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Madhya Pradesh High Court · body

2013 DIGILAW 1246 (MP)

Preeti W/o Arvind Dubey v. State of M. P.

2013-10-11

D.K.PALIWAL

body2013
ORDER : 1. This petition has been filed under section 482 of Criminal Procedure Code for quashing the F.I.R. registered at Crime No. 11/2013 for the offence punishable under sections 452, 366, 387, 388, 389, 506-B, 294, 323, 190, 427/34 of Indian Penal Code and also for quashing the order dated 20-11-2012, whereby in exercise of power under section 156(3) of Criminal Procedure Code the F.I.R. has been directed to be registered. 2. The brief facts of the petition are that respondent No. 2/complainant has lodged a report on 28-4-2012 at Police Station Vishvavidyalaya but no action has been taken. Therefore, he lodged a written complaint to S.P. Gwalior on 1-8-2012 and to the City C.S.P. Murar on 4-8-2012 but no action has been taken. Then he filed a complaint before the J.M.F.C. Gwalior along with application under section 156(3) of Criminal Procedure Code upon which J.M.F.C. Gwalior has directed to register the F.I.R. and submit the final report. It is alleged by the respondent/complainant in his complaint that marriage of the respondent/complainant took place on 23-1-2007 with the petitioner No. 1 Smt. Preeti and two children has been born out of their wedlock. The petitioner No. 2 is father-in-law, Petitioner No. 3 is Cousin father-in-law, petitioner No. 4 is Brother-in-law, Petitioner No. 5 is Cousin father-in-law of the respondent/ complainant. It is alleged that on 27-4-2012 the complainant and his father were in the District Court premises at about 12:00 P.M. Mother of the complainant informed the father of the complainant on telephone that brother and uncle of complainant's wife are abusing her. Mother of the complainant told him that complainant and his father is not in the house and asked them to go back. Thereafter, complainant and his father reached the house along with Yudhishtar Tomar at about 1:00 P.M. Petitioner Nos. 2 to 5 came there and kicked the gate and entered in the hall of the house of the complainant, when father of the complainant objected then they pushed the father of the complainant. Petitioners started entering in the bedroom of the complainant and complainant objected then petitioners have pushed him and after breaking glass of the Almirah took out cash and jewellery. Petitioners have also damaged gate and glass of Almirah costing about Rupees Ten Thousand. Petitioners started entering in the bedroom of the complainant and complainant objected then petitioners have pushed him and after breaking glass of the Almirah took out cash and jewellery. Petitioners have also damaged gate and glass of Almirah costing about Rupees Ten Thousand. When father of the complainant asked the petitioners whether they have any search warrant then they started abusing and threatened to involve in a false case. Report of the aforesaid incident was lodged by the complainant on 28-4-2012 at Police Station but no action has been taken. Thereafter, the complaint has been lodged before the J.M.F.C. Being aggrieved the aforesaid petitioners have knocked the door of this Court. 3. It is submitted by the learned Counsel for the petitioners that the registration of F.I.R. against the petitioners is illegal, therefore deserve to be set aside. The learned trial Court in a very cursory manner has exercised the power under section 156(3) of Criminal Procedure Code. The complaint is nothing but outcome of vengeance. The power under section 156(3) of the Criminal Procedure Code cannot be exercised as and when wanted by the complainant party. There has to be a ground for the purpose of invoking of provisions of section 156(3) of Criminal Procedure Code which are absolutely non-existent in the present case. It is further submitted that the complaint has been filed for the purpose of pressuring petitioner No. 1 and her family. The continuance of the prosecution of the petitioners is abuse of process of law and hence it is prayed that the F.I.R. and order passed by the learned trial Court by which the direction has been issued to register the case be quashed. 4. The learned Counsel for the respondent has submitted that prima-facie the F.I.R. discloses the commission of offence, hence the F.I.R. cannot be quashed. 5. To appreciate the submissions of the learned Counsel, I have perused the record. 6. From the perusal of the complaint filed by the respondent No. 2/complainant, it appears that it has been filed on 7-11-2012. In Para 9 of the complaint it has been mentioned that the complainant has lodged the report of the incident in writing on 28-4-2012 at Police Station Vishvavidyalaya, but no action has been taken. 6. From the perusal of the complaint filed by the respondent No. 2/complainant, it appears that it has been filed on 7-11-2012. In Para 9 of the complaint it has been mentioned that the complainant has lodged the report of the incident in writing on 28-4-2012 at Police Station Vishvavidyalaya, but no action has been taken. Then another complaint in writing has been lodged with S. P., Gwalior on 1-8-2012 and to C.S.P. Murar on 4-8-2012, when no action has been taken then this private complaint has been filed. But from the copy of the report alleged to have been lodged by the complainant at Police Station, Vishvavidyalaya, it appears that it has been given on 3-5-2012 and not on 28-4-2012. 7. The learned Magistrate on receipt of complaint along with the application under Seciton 156(3) of Criminal Procedure Code passed the following order. 8. The aforesaid order reveals that the learned Magistrate before directing the registration of the case, has not examined what action has been taken by the S.H.O. Police Station Vishvavidyalaya or even by the S.P. when approached by the respondent No. 2/complainant. The learned Magistrate has also not recorded any opinion whether the facts mentioned in the complaint disclose the commission of cognizable offences by the accused persons arrayed in the complaint. The order also does not reveal that the learned Magistrate has satisfied himself about the need of investigation by the police in the matter. The learned Magistrate simply mentioned that looking to the facts of the complaint it is necessary to direct the matter be investigated by the police. The learned Magistrate before passing the order has also not called the status report by the police. No cogent reasons assigned by the learned Magistrate as to why he intends to proceed under Chapter XII instead of Chapter XV of the Code. Thus the order passed by the learned Magistrate discloses non-application of mind. 9. It appears from the complaint filed by Rampratap petitioner No. 4,who is brother of petitioner No. 1, has lodged the complaint that he is taking away his sister Preeti because in-laws of Preeti are harassing his sister and threaten to kill him and his family members. A note has also been written by Bhumi Dubey alias Preeti stating that due to harassment and the fact that in-laws used to beat her she is going to her parents house. A note has also been written by Bhumi Dubey alias Preeti stating that due to harassment and the fact that in-laws used to beat her she is going to her parents house. This report itself has been lodged on 27-4-2012. From the perusal of the copy of F.I.R. No. 102/2012 lodged by petitioner Smt. Preeti on 2-5-2012, it appears that petitioner has lodged a report regarding demand of dowry and harassment by husband and her in-laws. A complaint has also been lodged by petitioner Smt. Preeti on 24-5-2012 under section 12 of Protection of Women from Domestic Violence Act 2005. A report has also been lodged by the petitioner Smt. Preeti on 19-5-2012 alleging that respondent/complainant threatened to finish her. It seems Smt. Preeti left her matrimonial home along with her minor daughter. 10. Taking into consideration that respondent/complainant has lodged the report of alleged incident of 27-4-2012 on 1-5-2012 and there is no any explanation for delay it seems that the complainant/respondent who is an Advocate, anticipating that his wife might take action against him with a view to defend himself has cooked up a false story. 10-A. Hon'ble Supreme Court in the case of State of Harayana and Others vs. Bhajan Lal and Others, 1992 Supp. (1) SCC 335 laid down the principal of law enunciated in series of decisions relating to exercise of inherent powers under section 482 of Criminal Procedure Code and formulated the guidelines observing as under:- “This Court in the backdrop of interpretation of various relevant provisions of the Criminal Procedure Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 of the Constitution of India or the inherent powers under section 482, Criminal Procedure Code gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima-facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the Code except under an order of a Magistrate within the purview of section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specified provisions in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala-fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 11. In view of the aforesaid analysis the present case is covered under the guidelines No. 1 of Bhajanlal's case (supra) the continuance of the prosecution would amount to abuse of process of law. Consequently, the petition is allowed. In view of the aforesaid analysis the present case is covered under the guidelines No. 1 of Bhajanlal's case (supra) the continuance of the prosecution would amount to abuse of process of law. Consequently, the petition is allowed. The F.I.R. registered at Crime No. 11/13 and the order passed by the learned Magistrate directing registration of F.I.R. are hereby quashed.