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498A Quash of Married sister and Student Brother who stay seperate

HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT: JABALPUR.

S.B : HON’BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA

M.CR.C.No.20362/2019

Dr. Mitul Ahirwal and others

Vs.
State of Madhya Pradesh & another.

Shri Mahendra Pateriya Advocate with Shri Shashank Pandey,Advocate for the petitioners.
Shri Rajmani Singraul, Panel Lawyer for the respondent No.1/State.
Shri B.K. Shukla, Advocate for the respondent No.2.

ORDER
(08 .01.2020) Petitioners/accused have filed this Misc. Criminal Case under Section 482 of the Code of Criminal Procedure to quash the First Information Report, in connection with Crime No.193/2019, for offence punishable under Sections 498-A read with Section 34 of Indian Penal Code (hereinafter referred to as IPC for brevity) and Section 3, 4 of Dowry Prohibition Act, registered at Police Station Harda, District Harda (MP), and all consequent proceedings arising out of the aforesaid Crime No.193/2019.

2: The prosecution case in brief is that marriage of respondent No.2-complainant was solemnized on 29.4.2017 with petitioner/accused No.1 Dr. Mitul Petitioner/accused No.2 Lalchand Ahirwal is father-in-law, Petitioner/accused No.3 Smt. Sheela Ahirwal is mother-in-law, Petitioner/accused No.4 Smt. Arti is sister-in-law and Petitioner/accused No.5 Nikhil Ahirwal is brother-in-law of respondent No.2. Respondent No.2 lodged the First Information Report against the petitioner/accused on 15.4.2019. It is alleged by the respondent No.2/complainant that at the time of marriage, her father gave sufficient dowry to the petitioners/accused. Thereafter, petitioners/accused taunted, humiliated and tortured her due to non-fulfillment of sufficient dowry. Petitioners/accused used to tell her that if marriage of petitioners/accused No.1 is solemnized in any other place, then they would get sufficient dowry as car, Rs.11 lacs, etc. Thereafter, her father gave extra gold worth Rs.50,000/- on demand of petitioners/accused No. 2 & 3, but, the behaviour of petitioners/accused did not convert and they humiliated her. Her mother-in-law kept her ornaments, but she did not return that ornaments. Petitioners/accused humiliated and tortured her various times. On 10.3.2019, petitioners/accused No.1 to 4 beat her and thrown out from the matrimonial house. Petitioners/accused told her to break up her relation with her parents. She did not want to abolish her life, so she did not make any complaint to the Responsible Officer. Petitioners/accused questioned about her maternity. Petitioners/accused did not want to keep her at matrimonial house. They thrown her out from matrimonial house, so she is living with her parents at Harda. Thereafter, respondent No.2 lodge a complaint before Police Station Harda.

3: Learned counsel for petitioners/accused submits that the allegation made in the First Information Report against the petitioners/accused are false and fabricated. Petitioner/ accused No.1 has submitted application before Family Consultation Centre, Vidisha and proceedings were initiated. During the pendency of proceeding, respondent No.2 and petitioner/accused No.1 started living together at Raipur, but after some time, respondent No.2 started quarreling with petitioner/accused No.1, therefore, he sent the respondent No.2 to Vidisha, where she tried to run from matrimonial house. When petitioners/accused No.2 and 3 tried to stop her, then she tried to commit suicide, therefore, petitioners/accused have made a written complaint to the Police Station DDU Nagar Raipur. On 22.12.2018, the proceedings of Family Consultation Centre was closed with the direction to the parties to settle the dispute from the Court. Since the settlement taken place between the petitioner/accused No.1 and respondent No.2, therefore, the respondent No.2 is living with her in-laws and on 10.3.2019, respondent No.2 again tried to commit suicide. Thereafter, petitioner/accused No.1 made a complaint to Police Station Dehat Vidisha and Family Consultation Centre, Vidisha. Thereafter, petitioner/ accused No.1 filed a suit for dissolution of marriage between petitioner/accused No.1 and respondent No.2, on the ground of cruelty in the Court of Principal Judge, Family Court,Vidisha. Notice was issued to the respondent No.2 for appearance in that case. After receiving that notice, the respondent No.2 lodge the false complaint only to harass and involve the petitioners/accused in this false case.

4: Learned counsel for petitioners/accused submits that according to FIR, the incident took place in matrimonial house at Vidisha, therefore, Police Station Harda has no jurisdiction to register the case and investigate the matter, so registration of FIR without proper investigation is misuse of power, hence, FIR is liable to be quashed. There is no direct or indirect material available on record on which petitioners/accused can be involved in this case. Petitioner/accused No.1 due to unnatural behaviour of respondent No.2 had taken her to Raipur with him, but even then there was no change in the behaviour of respondent No.2. She threatened the petitioners/accused to implicate the whole family members in false case and in furtherence thereto she lodged the false report at Harda Police Station. No complaint or FIR has been lodged before the date of incident, but when she received the notice of proceedings under Section 13 of the Hindu Marriage Act, respondent No.2 developed the concocted story to rope all the petitioners/accused and threatened and pressurised to petitioners/accused to withdraw the Divorce Petition. The allegation of demand of dowry are baseless. Petitioner/ accused No.1 tried his level best to save his married life, therefore, he took the matter to Family Consultation Centre Vidisha, where the proceedings failed due to behaviour of respondent No.2. There are omni bus allegation against all the petitioners/accused and no specific allegation has been alleged in the FIR, so this proceeding is abuse of process of law. Petitioner/accused No.2 is a Government servant. Petitioner/accused No.3 is house wife and they are old aged persons, they have good reputation in the society, but due to false allegation reputation of their family will be ruined. Petitioner/accused No.4 is married sister of petitioner/accused No.1, who lives in her matrimonial house at Sagar. Petitioner/accused No.5 is a younger brother of petitioner/accused No.1, lives at Delhi and doing coaching, so these petitioners/accused have been falsely implicated in this case being family members of petitioner/ accused No.1, therefore, learned counsel for petitioners prays that FIR be quashed.

5: Learned counsel for the petitioners/accused in support of his submissions, relied upon the decisions of the Apex Court in the case of Neelu Chopra and another Vs. Bharti (Criminal Appeal No.949 of 2003, decided on 7,10.2009), Rashmi Chopra Vs. The State of M.P. (Criminal Appeal No.594 of 2019, decided on 30.4.2019), Tarun and others Vs. State of M.P. and another (M.Cr.C.No.8104/2017, decided on 16.5.2018).

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6: Learned counsel for the respondent submits that there is specific allegation about cruel treatment and harassment about demand of dowry against the petitioners/accused, so he prays for dismissal of the petition.

7: Heard learned counsel for both the parties and perused the record.

8: Learned counsel for the petitioner also submits that according to FIR, all the incident had taken place at Vidisha, so Police Steation Harda has no jurisdiction to investigate the matter. But, Hon’ble Supreme Court in the case of Rupali Devi Vs. State of U.P. And others Cr.A.No.619/2019, decided on 9.4.2019, in para 16 has held as under :-

“We, therefore, hold that the Courts at the place where the wife takes shelter after leaving or driven away from the matrimonial home on account of acts of cruelty committed by the husband of his relatives, would, dependent on the factual situation, also have jurisdiction to entertain a complaint alleging commission of offences under Section 498A of the Indian Penal Code.”

So, it is evident that respondent No.2 was residing after the incident at Harda, so Police Station Harda has jurisdiction to investigate the matter.

9: It has been held by the Hon’ble Apex Court in the case of Harshendra Kumar D. Vs. Rehatilata Koley AIR 2011 SC 1090 that controverted documents or material of unimpeachable or sterling character may be considered while exercising jurisdiction under Section 482 of Cr.P.C. It is also clear that this is a case of matrimonial dispute.

10 : This is a case of matrimonial dispute, therefore, it has to be seen as to how to deal with a petition under Section 482 of Cr.P.C. for quashing the FIR and subsequent criminal proceedings.

11 : The Apex Court in the case of Rakhi Mishra Vs. State of Bihar and others reported in AIR 2017 S.C. 4019 has held as under:-

“This Court in Sonu Gupta Vs. Deepak Gupak Gupta and ors. (2015) 3 SCC 424, 426: (AIR 2015 SC (Supp) 684) held as follows:
“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”

12 : The Apex Court in the case of Kans Raj Vs. State of Punjab and others reported in (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 No.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 husband are required to be proved beyond reasonable doubt. By mere conjectures and implicationssuch 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.”

13 : The Apex Court in the case of Preeti Gupta & anothers Vs. State of Jharkhand & another reported in AIR 2010 SC 3363 has held as under:-

“28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.

29. The courts are receiving a large number of cases emanating from Section 498-A of the Indian Penal Code which reads as under:-

“498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section,`cruelty’ means:-

(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”

30. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

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14 : The Apex Court in the case of Arnesh Kumar Vs. State of Bihar reported in 2014(8) SCC 273 has held as under:-

“4. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics”

published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge- sheeting in cases under Section 498-A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal.

5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the lawmakers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

15 : The Hon’ble Apex Court in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another reported in (2012) 10 SCC 741 has held as under:

“20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

21. It would be relevant at this stage to take note of an apt observation of this Court recorded G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

“12.There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

The view taken by the judges in this matter was that the Courts would not encourage such disputes.”

16 : The Apex Court in the case of State of Haryana and others Vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335 as held as under:-

“102. 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 reporduced 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 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 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.”

17 : In the light of aforesaid legal position I would proceed to decide this petition.
18 : It is revealed from the record that petitioner/ accused No.4 is married sister-in-law of respondent No.2. At the time of incident, she was pregnant, so she had come to his parental house at Vidisha for delivery. She is permanent resident of Sagar district, therefore, it is natural that petitioner/accused No.4 is living with her husband at Sagar. At the time of incident, petitioner/ accused No.4 was carrying 9 months’ pregnancy, so there is no probability of threatening and torturing to respondent No.2. It appears that allegation against the petitioners/accused is concocted and she is implicating in this case at the instant of sister of petitioner/accused No.1. Respondent No.2 had lived after marriage with petitioner/accused No.1 at Raipur and some time with other petitioners/accused at Vidisha. It also appears from the record that conciliation proceedings had taken place between the parties, so it is evident that petitioner/ accused No.4 has no role in this case. Petitioner/accused No.4 casually comes to paternal house at Vidisha. Therefore, in these circumstances, proceedings against petitioner/accused No.4 is misuse of process of law and it is appropriate to invoke the inherent jurisdiction in respect of petitioner/accused No.4, so FIR and subsequent proceedings against petitioner No.4/accused are quashed.

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19 : Petitioner/accused No.5 is brother-in-law of respondent No.2. Petitioner No.5/accused is a student and he is studying out of Vidisha, so he also casually comes to his house situated at Vidisha. There is no specific allegation against this petitioner/accused about demand of dowry, torturing, taunting and humiliation. Petitioner No.5/ accused is a student, so it appears that he has also been implicated in this case on the ground that he is brother of petitioner/accused No.1. Therefore, on this ground, it is appropriate case of petitioner No.5/accused to invoke the inherent jurisdiction. So, FIR and subsequent proceedings as against petitioner No.5/accused are quashed.

20 : Petitioner/accused No.1 is the husband of respondent No.2. It is true that petitionerr/accused No.1 lodged so many complaints about the misbehaviour of respondent No.2. He lodged in these complaints that respondent No.2 tried to commit suicide and she threatened to implicate all the family members in a false case. So, the respondent No.2 tortured the petitioners/ accused and his family members. He also lodged the complaint at Police Station DDU Nagar Raipur on 13.10.2018 and thereafter conciliation proceedings going on, which got unsuccessful, then petitioner/accused No.1 filed a petition for divorce under Section 13 of the Hindu Marriage Act before Principal Judge, Family Court Vidisha on 12.3.2019. Thereafter, learned Judge issued notice to the respondent No.2 to appear in the case. After receiving the notice, respondent No.2 lodged a complaint, but these facts may be investigated during trial. These facts will be proved by the evidence at the appropriate stage of trial. Petitioner No.2/ accused is father-in-law and petitioner No.3/accused is mother-in-law of respondent No.2. There is allegation about demand of dowry and humiliation, so all these facts will be proved by the evidence at the appropriate stage of trial. It is not required in the proceedings under Section 482 of Cr.P.C. to appreciate the evidence or material.

So, prima facie allegation is available against the petitioners No. 1 to 3/accused.

21 : In view of the aforesaid discussions, it is not an appropriate case to invoke inherent powers under Section 482 of Cr.P.C., and to quash First Information Report against petitioners No. 1 to 3/accused. Petitioners No. 1 to 3/accused are free to raise all the defence and objections before the trial Court and the trial Court shall decide the matter on merits.

22 : Accordingly, the petition filed by the petitioners/accused under Section 482 of Cr.P.C., deserves to be and is, hereby, partly allowed. The FIR registered against the petitioners 4 & 5/accused in Police Station Harda, District Harda (MP), vide Crime No.193/2019 and all consequent proceedings stands quashed as against petitioners/accused No.4 & 5.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE

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