bald and vague allegations complaint case quashed: MP high Court 2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
PRESENT:
HON’BLE MR. JUSTICE G.S. AHLUWALIA
Misc. Criminal Case No. 7240 OF 2015
Smt. Radha & Ors.
-VsState
of M.P. & Ors.
________________________________________________
Shri Vijay Sundaram, counsel for the applicants.
Shri Girdhari Singh Chauhan, Public Prosecutor for the
respondent No.1/State.
Shri Rajiv Sharma, with Ku. Neha Malaliya, counsel for
the respondent No.2.
________________________________________________
O R D E R
(12/01/2017)
This petition under Section 482 of Cr.P.C. has
been filed against the order dated 6.5.2015 passed by
Judicial Magistrate First Class, Gwalior in unregistered
Criminal Complaint Case No. /2015 by which the court has
taken cognizance against the applicants.
The necessary facts for the disposal of this
application are that the respondent No.2 had filed a criminal
complaint against the applicants alleging that the applicant
No.1 is her mother-in-law, applicant No.2 is her younger
brother-in-law, applicant No.3 is her sister-in-law, applicant
No.4 is the husband of sister in law and applicants No.5 and
6 are maternal uncle-in-law. It was alleged that after the
marriage when she came to her matrimonial house then for
the first 15 to 20 days except her husband, the behavior of
all other members of her in-laws family was good. When she
2 M.Cr.C. No. 7240 of 2015
enquired from her husband as to what is the cause of his
annoyance then he replied that he is a Sales Tax Practitioner
and considering his status, her father should have been
given a car. He further replied that as he was not willing to
marry her and he has married her only under the pressure
of his family members, therefore, she should live with her
in-laws. The complainant also came to know about the illicit
relations of her husband with some other lady and when she
informed this fact to the applicants then they said either she
should bring a car from her father or should learn to live in
present situation. Thereafter, the applicants and other coaccused
persons started beating her. They were also not
giving food to her and were restraining her from talking to
her family members. The applicants and other co-accused
persons also used to extend threat to kill. As the applicants
and other co-accused persons were planning to kill her,
therefore, she gave an information to her parents. As the
applicants and other co-accused persons were behaving
with cruelty and, therefore, she went to her parents’ house.
Accordingly, it was alleged that the act of the applicants and
other co-accused persons amounts to an offence punishable
under Sections 498-A, 406, 506 Part-II of IPC. The
complainant had made a police complaint but the police
registered an offence against her husband and father-in-law
and since no action was taken against the present
applicants, therefore, the complaint was filed.
The complainant in support of her complaint, examined
herself and her witnesses Dhaniram, Shyam Sunder and
Kishan Lal and the copies of the complaint to the different
authorities were also filed. The copy of the charge sheet
filed against her husband and the father-in-law was also
filed.
3 M.Cr.C. No. 7240 of 2015
The Trial Magistrate by order dated 6.5.2015 took
cognizance against the applicants for offences under
Sections 498-A and 506 Part-II of IPC. Being aggrieved by
the order of the Trial Magistrate, the applicants have filed
the present petition under Section 482 of Cr.P.C.
The counsel for the applicants submitted that as the
police had already filed the charge sheet against the
husband and father-in-law, therefore, the Trial Magistrate
should have stayed the proceedings under Section 210 of
Cr.P.C. It was further submitted that even otherwise the
material available on record does not suggest the
commission of offence by the applicants for offences
punishable under Sections 498-A, 506 Part-II of IPC. Even
the distant relatives have been made accused without their
being any specific overt act on their part. Omnibus and
vague allegations have been made by the respondent No.2
against the applicants.
Per contra, the counsel for the respondent No.2
submitted that there is sufficient material available on
record to show that the applicants have committed offences
punishable under Sections 498-A and 506 Part-II of IPC. The
meticulous appreciation at the stage of taking cognizance is
not permissible and, therefore, the Trial Magistrate after
considering the facts and circumstances of the case did not
commit any illegality in taking cognizance against the
applicants. In support of his submissions, the counsel for
the respondent No.2 has relied upon the judgment of
Supreme Court passed in the case of Taramani Parakh vs.
State of M.P. & Ors. reported in 2015 CrLJ 2031 and
submitted that the petition filed by the applicants under
Section 482 of Cr.P.C. is liable to be dismissed. It is further
submitted by the counsel for the respondent No.2 that the
4 M.Cr.C. No. 7240 of 2015
order taking cognizance against the applicants is a revisable
order and the applicants have approached this Court directly
by filing a petition under Section 482 of Cr.P.C., therefore,
the petition be dismissed on the ground of non-filing of
criminal revision before the Sessions Court.
Heard the learned counsel for the parties.
The contention raised by the counsel for the applicants
that the Trial Magistrate should have stayed the proceedings
under Section 210 of Cr.P.C. although appears to be very
attractive but on deeper scrutiny of the facts and
circumstances of the case, the said submission is found to
be misconceived. Section 210 of Cr.P.C. reads as under:-
“210.Procedure to be followed when
there is a complaint case and police
investigation in respect of the same
offence.- (1) When in a case instituted
otherwise than on a police report
(hereinafter referred to as a complaint
case), it is made to appear to the
Magistrate, during the course of the inquiry
or trial held by him, that an investigation
by the police is in progress in relation to
the offence which is the subject-matter of
the inquiry or trial held by him, the
Magistrate shall stay the proceedings of
such inquiry or trial and call for a report on
the matter from the police officer
conducting the investigation.
(2) If a report is made by the investigating
police officer under section 173 and on such
report cognizance of any offence is taken
by the Magistrate against any person who
is an accused in the complaint case, the
Magistrate shall inquire into or try together
the complaint case and the case arising out
of the police report as if both the cases
were instituted on a police report.
(3) If the police report does not relate to
any accused in the complaint case or if the
Magistrate does not take cognizance of any
offence on the police report, he shall
proceed with the inquiry or trial, which was
stayed by him, in accordance with the
5 M.Cr.C. No. 7240 of 2015
provisions of this Code.”
Section 210 of Cr.P.C. would apply in a case where
during the pendency of a complaint, if the fact is brought to
the knowledge of the Magistrate that an investigation by the
police is in progress in relation to the offence which is the
subject matter of the enquiry or trial held by him then the
Magistrate shall stay the proceedings of such inquiry or trial.
The facts of the present case are different. In the present case
the police has already filed a charge sheet on the similar
allegations against the husband and father-in-law of the
respondent No.2. It is the allegation of the respondent No.2
that as the police has not filed the charge sheet against the
applicants, therefore, complaint is being filed. Once the
investigation is already over and the police has filed the
charge sheet against some of the accused persons and has
chosen not to file charge sheet against the other persons then
under these circumstances, the provisions of Section 210 of
Cr.P.C. would not apply and the only remedy available to the
complainant is to file a criminal complaint against those
persons who have not been charge sheeted by the police.
Accordingly, submission made by the counsel for the
applicants with regard to non-compliance of provision of
Section 210 of Cr.P.C. is rejected as misconceived.
The next contention of the counsel for the applicants is
that if the entire case which has been alleged against the
applicants are considered in proper perspective then it would
be clear that there is no prima facie and sufficient material
available on record to take cognizance against the applicants.
It is submitted by the counsel for the applicants that the
applicants No.5 and 6 are distant relatives. They are the
maternal uncle-in-law of the respondent No.2. They have
nothing to do with the family affairs of the complainant and
6 M.Cr.C. No. 7240 of 2015
her in-laws. No specific overt act has been assigned against
these two persons. The respondents No.5 and 6 have been
implicated merely because they happened to be a maternal
uncle-in-law of the respondent No.2. It is further submitted
that there is increasing tendency of over implicating the
distant relative in order to put pressure upon the family
members of the in-laws of the respondents. Similarly it is
submitted that the applicants No.2 to 4 have been made an
accused as they happened to be close relatives of husband.
To buttress his contention, the counsel for the applicants
relied upon a judgment of Supreme Court passed in the case
of Kans Raj vs. State of Punjab & Ors. reported in AIR
2000 SC 2324.
On the contrary it is submitted by the counsel for the
respondent No.2 that in view of the judgment passed by the
Supreme Court in the case of Taramani Parakh (supra) as
there are sufficient allegations against the applicants,
therefore, the submissions made by the counsel for the
applicants are liable to be rejected outrightly.
The counsel for the applicants along with this petition has
filed a copy of the complaint. However, the statements of the
witnesses recorded under Sections 200 and 202 of Cr.P.C.
have not been placed on record.
In the complaint which was filed by the respondent No.2,
it is alleged that when she came to her matrimonial home
after the marriage she found that her husband is always
remaining annoyed with her but the behavior of the other inlaws
was good towards her. She enquired from her husband
about the annoyance then he replied that since he is a Sales
Tax Practitioner and considering his status, her father should
have been given a car. He further replied that as he was not
willing to marry her and he has married her only under the
pressure of his family members, therefore, she should live
7 M.Cr.C. No. 7240 of 2015
with her in-laws. After sometime while she was coming back
to her parents house she received a call from one Rachna @
Richika who enquired that whether her husband has made
physical relations with her or not? When the complainant
replied to that girl that how she is concerned about that,
then she replied that she should talk with her husband and
at that time she heard the noise of some quarrel on the
mobile and thereafter the said mobile fell down. The
complainant after reaching to her parents house tried to
contact her husband for twice or thrice but he did not reply.
When she had a talk with her husband on the mobile of her
father-in-law then her husband informed that he has lost his
mobile. He further stated that when she would come back to
her matrimonial house then he would have a talk. He also
refused to meet her at some outside place. After 2-3 days
when she come back to her matrimonial house then her
husband informed her that his friends were joking with her.
When the complainant/respondent No.2 enquired from the
respondent No.3 about the girlfriend of her husband then
she too refused and said that her brother has no girl friend.
After 2 or 3 days of Holi festival the respondent No.2
received a call from one Rachna who started abusing her.
When the respondent No.2 informed the applicant No.3 then
she said that she would talk to her. Indecent messages were
also sent by Rachna and when she enquired from her
husband about this fact then he said that he has a relation
with Rachna and respondent No.2 will have to tolerate the
same. He further stated that in case, a car is given by her
father then he will break his relationship with Rachna. When
the respondent No.2 disclosed the fact and the messages to
the applicants and her father-in-law then all of them
admitted that the husband of the respondent No.2 has
8 M.Cr.C. No. 7240 of 2015
relations with Rachna and they advised that she should
maintain silence and if in case she informs the parents then
she would be turned out of her matrimonial house
immediately. Thereafter, her father-in-law deleted all the
messages from the mobile. For next 10 to 15 days she
remained in her matrimonial house but she did not inform
her parents because she was afraid. She was forced to talk
to her parents in front of her mother-in-law and father-inlaw
so that she may not inform anything to her parents. It is
further alleged that her in-laws were pressurizing her to ask
for a car from her father and they were torturing physically
and mentally. She was not allowed to close the door of her
bedroom and she was not allowed to put the curtains of the
door. Whenever she tried to serve food to her husband the
applicant No.1/mother-in-law used to snatch the plate from
her and she used to serve her son personally. Food was also
not given to her timely and whenever she objected to it, all
of them used to beat her and they were saying that she
should bring a car from her father and only then she can
reside in her matrimonial house. As the respondent No.2
had accepted her fate, therefore, she did not inform her
parents about all these incident. It is further alleged that
when she was in her parents house to celebrate the Rakhi
festival, said Rachna called her sister on telephone and
insisted that either she should separate the respondent No.2
from her husband or the respondent No.2 should learn how
to live as a servant and she also started using abusive
language. At that time, the respondent No.2 informed about
the conduct of the applicants to her parents, Chand Khan
and Kishan Lal who were present there. Thereafter, she
came to her matrimonial house along with her father,
brother and Chand Khan and had a talk with her parents in
9 M.Cr.C. No. 7240 of 2015
law and maternal uncle-in-law who assured that they are
trying to correct Anil, the husband of the respondent No.2.
They also stated that if a car is given then they would
ensure that her husband breaks his relations with Rachna.
When her father and brother expressed their inability to give
the car then the behavior of the applicants became cruel
towards the respondent No.2. Both maternal uncle-in-laws
were instigating the other applicants as a result of which the
respondent No.2 was beaten and was harassed. Whenever,
she said anything to her husband then he too used to beat
her. She was beaten even on the day of Karwa Chauth. Her
mother-in-law used to say that she has killed her brotherin-law
by administering poisoning and, therefore, she would
also kill her on the day of Gyaras. The applicants were
talking to each other with regard to the respondent No.2.
She heard that they were making a conspiracy to kill her by
keeping the gas stove opened so that she may die. As the
respondent No.2 got afraid, therefore, she called her brother
who took her back to her parents house. All the ornaments,
money and the clothes have been kept by the applicants. At
present she is residing in her parents house. It is further
alleged that after she left her matrimonial house a phone
call was made by her father-in-law requesting her father to
have a talk with him. Thereafter her father Kishan Lal and
Chand Khan along with other relatives went to her
matrimonial house. After returning back they informed that
her in-laws have imposed a condition that she would not be
allowed to keep a mobile with her and secondly a car should
be given. On 2.4.2013 she made a written report to Mahila
Police Station where her husband was called. On the
assurance given by the police personnel she went to her
matrimonial house along with her husband. As her in-laws
10 M.Cr.C. No. 7240 of 2015
were annoyed, therefore, all of them put pressure on her to
withdraw her report and said that they would convince her
husband and she should bring a car from her father. Eight
days thereafter, again she went to Police Station and
informed the entire incident to the SHO. At that time about
25 advocates came to the Police Station and started
pressuring the SHO not to register the report. Thereafter,
the SHO by pressuring the respondent No.2 compelled her
to make a written report only against the husband and
father-in-law and assured that the names of the applicants
will be added subsequently. Thereafter, on several
occasions, she went to the police station but the applicants
were not made an accused. Subsequently, she made several
complaints to several authorities but as no action was taken
against the applicants, therefore, the complaint was filed.
From the plain reading of the complaint, it appears
that against the applicants No.2 to 6 no specific allegation
or overt act is alleged by the respondent No.2.
Undisputedly, the applicant No.3 is a married woman
residing separately along with the applicant No.4. Similarly,
the applicant No.2 is younger bother-in-law of the
respondent No.2 and the applicants No.5 and 6 are the
maternal uncle-in-law of the respondent No.2. If the entire
allegations are considered as they have been alleged in the
complaint then it would be clear that no overt act or specific
allegation has been made and only omnibus and vague
allegations have been made against these persons alleging
that she was beaten on certain occasions.
The Supreme Court in the case of Kans Raj Vs. State
of Punjab & Ors. reported in AIR 2000 SC 2324 has held
as under:-
“5. We agree with the learned counsel for
11 M.Cr.C. No. 7240 of 2015
the respondents 3 to 5 that his clients,
namely, Ramesh Kumar, brother of the
husband, Ram Pyari, mother of the
husband and Bharti sister-in-law of the
husband-accused cannot be alleged to be
involved in the commission of the crime
and were rightly acquitted by the High
Court. There is no evidence produced by
the appellant worth the name against the
aforesaid respondents. Even PW Nos.5 and
6 have not brought on record any
incriminating circumstance attributable to
the aforesaid accused which could be made
the basis for their conviction. Ram Kishan,
PW-5 in his deposition before the Court
had stated that “after the marriage Rakesh
Kumar, accused raised a demand of
Rs.15,000/- for a scooter and refrigerator.
We fulfilled that demand by giving
Rs.20,000/- to him for scooter and
refrigerator….. Rakesh Kumar used to
threaten Sunita that she would be done to
death because of having inadequate dowry.
On 21st September, 1988 Sunita had come
to my younger brother Tarsem in
connection with a ceremony concerning his
son. She also visited us as the house of
Tarsem Kumar is close to our house. She
stayed with us for the night. We gave her
customary present i.e. clothes etc. and
cash amount of Rs.500/-. She
apprehended danger to her life in the
house of her in-laws and was not willing to
go there”. He has not referred to any
demand of dowry or harassment by the
respondents except Rakesh Kumar. Tarsem
Kumar, the other brother of the deceased
at whose residence she had gone on 21st
September, 1988 has not been produced as
a witness in the case. Kans Raj PW6, the
father of the deceased stated before the
Trial Court that Sunit Kumari had told him
that she was being taunted by her motherin-law
Ram Piari, accused Ramesh Chander
and his wife Bharti accused besides her
husband Rakesh Kumar. The details of the
alleged taunting have not been spelt out.
The only thing stated is that the accused
used to tell the deceased that she being
12 M.Cr.C. No. 7240 of 2015
the daughter of BJP leader, who used to
boast about his financial position had
brought inadequate dowry. He further
stated that various sums of money and the
colour TV was given to Rakesh Kumar on
his demand. Amar Nath and Janak Raj,
President and General Secretary of
Mahajan Sabha respecively and one
Kundan Lal Gaba were taken by him to the
residence of the accused persons. The
deceased was alleged to have been taunted
again in presence of the aforesaid
witnesses. However, none of the aforesaid
witnesses supported the case of the
prosecution. In the light of the evidence in
the case we find substance in the
submission of the learned counsel for the
defence that respondents 3 to 5 were
roped in the case only on the ground of
being close relations of respondent No.2,
the husband of the deceased. For the fault
of the husband, the in-laws or the other
relations cannot, in all cases, be held to be
involved in the demand of dowry. In cases
where such accusations are made, the
overt acts attributed to persons other than
husband are required to be proved beyond
reasonable doubt. By mere conjectures and
implications such relations cannot be held
guilty for the offence relating to dowry
deaths. A tendency has, however,
developed for roping in all relations of the
in-laws of the deceased wives in the
matters of dowry deaths which, if not
discouraged, is likely to affect the case of
the prosecution even against the real
culprits. In their over enthusiasm and
anxiety to seek conviction for maximum
people, the parents of the deceased have
been found to be making efforts for
involving other relations which ultimately
weaken the case of the prosecution even
against the real accused as appears to
have happened in the instant case.”
The Supreme Court in the case of Monju Roy & Ors.
vs. State of West Bengal reported in (2015) 13 SCC 693
has held as under:-
13 M.Cr.C. No. 7240 of 2015
“8. While we do not find any ground to
interfere with the view taken by the
courts below that the deceased was
subjected to harassment on account of
non-fulfilment of dowry demand, we do
find merit in the submission that
possibility of naming all the family
members by way of exaggeration is not
rules out. In Kans Raj (2000) 5 SCC 207,
this Court observed: (SCC p.215, para 5)
“5. …. A tendency has, however,
developed for roping in all relations of the
in-laws of the deceased wives in the
matters of dowry deaths which, if not
discouraged, is likely to affect the case of
the prosecution even against the real
culprits. In their overenthusiasm and
anxiety to seek conviction for maximum
people, the parents of the deceased have
been found to be making efforts for
involving other relations which ultimately
weaken the case of the prosecution even
against the real accused as appears to
have happened in the instant case.”
The court has, thus, to be careful in
summoning distant relatives without
there being specific material. Only the
husband, his parents or at best close
family members may be expected to
demand dowry or to harass the wife but
not distant relations, unless there is
tangible material to support allegations
made against such distant relations. Mere
naming of distant relations is not enough
to summon them in the absence of any
specific role and material to support such
role.
11. The court has to adopt a pragmatic
view and when a girl dies an unnatural
death, allegation of demand of dowry or
harassment which follows cannot be
weighed in in golden scales. At the same
time, omnibus allegation against all
family members particularly against the
brothers and sisters and other relatives
do not stand on the same footing as
husband and parents. In such case, apart
14 M.Cr.C. No. 7240 of 2015
from general allegation of demand of
dowry, the court has to be satisfied that
harassment was also caused by all the
named members.”
The Supreme Court in the case of Geeta Mehrotra &
Anr. vs. State of U.P. & Ors. reported in (2012) 10 SCC
741 has held as under:-
“17. Aggrieved by the order of the Madras
High Court dismissing the petition under
Section 482 Cr.P.C., the special leave
petition was filed in this Court giving rise to
the appeals therein where threefold
contentions were raised viz.: (Ramesh case
(2005) 3 SCC 507, para 4)
“(i) that the allegations are frivolous
and without any basis;
(ii) even according to the FIR, no
incriminating acts were done within the
jurisdiction of Trichy Police Station and the
Court at Trichy and, therefore, the learned
Magistrate lacked territorial jurisdiction to
take cognizance of the offence and
(iii) taking cognizance of the alleged
offences at [that] stage [was] barred under
Section 468(1) Cr.P.C. as it was beyond the
period of limitation prescribed under
Section 468(2) Cr.P.C.”
Apart from the subsequent two contentions,
it was urged that the allegations under the
FIR do not make out any offence of which
cognizance could be taken.
18. Their Lordships of the Supreme Court
in Ramesh Case had been pleased to hold
that the bald allegations made against the
sister-in-law by the complainant appeared
to suggest the anxiety of the informant to
rope in as many of the husband’s relatives
as possible. It was held that neither the FIR
nor the charge sheet furnished the legal
basis for the Magistrate to take cognizance
of the offences alleged against the
appellants. The learned Judges were
pleased to hold that looking to the
allegations in the FIR and the contents of
the charge sheet, none of the alleged
offences under Sections 498-A, 406 and
15 M.Cr.C. No. 7240 of 2015
Section 4 of the Dowry Prohibition Act were
made against the married sister of the
complainant’s husband who was
undisputedly not living with the family of
the complainant’s husband. Their Lordships
of the Supreme Court were pleased to hold
that the High Court ought not to have
relegated the sister-in-law to the ordeal of
trial. Accordingly, the proceedings against
the appellants were quashed and the
appeal was allowed.”
Thus it is clear that merely bald allegations have been
made against the relatives of the husband without there
being any specific overt act on their part and sending those
persons to the ordeal of trial will not be proper. So far as the
judgment of the Supreme Court passed in the case of
Taramani Parakh (supra) is concerned, the allegations in
that case were against the husband and father-in-law and
mother-in-law. The question that whether any distant
relative or the married sister of the husband against whom
no specific overt act has been alleged and merelyFkans have been made then whether they
should be compelled to face the ordeal of trial or whether
the proceedings should be allowed to continue against them
was not in question. Thus, the judgment passed in the case
of Taramani Parakh (supra) being distinguishable in the
facts and circumstances of the case has no application in the
present case of applicants No.2 to 6.
So far as the case of the applicant No.1 is concerned,
there is specific allegation against her that she was not
allowing the respondent No.2/complainant to serve food to
her husband. Furthermore, in view of the judgment passed
in the case of Taramani Parak (supra), this Court is of the
view that there is prima facie evidence against the applicant
No.1 and, therefore, the Trial Court did not commit any
16 M.Cr.C. No. 7240 of 2015
mistake in taking cognizance against her.
It is next contended by the counsel for the respondent
No.2 that as the order under challenge is a revisable order
and, therefore, this petition under Section 482 of Cr.P.C. is
not maintainable. It is well established principle of law that
the petition under Section 482 of Cr.P.C. cannot be
dismissed merely on the ground that the order under
challenge is revisable. Furthermore, when this Court has
come to a conclusion that in absence of any allegation with
regard to any specific overt act on the part of the applicants
No.2 to 6, the order taking cognizance against the
applicants No.2 to 6 is bad and, therefore, under these
circumstances it would not be appropriate for this Court to
dismiss this petition only on the ground that order under
challenge is revisable and no revision before the Sessions
Court has been filed by the applicants. Accordingly, under
the facts and circumstances of the case, the submissions
made by the respondent No.2 for dismissal of this petition
on the ground of non-existing the remedy of criminal
revision is rejected.
Consequently, this petition is partly allowed. The order
taking cognizance against the applicant No.1 by the
Magistrate is hereby maintained. The order taking
cognizance against the applicants No.2 to 6 is hereby
quashed.
The petition is accordingly disposed of. No order as to
costs.
(G.S. AHLUWALIA)
Judge
(12.01.2017)
(alok)