1 HIGH COURT OF MADAHYA PRADESH : AT JABALPUR M.Cr.C.No.2288/07 Krashan Kumar Agrawal and others Vs. State of Madhya Pradesh and another & M.Cr.C.No.1790/07 Vinod Singhal (Agarwal) Vs. State of Madhya Pradesh and another SB: Hon'ble Mr.Justice M.A.Siddiqui ____________________________________________ Shri Amit Dubey, learned counsel for petitioners. Shri Vivek Lakhera, learned PL for respondent no.1/State. Shri Umesh Trivedi, learned counsel for respondent no.2. ____________________________________________ ORDER RESERVED ON 4.12.2012. ORDER PASSED ON 17.01.2013. ORDER
Since both the above petitions have been filed to quash the proceedings pending in the Court of JMFC, Tikamgarh in Criminal Case No.343/05 for alleged offence punishable under Sections 406,494,209,211,420, 506 and 120-B of IPC, hence they are being decided by this common order.
2. Brief facts, necessary for adjudication of this matter are that Mukta Agrawal alias Guddi (petitioner no.2 of M.Cr.C.No.2288/07) was married to respondent no.2 Nirmal Lohiya on 11.02.2001 according to Hindu rites at Chhatarpur and she came to reside with respondent no.2 at Tikamgarh.
From the first night of marriage, respondent no.2 and his family members started misbehaving, harassing and torturing her and demand of dowry was made. So, she left the company of respondent no.2 and went back to Chhatarpur. She made a complaint at PS-City Kotwali, District-Chhatarpur against respondent no.2 and his family members and police registered offence punishable under Sections 498-A/34 of IPC and Section 3/4 of Dowry Prohibition Act and filed the Challan ,Criminal Case No.152/2003 is pending at Chhatarpur. Thereafter Mukta Agrawal filed a suit for divorce under Hindu Marriage Act and she was granted divorce on 24.3.03 by a competent Court of Chhatarpur and she entered into the second marriage with petitioner Krashan Kumar Agarwal on 11.05.03. Thereafter respondent no.2 Nirmal Lohiya filed a complaint case against the petitioners, statements were recorded and only against petitioner Smt. Mukta Agarwal case under Section 406 of IPC was registered by JMFC, Tikamgarh against which respondent no.2 filed a Criminal Revision in the Court of Sessions which directed to record additional statements under Section 202 of Cr.P.C. and thereafter, after examining the witnesses JMFC, Tikamgarh registered the aforesaid complaint case for alleged offence punishable under Sections 406,494,209,211,420, 506 and 120-B of IPC against which these petition have been filed under Section 482 of Cr.P.C.to quash the proceedings pending in the Court of JMFC, Tikamgarh in Criminal Case No.343/05. It is an admitted fact that petitioner Mukta Agarwal has remarried with petitioner Krashan Kumar Agarwal and she is residing with him and proceedings of Criminal Case No.343/05 have been stayed by this Court from 7.3.07 in M.Cr.C.1790/07. The present petitions have been filed on the following grounds :-
“(1) That, though the marriage of said Mukta Agarwal was performed with non-applicant no.2 but said Mukta Agarwal has made a complaint against the Non-applicant no.2 and his family members that from the first night she was tortured and harassed by various means and even she was beaten and assaulted by non-applicant no.2 and his family members and on a report the Police of Kotwali, Chhatarpur against the non-applicant no.2 and his family members registered offence under Sections 498-A/34 of IPC and Section 3/4 of Dowry Prohibition Act and the said case is still pending before the Court;
(2) That, the said Mukta Agarwal has also filed a divorce petition against the Non-applicant no.2 and after obtaining divorce the said Mukta Agarwal has already performed second marriage with Krashan Kumar Agarwal;
(3) That, due to the aforesaid reason and to take revenge the non-applicant No.2 has filed a complaint case against the applicant and other near relatives of Smt. Mukta Agarwal;
(5) That, the applicant has challenged the order of registration before the Court of Sessions on the ground that from the material on record and from the statements under Section 200 and 202 of Cr.P.C.no prima facie case is made out against the applicants and other family members for the offence under Sections 406,494,209,211,420, 506 and 120-B of IPC;
(6) That, the allegations made against the applicant and other family members are totally false and no case is made out against them but only to harass, the non-applicant no.2 has filed the complaint case so that there shall be compromise in the case under Section 498-A/34 of IPC and Section 3/4of Dowry Prohibition Act and the said case is still pending before the Court;
(7) That,according to the allegations made in the complaint case the Court of Tikamgarh has no jurisdiction as according to the complaint the incident has taken place within the jurisdiction of Chhatarpur Court;
(8) That, even the non-applicant no.2 has made an accused Santosh Tiwari, Advocate who was appearing as counsel of Smt. Mukta Agarwal so that in future no counsel of Tikamgarh can appear on behalf of the applicant and other accused persons;
(9) That, the impugned orders of the Courts below are illegal, erroneous and contrary to laws and the same deserve to be set aside;
(10) That, the articles and other things presented to Smt. Mukta Agarwal at the time of marriage by any person including the non-applicant no.2 are “Stridhan” and non-applicant no.2 has no right to move an application to obtain the said articles or things.”
3. I have heard learned counsel for the parties and perused the relevant documents.
4. Learned counsel for respondent no. 2 has placed reliance on decisions in Mrs. Dhanalakshmi vs. R.Prasanna Kumar and others AIR 1990 SC 494, K.Bhaskaran vs. Sankaran Vaidhyan Balan and another 1999 Supreme Appeals Reporter (Criminal) 732, Narendra Kumar Jain vs. State of Gujrat and another 1999 Supreme Appeals Reporter (Criminal) 586, Kanti Bhadra Shah and another vs. State of West Bengal AIR 2000 SC 522, Mohan Baitha and others vs. State of Bihar and another (2001) 4 SCC 350, Kamaladevi Agarwal vs. State of W.B. and others (2002) 1 SCC 555, K. Neelaveni vs. State rep. by Inspector of Police and others AIR 2010 SC 3191, M.Cr.C.No.26/1988 (S.D.Joshi vs. Rajendra Nahar) decided on 20.9.88 by a single Bench of this Court, Charanjit Singh vs. State of M.P. 1989 (2) MPWN Note No. 80, Raghunath Prasad Khedia vs. State of M.P. 1996 (II) MPWN 108, Dhanesh Thakurdas Narvani and others vs. Ram Kumar Nandlalji Mansukhani 1997 (2) MPLJ 283, Dinesh Kumar and others vs. Rasik Bihari Joshi and another 1999 (1) JLJ 411 , Devendra Kumar @ Deva vs. State of Chhattisgarh and others 2004 (5) MPHT 75, Ram Behari vs. State of M.P. 2006(2) MPLJ 393 and Sau.Saroj Ganesh Kale and others vs. Ganesh Manikrao Katel and another 2007 Cri.L.J.(NOC) 101 (Bom.) and supported the cognizance taken by learned Magistrate contending that the order be not interfered with as the case is in the primary stage and the defence of accused persons cannot be considered at this stage and ordinarily powers under Section 482 of Cr.P.C.should be exercised sparingly, appreciation of evidence cannot be done at this stage and jurisdiction point may be submitted before the concerned Court.
5. On the other hand, learned counsel for petitioners placed reliance on Madhavrao Jiwajirao Scindia vs. Sambhajirao Chandrojirao Angre (1988) 1 SCC 692, Zandu Pharmaceutical Works Ltd. vs. Mohd. Sharaful Haque (2005) 1 SCC 122 , State of Haryana vs. Bhajan Lal 1992 Supp (1) SCC 335 and Thota Venkateswarlu vs. State of A.P. (2011) 9 SCC 527 and has made the submission that though appreciation of evidence is not permissible at length, but consideration of defence at the primary stage by the High Court under its inherent powers is not absolutely barred. In order to prevent the injustice or abuse of process or to promote justice, High Court may look into materials which have significant bearing on the matter at prima facie stage. High Court can quash complaint if materials relied upon by accused are beyond suspicion or doubt or which are in the nature of public documents and are uncontroverted. Criminal prosecution is a serious matter as it affects the liberty of a person. No greater damage can be done to the reputation of a person than dragging him in a criminal case. In the above cases it has also been held that the power under Section 482 Cr.P.C. is wide but has to be exercised with great care and caution. The interference must be on sound principle and the inherent power should not be exercised to stifle the legitimate prosecution. Inherent powers under Section 482 of Cr.P.C.can be used : (i) where it manifestly appears that there is a legal bar against the institution or continuance of the proceedings;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (iii) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge as has been held in Asmathunnisa vs. State of A.P. (2011) 11 SCC 259. Powers under Section 482 of Cr.P.C. may be exercised where the prosecution is launched maliciously or with ulterior motive.
6. While exercising powers under Section 482 of Cr.P.C., the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Court. It is true that the Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, otherwise, it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time, Section 482 is not an instrument handed over to an accused to short-circuit a prosecution and bring about its closure without full-fledged enquiry. Though the High Court may exercise its power relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice, the power should be exercised sparingly. For example, where the allegations made in the FIR or 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 or allegations in the FIR do not disclose a cognizable offence or do not disclose commission of any offence and make out a case against the accused or where there is express legal bar provided in any of the provisions of the Cr.P.C.or in any other enactment under which a criminal proceeding is initiated or sufficient material to show that the criminal proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused due to private and personal grudge, the High Court may step in. Though the power possessed by the High Court under Section 482 of Cr.P.C. are wide, however, such power requires care/caution in its exercise. The interference must be on sound principles and the inherentpower should not be exercised to stifle a legitimate prosecution. However, if the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of inherent powers under Section 482 of Cr.P.C. as has been held in State of A.P. vs. Gourishetty Mahesh (2010) 11 SCC 226.
7. In the light of above decisions, now we will consider the submissions made by learned counsel for the parties.
8. Learned counsel appearing for petitioners submitted that petitioner Mukta Agarwal was harassed from the first night of her marriage by respondent no.2 and his family members for demand of dowry, and as Criminal Case No.152/03 under Sections 498-A/34 IPC and Section 3/4 of Dowry Prohibition Act is pending against respondent no.2 so, as a counter blast, respondent no.2 Nirmal Lohiya filed complaint case on 30.12.04, after near about three years of the marriage in order to harass the petitioners. It is further submitted by petitioners’ counsel that Smt. Mukta Agarwal has remarried and she is living with her husband Krashan Agarwal and marriage has been solemnized after the decree of divorce was obtained by a competent Court at Chhatarpur.
9. On the other hand, learned counsel appearing for respondent no.2 submitted that decree of divorce was obtained fraudulently in ex-parte against which an appeal has been preferred in this Court and in that case stay has been granted against the decree on 16.05.03, and in contravention of the decree, on 22.06.03 remarriage was performed and certificate of prior date of 12.05.03 has been obtained.
10. Another contention of learned counsel for petitioners is that as per complaint case and statements, marriage was performed at Chhatarpur and ornaments, clothes, etc. were given at the time of marriage, that was ” Stridhan” , and as per allegation, if something was given at Tikamgarh after the marriage, then it was also to be treated as ” Stridhan” .No report to the police or any allegation was there prior to registration of criminal case under Section 498-A/34 of IPC and Section 3/4 of Dowry Prohibition Act by petitioner Smt. Mukta Agarwal, and the Criminal Case no.343/05 has been filed on 30.12.04 by respondent no.2 as a counter blast.
11. Learned counsel for respondent no.2 submitted that at least at Tikamgarh joint presents were given by relatives and friends to both Smt. Mukta Agarwal and respondent no.2 Nirmal Lohiya so it cannot be said to be a “Stridhan”.
12. Learned counsel for petitioners submitted that no cause of action arose at Tikamgarh and even case under Section 494 IPC is not made out as second marriage took place after the decree of divorce and the same cannot be said to be illegal. He submitted that matter is sub-judice before this Court and it is to be decided that whether second marriage is legal or not so on such allegation of adultery,no case ought to have been registered by the learned trial Court and it is not maintainable when matter is to be decided by the High Court.
13. Learned counsel for petitioners submitted that the marriage took place on 11th February, 2001 at Chhatarpur and from the first night petitioner Smt. Mukta Agarwal was harassed and demand of dowry was there and it is evident that marriage survives only for few months and on 24 th March,2003 decree of divorce was obtained. The allegation is there that re-
marriage took place on 22.06.03 at Chhatarpur though it was resisted by complainant Krashan Kumar/respondent no.2, but in the complaint itself it was pleaded that certificate was obtained on 12.05.03 of re-marriage. It is submitted that no complaint was made to police about mis-appropriation of the ornaments for more than two years and on 30.12.04 suddenly a complaint was filed. It is submitted that this complaint was filed with an ulterior motive not only to harass the petitioners, but a case was also registered against the defending counsel who came to defend the petitioners at Tikamgarh. Had the ornament been taken up to the value of Rs.35 Lacs, then at least a complaint could have been filed immediately, but it was filed in the last month of 2004, after lapse of more than two years.
14. Further submission of petitioners’ counsel is that as per complaint case ornaments were given at the time of marriage at Chhatarpur so that was “Stridhan” and whatever was given afterwards at the time of marriage is also ” Stridhan”. “Stridhan” is the personal property of a woman. If it is presumed that ornaments were taken by Smt. Mukta Agarwal, then too it cannot be said that she was not entitled for it.
15. Further submission of petitioners’ counsel is that initially learned JMFC on the evidence under Section 200/202 Cr.P.C.registered the case under Section 406 of IPC only against petitioner Smt. Mukta Agarwal and no cognizance was taken against rest of the petitioners, but on the order of revisional Court, after taking evidence of two witnesses, the present case was registered against all the petitioners for the aforesaid offences. Counsel submitted that even the two witnesses who were examined have not stated that before them ornaments were taken. Counsel submitted that though while invoking power under Section 482 Cr.P.C.,minute observations cannot be made and evidence cannot be marshelled, but under Section 482 Cr.P.C.for invoking inherent powers on taking the allegations made against the petitioners in the application at their face value and accepting in their entirety, no justification of initiation of action against them would be made out in view of the admitted fact that the complaint was brought mala fide with ulterior motive either to take revenge or to take defence in the pending criminal case at Chhatarpur in order to put pressure. So, the matter falls in the category of attracting interference under the inherent powers of this Court.
16. After analyzing the above submissions, I am of the considered view that the arguments advanced by learned counsel for petitioners are near to the truth and acceptable. It seems that petitioners herein have been dragged in criminal complaint with ulterior motive and if the proceedings are allowed to be continued, then grave miscarriage of justice would take place.
So far as the contention that ornaments worth Rs.35 Lacs were taken by Smt. Mukta Agarwal, though it was not clearly brought forward that she took the ornaments with her, even assuming that she took the ornaments with her, then too the same being “Stridhan” , Mukta Agarwal was having legal authority to hold them.
As far as second marriage is concerned, the matter is sub-judice and at least a decree for divorce was there, and it is clearly visible that the complaint was filed after so many months from the date of alleged incident in order to harass the petitioners herein and to put pressure in the aforesaid criminal case.
17. It is worth to refer the decision of Apex Court in State of Haryana vs. Bhajan Lal (supra) wherein it has been held that the inherent powers under S.482 Cr.P.C.can be exercised by the High Court either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised :
“(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 FIR and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under S.156(1) of the Code except under an order of a Magistrate within the purview of S.155(2)of the Code.
(3) Where the uncontroverted 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 S.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 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.”
In the present case also prima facie offence is not made out as the evidence produced by respondent no.2/complainant do not disclose the commission of any offence and make out a case against the petitioners. The criminal proceeding is manifestly attended with mala fide and is maliciously instituted with an ulterior motive for wreaking vengeance and with a view to spite the petitioners due to private and personal grudge.
18. As per above discussion, I find that the petitions deserve to be and are hereby allowed. The proceedings pending in the Court of JMFC, Tikamgarh in Criminal Case No. 343/05 for alleged offence punishable under Sections 406,494,209,211, 420, 506 and 120-B of IPC are hereby quashed. Petitioners are acquitted of the offence.