for the petitioners that the petitioners

are brother-in-law and sister-in-law (Nanandoi and Nanand) of the

complainant and their marriage was solemnized at Gormi, Bhind on

29/11/2008 and thereafter, they are residing at Gwalior along with their

minor child aged around 8 years. Petitioner No.1 is an Assistant Teacher

in Education Department, Gormi, Bhind and he usually to travel and

back to place at Gwalior. It is further submitted that marriage of

complainant with the brother of petitioner No.2 was solemnized on

18/04/2016 but in the impugned FIR, it has been wrongly mentioned as

08/04/2016 by the complainant which creates a doubt on the allegation.

The husband of the complainant filed an application under Section 9 of

the Hindu Marriage Act for restitution of conjugal rights before Family

Court Morena. The father of the complainant is also working as CISF at

Nasik. Various applications were filed before police authorities of Nasik,

Morena and Bhopal, but no steps were taken by police authorities in the

matter. Only, on the basis of omnibus and vague allegations, petitioners

have been falsely implicated on the ground of close relative of husband

of complainant. It is further contended that the tendency of implicating

husband and all his relatives is also not uncommon and even after

conclusion of trial, it is difficult to ascertain the real truth. In support of

contention, the counsel for the petitioners has relied on the judgment of

the Apex Court in the matter of Preeti Gupta vs. State of Jharkhand

AIR 2010 SC 3363. It is further submitted that after filing of application

under Section 9 of Hindu Marriage Act by the husband of complainant,

impugned FIR has been lodged by complainant with an ulterior motive

and same is an afterthought, therefore, the same deserves to be quashed

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

State of Haryana & Others. vs. Ch. Bhajanlal & Others 1990 SCR

Supl.(3) 259. It is further contended that unless and until there are

specific allegations against the near, dear or distant relatives of the

husband of the complainant, the relatives should not be compelled to go

through the ordeal of trial. In support of his contention, the counsel for

the petitioners has relied on the order dated 13/03/2019 passed by a

coordinate Bench of this Court in the matter of Smt. Somly Gupta and

Anr. vs. State of MP and Anr. [ MCRC 25326 of 2018]. It is further

contended that the relatives of husband of complainant/victim should

not roped in on the basis of omnibus allegation unless specific instances

of their involvement in the crime are made. In support of contention, the

counsel for the petitioners has relied on the judgment of the Apex Court

in the case of K Subharao vs. State of Telangana, AIR 2018 SC 4009,

Kansraj vs. State of Punjab & Others, (2000) 5 SCC 207 and Kailash

Chandra Agrawal & Another vs. State of UP & Others, (2014) 16

SCC 551.

(5) Per contra, counsel for the State as well as complainant supported

the impugned FIR and submitted that the FIR discloses that the matter

has to be investigated by police authority and at this stage, it cannot be

said that no offence is made out against petitioners. There are specific

allegations against petitioners who usually used to visit the in-laws

house of complainant and during stay in the in-laws house of

complainant, they usually induced the husband of complainant to torture

the complainant in regard to demand of dowry. After leaving the in-laws

house by complainant along with her minor child on 30/04/2018, her

husband has filed an application under Section 9 of the Hindu Marriage

Act on 03/01/2019. The petitioners are not distant relatives of husband

of complainant and their active participation along with other in-laws

cannot be ruled out. Under these circumstances, the entire matter is only

at a premature stage and the investigation has not proceeded with except

some preliminary efforts taken from the date of registration of FIR. The

evidence has to be gathered after a thorough investigation and placed

before the Court on the basis of which alone, the Court can come to a

conclusion one way or the other on the plea of mala fide or on the plea

of afterthought. If allegations are bereft of truth and made maliciously,

investigation will say so. At this stage, even if there are only allegations

but no evidence, the Court cannot anticipate the result of investigation

and render a finding on the question of mala fide or on the question of

afterthought on the materials, at present available. Therefore, it cannot

be said that complaint should be thrown overboard on the mere

unsubstantiated plea of mala fide or plea of afterthought. No good

ground is made out for quashment of impugned FIR. Therefore, prayed

for dismissal of present petition.

(6) Heard rival contentions of both the parties and perused the record

as well as documents available on record.

(7) Having heard learned counsel for parties and on perusal of record,

it is noticed that marriage between the complainant and the brother of

petitioner No.2 is not in dispute. Petitioners are real relatives of husband

of complainant. Impugned FIR as well as document reflects that not only

petitioners who are brother-in-law and sister-in-law of the complainant

have been implicated but other in-laws have also been implicated in the

matter. So far as living of petitioners separately is concerned, it is settled

principle of law that cruelty or harassment in regard to demand of dowry

may be be mental or physical in nature and it is a question of fact which

must depend on the evidence of the parties in trial. From perusal of

impugned FIR and materials collected by police, it appears that there is

specific allegation against petitioners who usually used to visit in-laws

house of complainant and during stay in the inlaws house of the

complainant, they usually induced the husband of complainant to torture

her for demand of dowry. Whether petitioners have committed aforesaid

offence or not, this factual aspect cannot be evaluated and appreciated

during proceedings under Section 482 of CrPC. Section 482 is prefaced

with an overriding provision and the statute saves inherent power of

High Court as a superior Court to make such orders, as are necessary to

prevent abuse of process of any Court or otherwise to secure ends of

justice. The provision does not confer new powers and it only

recognizes and preserves powers which inhere in the High Court. Where

allegations made in FIR/complaint even if they are taken at their face

value and accepted in their entirety, prima facie constitutes an offence or

make out an offence against accused, no ground is made out for

quashment of same.

(8) I also gives a note of caution to the effect that power of quashing

of criminal proceeding should be exercised very sparingly and with

circumspection and that too in the rarest of rare cases and the Court will

not be justified in embarking upon an enquiry as to reliability or

genuineness or otherwise of allegations made in the FIR or complaint

and that extraordinary or inherent powers do not confer an arbitrary

jurisdiction on the Court to act according to its whim or caprice.

(9) As discussed above, the powers possessed by High Court under

Section 482 of the Code are very wide and the very plenitude of power

requires great caution in its exercise. The Court must be careful to see

that its decision in exercise of 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, should normally refrain from

giving a prima facie decision in a case where entire facts are incomplete

and hazy, more so when 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 criminal proceedings at any stage. [See Janata Dal v. H.S.

Chowdhary [(1992) 4 SCC 305].

(10) It would not be proper for the High Court to analyze the case of

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/

proceedings cannot be proceeded with. When an information is lodged at

police station and an offence is registered, then mala fide of informant or

complainant would be of secondary importance. It is the material

collected during investigation and evidence led in the Court which

decides the fate of accused. Allegations of mala fide against informant or

complainant are of no consequence and cannot, by themselves, be the

basis for quashing criminal proceedings.[See Dhanalakshmi v. R.

Prasanna Kumar, State of Bihar v. P.P. Sharma, Rupan Deol Bajaj v.

Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P. v.

O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada, Satvinder Kaur

v. State (Govt. of NCT of Delhi) and Rajesh Bajaj v. State NCT of

Delhi.].

(11) Reverting to the present matter, the allegations made in FIR or the

complaint, in my considered opinion, do clearly constitute a cognizable

offence justifying registration of case and an investigation thereon and

this case does not fall under any one of categories of cases formulated

above calling for exercise of extraordinary or inherent powers of High

Court to quash the impugned FIR. It is settled principle of law that the

evidence produced by accused in defence can be looked into by Court

below and not at this stage. Further, it is trite law that the High Court

cannot embark upon the appreciation of evidence while considering

petition filed under Section 482 of CrPC for quashing the criminal

proceedings. It is clear from that if prima facie a case is made out

disclosing the ingredients of offence alleged against accused, then Court

cannot quash criminal proceedings or FIR or complaint. Thus, if

allegations made in F.I.R. are considered in its entirety, this Court is of

the considered opinion that allegations made in F.I.R or complaint

against petitioners do make out a prima facie case. Accordingly, no case

is made out for quashment of impugned FIR registered at Police Station

Kotwali, Morena.

(12) Petition lacks merits and is liable to be dismissed. Dismissed

accordingly.

(Rajeev Kumar Shrivastava) Judge

MKB

Digitally signed by MAHENDRA BARIK Date: 2022.03.12 17:21:13 +05'30'