Nitin Jaiswal vs The State Of Madhya Pradesh
2023 Latest Caselaw 9751 MP

                                                        1
                           IN    THE     HIGH COURT OF MADHYA PRADESH
                                              AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
                                              ON THE 28 th OF JUNE, 2023
                                       MISC. CRIMINAL CASE No. 19413 of 2021

                          BETWEEN:-
                          1.    NITIN JAISWAL S/O SHRI MUKESH JAISWAL,
                                AGED ABOUT 28 YEARS, OCCUPATION: PRIVATE
                                JOB R/O H.NO.127, DWARIKA CITY, MADHAV
                                NAGAR, KATNI TAHSIL AND DISTRICT KATNI
                                (MADHYA PRADESH)

                          2.    MUKESH JAISWAL S/O LATE K.L. JAISWAL, AGED
                                ABOUT 59 YEARS, OCCUPATION: SERVICE R/O
                                H.NO. 127, DWARIKA CITY, MADHAV NAGAR,
                                KATNI, TAHSIL AND DISTRICT KATNI (MADHYA
                                PRADESH)

                          3.    SMT. MEENA RAI W/O MUKESH RAI, AGED
                                ABOUT 55 YEARS, OCCUPATION: HOUSEWIFE R/O
                                H.NO. 127, DWARIKA CITY, MADHAV NAGAR,
                                KATNI, TAHSIL AND DISTRICT KATNI (MADHYA
                                PRADESH)

                                                                               .....APPLICANTS
                          (BY SHRI S.P. SINGH - ADVOCATE )

                          AND
                          1.    THE STATE OF MADHYA PRADESH STATION
                                HOUSE OFFICER POLICE STATION MAHILA
                                THANA, KATNI, TAHSIL AND DISTRICT. KATNI
                                (MADHYA PRADESH)

                          2.    SMT. SWATI JAISWAL RAI W/O NITIN RAI, AGED
                                ABOUT 29 YEARS, OCCUPATION: HOUSEWIFE R/O
                                C/O SHRI PRAMOD KUMAR JAISWAL, MAIN
                                BAZAR, NKJ POLICE STATION- NKJ, TAHSIL AND
                                DISTRICT. KATNI (MADHYA PRADESH)

                                                                             .....RESPONDENTS
                          (SHRI AMIT GARG - PANEL LAWYER FOR THE RESPONDENT NO.1/STATE
                          AND SHRI SOURABH MAKHIJA - ADVOCATE FOR THE RESPONDENT
                          NO.2/COMPLAINANT )
Signature Not Verified
Signed by: SANTOSH
KUMAR TIWARI
Signing time: 6/30/2023
5:14:47 PM
                                                              2
                                This application coming on for admission this day, the court passed the
                          following:
                                                              ORDER

T h e applicants have preferred present petition under Section 482 of Cr.P.C. for quashment of FIR bearing Crime No. 20/2018 registered on 19/09/2018 at Police Station Mahila Thana, Katni for commission of offence punishable under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, 1961 so also the further proceedings of Criminal Case No. 2044/2018 pending before Judicial Magistrate First Class, Katni against the applicants.

2. Brief facts of the case in short are that on the basis of written complaint

made by respondent No.2/complainant, FIR No. 20/2018 has been registered against the applicants at Police Station Mahila Thana, Katni for commission of offence punishable under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act. On the basis of said FIR applicants have been arrested by the police and later on released on bail by the trial Court. The statements of applicants as well as respondent No.2 have been recorded by the Police. After completion of investigation, challan has been filed before the court of learned Judicial Judicial Magistrate First Class, Katni and Criminal Case No. 2044/2018 is pending before the same Court in this regard. Being aggrieved by the registration of FIR and other consequential proceedings relating thereto, the applicants have preferred present petition before this Court.

3. Learned counsel for the applicants submits that from bare reading of FIR as well as the statements of respondent No.2 and her parents, it is apparent that no prima-facie case is made out against applicants, therefore, the criminal trial pending against the applicants before the court below amounts to abuse of

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

process of law. It is also contended that while respondent No.2 came to the house of the applicants, she refused to take meal and so also refused to perform the other household works. It is further contended that respondent No.2 used to compel the applicant No.1 to live at the house of her parents and assists her father and brother in their Glossary business at Katni, due to which several dispute arose between them. Subsequently, they have filed a petition under Section 13(B) of the Hindu Marriage Act, 1955 for getting decree of divorce on the basis of mutual consent. As the respondent No.2 is not interested in getting decree of divorce with mutual consent, therefore, she withdrew the same, vide order dated 12/03/2018 passed by Principal Judge, Family Court, Katni. Thereafter, applicant No.1 filed a petition under Section 13 of Hindu Marriage Act, 1955 seeking decree of divorce on the ground of cruelty and desertion and moment, the notice of the petition was served to respondent No.2. As a counter blast, respondent No.2, lodged the said FIR against the applicants with an oblique motive so also as to harass the applicants, due to personal vendetta, therefore, aforesaid FIR and other consequential proceedings relating thereto are liable to be quashed. In order to substantiate his contentions, learned counsel for the applicants has placed on the decision of Madras High Court in the case of Arun Kumar & Ors. Vs. Mr. S. Karthikeyan & Ors. in CRL. O.P. No. 4373/2020 as well as the order dated

16/01/2020 passed by this Court in M.Cr.C. No. 10044/2019 in the case of Sanjay Sthapak & Ors. Vs. State of M.P. & Anrs.

4. In turns, learned counsel for the respondent No.2 submits that before reverting to the contentions of the applicants raised in the present case, it is necessary to draw the timeline of the marriage of applicant No.1 and respondent No.2. It is also contended that on 15/04/2016, when the dowry demands raised Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

by applicants were not fulfilled, the respondent No.2 was forced to left her matrimonial home and applicant No.1 and respondent No.2 after several attempts failed to save their marriage, they decided to mutually separate and obtain a decree of mutual divorce. Subsequently, on 18/05/2017, an application under Section 13(B) of Hindu Marriage Act, 1955 was preferred by them. During pendency of the said petition, applicant No.1 and the respondent No.2 saw a hope to live together and a relationship of husband and wife was also established between them during the cooling-off period. Consequently, the mutual divorce application was withdrawn on 10/01/2018. The applicant No.1 assured a good and happy future to the respondent No.2, in hope and anticipation that her marital life would be prosperous once again, agreed to get back to the home of the applicants. However, she was once against visited with the ill dowry demands of the applicants. After dismissal of Section 13(B) application, the applicant No.1 again changed his mind and started forcing and harassing and torturing the respondent No.2, which compel her to live separately. During this period, respondent No.2 came to know about the extra marital affair of applicant No.1. On 22/03/2018, the applicant No.1 preferred an application under Section 13 of Hindu Marriage Act, 1955 seeking decree of divorce and same was allowed vide, order dated 31/10/2022. Prior to receipt of notice of Section 13 application filed by the applicant No.1, the respondent No.2 in bonafide belief and faith to restore her marriage life, filed an application for restoration of conjugal rights under Section 9 of Hindu Marriage Act, which got dismissed vide order dated 20/10/2022. After facing repeated abuses and threatening speeches of the applicants for fulfilling their unethical demands, the respondent No.2 was left with no other option, but to lodge the FIR under

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

question to safeguard her integrity and self respect. The respondent No.2 was forced to give divorce to the applicant No.1 so that he may remarry some other woman, with whom, he was having extra-marital affair. It is further contended that it is settled preposition of law that filing of complaint under Section 498A and Sections 3 and 4 of Dowry Prohibition Act, after filing of Section 13 application is not a ground to quash the FIR filed under Section 498A of IPC. The Hon'ble Supreme Court in the case of Pratibha Vs. Rameshwari Devi, (2007) 12 SCC 369 has held that merely because the FIR was lodge after institution of an application under Section 13 of Hindu Marriage ACt, would not be sufficient to quash the FIR, para 16 of the impugned decision is relevant and reproduced 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 the respondent No.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."

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

5. The Hon'ble Supreme Court, in a catena of judgments have issued guidelines for restraint in quashing FIR under Section 482 of Cr.P.C. In the case of Taramani Prakash Vs. State of M.P.; (2015) 11 SCC 260 , the Hon'ble Supreme Court observed that the High Courts are not to go into the veracity of the rival versions and it cannot quash the criminal case or the FIR. The relevant paragraphs are reproduced herein below for ready reference:

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

15. 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 infact 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."

6. In the case of Chirag M. Pathak V. Dollyben Kantilal Patel, (2018) 1 SCC 330, Hon'ble Supreme Court has held as under:-

"The High Court, in exercise of its powers under Section 482 of the Code, cannot undertake a detailed examination of the facts contained in the FIRs by acting as an Appellate Court and draws its own conclusion.

It is only when on reading the FIR, a sheer absurdity in the allegations is noticed and when no prima facie cognizable case is made out on its

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

mere reading due to absurdity in the allegations."

7. In Neeharika Infrastructure v. State of Maharashtra, 2021 SCC ONLINE SC 315, a three-judge Bench of this Court analyzed the present of this Court and culled out the relevant principles that govern the law on quashing of a first information report under Section 482 of the Cr.P.C. The Hon'ble Court held as under :-

"10. From the aforesaid decisions of this Court, right from the decision of the Privy Council in the case of Khawaja Nazir Ahmad (supra), the following principles of law emerge:

i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into cognizable offences;

​ii) Courts would not thwart any investigation into the cognizable offences;

iii) However, in cases where no cognizable offence or offence of any kind is disclosed in the first information report the Court will not permit an investigation to go on;

iv) The power of quashing should be exercised sparingly with circumspection, in the 'rarest of rare cases'. (The rarest of rare cases standard in its application for quashing under Section 482 Cr.P.C. is not to be confused with the norm which has been formulated in the context of the death penalty, as explained previously by this Court);

v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

vi) Criminal proceedings ought not to be scuttled at the initial stage; Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

vii) Quashing of a complaint/FIR should be an exception and a rarity than an ordinary rule;

viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate in two specific spheres of activities. The inherent power of the court is, however, recognised to secure the ends of justice or prevent the above of the process by Section 482 Cr.P.C.

ix) The functions of the judiciary and the police are complementary, not overlapping;

x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. During or after investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

wide power requires the court to be cautious. It casts an onerous and more diligent duty on the court;

xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint; and

xv) When a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR." 8 . Under these circumstances, learned counsel for the respondent No.2 prays for dismissal of the present petition.

9. I have heard learned counsel for the parties and perused the record.

10. From the perusal of records, it is crystal clear that from the beginning of marriage life of applicant No.1 and respondent No.2, applicants used to harass the respondent No.2 in connection with demand of dowry. Due to which, they were filing application under Section 13(B) of the Hindu Marriage Act, 1955 with the mutual consent, during cooling off period, applicant No.1 himself contacted the respondent No.2 and developed physical relationship between them during the said period. When in order to save her marriage life, respondent No.2 withdrew the said application. Thereafter, applicant No.1 again changed his mind and started ill treated her in connection with demand of dowry and filed another application under Section 13 of the Hindu Marriage Act Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM

seeking divorce in order to got second marriage with another woman and prior to receipt notice of Section 13 application filed by the applicant No.1, respondent No.2 filed an application for restoration of conjugal rights under Section 9 of the Hindu Marriage Act, which clearly indicates that the respondent No.2 is interested to save her marriage life, however, the applicant No.1 himself not want to live with her, due to extra-marital affair.

11. It is well settled law that when a prayer for quashing the FIR is made by the alleged accused, the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether or not the allegations in the FIR disclose the commission of a cognizable offence and is not required to consider on merits whether the allegations make out a cognizable offence or not and the court has to permit the investigating agency/police to investigate the allegations in the FIR.

12. In view of aforesaid legal propositions of law, in the considered opinion of this Court, all the grounds raised herein are mixed questions of law and facts, which cannot be decided without appreciating the materials available on record, which is not permissible at this stage. Hence, being devoid of any merits, present petition deserves to be and is hereby dismissed. However, the applicants is at liberty to raise all these grounds raised herein before the trial Court at an appropriate stage.

(ARUN KUMAR SHARMA) JUDGE skt

Signature Not Verified Signed by: SANTOSH KUMAR TIWARI Signing time: 6/30/2023 5:14:47 PM