1 MCRC-2702-2017 The High Court Of Madhya Pradesh MCRC-2702-2017 (KAMLESH JAISWAL Vs THE STATE OF MADHYA PRADESH) Jabalpur, Dated : 27-08-2018 Shri Imtiaz Hussain, counsel for the petitioners. Shri Pramod Choubey, GA for the respondent No.1/State.
Shri Anil Kumar Tiwari, counsel for the respondent No.2. Case diary is available.
Heard finally at the motion stage.
This petition under Section 482 Cr.P.C. has been filed to invoke the extraordinary jurisdiction of this Court and to quash the FIR at Crime No.382/2016, registered at Police Station Lalbagh, District Burhanpur for offence under Section 498-A, 506 and 34 of IPC as well as the charge-sheet filed against the petitioners in RCT No. 284/2017, pending before J.M.F.C, Burhanpur.
Bereft of the unnecessary details, the facts requisite for disposal of this petition are that, respondent No.2/complainant lodged the FIR before the Police Station Lalbagh stating that on 27.04.2009, marriage of the complainant was solemnized with petitioner No.1-Kamlesh Jaiswal. Petitioner No.4 is the mother-in-law of the complainant. Petitioner No. 2 and 3 are the brother-in-law and sister-in-law of the complainant. The complainant alleged that the marriage was solemnized in “Samuhik Vivah Sammelan” in their society. After her marriage, for about one year, she lived at the matrimonial home. During this period, the petitioners “taunted” her that she has not brought enough dowry. Her husband (petitioner No.1) always used to quarrel with her on small matters and used to beat her. Other accused persons used to support with the petitioner No.1 in the offence. They demanded dowry of Rs. 15 lacs, and threatened her, if the demand is not fulfilled, she will be done to death. She narrated the incident to her brother Ashish and mother Rekha that she has been subjected to harassment. On 04.02.2016, she was thrown out of the matrimonial home. Therefore, she started living at her brother’s house at Ujjain thinking that things would be normal some day. She did not lodge report. Yet her husband did not come to take her. On 02.12.2016, she went to her matrimonial home. She was again thrown out. Hence, she lodged the report.
On behalf of the petitioners, it is contended that the petitioners are living separately from the family of petitioner No.1-Kamlesh Jaiswal.
Digitally signed by VINOD KUMAR TIWARI Date: 28/08/2018 18:29:08 2 MCRC-2702-2017
His mother and other family members are living separately. They have produced copy of the ration card, issued to Kamlesh Jaiswal indicating that Kamlesh Jaiswal with his wife are living at Arjun Nagar, Burhanpur, whereas petitioner No.2 Manoj Jaiswal and his family members are residing separately at Arjun Nagar, Burhanpur.
It is also contended that petitioner No.1 issued notice issued to the respondent No.2/complainant on 26.08.2016, prior to lodging of the FIR, wherein it has been averred that the respondent No.2 was threatening the petitioners to implicate them by committing suicide. It is also contented that similar complaint was addressed to Inspector General of Police, Superintendent of Police and other officers on 03.09.2016, wherein the petitioners have disclosed that two years after the marriage, respondent No.2 could not conceive a child, therefore, after their medical examination it was held that the male spermatozoa is not being produced to the petitioner No.1, to that amount which would sufficient for fertilization or conceiving of a child. Therefore, medicines given and it was suggested to go for a “test tube baby” or for adoption of a child. But, the petitioner No.1 was insulted and humiliated by the respondent No.2/complainant in social gatherings. He was even branded as “impotent”. The complainant threatened to commit suicide by hanging. Her brother Ashish was intimated about the incident on 3rd July, 2016.
It is also contended that before “Parivar Paramarsh Kendra” the complainant at the time of reconciliation stated that they lived together as husband and wife from 27.04.2009 to 20.07.2016, but, she has never raised any complaint. It is also contended that because the respondent No.2 could not conceive a child, therefore, she was taunted by the in- laws after receiving the report of less spermatozoa of the petitioner No.1 when she spoke to the in-laws she was being beaten. Her father-in-law after consuming liquor used to abuse her by obscene words and several times she was thrown out from the house, is completely a concocted story.
On behalf of the petitioners it is further contended that the complainant filed an application under Section 125 Cr.P.C. on 30.11.2016 claiming maintenance from the petitioner No.1 and the FIR has been lodged to pressurize the petitioners.
On behalf of the respondent No.1/State, the petition is vehemently opposed and it is contended that the complainant’s report and the statements of the complainant and the other witnesses, prima facie, make Digitally signed by VINOD KUMAR TIWARI Date: 28/08/2018 18:29:08 3 MCRC-2702-2017 out case against the petitioners.
On behalf of the respondent No.2 it is contended that the respondent No.2 has been harassed and treated with cruelty. The respondent did not lodge any report earlier for she was expecting that some day everything will be normal, but, when nothing was normal and the complainant was thrown out from the matrimonial home, she had no other alternative except to lodge the report. There was demand of Rs. 15 lacs as dowry and when she could not fulfill the same, she was subjected to cruelty and harassment. The statement of the complainant and her brother Ashish is clear and when the brother of the complainant went to the house of the petitioners to pacify the dispute, she was thrown out of the house and asked to take the complainant with him for some days. After some days, the petitioner No.1 did not come to take the complainant/respondent No.2, therefore, the complainant on her own went to the matrimonial home, but, she was thrown away again.
Perused the record. The only document, the petitioners have filed is the document dated 26.08.2016 sent by registered post to the complainant through their counsel on 03.09.2016. The same was not delivered to the complainant on 10.09.2016. Therefore, it cannot be said that because of the notice dated 26.08.2016, the complainant has lodged the report to take vengeance.
Allegations against the petitioners No.3 and 4 are made with regard to “taunting” the complainant for not conceiving a child. The name of petitioner No.2 Manoj Jaiswal has been dragged into the dispute.
Counsel for the petitioner placed reliance on the case of Vipin Jaiswal vs State of Andra Pradesh, reported in (2013) 3 SCC 684, wherein the Apex Court has observe that after six months of the marriage, a demand of Rs.15,000/- (Rs. fifteen thousand) was made by the appellant-husband for purchase of a computer to start his business. Both the Courts held that the appellant made the demand from the deceased was not in connection with the marriage and therefore, is not dowry demand within the meaning of Section 2 of Dowry Prohibition Act.
It would be appropriate to note that in the case of Geeta Mehrotra vs State of U.P. and another, reported in (2012) 10 SCC 741, the Apex Court has held that in matrimonial disputes if the family members of husband, unmarried sister and elder brother of husband are made co- accused in the FIR in absence of any specific allegation, prima facie case Digitally signed by VINOD KUMAR TIWARI Date: 28/08/2018 18:29:08 4 MCRC-2702-2017 is not made out against these persons. Therefore, the proceedings were quashed observing that large number of family members had been included in the FIR casually mentioning their names and contents did not disclose their active involvement, therefore, cognizance of matter against them would not be justified.
In the case of Preeti Gupta and another vs State of Jharkhand, reported in (2010) 7 SCC 667, the Apex Court has cautioned that allegation to be scrutinized with great care and circumspection specially against husband’s relatives, who were living in different cities and never visit or rarely visit the matrimonial house of the complainant.
In the case of Dashrath P. Bundela vs The State of Madhya Pradesh, reported in 2012 (1) M.P.H.T. 196, the co-ordinate Bench of this Court has held that lodging of FIR after receiving of notice of divorce leveling allegations in the FIR, all omnibus allegations without mentioning any year, month, date or time, therefore, the relatives of the husband, who do not reside with the husband and are mother, father and brother against whom omnibus allegations have been leveled, if continued to face the criminal proceedings, it would be abuse of the process of law.
Keeping in view the facts and circumstances of the present case, there does not seem to be any definite act of the petitioner No.2-Manoj Jaiswal, who allegedly is living separately with his family, though there are allegations against the petitioner No.1-Kamlesh Jaiswal, petitioner No.3-Smt. Sobha Bai Jaiswal and petitioner No.4-Smt. Lata Bai Jaiswal. Hence, this petition allowed so far as the petitioner No.2-Manoj Jaiswal is concerned. As regarding petitioner No.1-Kamlesh Jaiswal, petitioner No.3-Smt. Sobha Bai Jaiswal and petitioner No.4-Smt. Lata Bai Jaiswal, the petitioner is dismissed. Criminal proceedings of RCT No.284/2017, pending before J.M.F.C., Burhanpur and the FIR at Crime No.382/2016, registered at Police Station Lalbagh, District Burhanpur, so far as the petitioner No.2-Manoj Jaiswal is concerned, is quashed. With regard to petitioners No. 1, 3 and 4, the trial shall commence as usual.
C.C. as per rules.
(SUSHIL KUMAR PALO) JUDGE vkt Digitally signed by VINOD KUMAR TIWARI Date: 28/08/2018 18:29:08