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Rajbahadur Singh vs The State Of Madhya Pradesh on 20 June, 2018

M.Cr.C No.7949/2018
(Rajbahadur Singh Vs. State of M.P. another)


Gwalior, Dated : 20.06.2018
Shri Pradeep Katare, learned counsel for the petitioner.
Shri Kamal Jain, learned counsel for the respondent


Shri R.K. Sharma, learned counsel for the respondent

This petition under Section 482 of Cr.P.C. has been filed
seeking quashment of order dated 07.09.2017 whereby
JMFC, Dabra, District Gwalior, has accepted an application
under Section 156(3) of Cr.P.C. and has directed the Police
Station, Dabra City to register an offence against the petitioner
under Sections 363, 366, 376, 493 and 495 of IPC. Petitioner
is also aggrieved by registration of Crime No.402/2017
consequent to such directions passed by the JMFC, Dabra.

It is petitioner’s contention that he is innocent and the
allegations made against him that he has abducted or violated
the privacy of the wife of the complainant are not made out. It
is submitted that complainant had earlier filed Writ Petition
No.1202/2017 seeking writ of habeas corpus. On 02.03.2017
such petition was dismissed as complainant’s wife had stated
before the Court that she is 30 years of age and is living
separately from the complainant on her own volition. She had
pleaded ignorance in regard to the present petitioner.

The Writ Appeal was filed challenging the said order
passed in the Writ Petition and that too was dismissed vide
order dated 15.03.2018. It is further submitted that
complainant had filed an application under the provisions of
Sections 7 and 10 of the Guardians and Wards Act, 1890,
seeking custody of his minor son in which reply was filed by
M.Cr.C No.7949/2018
(Rajbahadur Singh Vs. State of M.P. another)


complainant’s wife that she is willing to hand over the custody
but before the Court on 29.08.2017 the minor child expressed
his desire to remain in the company of his mother, therefore,
orders for interim custody were not passed in favour of the
complainant. It is further submitted that in the light of the law
laid down by Hon’ble Supreme Court in the case of Mrs.
Priyanka Srivastava and Another Vs. State of U.P. And
Others as reported in 2015(2) Crimes 209(SC), a Magistrate
is required to apply his mind as to the nature of allegations
before issuing any directions under Section 156 (3) of Cr.P.C.

It has been observed in case of Priyanka Srivastava
(supra) that in fact matter was already proceeding under
provisions of SARFAESI Act and elaborate procedure has
been provided under Recovery of Debts due to Banks and
Financial Institutions Act, 1993. More care, caution and
circumspection is required in passing the order. Reliance has
also been placed on the judgment of this High Court in case of
Preeti Vs. State of M.P. and another as reported in 2014
(1) MPLJ (Cri.) 330, wherein again the ratio is that Magistrate
is required to form an opinion as to whether facts in complaint
discloses the commission of cognizable offence by accused
arrayed in the complaint and Magistrate is also required to
record his satisfaction about need of investigation by Police.
Placing reliance on such judgments, it is submitted that it is a
fit case for quashing of the F.I.R. registering Crime

Shri R.K. Sharma, learned senior advocate duly assisted
by Shri M.K. Chaudhary has drawn attention of this Court to
the order of custody passed by the First Additional District
M.Cr.C No.7949/2018
(Rajbahadur Singh Vs. State of M.P. another)


Judge, Dabra, vide order dated 10.03.2018 and submitted that
ingredients of Section 493 of IPC are clearly made out.

It is also submitted that rejection of an objection for
habeas corpus or writ appeal consequent to it, is not sufficient
to hold that there was no material for registration of F.I.R.
against the petitioner. It is further submitted that commission
of cognizable offence has been reported and the documents
on record reveal that there is a close nexus between the
complainant’s wife and the present petitioner. Present
petitioner has filed copies of replies and applications under
the provisions of Guardians and Wards Act without obtaining
their certified copy from the Court. It is submitted that no
person worth salt will deliberate illicit relationship of wife with a
stranger like the present petitioner. It is submitted that
petitioner at the instance of complainant’s wife is trying to put
dog in the wheels of justice by filing such frivolous petitions.

As far as the present petition is concerned there is no
denial to the fact that complainant’s wife is now estranged.
There are allegations of adultery which needs to be proved in
appropriate proceedings before the trial Court. Merely
because the petitioner has made accusations will not nullify
provisions of Section 156 (3) of Cr.P.C.

As far as law laid down in case of Priyanka Srivastava
(supra) is concerned, it is on the availability of alternate
statutory remedy and facts of that case are distinguishable.
As far as the law laid down in case of Preeti (supra) is
concerned, again petitioner has failed to show that there no
application of mind while passing impugned order for
registration of an F.I.R.

M.Cr.C No.7949/2018
(Rajbahadur Singh Vs. State of M.P. another)


It is settled principle of law that unless the charges are
absurd and beyond imagination so also totally improbable, the
Court should be slow in delve into it.

In view of such facts and also in the light of the law laid
down by the Hon’ble Supreme Court in case of Sakiri Vasu
Vs. State of Uttar Pradesh and Others as reported in (2008)
2 S.C.C. 409, no interference is warranted in the impugned
order inasmuch as there appears to be not only application of
mind but appropriate deliberation as to the feasibility of the
direction to register an F.I.R. There is no direct nexus
between the dismissal of petition seeking writ of habeas
corpus with the present matter. This petition fails and is

(Vivek Agarwal)


2018.06.22 17:54:08

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