Komal Singh Malviya vs The State Of Madhya Pradesh on 10 August, 2017

1 M.Cr.C. No.7139/2017

10/08/2017 :-
Petitioners in person.
Shri V. Khadav, learned Government Advocate for the
respondent No.1/State.
Shri K.K. Gupta, learned counsel for the respondent No.2.
Heard finally with the consent of parties.
ORDER

Being aggrieved by registration of FIR No.125/2016 by
Mahila Police Thana, Indore under Section 498-A, 323/34 of
the IPC, the petitioners have come before this Court for
quashment of FIR and all subsequent proceedings taken
pursuant thereto.

2. Background facts sans un-necessary details are as
follows: petitioner No.1 and respondent No.2 got married on
06/12/2014 at Indore as per Hindu rites and rituals. Their
marriage could not run successfully. Soon after the marriage,
they developed differences. Respondent No.2 filed an
application before the police alleging that soon after marriage
the petitioners started torturing her for demand of dowry, they
used to beat her. Tounting her for non-fulfillment of demand of
costly Car. Husband refused to bear her expenses and
expenses of her would be child. He did not take-care, even did
not take her to Doctor, when she was pregnant. Attempts of
reconciliation arranged by the Police gone in vain. She again
filed complaint before the Police on 23/07/2016 which was
forwarded to the Pariwar Paramarsh Kendra but without any
any success. Third application was filed on 09/08/2016 which
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also met with the same fate. She then submitted fourth
application on 11/08/2016 making the same allegations
regarding torture (physical and mental both), ill-treatment,
mishaviour, harassment etc. on account of demand of dowry.
She alleged that the petitioners demanded Car or half share in
her parental house.

3. On this fourth application, the Police registered a criminal
case as stated above and after completing investigation, filed
the charge-sheet. A case No.33459/2016 was registered
and the learned trial Court framed the charges on 03/03/2017.

4. During all these procedure, petitioner No.1 filed an
application under Section 9 of Hindu Marriage Act on
24/06/2016 for restitution of conjugal rights, which is pending.

5. The petitioners have come before this Court on the
grounds that respondent No.2 has filed a complaint against the
husband and his family members only to harass them. She has
gradually increased the allegations in all her four applications,
which shows their falsity. The learned trial Court has
erroneously taken cognizance against them. Prima facie no
case is made out against them. FIR has been registered with
an ulterior motive even then he was redy to keep Respondent
with him but reconciliation proceedings failed due to adamant
attitude of respondent No.2. It is further submitted by the
petitioners that respondent No.2 never stayed with her in-laws,
due to service of petitioner No.1 at Satna and Jabalpur.
Whatever time she stayed, stayed with him at Satna and
Jabalpur. Allegations of abortion are also false. Respondent
3 M.Cr.C. No.7139/2017

No.2 went on the death of her brother-in-law (Jijaji) on
30/10/2015 while according to her, abortion happened on
04/11/2015, therefore, the petitioners cannot be held
responsible for the same.

6. Citing judgments of Y. Abrahim and others vs.
Inspector of Police, Chennai and others AIR 2004 SC
4286, Kamlabai and others vs. State of M.P. and others
2009 (2) MPLJ (page number missing), (name missing)
and others vs. N.C.T., Delhi and others (2007) DMC
805, Rajkumar Khanna vs. N.C.T., Delhi (2002) DMC
200 (D.B.), Manish Ratan and others vs. State of M.P.
and others 2007 (1) JLJ 198, Swapnil Kumar and
others vs. State of M.P. AIR 2011 Supreme Court
Judgment Criminal Appeal No.1144/2014 in support of
their contentions, the petitioners prayed for quashing of the
FIR and all subsequent proceedings.

7. In arguments put-forth by petitioner No.1 himself, he
reiterated the grounds stated above. Repetition is not required.

8. In reply, learned counsel for respondent No.2 drew my
attention towards prayer clause (ii) and page No.6 of the
petition and submitted that charge-sheet has already been filed
by the police and after taking cognizance, the learned trial
Court has framed the charges against the petitioners on
03/03/2017, therefore, the present petition is not maintainable.
He further denied all the contentions of the petitioners and
supported the allegations made in the complaint filed by
respondent No.2.

4 M.Cr.C. No.7139/2017

9. I have considered the rival contentions of both the
parties and have gone through the record.

10. First, I would like to consider the objection of respondent
No.2 regarding maintainability of the petition.

11. Learned counsel for respondent No.2 placed reliance on
State of Rajasthan vs. Fatehkaran Mehdu (2017) 2 SCC
(Cri.) 40 but in this judgment, the Hon’ble Supreme Court
only speaks about the conditions to use of power for quashing
criminal proceedings and it is directed by Hon’ble Supreme
Court that such powers should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.
Thus the judgment is not related to the issue raised by
respondent.

12. It is very clearly held by Hon’ble the Supreme Court in
Satish vs. State of Delhi AIR 2013 SC 506 that powers
under 482 of Cr.P.C. can be exercised at threshold as well as
on advance stage of trial, therefore, contentions of learned
counsel for the respondent No.2 is not sustainable.

13. Coming back to the case in hand, I find that since
beginning of the complaints filed by respondent No.2, she has
made certain allegations regarding demand of dowry and
consequent cruelty and harassment. There is little variation in
the allegation, due to way of expression or due to time gap but
in all these complaints, substance is the same, therefore, on
some insignificant contradictions, it cannot be accepted
particularly at this stage that all the allegations are false and
frivolous. Allegations made by the prosecutrix against the
5 M.Cr.C. No.7139/2017

petitioners, if taken at it’s face value are sufficient to disclose
prima facie case against them.

14. The power under Section 482 of Cr.P.C. is extra ordinary
in nature and it is settled proposition of law that this power has
to be exercised sparingly and only in the cases where attaining
facts and circumstances satisfy that possibilities of miscarriage
of justice will arise in case of non-use of power. The Court can
interfere in such exceptional cases where it appears that the if
not interfered then it would cause great injustice to someone.
where the proceedings are capricious and arbitrary or based on
no evidence or material at all available on record or the
proceedings are based on such evidence or material which is
wholly irrelevant or arbitrary. At this stage sifting or weighing
of the evidence is neither permitted nor expected and the
Court need not enter into meticulous considerations of
evidence and materials at that stage.

15. In Krishnanan Vs. Krishnaveni (1997 AIR SCW 950
: AIR 1997 SC 987) it is held that when the High Court on
examination of the record finds that there is grave miscarriage
of justice or abuse of process of the Courts or the required
statutory procedure has not been complied with or there is
failure of justice or order passed or sentence imposed by the
Magistrate requires correction, it is the duty of the High Court
to have it corrected at the inception lest grave miscarriage of
justice would ensue. It is, therefore, to meet the ends of
justice or to prevent abuse of the process that the High Court
is preserved with inherent power and would be justified, under
6 M.Cr.C. No.7139/2017

such circumstances, to exercise the inherent power but it may
be exercised sparingly so as to avoid needless multiplicity of
procedure, unnecessary delay in trial and protraction of
proceedings.

16. In Bhajan Lal’s case (State of Haryana Vs. Ch. Bhajan
Lal and others AIR 1992 SUPREME COURT 604) Hon’ble the
Supreme Court has prepared a guideline in this regard. Para
108 of the judgment reads thus:

108. In the backdrop of the interpretation of the
various relevant provisions of the Code under
Chapter XIV and of the principles of law
enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary
power under Article 226 or the inherent powers
under Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised 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 First Information
Report and other materials, if any, accompanying
7 M.Cr.C. No.7139/2017

the F. I. R. 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 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 F.I.R. 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 F.I.R. 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
8 M.Cr.C. No.7139/2017

accused and with a view to spite him due to
private and personal grudge.

17. In a recent judgment of State of Rajasthan vs.
Fatehkaran Mehdu (2017) 2 SCC (Cri.) 40 the Hon’ble
Supreme Court speaks about the use of power for quashing
criminal proceedings and it is directed by Hon’ble the Supreme
Court that such powers should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.

18. No such situation appears in the present case. There are
certain allegations in all the complaints made by the
prosecutrix, which are prima facie sufficient to initiate the
prosecution against the petitioners.

19. The petitioners have raised objection regarding
registration of FIR at Indore, stating that no incident took place
at Indore, therefore, Indore Police had no jurisdiction to
register the case or investigate or to file the charge-sheet but
in the complaints filed by respondent No.2, there are certain
allegations that at Indore also the petitioners demanded Car or
half share in her parental house from the father of the
respondent No.2. Therefore, the objection is not tenable.

20. Similar is the position regarding objection that
respondent No.2 never lived with her in-laws but the
allegations are there that she lived with her in-laws. Whether
allegations are true or false is a matter of fact and cannot be
determined at this stage.

9 M.Cr.C. No.7139/2017

21. The judgments cited by the petitioners either states that
in what condition offence of 498-A IPC is not made out or that
which Police/Court has jurisdiction to investigate/try the case.
The petitioner’s case does not fall under both the parameters,
therefore, benefit cannot be extended to the petitioners on the
basis of these judgments. On the contrary, judgment reported
in (2007) DMC 805 (supra) states that in case the Police
has no jurisdiction to investigate the case, then, FIR should be
sent to the Police who has jurisdiction. This shows that even in
case of lack of jurisdiction, the FIR or the subsequent
proceedings pursuant thereto cannot be quashed on this
ground alone.

22. Keeping in view the settled proposition of law and the
evidence available on record against the petitioners, I do not
find any ground to quash the proceedings at the present stage.
This Court can not usurp jurisdiction of the trial court. Present
petition being bereft of merit, liable to be and is dismissed
accordingly.

(Virender Singh)
Judge
Aiyer

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