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No prima facie to constitute any offence 498a Quash with s.482

High Court of Madhya Pradesh

Ravikant Dubey & Others
v/s
State of M.P. & Another

Misc. Cri. Case No. 5944 of 2012
Decided On, 13 February 2014
At, High Court of Madhya Pradesh
By, THE HONOURABLE MR. JUSTICE B.D. RATHI

For the Petitioners: V.K. Saxena, Senior Advocate, Aditya Singh, Advocate. For the Respondents: R1, R.K. Shrivastava, Panel Lawyer, R2, Rajeev Sharma, Archana @ Neetu, Advocates.

1. With the consent of learned counsel for the parties, this matter is heard finally. This petition has been preferred under section 482 of code of criminal procedure (hereinafter referred to as “the code”) for invoking the inherent powers of this Court to seek the relief that FIR registered at Crime No. 181/2012 for the offence punishable under Section 498A of IPC registered at Police Station Kotwali, Bhind and criminal proceedings arisen from the aforesaid crime number at Criminal Case No. 81/2012 pending in the Court of Chief Judicial Magistrate Bhind may be quashed.

2. Brief facts of the case are that the marriage of the petitioner No. 1-Ravikant Dubey was solemnized with respondent No. 2/complainant on 27.11.2010 as per Hindu rituals and rites at Bhind. Petitioner No. 1 is husband, petitioner No. 2 is Jeth, petitioner No. 3 is Jethani, petitioner No. 4 is mother-in-law, petitioner No. 4 is Nandoi and petitioner No. 6 is Nanad of the complainant/respondent No. 2. There was matrimonial discord between the petitioner No. 1 and respondent No. 2/Complainant. On the basis of written complaint filed by the complainant/respondent No. 2 a case was registered at Crime No. 181/2012 at Police Station Kotwali, Bhind for the offence punishable under Sections 498A against the petitioners. In the complaint filed by the complainant it is alleged that after marriage, she went to her in-laws house at Jamuna Nagar, Bhind, where her husband Ravikant, Nandoi Nathuram, mother-in-law Urmila, Nanad Mamta, father-in-law Chandrashekar, Jeth Rajeev, Jethani Renubala, Nanad Sarita and Nandoi Kaushlendra started treating her with cruelty. She was subjected to cruelty and harassment with regard to demand of four wheeler, thereafter she came to her parental house and lodged the FIR against the petitioners. After completing the investigation, charge-sheet has been filed against the petitioners under Sections 498A of IPC before the Chief Judicial Magistrate Bhind, registered as Criminal Case No. 81/2012.

3. It is submitted by learned Senior Counsel for the petitioners that if the entire facts mentioned in the FIR taken into consideration in its totality, even then no case is made out under Section 498A of IPC against the petitioners, therefore, to prevent the abuse of process of law the entire proceedings may be quashed. It is also submitted that though charge-sheet has been filed, some evidence has also been recorded by the Trial Court, even then inherent powers under section 482 of the code can be invoked at any stage to prevent the abuse of process of law. In support of his contentions, learned Senior counsel has placed reliance on the following judgments:

(I) Preeti Gupta and another v. State of Jharkhand and another, (2010) 7 SCC 667;

(II) Sathish Mehra v. State of N.C.T. of Delhi and another, AIR 2013 SC 506; and

(III) Rashida Begum (Smt.) v. Smt. Fatima Bano, 2014 (1) MPWN 29.

4. Prayer was opposed by the learned counsel for the respondent No. 2, on the ground that because of sufficient evidence, charge-sheet was filed, thereafter cognizance was taken, charges were framed, and evidence of some witnesses were also recorded, but at any point of time not a single proceeding was challenged by the petitioners, not only this but trial is at fag end and this petition is liable to be dismissed. In support of his contention, learned counsel for the respondent No. 2 has placed reliance on the following judgments:

(I) State of Haryana and others v. Bhajan Lal and others, 1992 SCC (Cri) 426;

(II) State Of Orissa v. Debendra Nath Padhi., 2005 SCC (Cri) 415.

5. Learned Panel Lawyer for the respondent No. 1/State opposed the petition and prayed for its rejection and has placed reliance on the judgment in the case of Bharat Parikh v. Central Bureau of Investigation and another, (2008) 10 SCC 109.

6. Having regard to the arguments advanced by the learned counsel for the parties, entire record and material available on record has been perused.

7. 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):–

8. 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 v. State of Gujrat and others, (2011) 7 SCC 59.

9. On the contrary, it is submitted by learned counsel for the respondent No. 2 that at this stage this petition cannot be entertained otherwise meaning of trial shall demolish. Apart that, it cannot be overlooked that at the time of preferring the charge-sheet, thereafter at the time of framing the charges, and afterwards when trial has been started the relief for quashing the FIR was not prayed by the petitioners and because of that no substance in this petition and the same is liable to be dismissed.

10. In the case of Joseph Salvaraja (supra), it was held by the Apex Court that FIR can be quashed, even if the charge-sheet has been filed. Similarly in the case of Sathish Mehra (supra) it was held by the Supreme Court that 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 extraordinary in nature has to be exercised sparingly and only if the attending facts and circumstances satisfies the narrow test indicated above, 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 proceedings 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.

11. 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.

Regarding question of law No. (ii):–

12. It is submitted by learned counsel for the respondent No. 2 that the evidence deposed in the Trial Court by the witnesses should also be taken into consideration. On the contrary, it is submitted by learned Senior Advocate for the petitioners that such evidence cannot be taken into consideration otherwise there will not be any difference to decide the case on merits by pronouncement of the judgment and to decide the case by invoking the inherent powers under section 482 of the code. It is pertinent to mention here that evidence of witness deposed during the trial can be appreciated only on merits for pronouncement of the judgment and for this purpose provisions under Sections 225 to 235 have been prescribed in Chapter XVIII of the Code, whereas inherent powers of the Court has been provided under section 482 of code as mentioned in Chapter XXXVII of the Code.

13. Only the Trial Court can appreciate the evidence on merits at the initial stage. This Court in exercise of inherent jurisdiction cannot assume the jurisdiction either of the trial Court or appellate Court and appreciate the evidence, the exclusive role assigned to the said Courts, in the inherent jurisdiction of this Court. While exercising the jurisdiction under section 482 of the code, this Court is not supposed to embark upon an enquiry as to whether the evidence in question is reliable or not or whether on a reasonable appreciation of the same would not sustain the accusation. This Court is not functioning at this stage as a court of appeal or revision. In exercise of inherent powers this Court cannot quash the order by weighing the correctness or sufficiency of the evidence. It cannot also consider the defence documents. It has only to see if the entire evidence collected by the Investigating Agency is to be believed, whether it constitutes an offence or not. The truthfulness, sufficiency or acceptability of the evidence deposed in the Court can be judged only at the stage of trial. The aforesaid view of this Court is well supported by the principle laid down in the following judgments:

(I) Raman Lal v. State of Rajasthan, 2001 Cri.L.J. 800;

(II) Ram Swarup Singh and others v. State of Bihar and another, 2006 Cri.L.J. 4441; and

(III) Udyag Shukla v. Sessions Judge, Nainital and others, 2007 Cri.L.J. 707; and

14. Accordingly it is decided that at the time of using inherent powers provided under section 482 of the code, the evidence deposed before the Trial Court during the trial, cannot be looked into for the purpose of quashing the FIR. The only facts mentioned in the FIR and other material available on record produced along with the charge-sheet would be looked into for this purpose. The question is answered accordingly.

Regarding question of law No. (iii):–

15. In the case of State of Haryana and others v. Ch. Bhajanlal and others, 1992 SCC (Cri) 426, the guidelines have been provided where the inherent powers under section 482 of the code can be exercised which reads thus:

(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 Section155(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 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.

16. Prior to that, in the case of R.P Kapur v. State Of Punjab., AIR 1960 SC 866 it was stated by the Apex Court wherein the parameters of exercise of the inherent power vested by section 561a of the repealed code of criminal procedure, 1898, (corresponding of section 482 cr.p.c., 1973) had been laid down in the following terms:

(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 for 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.

17. In view of the aforesaid guidelines, if we will look into the facts mentioned in the FIR only omnibus allegations were made by the complainant, neither date nor time or place was mentioned that as and when and by whom she was subjected to cruelty. This report was lodged on 12.6.2012, wherein it was alleged that she was subjected to harassment since 27.11.2010, but neither any FIR was lodged, nor any private complaint was filed by her, and the reason was assigned that the negotiations for compromise between the parties were going on time to time, but in support of this fact no evidence was collected by the prosecution. On perusal of the order-sheet dated 28.5.2012 of Criminal Case No. 81/2012 of C.J.M. Court Bhind it also seems that complainant was residing separately since 6.3.2012, even then this report was lodged after a period of three months on 12.6.2012. Delay was not explained in the FIR. Apart that it is also clear from the abovementioned order-sheet that divorce petition under section 13 of the hindu marriage act had already been filed by the petitioner No. 1-Ravikant Dubey, husband of the complainant-respondent No. 2.

18. It is trite law that if the FIR does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the Court to take cognizance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law.

19. The Apex Court in the case of Neelu Chopra and another v. Bharti (2009) 10 SCC 184 has held as under:

9. In order to lodge a proper complaint, mere mention to the sections and the language of those sections is not the be all and end all of the matter. What is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role prayed by each and every accused in committing of that offence.

20. In this case also from perusal of FIR, it is clear that only omnibus allegations were made by the complainant. No specific date, time and place was mentioned in the FIR. Apart that it cannot be subsided that even after availability of ample opportunities, neither any FIR was lodged by the complainant nor any private complaint was filed by her before any Court. Keeping in view the above discussions and proposition of law and facts narrated above, this Court is of the considered opinion that even entire facts mentioned in the FIR 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, therefore, it is a fit case to invoke the inherent powers of this Court vested under section 482 of the code to prevent the abuse of process of law. Accordingly, the FIR registered at Crime No. 181/2012 at Police Station, Kotwali Bhind and thereafter registered as Criminal Case No. 81/2012 (probably New Criminal Case No. 2028/2012) for the offence punishable under section 498A of IPC is hereby quashed. Petitioners are discharged of the charges punishable under section 498A of IPC, meaning thereby entire proceedings in connection with Crime No. 181/2012 and Criminal Case No. 81/2012 are hereby dropped. Bail bonds of the petitioners are also cancelled.

Copy of this order be sent to the trial Court for information and necessary compliance.

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