(1) MCRC 2677/2016 HIGH COURT OF MADHYA PRADESH BENCH AT GWALIOR ***************** SB:- Hon'ble Shri Justice G. S. Ahluwalia MCRC 2677/2016 Padamchandra and Others Vs. State of MP & Another ======================= Shri Amit Lahoti, Shri Ankur Maheshwari and Shri Brajesh Kumar Tyagi, counsel for the applicants. Shri Prakhar Dhengula, Public Prosecutor for the respondent No.1/State. Shri Anmol Khedkar, counsel for the respondent No.2. ====================== ORDER
(Passed on 12/09/2017) This application under Section 482 of Cr.P.C. has been filed for quashment of the charge-sheet filed against the applicants in Crime No.187/2016 for offence under Sections 498-A, 506 read with Section 34 of I.P.C. and under Section 3/4 of Dowry Prohibition Act, registered by Police Station Narwar, District Shivpuri as well as the criminal proceedings pending in the Court of J.M.F.C. Karera District Shivpuri in Criminal Case No.1474/2015.
(2) The undisputed facts are that the respondent no. 2 is the wife of Paras Jain and the applicants no. 1,3 and 5 are the elder brothers of Paras Jain i.e., Jeth of the respondent no.2, whereas applicants no. 2,4,and 6 are Jethani of the respondent no.2. The respondents no. 7 and 8 are the married sisters-in- law i.e., Nanad of the respondent no.2. The applicants no. 9 and 10 are the father-in-law and mother-in-law of the respondent no.2. (3) The necessary facts for the disposal of the present application in short are that the respondent no.2 was married with Paras Jain on 30-4-2011. The respondent no.2 lodged a written report against the applicants and her husband Paras Jain, alleging therein that immediately after the marriage, all the applicants and her husband started harassing her for bringing less dowry (2) MCRC 2677/2016 at the time of marriage. When this was told by her to her parents, then She was convinced by them that with passage of time, every thing will be all right. The husband of the respondent no.2 is running a cloth shop and also is in habit of consuming liquor, and he was not giving money to the respondent no.2, to meet day to day expenses. She was tolerating with a hope that with passage of time, every thing would improve. However, about a month prior to the lodging of the F.I.R., She was turned out of her matrimonial house by the applicants and her husband after beating her and they also extended the threat that She will be killed. She came back to her parents home but didnot take any action with a hope that her in-laws would take her back. However, they have not come and on the contrary they used to extend threat on telephone. On 4-4-2013, She lodged a written report in Mahila Police Station Padav, Gwalior, then her in-laws were called in conciliation proceedings, where they promised in writing that they would not repeat the mistakes in future and would not demand dowry and her husband took her back and kept her in Magroni, Narvar and Shivpuri but again thereafter they all have started harassing her physically for demand of dowry. Now on 19-4-2015, She has been turned out of her matrimonial house and therefore, the written report was lodged. (4) The Police on the basis of the written report, lodged a report against the applicants and Paras Jain for offence under Sections 498-A and 506,34 of I.P.C. and under Section 3/4 of Dowry Prohibition Act and filed the charge- sheet, after completing the investigation.
(5) This petition has been filed for quashing the Charge-sheet, however, it is submitted by the Counsel for the applicants, that during the pendency of this petition, charges have been framed and evidence is yet to be recorded. It is further submitted by the Counsel for the applicants, that they have not challenged the order framing charges.
(6) It is submitted by the Counsel for the applicants that although charges have been framed and the case is fixed for recording of evidence but merely because the charges have been framed, this petition may not be dismissed. In support of his contention, the Counsel for the applicant relied upon judgment of Supreme Court passed in the case of Satish Mehra Vs. State (3) MCRC 2677/2016 (NCT of Delhi) reported in (2012) 13 SCC 614 and submitted that if the allegations made against the accused do not make out a prima facie case against him/her, then compelling them to face the trial is unwarranted. (7) The Supreme Court in the case of Satish Mehra (supra) has held as under:
“13. Though a criminal complaint lodged before the court under the provisions of Chapter XV of the Code of Criminal Procedure or an FIR lodged in the police station under Chapter XII of the Code has to be brought to its logical conclusion in accordance with the procedure prescribed, power has been conferred under Section 482 of the Code to interdict such a proceeding in the event the institution/continuance of the criminal proceeding amounts to an abuse of the process of court. An early discussion of the law in this regard can be found in the decision of this Court in R.P. Kapur v. State of Punjab wherein the parameters of exercise of the inherent power vested by Section 561-A of the repealed Code of Criminal Procedure, 1898 (corresponding to Section 482 CrPC, 1973) had been laid down in the following terms: (AIR p. 869, para 6) (i) Where institution/continuance of criminal proceedings against an accused may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice; (ii) where it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding e.g. want of sanction; (iii) where the allegations in the first information report or the complaint taken at their face value and accepted in their entirety, do not constitute the offence alleged; and (iv) where the allegations constitute an offence alleged but there is either no legal evidence adduced or evidence adduced clearly or manifestly fails to prove the charge. 14. The power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as may be, prima facie do not disclose a triable offence, there can be reason as to why the accused should be made to suffer the agony of a legal proceeding that more often than not gets protracted. A prosecution which is bound to become lame or a sham ought to interdicted in the interest of justice as continuance thereof will amount to an abuse of the process of the law. This is the core basis on which the power to interfere with a pending criminal proceeding has been recognized to be inherent in every High Court. The power, though available, being extra ordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfy the narrow test indicated above, (4) MCRC 2677/2016 namely, that even accepting all the allegations levelled by the prosecution, no offence is disclosed. However, if so warranted, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of the charge against the accused. In fact the power to quash a proceeding after framing of charge would appear to be somewhat wider as, at that stage, the materials revealed by the investigation carried out usually comes on record and such materials can be looked into, not for the purpose of determining the guilt or innocence of the accused but for the purpose of drawing satisfaction that such materials, even if accepted in its entirety, do not, in any manner, disclose the commission of the offence alleged against the accused. 15.
The above nature and extent of the power finds an exhaustive enumeration in a judgment of this Court in State of Karnataka v. L. Muniswamy (1977) 2 SCC 699 which may be usefully extracted below : (SCC pp. 702-03) “7. The second limb of Mr Mookerjee’s argument is that in any event the High Court could not take upon itself the task of assessing or appreciating the weight of material on the record in order to find whether any charges could be legitimately framed against the respondents. So long as there is some material on the record to connect the accused with the crime, says the learned counsel, the case must go on and the High Court has no jurisdiction to put a precipitate or premature end to the proceedings on the belief that the prosecution is not likely to succeed. This, in our opinion, is too broad a proposition to accept. Section 227 of the Code of Criminal Procedure, 2 of 1974, provides that: * * * This section is contained in Chapter XVIII called “Trial Before a Court of Session”. It is clear from the provision that the Sessions Court has the power to discharge an accused if after perusing the record and hearing the parties he comes to the conclusion, for reasons to be recorded, that there is not sufficient ground for proceeding against the accused. The object of the provision which requires the Sessions Judge to record his reasons is to enable the superior court to examine the correctness of the reasons for which the Sessions Judge has held that there is or is not sufficient ground for proceeding against the accused. The High Court therefore is entitled to go into the reasons given by the Sessions Judge in support of his order and to determine for itself whether the order is justified by the facts and circumstances of the case. Section 482 of the New Code, which corresponds to Section 561-A of the Code of 1898, provides that: * * * In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the (5) MCRC 2677/2016 proceeding ought to be quashed. The saving of the High Court’s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.” 16. It would also be worthwhile to recapitulate an earlier decision of this court in Century Spinning & Manufacturing Co. vs. State of Maharashtra (1972) 3 SCC 282 noticed in L. Muniswamy’s case (Supra) holding that: (SCC p. 704, para 10) “10 …. the order framing a charge affects a person’s liberty substantially and therefore it is the duty of the court to consider judicially whether the materials warrant the framing of the charge. It was also held that the court ought not to blindly accept the decision of the prosecution that the accused be asked to face a trial.”
(8) In the case of Ravikant Dubey and Others Vs. State of M.P. and another reported in 2014 Cr.L.R. (M.P.) 162, a Co-ordinate Bench of this Court has held as under :
“8. In view of the above, the questions of law which requires consideration are as follows: (i) Whether petition preferred by the petitioners under Section 482 of the Code for quashing the FIR can be entertained, when trial has been started and evidence of some witnesses have also been deposed before the Trial Court ? (ii) Whether evidence recorded by Trial Court during trial can be considered for quashing the FIR ?
(iii) Whether any ground is available for quashing the FIR in view of the facts and laws available on record ? Regarding question of law no. (i) :- 9. Learned Senior Counsel for the petitioners submitted that inherent powers can be used at any stage to prevent abuse of process of any Court or otherwise to secure the ends of justice. It makes no different whether trial has been started or not and whether some evidence has been deposed before the Trial Court or not. In support of his contention he placed reliance in the case of Sathish Mehra (supra) and Joseph Salvaraja Vs. State of Gujrat and others, (6) MCRC 2677/2016 (2011) 7 SCC 59.
12. Therefore, in the considered view of this Court this petition is maintainable also even when trial is at advance stage. The question is answered accordingly.”
Thus, it is held that during the pendency of the petition under Section 482 of Cr.P.C., if the charges have been framed and even if some of the witnesses have been examined, the petition can be decided on merits.” (9) The case diary statement of the respondent no.2 was recorded by the Police. In her case diary statement, it was alleged by the respondent no.2/complainant, that she was married to Paras Jain on 30-4-2011 and various household articles were given at the time of marriage. When she came to her matrimonial house, her husband started beating her under the influence of alcohol. When She made complaint to the applicants no. 2,4,6,7 and 8, they told that She will have to bear all this because, her father has not given, what was expected by them. The applicants no. 1,3,and 5 also started supporting her husband. It is alleged that even applicants no. 1 and 5 had slapped her on several occasions. Her parents also tried to convince her in-laws, but they didnot agree. Her husband used to assault her under the influence of alcohol and used to say that She is characterless and he wants to start new business therefore, she should bring Rs. 50,000/- from her parents. About two months back, her in-laws have turned her out of her matrimonial house and from then She is residing in her parent’s home. Her husband had beaten her on number of occasions and her parents- in-laws, Jethanis and Nanads used to watch the same silently and also used to beat her by taking side of her husband and they also used to say that why She is not bringing money from her parents.
(10) It is submitted by the Counsel for the applicants that only vague and omnibus allegations have been made against the applicants. So far as the allegation of slapping the respondent no.2/complainant by applicants no. 1 and 5 is concerned, the same is not mentioned in the written report. In fact there is no demand of dowry. The allegation is that her husband was demanding Rs. 50,000/- for starting new business and the only allegations against the applicants are that they used to take the side of her husband. It is further submitted that the applicants no. 1 to 6 are residing separately, whereas the applicants no. 7 and 8 are married sisters-in-law and are also residing separately. It is further submitted that the applicant no. 7 is residing in Badarwas Distt. Shivpuri whereas the applicant no. 8 is residing in Porsa, Distt. Morena. It is further submitted that now a days, a tendency is increasing day by day of falsely implicating the near and dear relatives of the husband so as to pressurize him and for prosecution of the distant or near and dear relative of the husband, there has to be specific allegation against them.
(11) Per contra, it is submitted by the Counsel for the respondent no.2/complainant, that there are sufficient allegations against the applicants to prosecute them. The legitimate prosecution may not be stiffled. (12) Heard the learned Counsel for the parties.
(13) The Supreme Court has also repeatedly expressed its concern over misuse of provision of Section 498A of I.P.C.
(14) In the case of Rajesh Sharma and others Vs. State of U.P. and another passed on 27-7-2017 in Cr.A.No.1265 of 2017 has held as under:-
“We have considered the background of the issue and also taken into account the 243rd Report of the Law Commission dated 30th August 2012, 140th Report of the Rajya Sabha Committee on Petitions (September,2011) and earlier decisions of this Court. We are conscious of the object for which the provision was brought into the statute. At the same time, violation of human rights of innocent cannot be brushed aside. Certain safeguards against uncalled for arrest or insensitive investigation have been addressed by this Court. Still, the problem continues to a great extent.
To remedy the situation, we are of the view that involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sanitized. It is also necessary to facilitate closure of proceedings where as genuine settlement has been reached instead of parties being required to move High Court only for that purpose.” (15) By relying on judgments passed by the Supreme Court in cases of Geeta Mehrotra Vs. State of U.P. reported in (2012) 10 SCC 741, Preeti Gupta Vs. State of Jharkhand, reported in (2010) 7 SCC 667, it is submitted by the Counsel for the applicants that there are to be somewhat (8) MCRC 2677/2016 specific and clear allegations against the relatives of the husband. There is an increasing tendency in the society to over-implicate the near and dear relatives of the husband so as to pressurize the husband.
The Supreme Court in the case of Kansraj Vs. State of Punjab, (2000) 5 SCC 207, 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 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 the 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.”
The Supreme Court in the case of Monju Roy Vs. State of West Bengal, reported in (2015) 13 SCC 693, has held as under :
“8.While we do not find any ground to interfere with the view taken by the courts below that the deceased was subjected to harassment on account of non-fulfillment of dowry demand, we do find merit in the submission that possibility of naming all the family members by way of exaggeration is not ruled out. In Kans Raj v. State of Punjab, (2000) 5 SCC 207, this Court observed : (SCC p. 215, para 5) “5………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.”
(9) MCRC 2677/2016 The Court has, thus, to be careful in summoning distant relatives without there being specific material. Only the husband, his parents or at best close family members may be expected to demand dowry or to harass the wife but not distant relations, unless there is tangible material to support allegations made against such distant relations. Mere naming of distant relations is not enough to summon them in absence of any specific role and material to support such role.
9. In Raja Lal Singh vs. State of Jharkhand, (2007) 15 SCC 415, it was observed : (SCC p. 419, para 14) “14. No doubt, some of the witnesses e.g. PW 5 Dashrath Singh, who is the father of the deceased Gayatri, and PW 3 Santosh Kr. Singh, brother of the deceased, have stated that the deceased Gayatri told them that dowry was demanded by not only Raja Lal Singh, but also the appellants Pradip Singh and his wife Sanjana Devi, but we are of the opinion that it is possible that the names of Pradip Singh and Sanjana Devi have been introduced only to spread the net wide as often happens in cases like under Sections 498-A and 394 IPC, as has been observed in several decisions of this Court e.g. in Kamesh Panjiyar v. State of Bihar [(2005) 2 SCC 388], etc. Hence, we allow the appeal of Pradip Singh and Sanjana Devi and set aside the impugned judgments of the High Court and the trial court insofar as it relates to them and we direct that they be released forthwith unless required in connection with some other case.”
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11. The Court has to adopt pragmatic view and when a girl dies an unnatural death, allegation of demand of dowry or harassment which follows cannot be weighed in golden scales. At the same time, omnibus allegation against all family members particularly against brothers and sisters and other relatives do not stand on same footing as husband and parents. In such case, apart from general allegation of demand of dowry, the court has to be satisfied that harassment was also caused by all the named members.”
The Supreme Court in the case of Chandralekha & Ors. v. State of Rajasthan & Anr. reported in 2013 (1) UC 155 has held as under:-
“8. We must, at the outset, state that the High Court’s view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear (10) MCRC 2677/2016 whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR is lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3.”
(16) If the allegations made in the F.I.R. and the case diary statement of the respondent no.2/complainant are considered in the light of the judgments passed by the Supreme Court in the case of Kansraj (Supra), Monju Roy (Supra), Geeta Mehrotra (supra), Preeti Gupta (Supra) and Chandralekha (Supra), then it would be clear that whenever, the respondent no.2/complainant, made complaint to the applicants no. 2,4,6 to 8 with regard to the conduct of her husband, then every time, She was told that as her father has not given dowry as per their expectations, therefore, the respondent no.2/complainant, will have to tolerate the same. The allegations are of demand of Rs. 50,000/- for starting business by the husband. It is also alleged that her husband used to beat her under the influence of alcohol. So far as the allegation of slapping the respondent no.2/complainant by applicants no.1 and 5 is concerned, the said allegation has not been made in the F.I.R. Thus, this Court is of the considered opinion that the allegations made against the applicants no. 1 to 8 are vague and omnibus and are not sufficient to compel them to face the ordeal of trial. (17) So far as the allegations against the applicants no. 9 and 10 are concerned, it is submitted by the Counsel for the respondent no.2/complainant, that in the case diary statement, it has been specifically alleged by the complainant, that they were also supporting their son Paras Jain and were also beating the complainant along with Paras Jain. By (11) MCRC 2677/2016 relying on the judgment passed by the Supreme Court in the case of Taramani Parakh v. State of M.P. and anr. reported in (2015) 11 SCC 260, it is submitted that the allegations made against the applicants no. 9 and 10 are sufficient to prosecute them.
(18) If the allegations made against the applicants no. 9 and 10 are concerned, it is clear that the basic allegations against them are that they had also passed taunts that unless and until, the money is brought by the respondent no.2/complainant from her father, She will have to suffer. The Supreme Court in the case of Taramani Parakh (supra) has held as under:-
“14. From a reading of the complaint, it cannot be held that even if the allegations are taken as proved no case is made out. There are allegations against Respondent No.2 and his parents for harassing the complainant which forced her to leave the matrimonial home. Even now she continues to be separated from the matrimonial home as she apprehends lack of security and safety and proper environment in the matrimonial home. The question whether the appellant has infact been harassed and treated with cruelty is a matter of trial but at this stage, it cannot be said that no case is made out. Thus, quashing of proceedings before the trial is not permissible.
15.The decisions referred to in the judgment of the High Court are distinguishable. In Neelu Chopra [(2009) 10 SCC 184], the parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court found no cogent material against the other accused. In Manoj Mahavir [(2010) 10 SCC 673], the appellant before this Court was the brother of the daughter-in-law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier Section 498-A IPC case. This Court found the said case to be absurd. In Geeta Mehrotra [(2012) 10 SCC 741], case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down an inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused.”
(19) Considering the allegations against the applicants no. 9 and 10 in the light of the judgment passed by the Supreme Court in the case of Taramani (12) MCRC 2677/2016 Parakh (Supra), it is held that at present there are sufficient allegations against the applicants no. 9 and 10 for their prosecution. Whether demand of Rs. 50,000 by Paras Jain for starting his new business would amount to demand of dowry or not is a question which is to be decided by the Trial Court after considering the evidence which would come on record. (20) Accordingly, the application filed by the applicants no. 1 to 8, namely, Padamchandra, Smt.Radha, Jinendra, Gayatri, Sanjeev, Julie, Sangeeta and Vandana is allowed and F.I.R. No.187/2016, registered by Police Station Narwar, District Shivpuri for offence under Sections 498-A, 506 read with Section 34 of I.P.C. and under Section 3/4 of Dowry Prohibition Act as well as the criminal proceedings pending in the Court of J.M.F.C., Karera District Shivpuri in Criminal Case No.1474/2015 are hereby quashed. So far as the application filed by the applicants no.9 and 10, namely, Premchandra and Chameli is concerned, the same is hereby dismissed.
(21) It is further clarified that in exercise of power under Section 482 of Cr.P.C., this Court has merely considered that whether prima facie case has been made out against the applicants no. 9 and 10 or not? The Trial Court is directed to consider and decide the Trial strictly on the basis of the evidence which would come on record, without getting prejudiced by any of the observation made by this Court.
(22) The application partly succeeds and is partially allowed to the extent mentioned above.
(G.S. Ahluwalia) Judge *MKB*