Research › Search › Judgment

Madhya Pradesh High Court · body

2016 DIGILAW 846 (MP)

Rajesh Kumar Gupta v. State of M. P.

2016-09-21

ATUL SREEDHARAN

body2016
ORDER : Atul Sreedharan, J. 1. This is a petition under Section 482 of Cr.P.C. filed for the quash of F.I.R. being Crime No. 44/2015 of P.S. Woman Police Station, Madan Mahal, Jabalpur for offences U/s. 498- A/34 of I.P.C. and U/s. 3/4 of Dowry Prohibition Act. The prayer in this petition is for the quash of the aforementioned F.I.R. on the ground that the same is vexatious, vengeful, filed for the purpose of harassing the Petitioners herein and is a gross abuse of process of the law. The Petitioner No. 1 is husband of the Petitioner No. 2. The Petitioner No. 2 is the sister-in-law of the Respondent No. 2 Mrs. Shilpa Gupta, who is married to the brother of the Petitioner No. 2 Mr. Vivek Gupta. The Respondent No. 2 is the author of the FIR which is sought to be quashed by this court. 2. The Respondent No. 2/Complainant has appeared in person and has moved I.A. No. 18136/16 seeking permission to change her counsel. I.A. No. 18108/16 is an application moved by erstwhile Counsel of the Respondent No. 2, who has prayed that his name be struck off from the record on account of the unacceptable behaviour of Respondent No. 2 towards her counsel. For the reasons stated in the said applications, I.A. No. 18136/16 and I.A. No. 18108/16 are allowed. 3. I.A. No. 3852/16 is an application for taking additional documents on record on behalf of Respondent No. 2. I.A. No. 16936/16 is an application again moved by the Respondent No. 2 for taking additional documents on record. For the reasons stated in the said applications, the same are allowed and documents annexed therewith are taken on record and have been considered by this Court. 4. As Respondent No. 2/Complainant has appeared in person, this Court has specifically asked her if she wants to engage a lawyer to which she has replied that though she has moved an application for change of Lawyer, she wants to argue the case personally. The State is represented by Mr. B.P. Pandey, learned Government Advocate, who has argued on behalf of the State praying for the dismissal of this petition. Vide an elaborate seven-page complaint dated 1.9.2015, made by Respondent No. 2 to the S.H.O. of Mahila Police Station at Jabalpur, the Respondent No. 2 has sought the prosecution of the Petitioners herein and other co-accused persons. B.P. Pandey, learned Government Advocate, who has argued on behalf of the State praying for the dismissal of this petition. Vide an elaborate seven-page complaint dated 1.9.2015, made by Respondent No. 2 to the S.H.O. of Mahila Police Station at Jabalpur, the Respondent No. 2 has sought the prosecution of the Petitioners herein and other co-accused persons. Along with the said complaint, the Respondent No. 2 has annexed four documents which are the certificate given by the "Kaushaudhan Samaj" the photographs taken at the time of the engagement and the marriage, the invitation cards relating to the marriage from the side of both the bride and the groom, the print out of screen shots of an allegedly fictitious face-book account and also photographs of burn marks suffered by the Respondent No. 2 on her stomach, allegedly at the hands of her husband. The copy of the said complaint had been forwarded to ten other authorities which include the Prime Minister of India and to the Chief Minister of the State of Madhya Pradesh. 5. In this complaint, the Respondent No. 2 has stated that on 6.2.2015 the mother and father of the Petitioner No. 2 had gone to the house of Respondent No. 2 with a marriage proposal. Thereafter, on 10.2.2015, the brother (husband of Respondent No. 2) father, mother and the elder brother of the Respondent No. 2 went to see the Respondent No. 2 at her House bearing No. 1009, Tilwaraghat Road, Sagda, Jabalpur. Thereafter, it is the case of the Respondent No. 2 that on 11.2.2015, the father of Respondent No. 2 in accordance with his stature, conducted the engagement of the Respondent No. 2 with the brother of Petitioner No. 2 at Hotel Arihant in Jabalpur. It is also alleged that on the day of the engagement, the father of Respondent No. 2 in accordance with his financial capacity had given Rs. 2 Lakhs in cash and gifted Rs. 20,000/- to the brother of the Petitioner No. 2 for the purpose of buying clothes. Besides this, an amount of Rs. 1100/- is stated to have been given to every member of the family and relations of the Respondent No. 2. Under the circumstance, it is alleged by Respondent No. 2 that her father had incurred an expenditure of about Rs. 4-5 Lakhs at the time of the engagement itself. 6. Besides this, an amount of Rs. 1100/- is stated to have been given to every member of the family and relations of the Respondent No. 2. Under the circumstance, it is alleged by Respondent No. 2 that her father had incurred an expenditure of about Rs. 4-5 Lakhs at the time of the engagement itself. 6. According to the Respondent No. 2, sourness developed between the parties on 14.2.2015 itself when the father of Respondent No. 2 informed the father of the Petitioner No. 2 that for the purpose of marriage, he has booked Hotel Satyaraksha. At that time, the father of Petitioner No. 2 is alleged to have mocked the father of Respondent No. 2 saying that the sweets and fruits that were given at the time of engagement turned out be rotten and therefore it was disposed off as garbage. It is pertinent to mention here that it is undisputed that Petitioners herein were not present along with other family members at this point of time. Thereafter, on 16.4.2015 the marriage of the Respondent No. 2 was solemnised with the brother of Petitioner No. 2. At the time of marriage, the brother of the Petitioner No. 2 was working at Hyderabad. Thereafter, the Respondent No. 2 has alleged in sum and substance, that her husband and her father-in-law, mother-in-law and the elder brother of her husband were consistently torturing her mentally and physically to bring Rs. 35 Lakhs from her father for the purchase of house in Hyderabad. She has also further stated that her husband never consummated the marriage with her despite several attempts by her and that the husband would force her to sleep in a separate room. She has also voiced her apprehension that her husband was involved with another woman as he would leave her alone and go downstairs and speak for a long time to someone on the mobile phone. She has also stated that her husband used to stay away from her for long hours under the pretext of work load. The Respondent No. 2 has also alleged that her husband opened a fake face-book account in the name of one Renu Gupta in which derogatory averments were made against the Respondent No. 2 and her family. She has also stated that her husband used to stay away from her for long hours under the pretext of work load. The Respondent No. 2 has also alleged that her husband opened a fake face-book account in the name of one Renu Gupta in which derogatory averments were made against the Respondent No. 2 and her family. She also states that during her stay with her in-laws, her husband, husband's elder brother, father-in-law and mother-in-law used to tell her that the way they had compelled their elder daughter in law to leave within three months of the marriage, they would do the same thing with Respondent No. 2. Finally, on 15.8.2015, the husband of the Respondent No. 2 is alleged to have brought Respondent No. 2 from Hyderabad to Jabalpur and left her in parental home by telling her that there exists no relationship with them and that he has been transferred to Pune where he shall now henceforth be staying. 7. After having gone through the extremely elaborate F.I.R. what stands out clearly is that the majority of the allegations relating to the matrimonial cruelty are all directed against the father, mother, the elder and the younger brother of the Petitioner No. 2. The specific allegations against the Petitioners herein, if at all they can be said to be specific, is limited to paragraph 6 of the FIR where the Respondent No. 2 alleged that on 20.04.15, after the husband of the Respondent No. 2 left for Hyderabad, and when all the relations had gone from the house of her in-laws, the mother-in-law, father-in-law, the elder brother of her husband and the Petitioners herein are alleged to have told the Respondent No. 2 to tell her father to provide for rupees thirty five lakhs to purchase a flat for the Respondent No. 2 and her husband in Hyderabad, and till such time, they would not let the Respondent No. 2 enjoy a matrimonial life with her husband. It is clear that the allegation is omnibus in nature and not specific to the Petitioners herein. 8. It is clear that the allegation is omnibus in nature and not specific to the Petitioners herein. 8. The second reference to the Petitioners is in paragraph seven of the FIR in which the Respondent No. 2 states that "on 19.04.2015 itself after leaving Vivek (husband of the Respondent No. 2) who was leaving for Hyderabad at the station, the sister-in-law (the Petitioner No. 2 herein), the husband of the sister-in-law (the Petitioner No. 1 herein) and the elder brother in law, abused the Complainant with filthy abuses." This allegation is also omnibus in nature and does not specify what the abuses were and who said what. More importantly, the Complainant does not mention the context in which she was abused by the Petitioners herein and for what. The Complainant makes it appear that she was abused by the Petitioners herein merely for the sake of offending her, without any reason. 9. Finally in paragraph eighteen of the FIR, the Respondent No. 2 levels another omnibus charge against the Petitioners to the effect "that my husband, mother-in-law, father-in-law, elder brother-in-law, sister-in-law (Petitioner No. 2 herein), husband of the sister-in-law (Petitioner No. 1 herein) from the day after the marriage started demanding rupees thirty-five lakhs in dowry and used to beat and torture me mentally and physically." To sum up the allegations against the Petitioners herein, (a) they are said to have, in conjunction with the others members of the family, pressurised the Respondent No. 2 to provide for rupees thirty five lakhs by asking her father for the same in order to buy a flat for her and her husband in Hyderabad, (b) abused the Respondent No. 2 along with the elder brother of the Petitioner No. 2 on 19.04.15 and (c) beat and harassed the Respondent No. 2 mentally and physically in conjunction with the other co-accused persons in order to compel her to fulfil the dowry demand of rupees thirty five lakhs. 10. Ld. Sr. Counsel for the Petitioners has drawn my attention to Annexure P/1 at page 10 and 11 of the petition which is the airline tickets of the Petitioner No. 2 showing his journey from London to New Delhi on 10.04.15, reaching Delhi on 11.04.15 and that of the Petitioner No. 2 from London to New Delhi on 18/03/15. 10. Ld. Sr. Counsel for the Petitioners has drawn my attention to Annexure P/1 at page 10 and 11 of the petition which is the airline tickets of the Petitioner No. 2 showing his journey from London to New Delhi on 10.04.15, reaching Delhi on 11.04.15 and that of the Petitioner No. 2 from London to New Delhi on 18/03/15. Both the Petitioners then travelled from Delhi to Jabalpur on 13.04.16 to attend the marriage of the Respondent No. 2 with the brother of the Petitioner No. 2 on 16.04.15. Though the journey ticket of the Petitioner No. 2 from Delhi to Jabalpur does not appear to be on record, the ticket of the Petitioner No. 1 is there on record which shows the date of journey form Delhi to Jabalpur as 13.04.15. After attending the marriage of the Respondent No. 2, the Petitioners flew back to Delhi from Jabalpur on 20.04.15 and back to London on 04.05.15. From page 13 to 24 of the Petition, are copies of the passports of the Petitioners with the visa stampings by the immigration authorities at UK and India, corresponding to the date of the journeys undertaken by the Petitioners. The itinerary of the Petitioners from London to Jabalpur and back have not been disputed by the Respondent No. 1 or 2. In fact, the Respondent No. 2 has herself relied upon one of the tickets showing the journey of the Petitioners from Jabalpur to Delhi on 20.04.15 which is annexed to her reply as Annexure R2/10. Thus, the undisputed period of presence of the Petitioners in India is that they reached Jabalpur to attend the marriage of the Respondent No. 2 with the brother of the Petitioner No. 2 on 13.04.15, attended the marriage on 16.04.15 and returned to London on 04.05.15. The Ld. Counsel for the Petitioners has submitted that the Respondent No. 2 never stayed with the Petitioners and the interaction of the Petitioners with the Respondents was only during the above said period. The same is also not disputed by the Respondent No. 2 who however states that the acts amounting to cruelty were committed by the said Petitioners during that short period of interaction with the Respondent No. 2 which have been summarised in paragraph 9 supra . The same is also not disputed by the Respondent No. 2 who however states that the acts amounting to cruelty were committed by the said Petitioners during that short period of interaction with the Respondent No. 2 which have been summarised in paragraph 9 supra . There was no further occasion for interaction of the Petitioners with the Respondent No. 2 as the relationship between the Respondent No. 2 and her husband deteriorated so rapidly after marriage that they separated within four months of marriage and the husband of the Respondent No. 2 is alleged to have sent her back home on 15.08.15, from when the two have been living separately. 11. Ld. Counsel for the Petitioners has stated that all the allegations against the Petitioners have been levelled in order to rope them in and harass them as is evident from the facts of the case itself as laid out in the FIR lodged by the Respondent No. 2. He has referred to the judgment of the Supreme Court in Preeti Gupta and Another vs. State of Jharkhand and Another, (2010) 7 SCC 667 . In this case, the Petitioners were the married sister and unmarried brother of the Complainant's husband who lived separately from the Complainant and her husband and were roped in by the Complainant in a criminal complaint be fore the Magistrate. In paragraph 10 of the said judgment it appears that the Complainant in that case did not dispute, that the Petitioners therein lived separately and that they had never spent any time with the Complainant. In paragraph 29 of the judgment, the Supreme Court arrives at the finding that the implication of the Petitioners "in the complaint is meant to harass and humiliate the husband's relatives" as the admitted position in that case was, that the Petitioner No. 1 was a permanent resident of Navsari in Gujarat, where she lived with her husband for over seven years, and that the Petitioner No. 2, the brother-in-law of the Complainant who lived in Goregaon and that the Petitioners had never visited the Complainant and her husband. The Supreme Court quashed the case against the Petitioners therein. The observations of the Hon'ble Supreme Court are extremely relevant and meaningful. The Supreme Court quashed the case against the Petitioners therein. The observations of the Hon'ble Supreme Court are extremely relevant and meaningful. In paragraph 32, taking note of the impromptu nature of the complaints involving matrimonial disputes, it observes that "It is a matter of common experience that most of the complaints under section 498-A are filed in the heat of the moment over trivial issues without proper deliberations......" In paragraph 33, the Ld. Judges elaborate on the role played by the Ld. Members of the Bar in such cases and how the members of the Bar must exercise circumspection while advising clients in such cases to ensure that the "....... social fibre, peace and tranquillity of the society remains intact." In paragraph 35, the Supreme Court adds a caveat for the courts to be "......extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complainant are required to be scrutinised with great care and circumspection." 12. The second case on which reliance has been placed by the Ld. Senior Counsel appearing on behalf of the Petitioners is Ram Saran Varshney and Others vs. State of Uttar Pradesh and Another, (2016) 3 SCC 724. In this case too, the Appellants 4, 5 and 6 were the married sisters-in-law of the Complainant and they were all residing independently with their families and the only interaction that they had with the Complainant was on the occasions of "Graha Pravesh" of the Complainant's house and the naming ceremony of the Complainant's daughter. The Supreme Court held in paragraph 30 and 31 of the judgment that "We are of the view that the visit of the three sisters-in-law of the Respondent 2 Sonia Gupta on the above two occasions were for celebration and cannot be treated as occasions where they harassed the Respondent 2. The Supreme Court held in paragraph 30 and 31 of the judgment that "We are of the view that the visit of the three sisters-in-law of the Respondent 2 Sonia Gupta on the above two occasions were for celebration and cannot be treated as occasions where they harassed the Respondent 2. In any case, in the absence of any material on the record of this case, relating to harassment on the above two occasions, we are satisfied, that the proceedings initiated against Appellant 4, 5 and 6 consequent upon the registration of the first information report by the Respondent 2 Sonia Gupta on 10.4.2002 was not justified. The same deserves to be quashed. The same is accordingly hereby quashed." The Ld. Counsel for the Petitioners has emphasised that the instant case is identical as (a) the only occasion when there was a very brief interaction between the Petitioners and the Respondent No. 2 was at the time of marriage of the Respondent No. 2 and (b) there is no material on record other than the omnibus allegation against the Petitioners that they ever harassed the Respondent No. 2 during the brief interaction that they had with her at the time of the marriage. 13. The Respondent No. 2 has submitted that the Petitioners were present at the marriage and that they too had acted as in the manner alleged in the FIR, registered by her. She has also relied upon the ticket placed on record by the Petitioners to show their presence in Jabalpur at the time of the marriage. This is however an undisputed fact. The Respondent No. 2 has also drawn the attention of the Court to the photographs annexed by her to show that she was burnt by a hot iron by her husband and that her husband opened a fake Face Book account with the fictitious ID of one Renu Gupta in which derogatory things were written about the Respondent No. 2 and her family. She has also drawn the attention of this Court to the email sent by her to her father informing him of the cruelties committed upon her by her husband when she was living with him at Hyderabad. However, all these allegations even if admitted to be true are all against her husband and not against the Petitioners herein. 14. The Ld. However, all these allegations even if admitted to be true are all against her husband and not against the Petitioners herein. 14. The Ld. Counsel for the Respondent No. 1 State has reiterated the submissions of the Respondent No. 1 and has also submitted that since the charge sheet has already been filed, no order can be passed U/s. 482 Cr.P.C. by this Court. He has also stated that a preliminary inquiry was done by the police and only thereafter was the FIR lodged and a detailed investigation carried out. 15. In such cases, the Court of First Instance must desist the urge to take cognizance U/s. 190 (1) or 190 (2) Cr.P.C. mechanically and summoning all the persons so arrayed as accused by the police in the charge sheet or by the Complainant in the complaint under section 200 Cr.P.C. Nothing can be more unjust than summoning a person as accused in a criminal trial only because the police has filed a charge sheet against him or that the Complainant has levelled allegations against him in the Complainant and statement U/s. 200 Cr.P.C. It is trite law that the Trial Court is not the mouth piece of the prosecution and that it must not act as a post office when the charge sheet is filed. Though the said observations were made by the Supreme Court in cases at the stage of framing of charge by the Trial Court the same principle would assume relevance at the stage of taking cognizance also, when examined in the backdrop of the observations of the Supreme Court in Pepsi Foods Ltd. vs. Special Judicial Magistrate, (1998) 5 SCC 749 , wherein at paragraph 28 it held "Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused." Though the said judgment was passed in the backdrop of a complaint case, in cases where cognizance is sought to be taken on the basis of a charge sheet filed by the police, it is expected of the Court to go through the charge sheet, the documents and the statements of the witnesses under section 161 Cr.P.C. and examine if it is necessary to take cognizance of the offences stated in the charge sheet and summon any or all of the persons arrayed as accused by the police, to stand trial. Where, the Trial Court is of the opinion that there is some evidence which may reveal a slight suspicion against a person, it ought to take recourse to the procedure U/s. 156(3) Cr.P.C. and remand the matter to the police for further investigation, rather than take cognizance and summon a person as an accused where the evidence on record prima facie reveals only a peripheral presence of such a person in the narrative of the prosecution's case rather than an active involvement in the offence complained of. The Trial Court is not helpless where it comes to its notice that a person who was not sent for trial may perhaps have been an active participant in the offence. Recourse can always be had to Section 319 Cr.P.C. where the active involvement of person against whom the court did not take cognizance becomes clear through the statement of the witnesses in court. 16. In the instant case, the Petitioners have been compelled to approach this Court which would have been obviated had the Ld. Recourse can always be had to Section 319 Cr.P.C. where the active involvement of person against whom the court did not take cognizance becomes clear through the statement of the witnesses in court. 16. In the instant case, the Petitioners have been compelled to approach this Court which would have been obviated had the Ld. Trial Court taken the pains to see that the charge sheet filed in this case, when examined in the light of the judgments of the Supreme Court in similar cases, did not disclose any offence against the Petitioners herein. The undesirable and mechanical process of taking cognizance of offences against accused persons mentioned in the charge sheet is unsustainable in the eyes of the law which has the propensity of reducing the criminal courts to a tool of convenience in the hands of unscrupulous complainants who would like to contort the criminal justice process of either wrecking vengeance on someone or resort to the criminal courts as an alternative to a civil recourse. It goes without saying that an order refusing to take cognizance by the Trial Court in a fit case, would have to state reasons briefly, disclosing the mind of the Trial Court as to why it refused to take cognizance in a given case. However, the importance of not taking cognizance in a mechanical manner by the Trial Court cannot be underscored enough. 17. The petition succeeds and is allowed. FIR in Crime No. 44/15 of P.S. Woman Police Station (Mahila Thana), Madan Mahal, Jabalpur for offences U/ss. 498-A r/w 34 of Indian Penal Code and 3 and 4 of the Dowry Prohibition Act, 1961 and all proceedings arising therefrom pending in the Court of the Ld. JMFC are quashed as far as the same relate only to the Petitioners herein in M. Cr. C No. 21205/2015, Mr. Rajesh Kumar Gupta, S/o Mr. Vinod Prakash Gupta and Mrs. Richa Gupta, W/o Mr. Rajesh Kumar Gupta.