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Asharam Rithoriya vs The State Of Madhya Pradesh Thr on 18 July, 2019

-( 1 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR

(Single Bench)

Misc. Criminal Case No. 5014/2018

Asharam Rihtoriya ors. ….. APPLICANTS
Versus
State of MP and Another ….. RESPONDENTS

——————————————————————————–

CORAM

Hon. Shri Justice Rajeev Kumar Shrivastava

——————————————————————————–

Appearance

Shri Arvind Dwivedi, learned counsel for the petitioners.
Shri Mukesh Sharma, learned Public Prosecutor for the
respondent/State.
Shri Vijay Sundaram, learned counsel for respondent No.2/
complainant.

——————————————————————————–

Whether approved for Reporting : No

Reserved on : 04.07.2019

——————————————————————————–

ORDER

(Passed on 18th July, 2019)

-( 2 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

This petition under Section 482 of the Code of Criminal

Procedure has been preferred by the applicants for quashing of

First Information Report against the applicants by Police Station

Dabra, Dehat, District Gwalior in connection with Crime

No.211/2017 for the offence punishable under Sections 498-A,

Section294, Section506, Section34 of IPC.

2. The facts leading to filing of present application are that on

23.9.2017, complainant’s husband and his family members came

to her parental house and demanded dowry. On refusing to fulfill

their demand by the complainant’s father, her husband beaten the

complainant and caused criminal intimidation by giving threat to

cause death or grievous hurt to the complainant and her family

members. On previous occasion, A FIR was also lodged

regarding dowry demand and inhuman treatment. On the basis of

above, the Police registered the aforementioned case against the

petitioner.

3. Learned counsel for the petitioners has contended that false

allegations have been levelled in the complaint. The petitioners

have not demanded any dowry and they have been falsely

implicated. The husband of the complainant had filed a petition

for divorce before the Family Court, Gwalior, wherein notice had

been issued, therefore, as a counter blast the complainant has filed

-( 3 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

false petition against the petitioners. There are general and

omnibus allegations in the FIR which do not constitute the offence

under Section 498-A of IPC against the petitioners. On these

premises, learned counsel for the petitioner prays for quashing of

the FIR registered at Crime No. 211/2017 and its consequential

proceedings.

4. Learned Public Prosecutor appearing for the State as well as

counsel for the complainant opposed the submissions of learnend

counsel for the petitioners and prayed for dismissal of the petition

filed under Section 482 of Cr.P.C.

5. Heard learned counsel for the parties and perused the

material available on record.

6. Allegations have been made against the petitioners that they

are demanding dowry and misbehaving with the complainant for

no reason. The complainant was pregnant at the time of filing of

FIR. It is submitted by learned counsel for the petitioner that the

FIR was lodged by the complainant after filing petition under

Section 13(1) of Hindu Marriage Act for getting divorce from the

complainant Mamta. Therefore, it has been submitted that the FIR

is a counter blast of aforesaid divorce petition filed by Ajendra

Singh, husband of the complainant.

7. In Amit kapoor Vs. Ramesh Chander and Anr. (2012) 8

-( 4 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

SCC 460, the Hon. Apex Court has observed as under:-

27.1. Though there are no limits of
the powers of the Court under Section 482 CrPC 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 CrPC 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.

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 loathe 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 SectionCrPC 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

-( 5 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

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 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 with 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

-( 6 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

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)CrPC, 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 SectionCrPC or that 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.

27.16. These are the principles which individually
and preferably cumulatively (one or more) are to 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 Court 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.”

8. In Kailash Chandra Agrawal and anr. vs. State of U.P.

and Ors. (Criminal Appeal No.2055 of 2014 decided on

06.09.2014), it was observed as under:-

“9. 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

-( 7 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

relationship of the appellants with the husband
of the complainant is distant. SectionIn Kans Raj v.
State of Punjab and Ors. [(2000) 5 SCC 207], it
was observed:-

“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
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 mataerial. 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.

10. 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 SectionK. Ramakrishna and
Ors. v. State of Bihar and Anr. [(2000) 8 SCC
547], SectionPepsi Foods Ltd. And Anr. v. Special
Judicial Magistrate and Ors.[(1992) Suppl
1SCC 335] and SectionAsmathunnisa v. State of A.P.
represented by the Public Prosecutor, High
Court of A.P. Hyderabad and Anr. [(2011)
11SCC 259]”.

-( 8 )- MCRC No. 5014/Section2018
Asharam Rithoriya Ors. vs. State of MP Anr.

9. In the present case, the allegations are not so patently absurd

and inherently improbable that a prudent person can ever reach a

conclusion and where the basic ingredients of a criminal offence

are satisfied then the Court should not interfere. Apart that, in the

present case, meticulous examination of the evidence is needed for

considering whether the case would end in conviction or not.

10. In view of the aforesaid discussion, looking to the offences

charged against the petitioners, I am of the view that no ground is

made out for quashing the FIR or to quash the charges. The

petition under Section 482 of Cr.P.C. sans substance and is hereby

dismissed being devoid of merit.

(Rajeev Kumar Shrivastava)
Judge

vv

VALSALA
VASUDEVAN
2019.07.19
VALSALA
VASUDEVAN
2018.10.26
15:14:29 -07’00’
10:31:53

-07’00’

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