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Smt. Neha Jain vs The State Of Madhya Pradesh on 29 November, 2018

1 MCRC-27246-2017
The High Court Of Madhya Pradesh
MCRC-27246-2017
(SMT. NEHA JAIN Vs THE STATE OF MADHYA PRADESH)

13
Jabalpur, Dated : 29-11-2018
For the petitioners : Mr. Praveen Dubey, Advocate
For the respondent No.1/State: Mr. Amit Sharma, Panel Lawyer

For the respondent No.2 : Mr. Abhijeet Awasthy, Advocate

The petitioners have filed this petition under Section 482 of the

Cr.P.C. for quashment of FIR dated 30.08.2016 pertaining to Crime
No.106/2016 registered under Sections 466, 468 and 120-B read with Section
34 of the Indian Penal Code and Sections 65, 66, 66-C and 66-D of the
Information Technology (Amendment) Act, 2008 registered at police station
— Cyber Cell, Bhopal against the petitioners.

2. It is not in dispute that Petitioner No. 1 is the wife and the petitioner
No. 2 is the uncle-in- law of, respondent No. 2. There has been domestic
dispute between the husband and wife. On 17.07.2015, the petitioner lodged
an F.I.R against the respondent No. 2 and other family members for offence

under Sections 498 A, 294 and 506 of I.P.C. A panchayat of Jain community
was called for settling the disputes on 7th December, 2014. A civil suit has
also been filed for dissolution of marriage under Section 13 of the Hindu
Marriage Act, 1955 by the petitioner No. 1- wife against the respondent No.
2- husband.

3. The respondent No. 2 has lodged an F.I.R in connection with Crime
No. 106/2016, before the Cyber Cell. In the Cyber Cell it is stated that some
unknown person has hacked his income tax return online from his account
illegally in violation of rights and privacy without authorization of the
complainant for which offence under Sections 466, 468, 120 B read with
Section 34 of I.P.C and Sections 65, 66, 66 C, 66 D of the Information and
Technology Act have been registered by the police.

2 MCRC-27246-2017

4. It is alleged by the petitioners that F.I.R does not reflect the names of
the petitioners but at the instance of the respondent, police harassed the
petitioner No.1 by calling her off and on. Therefore, the petitioners have filed
this petition under Section 482 of Cr.P.C. for quashing of FIR.

5. Learned counsel for the petitioners contended that the impugned FIR
has been lodged as a counter blast to frustrate the applications filed by the

petitioner No.1 under Order 16 Rule 1 as well as under Order 11 Rule 12 of
the Code of Civil Procedure in her maintenance case pending before the trial
Court and application under Section 125 of the Code of Criminal Procedure
against the respondent No.2. The petitioner No.2 is being dragged in false
criminal case just because he is uncle of the petitioner No.1.

6. Learned counsel for the respondent No.2 submitted that he filed an
application for vacating the stay order, i.e. I.A. No.1667/2018. In the
aforesaid application, respondent No.2 referred the documents which show
that the petitioners fabricated the following documents:
“a. Fabricated PAN card;

b. Fabricated voter ID;

c. Obtaining a SIM card in the name of third person with his knowledge or
consent;

d. Affixing fabricated seal and signature of Mr. A.K. Gupta (Assistant
Commissioner, Commercial Tax Department) without his consent;
e. Submission of false and fabricated documents for issuance of digital
signature certificate and representing such fabricated documents as true
documents;

f. Hacking the income tax account of the complainant by using the OTP (one
time password) received on the mobile Sim procured in the name of
complainant by using forged PAN Card/voter-ID;

g. Downloading the information from the website of income tax department
by impersonating himself as complainant;

h. The entire act is committed to ensure benefit to the wife of complainant
3 MCRC-27246-2017
in her application preferred under Section 125 of the Cr.P.C.â€Â​

7. It is claimed by the respondent No.2 that the petitioners hacking his
income tax account by using the OTP received on the mobile SIM procured
in the name of respondent No.2 by using his forged voter ID and pan card,
the petitioners downloaded the information of website by impersonating
himself as respondent No.2/complainant to ensure benefit to the petitioner
No.1.

8. On the contrary, learned counsel for the petitioners have drawn
attention of this Court to the statement of the respondent No.2 recorded by
the trial Court and urged that involvement of the petitioners has not been
established with the crime registered in the impugned FIR (Annexure P-1).

Learned counsel for the petitioners has placed reliance on the decision in the
case of Chandran Batnaswami v. K.C. Palanisamy and Others, (2013) 6 SCC

740.

9. On the other hand, learned counsel for the respondent No.2 has
placed reliance on the decisions in the cases of State of Karnataka and
Another v. Pastor P. Raju,(2006) 6 SCC 728; D. Venkatasubramaniam and
Others v. M.K. Mohan Krishnamachari and Another, (2009) 10 SCC 488;
Teeja Devi alias Triza Devi v. State of Rajasthan and Others, (2014) 15 SCC
221; and Dineshbhat Chandubhai Patel v. State of Gujarat and Others, (2018)
3 SCC 104.

10. In the leading case of Bennett vs. Horseferry Road
Magistrates’ Court, (1993) 3 All ER 138, on the application of
abuse of process, the court confirms that an abuse of process justifying the
stay of prosecution could arise in the following circumstances: (i) where it
would be impossible to give the accused a fair trial; or (ii) where it would
amount to misuse/manipulation of process because it offends the
court’s sense of justice and propriety to be asked to try the accused
in the circumstances of the particular case.

11. In the present case, it cannot be determined from the material
4 MCRC-27246-2017
available on record that the petitioner cannot receive a fair trial because
investigation is still in continuation. It is settled law that if allegations made in
the FIR prima facie disclose cognizable offence, interference in investigation
is not proper and it can be done only in the rarest of rare cases where the
Court is satisfied that the prosecution is malicious and vexatious. Without a
thorough investigation, it is not possible or proper to hold whether the
allegations made by the complainant are true or not. Hence, the investigation
should have been allowed to continue so that on filing of the report under
Section 173 of the Code of Criminal Procedure affected party could pursue
its remedy against the report in accordance with law.

12. In the case of Pastor P. Raju (supra) in paragraph 15 it has been
observed as follows:

“15. There is another aspect of the matter which deserves notice.
The FIR in the case was lodged on 15.1.2005 and the petition under Section
482 Cr.P.C. was filed within 12 days on 27.1.2005 when the investigation had
just commenced. The petition was allowed by the High Court on 23.2.2005
when the investigation was still under progress. No report as contemplated by
Section 173 Cr.P.C. had been submitted by the incharge of the police station
concerned to the Magistrate empowered to take cognizance of the offence.
Section 482 Cr.P.C. saves inherent powers of the High Court and such a
power can be exercised to prevent abuse of the process of any Court or
otherwise to secure the ends of justice. This power can be exercised to quash
the criminal proceedings pending in any Court but the power cannot be
exercised to interfere with the statutory power of the police to conduct
investigation in a cognizable offence. This question has been examined in
detail in Union of India v. Prakash P. Hinduja Anr. (2003) 6 SCC 195,
where after referring to King Emperor v. Khwaja Nazir Ahmad AIR 1945 PC
18, H.N. Rishbud Inder Singh v. The State of Delhi AIR 1955 SC 196,
State of West Bengal v. SN Basak AIR 1963 SC 447, Abhinandan Jha
5 MCRC-27246-2017
Ors. v. Dinesh Mishra AIR 1968 SC 117 and State of Bihar Anr. v. JAC
Saldanha Ors. (1980) 1 SCC 554, it was observed as under in para 20 of
the reports :-

“20. Thus the legal position is absolutely clear and also settled by judicial
authorities that the Court would not interfere with the investigation or during
the course of investigation which would mean from the time of the lodging of
the First Information Report till the submission of the report by the officer in
charge of police station in court under Section 173(2) Cr.P.C., this field being
exclusively reserved for the investigating agency.”
This being the settled legal position, the High Court ought not to have
interfered with and quashed the entire proceedings in exercise of power
conferred by Section 482 Cr.P.C. when the matter was still at the
investigation stage.â€Â​

13. Similarly in the case of D. Venkatasubramaniam (supra) Hon’ble the
Supreme Court has held that it is statutory obligation and duty of the police to
investigate into the crime and the Courts normally ought not to interfere and
guide the investigating agency as to in what manner the investigation has to
proceed.

14. Recently in the case of Dineshbhai Chandubhai Patel (supra), in
paragraphs 25 and 26, Hon’ble the Supreme Court has held as follows:

25. The law on the question as to when a registration of the FIR is
challenged seeking its quashing by the accused under Article 226 of the
Constitution or Section 482 of the Code and what are the powers of the High
Court and how the High Court should deal with such question is fairly well
settled.

26. This Court in State of West Bengal Ors. vs. Swapan Kumar Guha
Ors. (AIR 1982 SC 949) had the occasion to deal with this issue. Y.V.
Chandrachud, the learned Chief Justice speaking for Three Judge Bench laid
6 MCRC-27246-2017
down the following principle:

“….. The condition precedent to the commencement of investigation
under S.157 of the Code is that the F.I.R. must disclose, prima facie, that a
cognizable offence has been committed. It is wrong to suppose that the
police have an unfettered discretion to commence investigation under S.157
of the Code. Their right of inquiry is conditioned by the existence of reason
to suspect the commission of a cognizable offence and they cannot,
reasonably, have reason so to suspect unless the F.I.R., prima facie,
discloses the commission of such offence. If that condition is satisfied, the
investigation must go on. The Court has then no power to stop the
investigation, for to do so would be to trench upon the lawful power of the
police to investigate into cognizable offences.

“66. Whether an offence has been disclosed or not must
necessarily depend on the facts and circumstances of each particular case. If
on a consideration of the relevant materials, the Court is satisfied that an
offence is disclosed, the Court will normally not interfere with the
investigation into the offence and will generally allow the investigation in the
offence to be completed for collecting materials for proving the
offence.â€Â​

15. The Hon’ble Apex Court in paragraphs 29 and 30 of the said
decision has held as under:

29. The High Court, in our view, failed to see the extent of its jurisdiction,
which it possess to exercise while examining the legality of any FIR
complaining commission of several cognizable offences by accused persons.
In order to examine as to whether the factual contents of the FIR disclose any
prima facie cognizable offences or not, the High Court cannot act like an
investigating agency and nor can exercise the powers like an appellate Court.
The question, in our opinion, was required to be examined keeping in view
the contents of the FIR and prima facie material, if any, requiring no proof.

7 MCRC-27246-2017

30. At this stage, the High Court could not appreciate the evidence nor
could draw its own inferences from the contents of the FIR and the material
relied on. It was more so when the material relied on was disputed by the
Complainants and visa-se-versa. In such a situation, it becomes the job of the
investigating authority at such stage to probe and then of the Court to
examine the questions once the charge sheet is filed along with such material
as to how far and to what extent reliance can be placed on such
material.â€Â​

16. In case of Munshiram Vs. State of Rajasthan and another (2018) 5
SCC 678 the hon’ble Supreme Court has held that under Section 482 of
Cr.P.C. has to be cautiously utilized while quashing FIR and further
expressed that if inquiry was pending and there were aspect which may
require investigation, the High Court erred in quashing FIR at the threshold
itself without allowing investigation to proceed.

17. In the present case, the documents referred by learned counsel for
the respondent No.2 reflected that there is cognizable offences committed by
some one. Till now FIR has not been registered against the present
petitioners. Hence, in the light of the above principles laid down by Hon’ble
the Supreme Court, at this stage, investigation cannot be interfered with by
invoking the extraordinary power under Section 482 of the Cr.P.C.

18. Accordingly, this petition being devoid of merit stands dismissed.

(SMT. ANJULI PALO)
JUDGE

ks

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