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Abhishek Sharma vs The State Of Madhya Pradesh on 17 February, 2017

1
M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

17/02/2017
Shri A.S. Bhadoriya, counsel for the applicants.
Mohd. Irshad, Panel Lawyer for the respondent

No.1/State.

None for the respondent No.2.

This petition under Section 482 of CrPC has been
filed for quashing the FIR in Crime No.588/2015
registered by Police Station Gwalior, District Gwalior
under Sections 498A, 34 of IPC and Section 3/4 of
Dowry Prohibition Act as well as the criminal
proceedings pending in the Court of JMFC, Gwalior in
Criminal Case No.1484/2016.

The necessary facts for the disposal of the present
application in short are that the respondent No.2 lodged
a report against the applicants alleging that they are
demanding Rs.3 lacs and because of non-fulfillment of
their demand of dowry, she is being harassed. It was
alleged that on 3.2.2014, she was married to the
applicant No.1 who is the resident of Rewa and dowry to
the tune of Rs.10 lacs was given. Immediately after the
marriage, the applicants started saying that the
applicant No.1 is working as Assistant Professor and her
parents have not given anything. They were also saying
that they have got one Maruti Wagon-R financed and,
therefore, her parents should give Rs.3 lacs. She stayed
in her matrimonial house at Rewa for about 10 days
and, thereafter, came back to her parents’ house. On
22.03.2014, the applicant No.1 came to Gwalior in order
to take her back, at that time also, he had quarreled
with her parents. However, the respondent No.2 was
sent along with the applicant No.1 to Bhopal. At Bhopal
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

also, the behaviour of the applicant No.1 did not
improve and he used to beat her and she was treated
with cruelty, as a result of which, she fell ill and was
admitted on 31.03.2014 in ICU of R.K. Hospital, Bhopal.
She remained in hospital for about 3 days and thereafter
her parents took her back to Gwalior. For about 5
months, she remained in her parents’ house and the
applicants did not try to contact her. On the Deepawali
festival of the last year, her parents after talking to her
in-laws send her to Rewa where again a demand of
money was made and she was mentally and physically
tortured. Her ornaments were kept by the applicants
and she was sent back to Gwalior and said that now she
should not come and they were also talking about
divorce. From thereafter she is residing in her parents’
house and in the meanwhile her parents went to Rewa
and Bhopal on two occasions for convincing them but
they misbehaved with her parents, as a result of which,
she was forced to make a complaint in Mahila Police
Station, Gwalior and the applicants were called for
conciliation proceedings. On 25.10.2015, the applicant
No.1 and applicant No.2 came to Mahila Police Station.
When no result could be achieved in the conciliation
proceedings, the applicant No.1 2 after coming out of
the police station quarreled with the complainant and
her parents and said that now they would not keep her
in their house and would take divorce. Accordingly, the
FIR was lodged.

It is submitted by the counsel for the applicants
that before the reconciliation proceedings which took
place between the parties at Gwalior, the applicant No.1
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

had already approached the Parivar Paramarsh Kendra
at Rewa and a notice was issued to the respondent No.2
on 17.10.2015. Even referring to the reconciliation
proceedings which took place on 25.10.2015 at Mahila
Police Station, the counsel for the applicants submitted
that although the parties were advised to live peacefully
with each other but the respondent No.2 was not ready
to reside with the applicant No.1 whereas the applicant
No.1 is ready and willing and ready to keep the
respondent No.2 as his wife. It was further submitted
that the respondent No.2 has filed a petition under
Section 13 of Hindu Marriage Act, therefore, the basic
intention of the respondent No.2 is to somehow obtain
divorce from the applicant No.1 and because of that she
has made false allegations against the applicants.

The counsel for the State submitted that even in
the reconciliation proceedings which took place at Mahila
Police Station, the respondent No.2 had specifically
alleged that she is being harassed mentally and
physically because of non-fulfillment of demand of dowry
and even on the first night of the marriage, the
applicants had picked up a quarrel with the respondent
No.2 on the question of inadequacy of dowry.

Heard the learned counsel for the parties and
perused the documents filed along with the petition.

In the FIR, it is specifically mentioned that the
respondent No.2 is being harassed physically as well as
mentally because of non-fulfillment of demand of dowry.
Even in the reconciliation proceedings which took place
on 25.10.2015, the respondent No.2 has specifically
stated that she was being harassed mentally as well as
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

physically because of non-fulfillment of demand of
dowry. Because of the unnatural conduct of the applicant
No.1 she is afraid of him and she cannot live with
applicant No.1 and she wants her Stridhan back.
Although, in the reconciliation proceedings an
observation has been made by the members that the
respondent No.2 does not want to reside with her
husband but it is not the finding of the members that
without any reasonable reasons the respondent No.2
does not want to reside with the applicant No.1. Even in
the reconciliation proceedings, the respondent No.2 had
disclosed the reasons as to why she does not want to
reside with the applicant No.1.

It is not expected of a girl to stay back in her
matrimonial house in spite of mental and physical
torture because of non-fulfillment of demand of dowry
as well as inspite of unnatural conduct of her husband
against the consent of the wife.

Under these circumstances, if the respondent No.2
had expressed her unwillingness to reside with the
applicant No.1 then it cannot be said that it is the
respondent No.2 who is at fault.

Similarly, pointing out the cruelty and harassment
at the hands of her in-laws if the respondent No.2 has
filed a petition for divorce then it would not mean that
since the respondent No.2 wants divorce from the
applicant No.1, therefore, false allegations have been
made. On the contrary, the filing of petition under
Section 13 of Hindu Marriage Act by the respondent
No.2 prima-facie establishes and substantiates her
allegations made in the FIR.

5

M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

The Supreme Court in the case of Taramani
Parakh v. State of Madhya Pradesh
reported in
(2015) 11 SCC 260 has held as under:-

“10. The law relating to quashing is well
settled. If the allegations are absurd or
do not make out any case or if it can be
held that there is abuse of process of
law, the proceedings can be quashed but
if there is a triable case the Court does
not go into reliability or otherwise of the
version or the counter-version. In
matrimonial cases, the Courts have to be
cautious when omnibus allegations are
made particularly against relatives who
are not generally concerned with the
affairs of the couple. We may refer to the
decisions of this Court dealing with the
issue.

11. Referring to earlier decisions, in Amit
Kapoor vs. Ramesh Chander
(2012) 9
SCC 460, it was observed (SCC pp. 482-
84, para 27):

“27.1. Though there are no limits of the
powers of the Court under Section 482
of the Code but the more the power, the
more due care and caution is to be
exercised in invoking these powers. The
power of quashing criminal proceedings,
particularly, the charge framed in
terms of Section 228 of the Code should
be exercised very sparingly and with
circumspection and that too in the rarest
of rare cases.

27.2. The Court should apply the test
as to whether the uncontroverted
allegations as made from the record of
the case and the documents submitted
therewith prima facie establish the
offence or not. If the allegations are so
patently absurd and inherently
improbable that no prudent person can
ever reach such a conclusion and where
the basic ingredients of a criminal
offence are not satisfied then the Court
may interfere.

6

M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

27.3. The High Court should not unduly
interfere. No meticulous examination of
the evidence is needed for considering
whether the case would end in conviction
or not at the stage of framing of charge
or quashing of charge.

27.4. Where the exercise of such power
is absolutely essential to prevent patent
miscarriage of justice and for correcting
some grave error that might be
committed by the subordinate courts
even in such cases, the High Court
should be loath to interfere, at the
threshold, to throttle the prosecution in
exercise of its inherent powers.
27.5. Where there is an express legal
bar enacted in any of the provisions of
the Code
or any specific law in force to
the very initiation or institution and
continuance of such criminal
proceedings, such a bar is intended to
provide specific protection to an
accused.

27.6. The Court has a duty to balance
the freedom of a person and the right of
the complainant or prosecution to
investigate and prosecute the offender.
27.7. The process of the court cannot
be permitted to be used for an oblique or
ultimate/ulterior purpose.

27.8. Where the allegations made and
as they appeared from the record and
documents annexed therewith to
predominantly give rise and constitute a
“civil wrong” with no “element of
criminality” and does not satisfy the
basic ingredients of a criminal offence,
the court may be justified in quashing
the charge. Even in such cases, the court
would not embark upon the critical
analysis of the evidence.

27.9. Another very significant caution
that the courts have to observe is that it
cannot examine the facts, evidence and
materials on record to determine
whether there is sufficient material on
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

the basis of which the case would end in
a conviction; the court is concerned
primarily with the allegations taken as a
whole whether they will constitute an
offence and, if so, is it an abuse of the
process of court leading to injustice.
27.10. It is neither necessary nor is the
court called upon to hold a full-fledged
enquiry or to appreciate evidence
collected by the investigating agencies to
find out whether it is a case of acquittal
or conviction.

27.11. Where allegations give rise to a
civil claim and also amount to an
offence, merely because a civil claim is
maintainable, does not mean that a
criminal complaint cannot be maintained.
27.12. In exercise of its jurisdiction
under Section 228 and/or under Section
482
, the Court cannot take into
consideration external materials given by
an accused for reaching the conclusion
that no offence was disclosed or that
there was possibility of his acquittal. The
Court has to consider the record and
documents annexed therewith by the
prosecution.

27.13. Quashing of a charge is an
exception to the rule of continuous
prosecution. Where the offence is even
broadly satisfied, the Court should be
more inclined to permit continuation of
prosecution rather than its quashing at
that initial stage. The Court is not
expected to marshal the records with a
view to decide admissibility and
reliability of the documents or records
but is an opinion formed prima facie.
27.14. Where the charge-sheet, report
under Section 173(2) of the Code,
suffers from fundamental legal defects,
the Court may be well within its
jurisdiction to frame a charge.
27.15. Coupled with any or all of the
above, where the Court finds that it
would amount to abuse of process of the
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

Code or that the interest of justice
favours, otherwise it may quash the
charge. The power is to be exercised ex
debito justitiae i.e. to do real and
substantial justice for administration of
which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar
Guha

[(1982) 1 SCC 561 : 1982 SCC (Cri) 283
: AIR 1982 SC 949]; Madhavrao
Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre
[(1988) 1 SCC 692 :
1988 SCC (Cri) 234]; Janata Dal v. H.S.
Chowdhary
[(1992) 4 SCC 305 : 1993
SCC (Cri) 36 : AIR 1993 SC 892]; Rupan
Deol Bajaj v. Kanwar Pal Singh Gill

[(1995) 6 SCC 194 : 1995 SCC (Cri)
1059]; G. Sagar Suri v. State of U.P.
[(2000) 2 SCC 636 : 2000 SCC (Cri)
513]; Ajay Mitra v. State of M.P. [(2003)
3 SCC 11 : 2003 SCC (Cri) 703]; Pepsi
Foods Ltd. v. Special Judicial Magistrate

[(1998) 5 SCC 749 : 1998 SCC (Cri)
1400 : AIR 1998 SC 128]; State of U.P.
v. O.P. Sharma
[(1996) 7 SCC 705 :
1996 SCC
(Cri) 497]; Ganesh Narayan Hegde v. S.
Bangarappa
[(1995) 4 SCC 41 : 1995
SCC (Cri) 634]; Zandu Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque

[(2005) 1 SCC 122 :

2005 SCC (Cri) 283]; Medchl Chemicals
Pharma (P) Ltd. v. Biological E. Ltd
.
[(2000) 3
SCC 269 : 2000 SCC (Cri) 615 : AIR
2000 SC 1869]; Shakson Belthissor v.
State of Kerala
[(2009) 14 SCC 466 :
(2010) 1 SCC (Cri) 1412]; V.V.S. Rama
Sharma v. State of U.P
. [(2009) 7 SCC
234 : (2009) 3 SCC (Cri) 356];

Chunduru Siva Ram Krishna v. Peddi
Ravindra Babu
[(2009) 11 SCC 203 :
(2009) 3 SCC (Cri) 1297]; Sheonandan
Paswan v. State of Bihar
[(1987) 1 SCC
288 : 1987 SCC (Cri) 82]; State of Bihar
v. P.P. Sharma
[1992 Supp (1) SCC 222 :

9

M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

1992 SCC (Cri) 192 : AIR 1991 SC
1260]; Lalmuni Devi v. State of Bihar
[(2001) 2 SCC 17 : 2001 SCC (Cri)
275]; M. Krishnan v. Vijay Singh [(2001)
8 SCC 645 : 2002 SCC (Cri) 19]; Savita
v. State of Rajasthan
[(2005) 12 SCC
338 : (2006) 1 SCC (Cri) 571] and S.M.
Datta v. State of Gujarat
[(2001) 7 SCC
659 : 2001 SCC (Cri) 1361 : 2001 SCC
(LS) 1201]).

27.16. These are the principles which
individually and preferably cumulatively
(one or more) be taken into
consideration as precepts to exercise of
extraordinary and wide plenitude and
jurisdiction under Section 482 of the
Code by the High Court. Where the
factual foundation for an offence has
been laid down, the courts should be
reluctant and should not hasten to quash
the proceedings even on the premise
that one or two ingredients have not
been stated or do not appear to be
satisfied if there is substantial
compliance with the requirements of the
offence.”

12. In Kailash Chandra Agrawal Anr.
vs. State of U.P
. (2014) 16 SCC 51, it
was observed: (SCC p. 553, paras 8-9):
“8. We have gone through the FIR and
the criminal complaint. In the FIR, the
appellants have not been named and in
the criminal complaint they have been
named without attributing any specific
role to them. The relationship of the
appellants with the husband of the
complainant is distant. In Kans Raj vs.
State of Punjab
[(2000) 5 SCC 207], it
was observed:- (SCC p.217, para 5)
“5. … 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
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

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.”
The Court has, thus, to be careful in
summoning distant relatives without
there being specific material. Only the
husband, his parents or at best close
family members may be expected to
demand dowry or to harass the wife but
not distant relations, unless there is
tangible material to support allegations
made against such distant relations.
Mere naming of distant relations is not
enough to summon them in absence of
any specific role and material to support
such role.

9. The parameters for quashing
proceedings in a criminal complaint are
well known. If there are triable issues,
the Court is not expected to go into the
veracity of the rival versions but where
on the face of it, the criminal
proceedings are abuse of Court’s
process, quashing jurisdiction can be
exercised. Reference may be made to K.
Ramakrsihna and Ors. vs. State of Bihar

[(2000) 8 SCC 547], Pepsi Foods Ltd. v.
Judicial Magistrate
[(1998) 5 SCC 749],
State of Haryana v. Ch. Bhajan Lal
[(1992) Supp (1) SCC 335] and
Asmathunnisa v. State of A.P.[(2011) 11
SCC 259].”

13. In the present case, the complaint is
as follows:

“Sir, it is submitted that I was married
on 18.11.09 with Sidharath Parakh s/o
Manak Chand Parak, r/o Sarafa Bazar in
front of Radha Krishna Market, Gwalior
according to the Hindu rites and
customs. In the marriage my father had
given gold and silver ornaments, cash
amount and household goods according
11
M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

to his capacity. After the marriage when
I went to my matrimonial home, I was
treated nicely by the members of the
family. When on the second occasion I
went to my matrimonial, my husband,
father-in-law and mother-in-law started
harassing me for not bringing the dowry
and started saying that I should bring
from my father 25-30 tolas of gold and
Rs.2,00,000/- in cash and only then they
would keep me in the house otherwise
not. On account of this my husband also
used to beat me and my father-in-law
and my mother-in-law used to torture
me by giving the taunts. In this
connection I used to tell my father
Kundanmal Oswal, my mother Smt.
Prem Lata Oswal, uncle Ashok Rai
Sharma and uncle Ved Prakash Mishra
from time to time. On 2.4.2010 the
members of the family of my
matrimonial home forcibly sent me to
the house of my parents in Ganj Basoda
along with my brother Deepak. They
snatched my clothes and ornaments and
kept with them. Since then till today my
husband has been harassing me on the
telephone and has not come to take me
back. Being compelled, I have been
moving this application before you. Sir, it
is prayed that action be taken against
husband Sidharath Parakh, my father-in-
law Manak Chand Parakh and my
mother-in-law Smt. Indira Parakh for
torturing me on account of demanding
the dowry.”

14. From a reading of the complaint, it
cannot be held that even if the
allegations are taken as proved no case
is made out. There are allegations
against Respondent No.2 and his parents
for harassing the complainant which
forced her to leave the matrimonial
home. Even now she continues to be
separated from the matrimonial home as
she apprehends lack of security and
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M.Cr.C.No.2682/2016
(Abhishek Sharma Ors. v. State of M.P. Ano.)

safety and proper environment in the
matrimonial home. The question whether
the appellant has infact been harassed
and treated with cruelty is a matter of
trial but at this stage, it cannot be said
that no case is made out. Thus, quashing
of proceedings before the trial is not
permissible.”

Considering the facts and circumstances of the
case and in the light of the judgment passed by the
Supreme Court in the case of Taramani Parakh
(supra), this Court is of the view that the FIR as well as
the criminal proceedings initiated against the applicants
cannot be quashed at this stage.

Accordingly, the petition fails and is hereby
dismissed.


                                             (G.S.Ahluwalia)
(ra)                                               Judge
 

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