Abhishek Kulhare vs The State Of Madhya Pradesh
2024 Latest Caselaw 6479 MP

Madhya Pradesh High Court

Abhishek Kulhare vs The State Of Madhya Pradesh on 4 March, 2024

Author: Gurpal Singh Ahluwalia

Bench: Gurpal Singh Ahluwalia

                          1               M.Cr.C. No.54029/2019



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                        BEFORE
     HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                ON THE 4th OF MARCH, 2024
           MISC. CRIMINAL CASE No. 54029 of 2019
BETWEEN:-
1.   ABHISHEK KULHARE S/O SHRI YASWANT
     KUMAR KULHARE, AGED ABOUT 33
     YEARS, OCCUPATION: GOVT. SERVICE
     R/O   BEDINAGAR   NAGPUR     ROAD
     DISTRICT    JABALPUR      (MADHYA
     PRADESH)

2.   YASHWANT KUMAR KULHARE S/O
     TIWARI LAL KULHARE, AGED ABOUT 55
     YEARS, OCCUPATION: TEHSILDAR R/O
     BEDINAGAR NAGPUR ROAD JABALPUR
     DISTRICT   JABALPUR     PRESENTLY
     GADHAKOTA,     DISTRICT     SAGAR
     (MADHYA PRADESH)

3.   SMT. RADHA KULHARE W/O YASHWANT
     KUMAR KULHARE, AGED ABOUT 51
     YEARS, OCCUPATION: HOUSE WIFE R/O
     BEDINAGAR NAGPUR ROAD JABALPUR
     DISTRICT   JABALPUR     PRESENTLY
     GADHAKOTA,     DISTRICT     SAGAR
     (MADHYA PRADESH)

4.   KU. AMITA KULHARE D/O YASHWANT
     KUMAR KULHARE, AGED ABOUT 30
     YEARS, OCCUPATION: PRIVATE JOB R/O
     BEDINAGAR NAGPUR ROAD JABALPUR
     DISTRICT JABALPUR PRESENTLY R/O G
     309 PINANC MEMORIAL PHASE 1 BLOCK
     KOTHRUD ROAD CITY PRIDE PUNE
     (MAHARASHTRA)

5.   KU. ANKITA KULHARE D/O YASHWANT
     KUMAR KULHARE, AGED ABOUT 27
     YEARS, OCCUPATION: STUDENT R/O
     BEDINAGAR NAGPUR ROAD JABALPUR
     DISTRICT JABALPUR PRESENTLY R/O
     UJJAIN, DISTRICT UJJAIN (MADHYA
     PRADESH)
                                                              2                                        M.Cr.C. No.54029/2019


6.       ISHWAR PRASAD KORI S/O TIWARI LAL
         KULHARE, AGED ABOUT 53 YEARS,
         OCCUPATION: PRIVATE WORK R/O
         BEDINAGAR NAGPUR ROAD JABALPUR
         DISTRICT    JABALPUR     (MADHYA
         PRADESH)

                                                                                                           .....APPLICANTS
(BY SHRIDINESH KUMAR UPADHYAY - ADVOCATE )

AND
1.       THE STATE OF MADHYA PRADESH
         THROUGH POLICE STATION DAMOH
         DEHAT DAMOH (MADHYA PRADESH)

2.       SMT. SUJATA @ NIKKI KULHARE W/O
         ABHISHEK KULHARE, AGED ABOUT 27
         YEARS, OCCUPATION: PATWARI BEHIND
         MAHARAAJ HOTEL SHAKTI NAGAR
         JABALPUR NAKA DAMOH, DISTRICT
         DAMOH (MADHYA PRADESH)

                                                                                                       .....RESPONDENTS
(SHRI K.S. BAGHEL - GOVERNMENT ADVOCATE FOR RESPONDENT
NO.1/STATE, SMT. PREETI KHANNA - ADVOCATE FOR RESPONDENT NO.2)
............................................................................................................................................
           This application coming on for admission this day, the court passed
the following:
                                                             ORDER

This application under Section 482 of Cr.P.C. has been filed seeking following reliefs:

"It is therefore, prayed that this Hon'ble Court may kind enough to quashed the F.I.R. Registered in police Damoh dehat Distt. Damoh offence section 498-A/34 of IPC and 3/4 of the Dowry Prohibition Act, vide crime No.614/18 against the applicants. And also quashed proceeding pending before J.M.F.C. Damoh District Damoh (Smt. Ritika Mishra Pathak) vide Criminal Case No.18/2019 and pleased to discharge applicant in the interest of justice."

2. It is submitted by counsel for applicants that undisputedly FIR was lodged after receiving notice of divorce petition and therefore, FIR was by way of counter blast. It is further submitted that a Coordinate Bench of this Court in the case of Dashrath P. Bundela and Others Vs. State of Madhya Pradesh and Another decided on 6.09.2011 passed in M.Cr.C. No.1701/2011 had quashed the proceedings on the ground that FIR was lodged after petition for divorce was instituted. It is further submitted that allegations made in the FIR are not supported by medical evidence.

3. Per contra, it is submitted by counsel for respondent No.2 that trial has already reached to an advanced stage.

4. Heard the learned counsel for parties.

5. The first contention of counsel for applicants is that FIR was lodged by way of counter blast to the petition for divorce and therefore, it is liable to be quashed.

6. The aforesaid submission made by counsel for applicants is misconceived in the light of judgment passed by the Supreme Court in the case of Pratibha Vs. Rameshwari Devi and Others reported in (2007) 12 SCC 369, in which it has been held as under:

"14. From a plain reading of the findings arrived at by the High Court while quashing the FIR, it is apparent that the High Court had relied on extraneous considerations and acted beyond the allegations made in the FIR for quashing the same in exercise of its inherent powers under Section 482 of the Code. We have already noted the illustrations enumerated in Bhajan Lal case [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and from a careful reading of these illustrations, we are of the view that the allegations emerging from the FIR are not

covered by any of the illustrations as noted hereinabove. For example, we may take up one of the findings of the High Court as noted hereinabove. The High Court has drawn an adverse inference on account of the FIR being lodged on 31-12-2001 while the appellant was forced out of the matrimonial home on 25-5- 2001.

15. In our view, in the facts and circumstances of the case, the High Court was not justified in drawing an adverse inference against the appellant wife for lodging the FIR on 31-12- 2001 on the ground that she had left the matrimonial home at least six months before that. This is because, in our view, the High Court had failed to appreciate that the appellant and her family members were, during this period, making all possible efforts to enter into a settlement so that Respondent 2 husband would take her back to the matrimonial home. If any complaint was made during this period, there was every possibility of not entering into any settlement with Respondent 2 husband.

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.

*****

22. For the reasons aforesaid, we are inclined to interfere with the order of the High Court and hold that the High Court in quashing the FIR in the exercise of its inherent powers under Section 482 of the Code by relying on the investigation report and the findings made therein has acted beyond its jurisdiction. For the purpose of finding out the commission of a cognizable offence, the High Court was only required to look into the allegations made in the complaint or the FIR and to conclude whether a prima facie offence had been made out by the complainant in the FIR or the complaint or not."

7. So far as the second contention that allegations made in the FIR are not supported by medical evidence is concerned, it is well established principle of law that this Court cannot consider the correctness, reliability and genuineness of the allegations at this stage. Absence of injuries would not nullify the allegations. It is for the trial Court to decide the correctness of allegations after testing the same on the anvil of cross-examination. This Court in exercise of power under Section 482 of Cr.P.C. can quash the proceedings only if uncontroverted allegations do not make out cognizable offence.

8. It is submitted by counsel for applicants that complaint was lodged after due advise by the legal advisor.

9. However, that cannot be a ground to quash the proceedings.

10. It is further submitted by counsel for applicants that respondent No.2 herself had given in writing on 21st October, 2019 that she would make every attempt to become a good daughter-in-law (Bahu).

11. The submissions made by counsel for applicants are based on their defence, which are required to be proved as per law and this Court cannot take judicial notice of the same.

12. No other argument is advanced by counsel for applicants.

13. As no case is made out warranting interference, therefore, application is dismissed. However, it is made clear that this application has been considered in the light of limited scope of interference at this stage. Any observation made by this Court in this order shall not prejudice or influence the mind of the trial Court in any manner and trial shall be decided strictly in accordance with evidence which would come on the record.

(G.S. AHLUWALIA) JUDGE SR*