Madhya Pradesh High Court
Abhay @ Nikki Tiwari vs The State Of Madhya Pradesh on 12 December, 2023
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
MISC. CRIMINAL CASE No. 39886 of 2023
BETWEEN:-
1. PRADEEP S/O SHRI UMASHANKAR TIWARI,
AGED ABOUT 63 YEARS,
OCCUPATION: PRESENLTY NOTHING
R/O. B 52 SUDAMA NAGAR,
DISTRICT INDORE (MADHYA PRADESH)
2. SHAKUNTALA TIWARI
W/O PRADEEP TIWARI,
AGED ABOUT 61 YEARS,
OCCUPATION: PRESENTLY NOTHING
R/O. B-52 SUDAMA NAGAR INDORE
(MADHYA PRADESH)
3. PRIYA @ CHINKI
W/O SHIKHAR SHUKLA,
AGED ABOUT 45 YEARS,
OCCUPATION: HOUSEWIFE
R/O. 1/2 RASMANDAL DUTT GALI
DIST. DHAR (MADHYA PRADESH)
.....APPLICANT
(SHRI LOKESH MEHTA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
P.S.- ANNAPURNA, INDORE
(MADHYA PRADESH)
2. SUMAN SHANKAR DIXIT
S/O SHARDA SHANKAR DIXIT
OCCUPATION: BUSINESS
R/O. KISHANGANJ SQUARE,
TEH. POHARI, DIST. SHIVPURI
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SAMEER VERMA - PANEL LAWYER)
MISC. CRIMINAL CASE No. 39913 of 2023
Signature Not Verified
Signed by: SUMATHI
Signing time: 13-12-
2023 16:07:37
2
BETWEEN:-
1. ABHAY @ NIKKI TIWARI
S/O TRIBHUVAN TIWARI,
AGED ABOUT 29 YEARS,
OCCUPATION: SERVICE
R/O. A-4 PALASH PARISAR,
106 RAU INDORE (MADHYA PRADESH)
2. RASHMI @ TINA BAJPAI
W/O SHRI ATUL BAJPAI,
AGED ABOUT 39 YEARS,
OCCUPATION: HOUSEWIFE
R/O. 460/25 NANDA NAGAR,
INDORE (MADHYA PRADESH)
.....APPLICANT
(SHRI LOKESH MEHTA - ADVOCATE)
AND
1. THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER THROUGH
POLICE STATION BANK NOTE PRESS
DEWAS (MADHYA PRADESH)
2. SHRI SUMAN SHANKAR DIXIT
S/O SHARDA SHANKAR DIXIT
OCCUPATION: BUSINESS
R/O. KISHANGANJ SQUARE,
TEH. POHARI, DIST. SHIVPURI
(MADHYA PRADESH)
.....RESPONDENTS
(SHRI SAMEER VERMA - PANEL LAWYER)
Reserved on: 04.12.2023
Delivered on: 12.12.2023
These applications having been heard and reserved for order and the
Court pronounced this day following:
ORDER
This order shall govern the disposal of these miscellaneous criminal cases
as they have arisen out of the same crime number of the same police station,
hence, they are heard analogously and are being decided by this common order.
2 . These petitions under Section 482 of Code of Criminal Procedure,
1973 (for short 'The Code'), has been preferred for quashment of F.I.R bearing
crime No.230/2023, registered at police station - Annapurnan, District - Indore,
against the applicants for offence punishable under Sections 304-B, 498-A, 34
of IPC, 1860 and Section 3/ 4 of Dowry Prohibition Act, 1961, the charge-sheet
and the consequential proceedings in Criminal Case No. 4739/2019 pending
before the trial Court.
3 . The brief facts relevant to the case are that on 05.05.2023 a merg
report regarding the death of deceased Indu Tiwari was registered at Police
Station Annapurna on the basis of a short postmortem report received from
District Hospital, Indore. In the postmortem report doctor has opined that the
deceased committed suicide by hanging herself on 04.05.2023. It is alleged that
the marriage of the deceased was solemnised with Gaurav Tiwari on
09.12.2013. Applicant Pradeep is father-in-law's brother (chacha sasur),
applicant Shakuntala Tiwari is Aunt-in-law (chachi saas), applicant Priya @
Chinki and Rashmi @ Tina are sisters-in-law (nanand) and applicant - Abhay is
the son of Aunt-in-law (bhua saas) of the deceased. Further allegation against
the applicants are that they used to physically and mentally torture the deceased
by assaulting and threatening her for not fulfilling their demand of dowry. On
the basis of which, FIR bearing crime No.230/2023 was registered against the
applicants for offence under Sections 304-B,498-A/34 of IPC, 1860 and
Section 3 /4 of Dowry Prohibition Act, 1961. On completion of investigation in
the present crime number, charge sheet was filed before the Judicial Magistrate
First Class, Indore against the applicants.
4. Learned counsel for the applicants submits that the applicants being
aunt-in-law (chachi saas & Bhua saas), sister-in-laws (Nanand), brother of
father-in-law (chacha sasur) are residing separately and they do not meet the
deceased on daily basis. Learned counsel for the applicants has submitted that
there is no specific instance against the applicants regarding demand of dowry
and harassment. Only general and omnibus allegations has been made against
them. They have been roped in the case only on the ground of being close
relative of Gaurav Tiwari, the husband of the deceased. Even if the allegations
of prosecution are taken to be true at their face value and accepted in their
entirety, they do not prima facie constitute any offence or make out a case
against the applicants. It is further submitted that the present case is a glaring
example of growing tendency in the society to falsely implicate the close
relatives of the husband. In support of his submissions learned counsel for the
applicants has placed reliance upon the judgment of Hon'ble Supreme Court
passed in the case of Kahkashan Kausar alias Sonam v State of Bihar,
(2022) 6 SCC 599, Geeta Mehrotra & Anr. vs. State of U.P. & Anr
reported as 2012(10) ADJ 464 and judgment passed in the case of Mirza
Iqbal @ Golu & Anr. vs. The State of Uttar Pradesh & Anr (SLP [Crl.]
No.2786/2019). Under these circumstances learned counsel prays for
quashing of the FIR bearing Crime No.230/2023 registered against the
applicants and all consequential proceedings.
5. These petitions have been taken up for hearing at the initial stage and
no notice has been served upon the respondent/complainant.
6. Learned Public Prosecutor for the respondent/State submitted that the
prosecution case is well supported by FIR as well as the statement of witnesses
recorded under Section 161 of Cr.P.C. In addition to that it is also contended
on behalf of the prosecution that for want of evidence if the proceedings against
these applicants are quashed then the question shall arise as to why the
proceedings of the main accused persons husband, father-in-law and mother-in-
law of the deceased required to be continued under the same set of evidence
hence prayed for dismissal of these petitions.
7. In the back drop of the rival submissions of counsel for the parties, on
perusal of the record, it is evident that in merg enquiry, it has been narrated by
the relatives of the deceased that the deceased was married with her husband on
09.12.2016, thereafter her husband Gaurav Tiwari, mother-in-law Prabha
Tiwari, father-in-law Harish Tiwari, sister-in-laws Priya @ Chikki and Rashmi @
Tina; father-in-law's brother Pradeep (Chacha sasur), Shakuntala (Chachi
saas) Aunt-in-law; Aunt-in-law (Bhua saas) Asha, Abhay Tiwari the son of
Aunt-in-law; all have tortured the deceased for non-fulfillment of their demand
of dowry. They demanded four wheeler vehicle and due to non-fulfillment of
their demand they tortured her physically and mentally due to which she
committed suicide. Virtually the allegations are omnibus against all the
applicants along with other main accused persons husband, mother-in-law and
father-in-law. Certainly, no specific allegations were made against the
petitioners regarding their active participation in the aforesaid harassment of the
deceased for want of dowry.
8 . Now the question arises as to whether due to lack of specific
allegations the proceedings initiated against the petitioners are libale to be
quashed by using extraordinary power under Section 482 of Cr.P.C?
9. In this regard the reliance placed by learned counsel for the applicants
in the judgment dated 17.10.2012, passed in the case of Geeta Mehrotra &
Anr., vs. State of U.P. & Ors. reported in 212(10) ADJ 464 is taken up for
consideration, in that case the crime relates to offence under Section 498-A,
323, 504, 506 of IPC, 1860 read with Section 3,4 of Dowry Prohibition Act,
1961, however, it does not relates with offence under Section 304(b) of IPC so
also provision under Section 113(b) of Evidence Act as to dowry death is also
not attracted, as such the factual matrix of the case are different.
10. Further in the case of Kahkashan Kausar @ Sonam vs. The State
of Bihar reported as (2022) 6 SCC 599, referred by counsel for the applicats,
offence under Sections 341, 323, 379, 354, 498-A read with Section 34 of IPC,
1860 were alleged against the applicants, whereas the presumption under
Section 113(b) of Evidence Act has also not been attracted in the aforesaid
case. In the case of Mirza Iqbal @ Golu & Anr. vs. The State of U.P., (SLP
No.2786/2019) the presence of the accused was shown in the branch of ICICI
Bank from 9.49 am to 6.25 pm, as such since the accused was working in
ICICI Bank, Khalilabad Branch, Gorakhpur, but merely stated that there was a
possibility to reach Gorakhpur (the place of incident) by 8.00 pm, hence the
criminal proceedings cannot be initiated. However the fact of the case at hand
have no similarity to the aforesaid case hence no benefit can be afforded to the
petitioners from the aforesaid verdict.
11. On the other hand attention of this Court has been drawn towards the
judgment passed in the case of Nemichand Jain vs. Roshanlal & Ors.
reported as (2004)13 SCC 461, wherein the appeal was filed against the order
passed by High Court of Rajasthan regarding quashment of charges framed
against the applicant for offence under Sections 304-b and 498-A of IPC. In
this case Hon'ble Apex Court has held as under:-
"That is a matter to be considered by the Court by proper
appreciation of evidence and at the stage of framing
charges, the High Court should not have considered the
whole evidence that there were no materials for the Court
to frame charges under Sections 304-B and 498-A IPC. In
view of the statements given by some of the witnesses, the
High Court was not justified in quashing the charges
already framed by the Sessions Court and directing the
Sessions Court to frame charges exclusively for the
offence under Section 306 IPC."
12. In the case of "Ajay Kumar Das vs. State of Jharkhand and
Another" reported in (2011) 12 SCC 319, an appeal was filed against the
order of Hon'ble High Court wherein it has been held as under:-
"We are, however, unable to accept the said contention at
this stage for w e find that there was a demand for giving
cows, motor cycle and other goods. All these allegations
will have to be dealt with by the Court at different stages
for which liberty would be available to the appellant. In
our considered opinion, this is not the stage when the
Court would make an inquiry into the factual position to
find out as to whether or not the appellant i s guilty o f the
charges or not. The appellant, i n our considered opinion,
will have sufficient opportunity t o place hi s entire case
before the Court at the time of framing of the charge since
charge sheet has already been filed against the appellant
also holding that a case under Section 304-B and Section
34 is made out. We do not wish to enter into the factual
details for any discussion on them at this stage as the same
may prejudicially affect the case of the appellant"
" We are, however, o f the considered opinion that o n a
reading of the First Information Report and the materials
that are available in the case file of the appellant that no
case is made out so as to quash the entire proceeding.
Therefore, while rejecting the contention of the counsel
appearing f o r t h e appellant s o f a r quashing o f the
proceedings is concerned we give him the liberty to raise
all his defence as may be available to him in accordance
with law at the time of framing of the charge and at that
stage the Court shall consider the material on record as
al so the contentions raised b y t h e appellant i n proper
perspective and decide the matter in accordance with
law."
13. Likewise, Hon'ble Apex in the case of Narayan Malhari Thorat vs.
Vinayak Deorao Bhagat and Another reported as (2019) 13 SCC 598 has
allowed the appeal which was directed against the judgment passed by High
Court of Bombay for quashing the proceedings for offence under Section 306
of IPC.
14. Before dwelling upon the contentions of the counsel for the parties, it
will be appropriate to refer to the calause of 113(b) of the Evidence Act, which
relates to the offence under Section 304(b) of IPC, reads as under:
"113B. Presumption as to dowry death.--When the
question is whether a person has committed the dowry
death of a woman and it is shown that soon before her
death such woman has been subjected by such person to
cruelty or harassment for, or in connection with, any
demand for dowry, the Court shall presume that such
person had caused the dowry death.
Explanation.--For the purposes of this section, "dowry
death" shall have the same meaning as in section 304B,
of the Indian Penal Code, (45 of 1860)."
15. Again, the Hon'ble Apex Court in the case of State of M.P. vs.
Deepak [(2019) 13 SCC 62], reversing the order of discharging from charges
under Section 306 of IPC, has enunciated the principles which the High Courts
must keep in mind while exercising their jurisdiction under the provision. In this
case, endorsing another case of Hon'ble Apex Court in the case of Amit
Kapoor vs. Ramesh Chander [(2012) 9 SCC 460 has quoted as under:-
"27. .. At best and upon objective analysis of various
judgments of this Court, we are able to cull out some of
the principles to be considered for proper exercise of
jurisdiction, particularly, with regard to quashing of
charge either in exercise of jurisdiction under Section 397
or Section 482 of the Code or together, as the case may
be:
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.
27.9. 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.
27.13. 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.
16. It is also well settled that Section 482 of Cr.P.C can only be
exercised sparingly in the in rarest of the rare cases where ends of justice
demands. It can be used only to prevent the abuse of process of law and to
secure the ends of justice. In the case of State of W.B. vs. Narayan K.
Patodia [AIR 2000 SC 405] the Hon'ble Apex Court ordained that "Inherent
powers of the High Court as recognized in Section 482 of the Code are
reserved to be used "to give effect to any orders under the Code, or to prevent
abuse of the process of any court or otherwise to secure the ends of justice."
17. In the case of Janata Dal vs H.S. Chowdhary And Ors. reported
in (1992) 4 SCC 305 the Hon'ble Apex Court held as under:
"132 The criminal Courts are clothed with inherent
power to make such orders as may be necessary for the
ends of justice. Such power though unrestricted and
undefined should not be capriciously or arbitrarily
exercised, but should be exercised in appropriate cases,
ex debito justitiae to do real and substantial justice for
the administration of which alone the Courts exist. The
powers possessed by the High Court under Section 482
of the Code are very wide and the very plenitude of the
power requires great caution in its exercise. Courts
must be careful to see that its decision in exercise of
this power is based on sound principles."
135 This inherent power conferred by Section 482 of
the Code should not be exercised to stifle a legitimate
prosecution. The High Court being the highest Court of
a State should normally retrain from giving a premature
decision in a case wherein the entire facts are extremely
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 great
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 the cases in which
the High Court will exercise its extraordinary
jurisdiction to quashing the proceedings at any stage."
18. In another case Paramjeet Batra vs State Of Uttarakhand & Ors
(2012 Lawsuit (SC) 840) the Hon'ble Supreme Court has ordained that while
exercising its jurisdiction under Section 482 of the Code the High Court has to
be cautious. This power is to be used sparingly and only for the purpose of
preventing abuse o f the process o f any court or otherwise to secure ends of
justice. Whether a complaint discloses a criminal offence or not depends upon
the nature of facts alleged therein. Whether essential ingredients of criminal
offence are present or not has to be judged by the High Court. A complaint
disclosing civil transactions may also have a criminal texture. But t h e High
Court must see whether a dispute which is essentially of a civil nature is given a
cloak of criminal offence. In such a situation, if a civil remedy is available and
is, in fact, adopted as has happened in this case, the High Court should not
hesitate to quash criminal proceedings to prevent abuse of process of court.
19. The law laid down by the Hon'ble Apex Court will be applicable to
this case also. In view of the aforesaid the matter has been perused. In the
case at hand on the basis of merg statement and the statements recorded under
Section 161 of Cr.P.C and also the FIR, the offence of dowry death is prima
facie made out against the applicant. At this stage, this Court is not bound to
contemplate regarding the result of the criminal trial as an young lady has
already been expired and the applicants are facing trial in accordance with law.
2 0 . Further the applicants are facing trial in a case where certain
allegations of dowry demand and committing torture against the deceased has
been alleged against them and the same cannot be assumed as abuse of the
process of law. In view of the aforesaid, this Court is of the considered view
that investigation into a cognizable offence is a statutory power of police and
superintendence thereof is vested with the State Government, therefore, it will
not be justified in interfering the matter without legitimate reasons.
21. Before parting, this Court clarifies that any view or observation made
herein would not be binding in any manner on the merits of the case for the
concerned trial Court while adjudicating the matter in accordance with law.
22. Accordingly, M.Cr.Cs are hereby dismissed.
23. A copy of this order be sent to the concerned trial court for
information.
Certified Copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
