Madhya Pradesh High Court
Shri Sumit Kumar Patel vs The State Of Madhya Pradesh on 13 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 13 th OF MAY, 2024
CRIMINAL REVISION No. 1405 of 2024
BETWEEN:-
1. SHRI SUMIT KUMAR PATEL S/O SHRI MOHANLAL
PATEL, AGED ABOUT 36 YEARS, OCCUPATION:
PRIVATE JOB R/O H NO 9 STREET NO 3 NEAR
SHANTA MANDIR NEW RAM NAGAR ADHARTAL
DISTRICT JABALPUR (MADHYA PRADESH)
2. SHRI MOHANLAL PATEL S/O LATE SHRI
VRINDAVAN PATEL, AGED ABOUT 69 YEARS,
OCCUPATION: PENSIONER R/O H.NO.9 STREET
NO.3 NEAR SHANTA MANDIR NEW RAM NAGAR
ADHARTAL DISTRICT JABALPUR (MADHYA
PRADESH)
3. SMT. MAYA DEVI W/O SHRI MOHANLAL PATEL,
AGED ABOUT 65 YEARS, OCCUPATION:
HOUSEWIFE R/O H.NO.9 STREET NO.3 NEAR
SHANTA MANDIR NEW RAM NAGAR ADHARTAL
DISTRICT JABALPUR (MADHYA PRADESH)
4. SHRI SANDEEP PATEL S/O SHRI MOHANLAL
PATEL, AGED ABOUT 41 YEARS, OCCUPATION:
GOVT. SERVANT R/O H.NO.9 STREET NO.3 NEAR
SHANTA MANDIR NEW RAM NAGAR ADHARTAL
DISTRICT JABALPUR (MADHYA PRADESH)
5. SMT. VISHESHTA PATEL W/O SANDEEP PATEL,
AGED ABOUT 31 YEARS, OCCUPATION:
HOUSEWIFE R/O H.NO.9 STREET NO.3 NEAR
SHANTA MANDIR NEW RAM NAGAR ADHARTAL
DISTRICT JABALPUR(MADHYA PRADESH)
6. SMT. SARITA PATEL W/O ARVIND PATEL, AGED
ABOUT 38 YEARS, OCCUPATION: HOUSEWIFE R/O
H.NO. 36 MATHURE VIHAR VIJAY NAGAR
DISTRICT JABALPUR (MADHYA PRADESH)
.....PETITIONERS
(BY SHRI ABHISHEK SINGH - ADVOCATE)
Signature Not Verified
Signed by: AMITABH
RANJAN
Signing time: 17-05-2024
10:40:56
2
AND
1. THE STATE OF MADHYA PRADESH THROUGH
POLICE STATION ADHARTAL DISTRICT
JABALPUR (MADHYA PRADESH)
2. SMT VARSHA PATEL W/O SHRI SUMIT PATEL,
AGED ABOUT 34 YEARS, OCCUPATION:
EMPLOYEE IN AGANWADI R/O JAGDAMMA
COLONY, MATRI NAGAR, NEAR GAS AGENCY,
MAHARAJPUR, DISTT. JABALPUR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI NITIN GUPTA - DY. GOVT. ADVOCATE)
This revision coming on for admission this day, th e court passed the
following:
ORDER
This criminal revision is filed being aggrieved of order dated 02/02/2024
passed by learned Judicial Magistrate First Class, Jabalpur in Case
No.8774/2023 originating from Crime No.449/2023 registered at Police Station
Adhartal under Sections498-A, 294, 506, 34 of IPC and also under Sections 3
and 4 of Dowry Prohibition Act on behalf of the applicants on the ground that
learned JMFC has rejected an application under Section 239 of Cr.P.C. only on
the ground that material available from the FIR does not call for showing
indulgence in the matter of discharge.
2. Shri Abhishek Singh, learned counsel for applicants, submits that
Magistrate was obliged to look into the investigation and referred to the
documents enclosed along with the final report to point out that as to how
charge is sustainable against each of the accused persons. Shri Abhishek
Singh, learned counsel further submits that only copies of 161 statement have
been enclosed by the prosecution along with final report and they are not
sufficient to rope in all the family members of accused family in the trial.
3. Reliance is placed on the judgment of Calcutta High Court (Appellate
Side) in the case of Unknown Vs. The State of West Bengal
(C.R.R.2900/2016 to point out that the High Court recorded a finding that
upon perusal of the petition of complaint and the case diary including the
statement of defacto complaintant and her daughter .....recorded under
Section 161 of Cr.P.C., it appears that the allegation therein do not prima
facie constitute an offence under Section 498-A/323 of IPC against the
petitioner Nos.2, 3 and 4. There is no specific and categorical allegations.
Taking these facts into consideration, the Calcutta High Court had disposed of
revision directing discharge of petitioner Nos.2, 3 and 4.
4. Similarly reliance is placed on the judgment of Delhi High Court in Anju
Vs. Govt. of NCT of Delhi and others, AIR ONLINE 2019 Delhi 329
wherein reading from para-7 it is pointed out that perusal of the FIR and the
complaints show that in one breath the petitioner has named all the family
members without any specific role being ascribed to any one of them and in that
backdrop framing of charge against all has been deprecated and quashed.
5. Similarly reliance is also placed on the judgment of Kerala at Ernakulam
in the case of Nimmy Mathew Vs. State of Kerala and another )CRL.Rev.
Pet No.931/2023 wherein placing reliance on paras-3, 4, 5, 9 and 10, it is
submitted that on receipt report from the Police, the petitioner had filed
application under Section 239 of the Code of Criminal Procedure seeking
discharge. That application was dismissed by the Chief Judicial Magistrate.
Relying to the judgment of Hon'ble Supreme Court in the case of Ghulam
Hasan Beigh Vs. Mohammad Maqbool Magrey and others, (2022) SCC
ONline SC 913, it is held that Court cannot act as a postman. It is also held
that even though marshalling of evidence is not contemplated at the stage of
Section 239 of Cr.P.C., the order of the Chief Judicial Magistrate should
disclose the availability of prima facie materials to constitute the offence alleged
by the prosecution and in this backdrop it is submitted that since no material
has been pointed out against each of the accused, impugned order is liable to be
set aside.
6. Shri Manoj Kumar Mishra, learned counsel for respondent No.2,
submits that earlier Writ Petition No.22377/2023 was filed for quashing of the
FIR and that petition was dismissed by this Court vide order dated 11th
September, 2023.
7. Shri Abhishek Singh, learned counsel for the applicants, submits that
the said case was in a different footing and that dismissal does not come in the
way of the present petition.
8. It is further submitted that petitioner No. 6 Smt. Sarita Patel is having
separate residence. Petitioner No. 4 Sandeep Patel is a government servant. He
remains out of his house for considerable period of time in relation to his work.
There are omnibus and general allegations against the sister-in-law namely Smt.
Sarita Patel (Petitioner No.6) mother-in-law Smt. Maya Devi (petitioner No.3),
Jeth Sandeep Patel (Petitioner No.4) and his wife Visheshta Patel (Petitioner
No.5). It is submitted that in fact, complainant had tried to robbed in one Pappu
Patel and has made omnibus allegations against them, whereas, they have
nothing to do with invocation of provisions contained in Section 498-A, 294,
506 & 34 of the Indian Penal Code and 3/4 Dowry Prohibition Act.
9. After hearing learned counsel for the parties and going through the
record, it is evident that residence of petitioner No.6 Smt.Sarita Patel is
different. She is resident of Vijay Nagar. It is also evident that there are omnibus
and general allegations against the brother-in-law Sandeep Patel (petitioner
No.6) and sister-in-law Smt. Visheshta Patel (Petitioner No.5).
10. There are specific allegations in the statement of Indra Kumar Patel
against the son-in-law Sumit Patel (petitioner No.1) for demand of dowry and
harassment to the child i.e. the complainant Varsha Patel. Indra Kumar Patel has
categorically mentioned that he used to give money to his son-in-law Sumit
Patel then he used to maintain his daughter properly for some days and
thereafter, again harassment used to start.
11. In view of such facts, taking into consideration the ratio of law laid
down by Delhi High Court in the case of Anju Vs. Govt. of NCT of Delhi and
others, AIR ONLINE 2019 Delhi 329, wherein it is held that, for a charge to
be framed, the evidence gathered by the prosecution should not only give rise
to suspicion but there should be grave suspicion that the accused have
committed the offence and also the fact that bald and omnibus allegations
without there being any specifics cannot be taken into consideration and also
the fact that in the case of Sukhmay Mondal & Ors. Vs. State of West
Bengal (CRR No. 2900 of 2016) decided on 06.08.2018, Calcutta High
Court has held that upon perusal of the petition of complaint an the case diary
including the statement of the complainant and her relatives recorded under
Section 161 Cr.P.C., it appears that the allegations therein do not prima facie
constitute an offence under Section 498-A 294, 506 & 34 of the Indian Penal
Code and 3/4 Dowry Prohibition Act.
12. In the present case also as discussed above, the material produced,
prima facie indicates about involvement of husband Sumit Patel (Petitioner
No.1) and not in regard to involvement of others. As indicated matrimonial
home of the petitioner No.6 is separate. Ratio of law as laid down in the case of
Ghulam Hasan Beigh Vs. Mohammad Maqbool Magrey and others
(supra), it is crystal clear that, in an application of discharge under Section 239
of the Cr.P.C. the Court cannot act as a postman. It has to apply its mind and
consider whether there is prima facie material to establish the allegations.
13. The parameter for quashing of FIR being different, then those which
are to be considered at the time to framing of the charge. In the case Radha
Mohan Agarwala Vs. State, 1986(2) Crimes 590 (Orissa), it is held that
strong suspicion against the accused, if the matter remains in the region of
suspicion, cannot take the place of proof of guilt at the conclusion of the trial.
But at the initial stage, if there is a strong suspicion which leads a Court to think
that there is ground for presuming that the accused has committed an offence, it
is not open to the Court to say that there is no sufficient ground for proceeding
against the accused. However, in the present case, there is no material available
on record to give rise to strong suspicion, therefore, the impugned order cannot
be sustained qua petitioner Nos. 2 to 6 and accordingly, that impugned order is
quashed against petitioners Nos. 2 to 6. Their application for discharge is
allowed.
14 Accordingly, this Criminal Revision disposed of.
(VIVEK AGARWAL)
JUDGE
AR
