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Madhya Pradesh High Court · body

2019 DIGILAW 636 (MP)

Rohit v. State of M. P.

2019-09-05

S.K.AWASTHI

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ORDER 1. Since present matters are connected and arises out by the crime No. 18/2017 registered at police Station- Mahila Thana, Ratlam for the offence punishable under sections 498A, 323/34 of IPC. are being decided by the present common order. 2. The applicants/accused persons preferred MCrC No. 9360/2018 for quashment of FIR bearing crime No. 18/2017 registered at Police Station- Mahila Than, Ratlam and all consequential proceedings which has been registered in furtherance to the said FIR. 3. The applicants preferred MCrCNo. 2431/2019 under section 482 of CrPC challenging the order dated 22.9.2018 passed by Sessions Judge,Ratlam in Criminal Revision No. 87/2018 whereby the order dated 17.7.2018 passed by Judicial Magistrate First Class, Ratlam in criminal case No. 2215/2017 has been affirmed by which charge under section 498A, 323/34 of IPC. has been framed against the applicants. 4. The facts leading to filing of instant applications are that marriage was solemnized between the applicant No. 1 and respondent No. 2 (MCrC No. 9360/2018) on 20.2.2017. According to the complaint made by respondent No. 2, the present applicants were harassing her since the date of marriage for demand of motorcycle, however, she tolerated the harassment with a hope that in future applicants will mend their ways and will treat the respondent No. 2 properly. Although, the situation did not improve and on 29.7.2017 respondent No. 2 was thrown out from the matrimonial home in presence of his father and maternal uncle. They also told that she cannot come home until she arranges the motorcycle, cash amount and golden chain. The respondent No. 2 has submitted a written complaint to the police Station Mahila Thana, Ratlam and on the basis of which the police registered the FIR bearing crime No. 18/2017 for the offence punishable under section 498A, 323/34 of IPC. against the applicants. After completion of the investigation, police filed the charge-sheet against the applicants and on the basis of which, the learned Judicial Magistrate first Class, Ratlam framed the charges against the applicants for the aforesaid offence. In order to seek quashing of FIR as well as criminal proceedings, the instant applications have been filed. 5. against the applicants. After completion of the investigation, police filed the charge-sheet against the applicants and on the basis of which, the learned Judicial Magistrate first Class, Ratlam framed the charges against the applicants for the aforesaid offence. In order to seek quashing of FIR as well as criminal proceedings, the instant applications have been filed. 5. it has been stated that the applicants have preferred instant application rather than invoking the revisional jurisdiction for the order of framing of charge citing the reason that one petition under section 482 of CrPC was already pending for quashment of the FIR and this Court under section 482 CrPC has wider jurisdiction. 6. Learned counsel for the applicants has submitted that from the plain reading of the contents 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 on 6.11.2017, the applicant No. 1 made a written complaint to police Station- Mahila Thana, Ratlam, Police Station Imli Bazar (Sadar Bazar), Indore and Superintendent of Police, Ratlam and Indore against the complainant and during the enquiry of the aforesaid complaint as a counter blast, the complainant got registered the FIR against the applicants accusing them for making demand of dowry and illtreatment. It is further submitted that the complaint made by the respondent No. 2 has been promtly taken up and FIR was registered on the same very date whereas a matter of policy, it is obligatory for the police to first referred the mattere before the family counseling center and only thereafter to registere an FIR against the accused persons. He has further placed relianced on several judicial pronouncement by the Supreme Court and this High Court to substantiate his contentions. 7. Per Contra, learned counsel for the respondent No. 2 has pointed out that the contents of the complaint do disclose commission of cognizable offence and there is no error committed by the respondent No. 1 in registering the FIR. It is also submitted that the documents which are brought on record by the applicants, are defence documents and the same cannot be given any consideration at this stage of the proceeding. It is also submitted that the documents which are brought on record by the applicants, are defence documents and the same cannot be given any consideration at this stage of the proceeding. Therefore, the respondents seek dismissal of the present application being devoid of merits. 8. Having considered the rival contentions of the parties and perused the documents filed along with the instant applications, this Court is of the opinion that the present applications under section 482 of CrPC deserves to be allowed. In order to supply the reasons to the opinion recorded above, it would be appropriate to deal with the contentions raised by the respondent. 9. The first contention which appears to be preliminary in nature is that the documents which are brought on record regarding the complaint made by the applicant No. 1 to the Superintdent of Police, Ratlam and filing of application under section 9 of Hindu Marriage Act, 1955 for restitution of conjugal rights are the defence documents and there is prohibition in considering such documents in order to decide the application of the instant nature. This contention can be best answered by relying on the judgment of the Supreme Court in the case of Rukmini Narvekar v. Vijaya 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 (LandS) 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. 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 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." 10. The reproduced extracts of the said judgment clearly demonstrate that there is no prohibition in considering even the defence material while exercising the power under section 482 of CrPC. The reproduced extracts of the said judgment clearly demonstrate that there is no prohibition in considering even the defence material while exercising the power under section 482 of CrPC. Consequently, the first contention of the respondent about non-consideration of the defence material is repealed. 11. The next contention which touches on the merits of the case is that the Court cannot consider the background or the circumstances under which the complaint has been lodged as it is only required to pursue the contents of the complaint lodged by the respondent No. 2 and the statements recorded by the police under section 161 of CrPC and if these materials make out the ingredient of offence charged against the applicants, there is no scope for showing any indulgence. In this context of said contention, it will be worthwhile to quote the following observation made by the Supreme Court in the case of Ramesh Rajagopal v. Devi Polymers (P) Ltd., 2016 (II) MPWN 11 = (2016) 6 SCC 310 : "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." 12. The consideration of the reproduced portion clearly indicates that it is open to the Court to enquire into the circumstances and the context in which the complaint has been lodged because it is not expedient in the interest of justice to permit the prosecution to continue when the same has been filed with oblique motive or to settle the personal score. 13. From perusal of the complaint, it appears that there is no specific averments regarding the date or the occasion or any specific wording that they made for demanding dowry. The marriage was taken place only one and half year before the complaint. Earlier no complaint was made to any authority regarding demand of dowry and harassment. According to the allegation made in the complaint that on 29.8.2017 in presence of the father and maternal uncle of the respondent No. 2, the applicants made demand of dowry and thrown out her from the matrimonial house but complainant did not lodged any compliant immediately after the said incident to the police. The present complaint has been made after near about 3 months of the last incident and no explanation has been disclosed about the delay in lodging the FIR. These circumstance prima facie raised doubt about the probability of truthfullness of the allegations made by the respondent No. 2 against the applicants. 14. From the documents filed by the applicants, it reveals that applicant No. 1 has given notice to the respondent No. 2 on 20.11.2017 regarding restitution of conjugal rights and thereafter the respondent No. 2 lodged FIR against the applicants at Police StationMahila Thana on 26.11.2017, which indicates that the respondent No. 2 lodged the FIR against the applicants for demand of dowry and harassment to defeat the proceedings initiated by the applicant No. 1 for restitution of conjugal rights. 15. From the reasons stated hereinabove, this Court is of the view that there are no sufficient material on record to form an opinion that there is ground for presuming that the appellants/accused persons have committed the offence under the charged sections. The learned Judicial Magistrate and the learend Sessions Judge missed these crucial points while framing the charge and considering the revision application filed by the applicants under section 397 of CrPC the veiled object behind the lame prosecution is apparently to harass the applicants, therefore, the impugned prosecution is wholly unfounded. 16. The learned Judicial Magistrate and the learend Sessions Judge missed these crucial points while framing the charge and considering the revision application filed by the applicants under section 397 of CrPC the veiled object behind the lame prosecution is apparently to harass the applicants, therefore, the impugned prosecution is wholly unfounded. 16. Therefore, present petitions under section 482 of CrPC are hereby allowed and the proceedings drawn against the applicants in furtherance to the FIR bearing crime No. 18/2017 for the commission of offence punishable under section 498A, 323/34 of IPC. registered at police Station-Mahila Thana, Ratlam and the consequential proceedings pending before the Court of Judicial Magistrate First, Class, Ratlam in criminal case No. 2215/2017 are hereby quashed. Let a copy of this order be sent to the concerned Court for information and necessary compliance.