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Madhya Pradesh High Court · body

2017 DIGILAW 196 (MP)

Rajendra Singh Yadav v. State of M. P.

2017-02-07

G.S.AHLUWALIA

body2017
ORDER 1. This petition under section 482 of CrPC has been filed calling in question the legality and propriety of the order dated 11.9.2014 passed by JMFC, Bhind in Complaint Case No. (B.F.)/2014. 2. The necessary facts for the disposal of this application are that a complaint was filed by the respondent alleging that a threat to kill was extended to her as well as the complainant was humiliated and insulted by the applicants by calling her by caste. 3. It appears from the order dated 11.9.2014 that a direction was given to the police to submit the report and on 8.1.2014 the enquiry report was received from the police Station Dehat, District Bhind mentioning that the offence is alleged to have been committed by the applicants. On the basis of the police report as well as the allegations made in the complaint the Magistrate directed the Police Station Dehat District Bhind to register the offence against the applicants as well as to file the charge sheet after completing the necessary investigation. 4. It is contended by the counsel for the applicants that although in exercise of powers under section 156 (3) of CrPC the Magistrate can always direct for registration of FIR but he cannot take away the discretion of the police not to file the closure report by directing specifically that only the charge sheet has to be filed. 5. Per contra, the counsel for the respondents submit that once the police had already come to a conclusion that the applicants have committed an offence then the Magistrate did not commit any legal mistake in directing the police to file the charge sheet after completing the necessary investigation. 6. Heard the learned counsel for the parties. 7. From the order dated 11.9.2014, it is apparent that the Magistrate had directed the police to register the FIR. So far as this part of the order is concerned, it is well within the jurisdiction of the Magistrate and this part of the order is perfectly in accordance with law. However, the latter part of the order by which the Magistrate has directed the police to file the charge sheet appears to be beyond his jurisdiction. Registration of the FIR and filing of the charge sheet are two different things. However, the latter part of the order by which the Magistrate has directed the police to file the charge sheet appears to be beyond his jurisdiction. Registration of the FIR and filing of the charge sheet are two different things. Merely a FIR has been registered would not ipso facto mean that in all the circumstances the police has to file the charge sheet. After the FIR is lodged, it is for the police to investigate the matter and if after completing the investigation if the police comes to a conclusion that no offence is made out then the police is well within its right to file the closure report subject to approval by the Court concerned after hearing the complainant. In the present case, the Court has not taken the report of the police as a final report. The Magistrate has also directed the police to conclude the necessary investigation. Thus, it is clear that even the Magistrate was of the view that the report which has been submitted by the police is not based on the complete investigation and it is required to be completed. Under these circumstances directing the police to file the charge sheet only, necessarily means that the Magistrate by passing this order has taken away the jurisdiction of the police not to file the closure report, if circumstances so warranted. Under these circumstance this Court is the view that the latter part of the order by which a direction was given to the police to file the charge sheet was not in accordance with law, therefore, the second part of the order is hereby set aside. 8. It is further submitted that during the pendency of the petition the police has filed the charge sheet. It is the contention of the counsel for the applicants that the charge sheet has been filed in view of the specific and mandatory direction of the Magistrate to file the charge sheet. The police has not investigated independently and without considering the facts from the angle that whether the prima facie evidence is made out or not has filed the charge sheet under the compulsion of the order dated 11.9.2014. 9. The police has not investigated independently and without considering the facts from the angle that whether the prima facie evidence is made out or not has filed the charge sheet under the compulsion of the order dated 11.9.2014. 9. Refuting the said submission, it is submitted by the counsel for the respondents that the police has filed the charge sheet after completing the investigation and it cannot be said that free and fair investigation was not done and it cannot be said that merely in the light of the direction given by the Magistrate, the police has completed the formalities of filing the charge sheet. 10. Whether the police had conducted free and fair investigation or it was filed in compliance of the order of the Magistrate is a complex question of fact. However, without commenting on the material as contained in the charge sheet, once this Court has come to a conclusion that by passing an order dated 11.9.2014 giving a specific direction to file the charge sheet, the jurisdiction of the police not to file the charge sheet was taken away, then under these circumstances it would be appropriate to quash the charge sheet also and to modify the order dated 11.9.2014 directing the police to file the final report (either closure report or the charge sheet). It is directed that before deciding to file the final report (either closure report or the charge sheet), the police shall not get prejudiced by the order of the Magistrate which was passed on 11.9.2014 as the same has already been quashed by this Court. Consequently, the further proceedings in Criminal Case No.89/2015 pending before the Court of Special Judge, Bhind against the applicants in consequence of the charge sheet are also hereby quashed. 11. Let the police file the final report (either closure report or the charge sheet) after re-appreciating the entire material which has been collected by it during the investigation and while doing so if the police so desires may also collect the additional evidence. 12. With aforesaid observations, this petition is disposed of. Rajeev Sharma for applicants; Girdhari Singh Chauhan, Public Prosecutor for respondent No.1/State; O.P. Singhal for respondent No.2. 12. With aforesaid observations, this petition is disposed of. Rajeev Sharma for applicants; Girdhari Singh Chauhan, Public Prosecutor for respondent No.1/State; O.P. Singhal for respondent No.2. 2017 (I) MPWN 78 S.K. Awasthi, J. Sahid Khan v. Sayana Criminal Revision No. 557 of 2015 (G); Decided on 31.1.2017.* Criminal P.C., 1973 -- S.125 -- Muslim Women (Protection of Rights on Divorce) Act, 1986 -- Ss. 3,4,5 and 7 -- Family Court rightly directed to applicant to pay maintenance of Rs. 4,000/- per month till remarriage of respondent -- further, it was also rightly directed to pay Rs. 51,000/- to respondent as mehar. 2010(1) JLJ 250 (SC) followed. [Paras 7 & 8 naM izfØ;k lafgrk] 1973 & /kkjk 125 & eqfLye L=h ¼fookg&foPNsn ij vf/kdkj laj{k.k½ vf/kfu;e] 1986 & /kkjk 3] 4] 5 rFkk 7 & izR;FkhZ ds fy, iqufoZokg rd #i;s 4]000@& izfr ekl Hkj.kiks"k.k dk lank; djus ds fy, dqVqac U;k;ky; us vkosnd dks Bhd gh funsf'kr fd;k & vkxs] egj ds :i esa #i;s 51]000@& izR;FkhZ dks lank; djus fy, Bhd gh funsf'kr fd;kA 2010 ¼1½ ts ,y ts 250 ¼mPpre U;k;ky;½ vuqlfjrA ¼iSjk 7 ,oa 8½ ORDER 1. The revision petition calls, in question, the order dated 12.12.2014 passed in Criminal MJC No. 99/14 by the Principal Judge, Family Court, Morena by which the application under section 125 of CrPC filed by the respondent has been partly allowed. 2. The facts, in short, are that the marriage between the applicant and the respondent was solemnized according to Muslim rituals on 6.5.2006 and at that time several gifts were given by the family of the respondent to the applicant. It is further alleged that in the year 2008, the relation between the parties became bad to worse promoting the respondent to leave her matrimonial house and residing with her family. The respondent lodged an FIR alleging the commission of offence punishable under section 498A of IPC against the applicant and also filed an application under section 125 of CrPC for claiming maintenance amount. 3. Under the proceeding drawn by the respondent for maintenance, the Family Court allowed the application and directed to the applicant to pay maintenance of Rs. 4000/- per month till remarriage of the respondent. Further, an amount of Rs. 51,000/- was also directed to be given to the respondent as Mehar. 4. 3. Under the proceeding drawn by the respondent for maintenance, the Family Court allowed the application and directed to the applicant to pay maintenance of Rs. 4000/- per month till remarriage of the respondent. Further, an amount of Rs. 51,000/- was also directed to be given to the respondent as Mehar. 4. Learned counsel for the applicant primarily relied on section 3 and section 4 of Muslim Women (Protection of Rights on Divorce) Act 1986 (in short the Act of 1986) to put forth an argument that the application under section 125 of CrPC is not maintainable as now right of the Muslim Women Act can be assailed in terms of section 3 of the Act of 1986. In order to substantiate this contention, learned counsel has further relied on sections 5 and 7 of the Act of 1986, by which, according to him, no application under section 125 of CrPC can be filed by a divorced Muslim woman and the exented period till which the maintenance can be claimed, is categorically provided under the Act of 1986. While canvasing this contention, the applicant, in alternative, has also challenged the quantum of maintenance fixed by the Family Court on the ground that he has limited source of income and has several responsibilities due to which such exorbitant amount cannot be borne by him. 5. Per contra, learned counsel for the respondent submitted that the impugned order is a well considered order and all the contentions of the applicant have been examined by the Court below before pronouncing the impugned order. Thus, the revision application must fail. 6. The impugned order was earlier challenged by filing an appeal under section 19 of Family Courts Act which was numbered as First Appeal No. 43/2015, although vide order dated 15.6.2015, the Division Bench by following the Full Bench decision of this Court in case of Rajesh Shukla v. Smt. Meena, reported in 2005(2) JLJ 249 = 2005(2) MPLJ 483 (FB), permitted the present applicant to withdraw the appeal with liberty to file revision. Consequently, the instant revision petition has been filed. 7. Having considered the submissions of both the parties and upon consideration of the documents filed on record, it is clear that the law relating to maintainability of proceedings under section 125 of CrPC by a Muslim divorced woman in no longer unsettled. Consequently, the instant revision petition has been filed. 7. Having considered the submissions of both the parties and upon consideration of the documents filed on record, it is clear that the law relating to maintainability of proceedings under section 125 of CrPC by a Muslim divorced woman in no longer unsettled. The reliance placed on sections 3 and 4 of the act of 1986 is to bring home the contention that the proceedings under section 125 of CrPC are not maintainable whereas the Hon'ble Supreme Court in the case of Shabana Bano v. Imran Khan, reported in 2010(1) JLJ 250= (2010)1 SCC 666 has held that :- “23. Cumulative reading of the relevant portions of the judgments of this Court in Danial Latifi and Iqbal Bano would make it crystal clear that even a divorced Muslim woman would be entitled to claim maintenance from her divorced husband, as long as she does not remarry. This being a beneficial piece of legislation, the benefit thereof must accrue to the divorced Muslim women. 24. In the light of the aforesaid discussion, the impugned orders are hereby set aside and quashed. It is held that even if a Muslim woman has been divorced, she would be entitled to claim maintenance for her husband under section 125 of CrPC after the expiry of period of iddat also, as long as she does not remarry. As a necessary consequence thereof, the matter is remanded to the Family court at Gwalior for its disposal on merits at an yearly date, in accordance with law. The respondent shall bear the costs of litigation of the appellant. Counsel's fee Rs.5000/-.” 8. Thus, the contention of learned counsel for the applicant about maintainability of section 125 of CrPC and the period till such maintenance is to be paid cannot be acceded to in the teeth of the judgment of the apex Court in the case of Shabana Bano (supra). Further, rest of the contention of the applicant has not been substantiated by any document or material. Thus, no opinion can be recorded in this respect by this Court. 9. Taking this view of the matter, the instant revision application is rejected and the order of the Court below is affirmed.