Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 1074 (MP)

Umesh Singh Tomar v. Premlata Tomar

2014-08-27

M.K.MUDGAL

body2014
JUDGMENT M.K. Mudgal, J. 1. With the consent of both the parties, the final arguments were heard at the motion stage. 2. Petitioner has filed this petition under Section 482 of the Cr.P.C. for quashing the order dated 29.8.2011 passed by CJM, Bhind whereby, cognizance under Section 498A and 506B of IPC was taken against the petitioner on the criminal complaint filed by the respondent against the petitioner-accused being husband of the complainant. 3. The facts stated in brief are that respondent Smt. Premlata Tomar was wife of petitioner Umesh Singh Tomar. Due to difference, both of them mutually decided to take divorce, hence, a petition for divorce was jointly filed by them before the Family Court Indore. But since they failed to appear before the Family Court, the said petition for divorce was dismissed. Thereafter, the respondent filed a complaint against the petitioner under Domestic Violence Act and one under Section 125 of Cr.P.C. for maintenance. In the meantime, the petitioner also filed an application under Section 13 of Hindu Marriage Act for taking divorce from the respondent on the ground of cruelty, desertion and having no relationship for past one year. Hence, to repudiate that petition, the respondent filed a private complaint against the petitioner and other in laws before CJM, Bhind under Section 498A, 323,506B and 34 of IPC stating therein that the respondents used to beat her for the demand of dowry. She used to be singed with lighted cigarette. Further, she was also compelled to get her fetus aborted. On the basis of said complaint, learned trial court recorded statements of witnesses under Section 200 and 202 of Cr.P.C. and considering the statements of witnesses, vide impugned order has taken cognizance against the petitioner and other-accused for the offences as stated hereinabove. Feeling aggrieved against the said order present petition has been filed. 4. Learned counsel for the petitioner submits that the allegations made in the complaint are totally false and baseless as the petitioner and the respondent both have been living separately since 10.3.2009 till they last resided together at Indore. Counsel further submits that the petitioner is in government job and is presently, posted at Jhabua as ADPO whereas, respondent has been living in Bhind since 10.3.009. In these circumstances, it was not possible for the petitioner to harass or treat her with cruelty in any manner. Counsel further submits that the petitioner is in government job and is presently, posted at Jhabua as ADPO whereas, respondent has been living in Bhind since 10.3.009. In these circumstances, it was not possible for the petitioner to harass or treat her with cruelty in any manner. The counsel further submits that when the petition jointly filed by both the parties was dismissed by the Family Court, Indore owing to non appearance of the parties and petitioner again filed an application for divorce under section 13 of the Hindu Marriage Act at Family Court Indore and notice was received by the respondent, thereafter, the respondent/complainant improperly filed a criminal complaint before the CJM, Bhind with the false allegations. There was no prima facie evidence against the petitioner and co-accused for taking cognizance under section 498A of IPC. As per the allegations, no alleged cruelty was committed by the petitioner after 2009 as since than, she has been living at Bhind. Learned counsel further argued that the petitioner and respondent both again moved an application jointly for divorce which was allowed vide order dated 28.4.2014 whereby, a sum of Rs. 9 lacs was given to the respondent which indicates that no dispute subsists between the parties. On the aforesaid grounds, the counsel has prayed for quashing the impugned order. 5. Learned counsel for the respondent opposing the submissions has prayed for rejection of the petition. 6. On perusal of record, it is evident that as per Annexure 'A' the petitioner and respondent both filed an application under section 13B of the Hindu Marriage Act for mutual divorce before the Family Court Indore. In para 7 of the said application, it has been stated that both the parties have been living separately since 10.3.2009. Said petition was dismissed vide order dated 30.4.2010 vide Annexure 'B'. A criminal complaint under section 498A, 506B and 323/34 of IPC was filed by the respondent on 5.2.2011 in the CJM, Court Bhind. From perusal of the complaint, it is evident that no fresh date of committing cruelty with the complainant at Bhind has been mentioned in it. All the allegations made in the complaint are same as mentioned in the petition under Section 125 of Cr.P.C. as well as the petition filed under section 12 of the Domestic Violence Act. From perusal of the complaint, it is evident that no fresh date of committing cruelty with the complainant at Bhind has been mentioned in it. All the allegations made in the complaint are same as mentioned in the petition under Section 125 of Cr.P.C. as well as the petition filed under section 12 of the Domestic Violence Act. Moreover, prima facie, the court of CJM, Bhind had no jurisdiction to entertain the matter as the alleged act of cruelty was not committed at Bhind. 7. The decree for divorce has been passed vide order dated 28.4.2014 by the Family Court, Indore. A photo copy of the certified copy of the order has been produced on record. On perusal of that, it is evident that a sum of Rs. 9 lacs was paid by the petitioner to the respondent through cheque and on the basis of the compromise the said order was passed. The circumstances indicate that the dispute between the petitioner and the respondent has been settled. 8. The apex Court in the case of State of Haryana Vs. Chaudhary Bhajanlal, AIR 1992 SC 604 has held that, inherent powers of the Court can be invoked for quashing the criminal proceedings where, continuance of the same would only be abuse of process of law. The Hon'ble Apex Court has held as under : (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 in allegations in the first information report and other materials, if any, accompanying the FIR do not disclose 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 in 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. (4) Where in 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 specific provision 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. 9. In view of the foregoing facts and circumstances of the case, it is concluded that the dispute between the parties have been resolved. Hence, this petition is allowed and order dated 29.8.2011 passed by learned CJM, Bhind is hereby quashed and the petitioner is exonerated from the offences. In the interest of justice, a criminal case bearing Crime No. 242 of 2011 registered under section 452, 294, 323, 506 read with Section 34 of IPC at PS Jhabua is also hereby quashed.