the allegations are absurd and have been levelled to make the case more grave: MP high Court 2017

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH
BEFORE JUSTICE S.K.AWASTHI
Misc. Criminal Case No 2360/2014
Kunaldev Singh Rathor and others
Versus
State of MP and another
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Shri Ajeet Singh Bhadoriya, learned counsel for the
applicants.
Shri R.D.Agarwal, learned Panel Lawyer for the respondent
No.1/State.
Shri R.K.Shukla, learned counsel for the respondent No.2.
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O R D E R
(02.12.2016 )
Applicants, vide instant application under
Section 482 of the Code of Criminal Procedure, 1973 (for
brevity ‘CrPC’) seek quashing of FIR bearing Crime
No.614/2013 dated 18.12.2013 for commission of
offences punishable under Sections 323, 294, 498-A and
506 of the Indian Penal Code (in short ‘IPC’) registered at
police Station Kotwali District Bhind (M.P.). Further, the
quashing of Criminal Case No.183/2014 has also been
sought, which has been registered in furtherance to the
said FIR.
2. The facts leading to filing of instant application are
that a marriage was solemnized between the applicant
No.1 and respondent No.2 on 21.11.2007 and a son has
born out of the wedlock. According to the complaint
made by respondent No.2, the present applicants were
harassing her since the date of marriage for demand of
Indica Car, however, she tolerated the harassment with a
hope that one day the applicants will mend their ways
-( 2 )- MCRC No. 2360/2014
and will treat the respondent No.2 properly. Although,
the situation did not improve and one day the respondent
No.2 was thrown out of the matrimonial home along with
her son, whereafter, she started living with her parents at
Madho Ganj, Bhind. Respondent No.2 did not have any
means to maintain herself and she did not want to
burden her parents, an application for maintenance by
her and the son was filed, in which the notices were
issued, however the applicants did not accept the
summons issued by the Court and on 8.9.2013 the
applicants are alleged to have visited the house of
parents of respondent No.2. During their visit, the
applicants pressurized respondent No.2 to withdraw the
case filed by her, failing which it was threatened that she
will face dire consequences.
3. Due to the incident dated 8.9.2013 the respondent
No.2 submitted a complaint before the police and
requested to register the FIR against the applicants.
Although, the police did not take any action prompting
the respondent No.2 to file complaint case before the
concerned Magistrate under Section 200 of the Code of
Criminal Procedure, 1973, who, in turn, instructed police
to submit report under Section 156(3) CrPC. The police
informed the Magistrate that it is taking cognizance of
the matter and will record the FIR for commission of
offences punishable under Sections 323, 294, 506 and
498-A read with Section 34 of IPC. Consequently, on
18.11.2013, an FIR for the said incident was registered
bearing Crime No.614/2013 at police Station City Kotwali
District Bhind.
4. After completion of investigation, the police has
-( 3 )- MCRC No. 2360/2014
filed charge-sheet against all the applicants on 6.2.2014
before the concerned Magistrate for the offences
mentioned in the FIR. In order to seek quashing of
criminal proceedings, the instant application has been
filed.
5. It has been stated before this Court that in respect
to instant case, no other matter has been pending for
similar relief. Further, it has been stated that the
applicants have preferred instant application rather than
invoking the revisional jurisdiction citing the reason that
this Court under Section 482 CrPC has wider jurisdiction.
6. According to learned counsel for the applicants, the
plain reading of the content of the FIR does not reveal
commission of offences levelled against the applicants.
Moreover, the FIR has been lodged in order to defeat the
proceedings initiated by the applicant No.1 under Section
9 of the Hindu Marriage Act, 1955 for restitution of
conjugal rights. It has also been contended that the
respondent No.2 herself has violated the law by
siphoning the gold of the present applicants and fleeing
away to her parental home. In support of the contention,
learned counsel for the applicants placed reliance on the
complaint (Annexure P/4) submitted before the police.
Accordingly, it is contended that the prosecution has
been launched to misuse the criminal justice system and
it is a fit case for interference.
7. Per contra, learned counsel appearing on behalf of
respondent No.1-State has supported the criminal
prosecution on the ground that prima facie the
allegations levelled against the applicants are made out,
therefore, the application deserves to be dismissed.
-( 4 )- MCRC No. 2360/2014
According to learned counsel for respondent No.2, she
had already moved application for maintenance and the
application under Section 9 of HMA has been filed
subsequently by the applicant No.1 which itself shows
the intention of the applicants to cause delay in decision
of application for maintenance filed by her. As per
learned counsel for respondent No.2, the Supreme Court
in the case of Taramani Parakh vs State of M.P.,
2015 (2) JLJ 1 (SC), has held that legitimate
prosecution cannot be stifled by resorting to petition
under Section 482 CrPC as there has to be a trial
conducted to arrive at a conclusion about the
participation of accused persons in the crime. Therefore,
the application merits no consideration and liable to be
dismissed.
8. I have considered the rival contentions raised on
behalf of the parties and have perused the documents
placed on record along with the present application.
9. The parameters on which the indulgence can be
shown for exercising powers available under Section 482
CrPC with respect to matrimonial matters have been laid
down by the Apex Court in the case of Geeta Mehrotra
vs State of U.P. (2012) 10 SCC 741 in the following
manner :
“20. Coming to the facts of this case,
when the contents of the FIR are perused, it is
apparent that there are no allegations against
Kumari Geeta Mehrotra and Ramji Mehrotra
except casual reference of their names which
have been included in the FIR but mere casual
reference of the names of the family members
in a matrimonial dispute without allegation of
active involvement in the matter would not
justify taking cognizance against them
overlooking the fact borne out of experience
-( 5 )- MCRC No. 2360/2014
that there is a tendency to involve the entire
family members of the household in the
domestic quarrel taking place in a matrimonial
dispute specially if it happens soon after the
wedding.
21. It would be relevant at this stage to
take note of an apt observation of this Court
recorded in G.V. Rao v. L.H.V. Prasad [(2000)
3 SCC 693 : 2000 SCC (Cri) 733] wherein also
in a matrimonial dispute, this Court had held
that the High Court should have quashed the
complaint arising out of a matrimonial dispute
wherein all family members had been roped
into the matrimonial litigation which was
quashed and set aside. Their Lordships
observed therein with which we entirely agree
that: (SCC p. 698, para 12)
“12. There has been an outburst of
matrimonial disputes in recent times.
Marriage is a sacred ceremony, the
main purpose of which is to enable the
young couple to settle down in life and
live peacefully. But little matrimonial
skirmishes suddenly erupt which often
assume serious proportions resulting in
commission of heinous crimes in which
elders of the family are also involved
with the result that those who could
have counselled and brought about
rapprochement are rendered helpless
on their being arrayed as accused in the
criminal case. There are many other
reasons which need not be mentioned
here for not encouraging matrimonial
litigation so that the parties may ponder
over their defaults and terminate their
disputes amicably by mutual agreement
instead of fighting it out in a court of
law where it takes years and years to
conclude and in that process the parties
lose their ‘young’ days in chasing their
‘cases’ in different courts.”
The view taken by the Judges in that matter
was that the courts would not encourage such
disputes.”
10. In another judicial pronouncement by the Supreme
-( 6 )- MCRC No. 2360/2014
Court in the case of Ramesh Rajagopal v. Devi
Polymers (P) Ltd., (2016) 6 SCC 310, wherein the
Hon’ble Court referred to the earlier decision, observed in
the following manner :-
“15. In Madhavrao Jiwajirao Scindia v.
Sambhajirao Chandrojirao Angre [Madhavrao
Jiwajirao Scindia v. Sambhajirao Chandrojirao
Angre, (1988) 1 SCC 692 : 1988 SCC (Cri)
234] , this Court observed as follows: (SCC p.
695, para 7)
“7. The legal position is well settled that
when a prosecution at the initial stage is
asked to be quashed, the test to be
applied by the court is as to whether the
uncontroverted allegations as made
prima facie establish the offence. It is
also for the court to take into
consideration any special features which
appear in a particular case to consider
whether it is expedient and in the
interest of justice to permit a prosecution
to continue. This is so on the basis that
the court cannot be utilised for any
oblique purpose and where in the opinion
of the court chances of an ultimate
conviction are bleak and, therefore, no
useful purpose is likely to be served by
allowing a criminal prosecution to
continue, the court may while taking into
consideration the special facts of a case
also quash the proceeding even though it
may be at a preliminary stage.”
11. In the context of the law laid down by the Apex
Court, the plain reading of the complaint submitted by
respondent No.2, which has been reproduced in the FIR
dated 18.12.2013, goes to show that the allegations
relating to commission of offence punishable under
-( 7 )- MCRC No. 2360/2014
Section 498-A of IPC are omnibus and do not refer to any
specific act of the applicants. According to the complaint,
the respondent No.2 was subjected to cruelty due to nonfulfillment
of demand of Indica Car in dowry by the
applicants. It is undisputed in the instant case that the
marriage was solemnized on 21.11.2007. Although the
complaint is silent about the fact as to when she left the
matrimonial house. Further, with respect to this
allegation, the applicants have brought on record the
registration certificate issued by transport department on
10.1.2008 with respect to Indica Car. Moreover, the
documents reflecting TATA Sumo in the name of applicant
No.2 and other four-wheeler have also been brought on
record. On cumulative consideration of these
circumstances, it is revealed that the accusations
regarding cruelty and harassment for demand of Indica
Car are absurd and improbable. At this stage, it is
important to note that the documents tantamount to
material filed by the applicants in their defence and as
per the judicial pronouncement by the Supreme Court on
consideration of defence material at a preliminary stage
in a criminal prosecution, such documents cannot be
made basis for taking any decision. But, the Apex Court
in the case of Rukmini Narvekar v. Vijaya
-( 8 )- MCRC No. 2360/2014
Satardekar, (2008) 14 SCC 1, has held as under:
“21. We should also keep in mind that it is
well settled that a judgment of the Court has not
to be treated as Euclid’s formula [vide Rajbir
Singh Dalal (Dr.) v. Chaudhari Devi Lal University
[(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887 :
JT (2008) 8 SC 621] ]. As observed by this Court
in Bharat Petroleum Corpn. Ltd. v. N.R.
Vairamani (2004) 8 SCC 579 : AIR 2004 SC
4778, observations of courts are neither to be
read as Euclid’s formula nor as provisions of the
statute.
22. Thus, in our opinion, while it is true
that ordinarily defence material cannot be looked
into by the court while framing of the charge in
view of D.N. Padhi case [(2005) 1 SCC 568 :
2005 SCC (Cri) 415] , there may be some very
rare and exceptional cases where some defence
material when shown to the trial court would
convincingly demonstrate that the prosecution
version is totally absurd or preposterous, and in
such very rare cases the defence material can be
looked into by the court at the time of framing of
the charges or taking cognizance. In our opinion,
therefore, it cannot be said as an absolute
proposition that under no circumstances can the
court look into the material produced by the
defence at the time of framing of the charges,
though this should be done in very rare cases i.e.
where the defence produces some material which
convincingly demonstrates that the whole
prosecution case is totally absurd or totally
concocted.
38. In my view, therefore, there is no
scope for the accused to produce any evidence in
support of the submissions made on his behalf at
the stage of framing of charge and only such
materials as are indicated in Section 227 CrPC
can be taken into consideration by the learned
Magistrate at that stage. However, in a
proceeding taken therefrom under Section 482
CrPC the court is free to consider material that
may be produced on behalf of the accused to
arrive at a decision whether the charge as framed
could be maintained. This, in my view, appears to
be the intention of the legislature in wording
-( 9 )- MCRC No. 2360/2014
Sections 227 and 228 the way in which they have
been worded and as explained in Debendra Nath
Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri)
415 by the larger Bench therein to which the very
same question had been referred.”
12. Accordingly, the documents referred to by the
applicants with regard to vehicles owned by them can be
looked into. Furthermore, the offence under Section 294
of the IPC is not made out as the incident has taken
place within the house of the complainant-wife. It
appears that the prosecution has been initiated on
account of scuffle which has taken place on 8.9.2013.
However, in order to drag more offences against the
applicants, the allegations with regard to demand of
Indica car have been made. Further, the reliance has
been placed by learned counsel for respondent No.2 on
the judgment of Hon’ble Supreme Court in Taramani
Parakh’s case (supra), wherein the Court in paragraph
11 has observed that if the allegations are absurd and do
not make any case or if it can be held that there is abuse
of process then the proceedings can be quashed.
However, the Court has been cautioned from entering
into the reliability of the evidence and to discuss about
the version and counter version.
13. In the considered opinion of this Court, in the case
at hand, as discussed above, the allegations are absurd
and have been levelled to make the case more grave.
Therefore, following the mandate of Hon’ble the Supreme
Court, the powers under Section 482 CrPC are exercised
for quashing the FIR to the extent it relates to the
offences under Section 498-A and 294 of the IPC.
14. In this view of the matter, the present application
under Section 482 CrPC is partly allowed. Accordingly,
-( 10 )- MCRC No.
2360/2014
the FIR and the consequent proceedings so far as they
relate to the offences punishable under Sections 498-A
and 294 of the IPC are quashed. However, with regard to
remaining offences, the proceedings shall continue.
15. It is made clear that the trial Court shall decide the
case without being influenced by the observations made
by this Court.
(S.K.Awasthi)
Judge.
(yogesh)