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2020 DIGILAW 396 (MP)

Shiv Prasad Tiwari v. State of M. P.

2020-03-06

RAJENDRA KUMAR SRIVASTAVA

body2020
ORDER : Rajendra Kumar Srivastava, J. 1. Petitioners-accused have filed this miscellaneous criminal case under Section 482 of Cr.P.C. to quash the proceeding pending before the Judicial Magistrate First Class Bhopal vide RCT No. 7481/2019 for the offence punishable under Sections 498-A, 506, 34 of IPC and Section 3/4 of the dowry Prohibition Act registered in Crime No. 21/2019. 2. Prosecution case in short is that on 06.01.2019, the respondent No. 2 lodged the FIR against the petitioners and one Nitin Sethi stating that on 18.04.2018, marriage of respondent No. 2 was solemnized with petitioner/accused No. 3 according to Hindu rites and ritual. Petitioner/accused Nos. 1, 2, 4 and 5 are father-in-law, mother-in-law, brother-in-law and sister-in-law of respondent No. 2 respectively. Petitioner No. 3 is working in JIO company at Mumbai. Petitioner No. 3 and his family members have tortured the respondent No. 2 on account of demand of dowry. Petitioner No. 3 told her parents to give Rs. 5 lakhs to him, otherwise he would give divorce to her. Petitioner No. 2 has also demanded the dowry from her. She further contended that even after providing some articles by her mother, the petitioners was continually demanding money and gold ornaments from respondent No. 2 and due to non-fulfillment of said demand, they tortured her physically and mentally. Petitioner No. 3 and one Nitin Sethi threatened her to kill her parents. On 20.10.2018, petitioner No. 3 committed marpeet with respondent No. 2 on Panvel Mumbai due to which she lodged the complaint against the petitioner No. 3 bearing Crime No. 1640/2018 for the offence under Sections 323, 504 and 506 of IPC. Thereafter, she left her matrimonial house and since than she is living with her parents at Bhopal. 3. Learned counsel for the petitioners submits that petitioner No. 3 and respondent No. 2 were living happily at Mumbai whereas the petitioner No. 1 was posted and had visited several places. The petitioner Nos. 1, 2, 4 and 5 are living separately from the petitioner No. 3 and respondent No. 2 and they had no interference with personal life of respondent No. 2. The entire family have been roped into this frivolous case just to get monetary relief and compensation. The petitioner Nos. 1, 2, 4 and 5 are living separately from the petitioner No. 3 and respondent No. 2 and they had no interference with personal life of respondent No. 2. The entire family have been roped into this frivolous case just to get monetary relief and compensation. She made general allegations against all the petitioners saying that the petitioners were ill-treating her and demanded dowry, so in the absence of specific allegation against the petitioners, they cannot be prosecuted further. He submits that initially the complainant has lodged the FIR against only petitioner No. 3 for the offence under Sections 323, 504, 506 of IPC and at later stage with the mala fide intention she roped all the family members of petitioner No. 3. He has also raised the issue of territorial jurisdiction saying that petitioner No. 3 and respondent No. 2 have not resided at Bhopal, thus, the cognizance taken by the Court below is without jurisdiction and deserves to be quashed. With the aforesaid, he prays for allowing of this petition. 4. On the other hand, the learned counsel for the State vehemently oppose the submission of petitioners' counsel and submits that there is a prima facia material available on the record against the petitioners/accused. All the facts will be investigated at the trial. Therefore, there is no scope to invoke the inherent jurisdiction under Section 482 of Cr.P.C. to quash the proceeding. In addition to above said facts, the learned counsel for the respondent No. 2 argued that all the petitioner are involved in alleged crime and they are liable to be prosecuted in the case. He submits that the petitioner Nos. 1 and 2 are equally liable for the offence as when they used to come house of respondent No. 2 and tortured her. The other petitioners were living at Mumbai and they have also tortured her. He submits that without recording the evidence, it cannot be concluded that the allegation are absurd or not? Therefore, looking to the prima facie material and specific allegation, this petition may not be allowed. The defence of petitioners cannot be looked into at this stage. 5. Heard both the parties and perused the record. 6. The first objection raised by the petitioners' counsel is regarding territorial jurisdiction of the case. According to petitioner's counsel, no incident was taken place at Bhopal. The defence of petitioners cannot be looked into at this stage. 5. Heard both the parties and perused the record. 6. The first objection raised by the petitioners' counsel is regarding territorial jurisdiction of the case. According to petitioner's counsel, no incident was taken place at Bhopal. On perusal of case diary, it appears that initially the respondent No. 2 has lodged the complaint at Mumbai against the petitioner No. 3 for the offence of Sections 323, 504, 506 on 20.10.2018 whereas the FIR pertains to present case is registered at Police Station Kolar Road, Bhopal on 06.01.2019. It is true, in the FIR, it is mentioned by the respondent No. 2 that the petitioner Nos. 3 to 5 and she herself were residing at Mumbai and due to torture of the petitioners, she came to Bhopal at her parental home, she did not allege any incident which would have occurred at Bhopal. But in the recent pronouncement of the Hon'ble Apex Court in the case of Rupali Devi v. State of Uttar Pradesh and others reported in (2019) 5 SCC 384 : ( AIR 2019 SC 1790 ), the Higher Court held that a women drove out of her matrimonial home can file a criminal case against her spouse and in-laws at a place where she has taken shelter, the relevant portion of the judgment is quoted herein under:- "15. The protection of women from Domestic Violence Act, as the object behind its enactment would indicate, is to provide a civil remedy to victims of domestic violence as against the remedy in criminal law which is what is provided under Section 498-A of the Indian Penal Code. The definition of the Domestic Violence in the Protection of Women from Domestic Act, 2005 contemplates harm or injuries that endanger the health, safety, life, limb or well-being, whether mental or physical, as well as emotional abuse. The said definition would certainly, for reasons stated above, have a close connection with Explanations A and B to Section 498-A, Indian Penal Code which defines cruelty. The provisions contained in Section 498-A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. The provisions contained in Section 498-A of the Indian Penal Code, undoubtedly, encompasses both mental as well as the physical well-being of the wife. Even the silence of the wife may have an underlying element of an emotional distress and mental agony. Her sufferings at the parental home though may be directly attributable to commission of acts of cruelty by the husband at the matrimonial home would, undoubtedly, be the consequences of the acts committed at the matrimonial home. Such consequences, by itself, would amount to distinct offence committed at the parental home where she has taken shelter. The adverse effects on the mental health in the parental home though on account of the acts committed in the matrimonial home would, in our considered view, amount to commission of cruelty within the meaning of Section 498-A at the parental home. The consequences of the cruelty committed at the matrimonial home results in repeated offences being committed at the parental home. This is the kind of offences contemplated under Section 179, Cr.P.C. which would squarely be applicable to the present case as an answer to the question raised. 16. We, therefore, hold that the courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband or his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498-A of the Indian Penal Code." 7. Therefore, the ground of territorial jurisdiction is having no force and it is hereby discarded. 8. This is a case of matrimonial dispute, therefore, it has to be seen that how to deal with the petition under Section 482 of Cr.P.C. for quashing the FIR and subsequent criminal proceedings. 9. The Apex Court in the case of Rakhi Mishra v. State of Bihar and others, reported in AIR 2017 SC 4019 has held as under:- "This Court in Sonu Gupta v. Deepak Gupak Gupta and Ors. (2015) 3 SCC 424 , 426 : (AIR 2015 SC (Supp) 684) held as follows: "At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. (2015) 3 SCC 424 , 426 : (AIR 2015 SC (Supp) 684) held as follows: "At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is, not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not." 10. The Apex Court in the case of Kans Raj v. State of Punjab and others, reported in (2000) 5 SCC 207 : ( AIR 2000 SC 2324 ) has held as under:- "In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No. 2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implications such relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case." 11. The Apex Court in the case of Preeti Gupta and another v. State of Jharkhand and another, reported in AIR 2010 SC 3363 has held as under:- "28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. The Apex Court in the case of Preeti Gupta and another v. State of Jharkhand and another, reported in AIR 2010 SC 3363 has held as under:- "28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. 29. The courts are receiving a large number of cases emanating from Section 498-A of the Indian Penal Code which reads as under:- "498-A. Husband or relative of husband of a woman subjecting her to cruelty.-Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.-For the purposes of this section, 'cruelty' means:- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand." 30. It is a matter of common experience that most of these complaints under Section 498-A, IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern. 12. The Apex Court in the case of Arnesh Kumar v. State of Bihar, reported in (2014) 8 SCC 273 has held as under:- "4. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A, IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. "Crime in India 2012 Statistics" published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge sheeting in cases under Section 498-A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the lawmakers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive." 13. The Hon'ble Apex Court in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another, reported in (2012) 10 SCC 741 : ( AIR 2013 SC 181 ) has held as under: "20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding. 21. It would be relevant at this stage to take note of an apt observation of this Court recorded G.V. Rao v. L.H.V. Prasad (2000) 3 SCC 693 : ( AIR 2000 SC 2474 ) wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: "12. There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. Their Lordships observed therein with which we entirely agree that: "12. There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." 14. The view taken by the Judges in this matter was that the Courts would not encourage such disputes." 15. It is an admitted fact that the marriage of respondent No. 2 was solemnized with petitioner No. 3 on 18.04.2018 and the other petitioners are her matrimonial family members. The allegation against the petitioners are that due to non-fulfilment of their demand of dowry, they were torturing the respondent No. 2 mentally and physically. Per contra the petitioners are defending themselves by saying that the respondent No. 2 has falsely implicated all the family members just to grab the money. On behalf of the petitioner Nos. 1, 2, 4 and 5 the learned counsel says that they are living separately with the respondent No. 2 and petitioner No. 3 and they are not concerned with any demand of dowry or whatever said by the respondent No. 2. The petitioners are praying to this Court to exercise inherent jurisdiction under Section 482 of Cr.P.C., therefore, it is necessary to consider the legal aspect of exercise inherent jurisdiction under Section 482 of Cr.P.C. 16. The petitioners are praying to this Court to exercise inherent jurisdiction under Section 482 of Cr.P.C., therefore, it is necessary to consider the legal aspect of exercise inherent jurisdiction under Section 482 of Cr.P.C. 16. In the case of State of Harayana v. Bhajan Lal and others, reported in (1992 SCC (Cri) 426 : AIR 1992 SC 604 ) 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 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 un-controverted 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 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." 17. The Hon'ble Apex Court has laid down seven guide lines for exercising the inherent power of High Court under Section 482 of Cr.P.C. for quashing the FIR and this Court will examine the facts of the case under the light of above said principles. 18. Having read the above said principles, it is manifest that High Court should use its inherent power under Section 482 of Cr.P.C. to secure the ends of justice or to prevent an abuse of the process of any Court, but while exercising its power the high Court must evaluate whether the ends of justice would justify the exercise of the inherent power. 19. Further, in the case of Hemant Pandey v. State of M.P. reported in 2018(1) MPWN 45 , Co-ordinate Bench of this High Court has held as under:- "8. At the stage of framing of charge, the contents of the FIR and the statement of the witnesses ought to be seen. It is to be seen that prima facie case is made out. In the case of C.B.I. v. K.M. Sharan, (2008) 4 SCC 471 wherein the Apex Court has held that the High Court in its jurisdiction under Section 482, Cr.P.C. is not called upon to embark upon the inquiry whether the allegations in the FIR and the charge sheet are reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. These are the matters which can be examined only by the Court concerned after the entire material is produced before it on a thorough investigation and evidence is led. 9. It would not be proper for the High Court to analyze the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceeding ought to be quashed." 20. In the light of aforesaid legal position. I would proceed to decide this petition. 21. On perusal of statements of the complainant/respondent No. 2 and other documents, it appears that there is no dispute regarding marriage of respondent No. 2 with the petitioner No. 3. In the light of aforesaid legal position. I would proceed to decide this petition. 21. On perusal of statements of the complainant/respondent No. 2 and other documents, it appears that there is no dispute regarding marriage of respondent No. 2 with the petitioner No. 3. On perusal of case diary, it also appears that respondent No. 2 was employed in Cognizant Technology Solutions India Private Ltd. At Mumbai and was residing with her husband i.e. petitioner No. 3 at 'House No. 204 Asht Vinayak Complex Sector 17 New Mumbai'. Further, it is also not in dispute that the petitioner Nos. 1 and 2 were not living with her at Mumbai as in the case diary on perusal of notices and other documents, the address of petitioner Nos. 1 and 2 is mentioned as 160, Mahabali Nagar, Kolar Raod Bhopal'. Hence, it is found that they are living separately from respondent No. 2. Further according to respondent No. 2, the petitioner Nos. 3 to 5 were living with her in same flat at Mumbai whereas on perusal of their notices the address of petitioner Nos. 4 and 5 is mentioned as 'Flat No. 104, Plot No. 10, Siddhivinayak Apartment Sector 21 Dhansoli New Mumbai'. Thus, it also appears that the address where the respondent No. 2 and petitioner No. 3 were living is not similar to address of petitioner Nos. 4 and 5. 22. The petitioner No. 3 is husband of respondent No. 2 whereas petitioner Nos. 4 and 5 are brother-in-law and sister-in-law of her respectively. Further, it appears that the complaint has made specific allegation of demand of dowry against the petitioner No. 2 and 3 saying that they were demanded dowry of Rs. 5 Lakhs but looking to the fact that the petitioner No. 2 was not residing with the respondent No. 2 at Mumbai, the allegation levelled against the petitioner No. 2 by the respondent No. 2 is not found reliable. As far as allegation regarding threatening the respondent No. 2 is concerned, on perusal of her statement, it appears that same is levelled against the petitioner No. 3/husband and other co-accused Nitin Sethi who is not party in the present case. As far as allegation regarding threatening the respondent No. 2 is concerned, on perusal of her statement, it appears that same is levelled against the petitioner No. 3/husband and other co-accused Nitin Sethi who is not party in the present case. This fact is also to be considered that the respondent No. 2 has filed a complaint for the offence under Sections 323, 504 and 506, IPC against the petitioner No. 3 at Police Station Khandeshwar, New Mumbai. There is nothing found against the petitioner No. 1 (father-in-law of respondent No. 2.). So far as petitioner Nos. 4 and 5 are concerned, prima facie it appears that, they were also living at different address at Mumbai and there is general allegation found against them. Now a days, in matrimonial dispute, it is a general tendency of bride/complainant to rope all the relatives of husband including parents of advanced age, sibling and other, just to create pressure upon them. 23. Further, as far as the petitioner No. 3 is concerned, it appears from the case diary that earlier the respondent No. 2 lodged the complaint under Sections 323, 504 and 506 of IPC against him at Mumbai as well as in the present case, she specifically alleged against him for torturing and demand of dowry. Looking to the statements of other witnesses and also considering the material available on the record I found prima facie sufficient material against the petitioner No. 3 to prosecute further. I find only general allegation against the petitioner Nos. 1, 2, 4 and 5 and they can not be further prosecuted merely on the basis of their relation with the petitioner No. 3. 24. Accordingly, this petition is partly allowed and the proceeding of RCT No. 7481/2019 for the offence punishable under Sections 498-A, 506, 34 of IPC and Section 3/4 of the dowry Prohibition Act arising out in Crime No. 21/2019 registered at Police Station Kolar Road Bhopal is hereby quashed against the petitioner Nos. 1, 2, 4 and 5. As far as petitioner No. 3 is concerned, this petition is hereby dismissed and proceeding may go on continue against him, however, the learned Family Court is directed to decide the case on its own discretion without being influenced by any findings of this Court.