Tag Archives: 498a

Fruit seller to soon become a #lawyer after being accused in #fake #dowry case that dragged and dragged

Fruit seller was accused of dowry case in 2012

case dragged and dragged

after a long time the fruit seller couldn’t take it anylonger

he’s on the way to becomming a lawyer !!

fruitseller becomes lawyer in uttrakand

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Second #FAKE #498a filed on same Fake grounds at a different police station! #Quashed !! Anup Agrawal vs The State Of #Madhya #Pradesh on 16 #April, #2018

Notes

Soon after marriage wife demands LAKHS and LAKHS of money from her newly wed husband !! The Husband is unable to provide the same !! So she refuses to join matrimonial home. Wife then goes on to file #FAKE #498a at #Indore PS. The Indore police arrange for counseling sessions and the woman agrees that there were “differences” between the couple (NOT dowry cruelty !! ) and they agree to part ways !

Still the woman files a SECOND fake 498a from a different Police station. Husband tries to impress on the second PS that the case in the same grounds the first cace (which was closed) . Still the second PD file a charge sheet !

So the husband and co run to MH HC and seek quash. https://twitter.com/ATMwithDick

The Hon MP HC sees the ABUSE of process of law and quashes the entire 498a case !!


Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

Madhya Pradesh High Court

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018

M.Cr.C.No10858/2017 (Anup Agrawal & Ors. Vs. State of M.P. & Ors..)

High Court of Madhya Pradesh: Bench at Indore

Single Bench: Hon’ble Shri Justice S.K. Awasthi

M.Cr.C. No. 10858/2017

Anup Agrawal & Ors.

vs.

State of Madhya Pradesh & Ors.


Shri Anup Agrawal, present in person.

Mrs. Mamta Shandilya, learned Govt. Advocate for the respondent No.1/State.

Shri Vinod Kuma Bhavsar, learned counsel for the respondent No.2/complainant.


ORDER

(Passed on April 2018 )

  1. The applicants filed instant petition under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘The code’) seeking quashment of FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR. https://twitter.com/ATMwithDick
  2. 2. The necessary facts leading to filing of the instant petition are that the marriage of applicant No.1-Anup Agrawal was solemnized with respondent No.2-Trupti Agrawal on 24/04/2014 as per Hindu rituals and customs. Respondent No. 2 made a complaint against the applicants alleging that in the marriage her parents had given ornaments, household articles and cash of Rs.3.50 Lacs to the applicants. However, after the marriage, all the accused persons started to harass the respondent No. 2 alleging that her parents had given nothing in the marriage and they demanded money from her. At the time of Diwali festival in the year 2014 the applicants beat her and she was thrown out of her matrimonial home. On the basis of aforesaid allegations an FIR for commission of offence under Sections 498(A) and 323/34 was registered against the applicants at Police-Station Lasudiya and after completion of investigation charge-sheet was filed. In the month of June 2015, the applicant was transferred to Ahemdabad but the respondent No.2 refuse to accompanied him, since she did not want to give her job in the ICICI Bank, Indore. Applicant No.1 tried to relocate back to Indore. Respondent No.2 informed the applicant No.1-in the mid-August 2014 first time that she owed a debt liability of approximately Rs.25 Lacs against Indore Development Authority flat situated in Anandvan (Highrise), Scheme No. 140 and she is paying an EMI of approximately Rs.25,000/- towards the said loan from July 2015. On 01/12/2015, respondent No.2 asked the applicant No.1 to help her for Rs. 6,54,080/- to enable her to get possession of the aforesaid flat, however, due to a shortage of funds the applicant No.1 was unable to help the respondent No.2 to pay the same and because of this respondent No.2 got furious with the applicant No.1 and refused to come back to the matrimonial home. Applicant No.1 applied for new job and he got his new assignment at Pune but respondent No.2 refused to come to Pune saying that she cannot stay in relationship with a person, who cannot arrange money for her when she needs it. On 20/12/2016, a family meeting was arranged in Neemuch to resolve the said issued. But respondent No.2 did not turn up on the aforesaid date. Thereafter, applicants made several attempts for reconciliation but they have not received any response from respondent No.2. On 27/09/2016, at the house of family friend of the applicant a family meeting was arranged, in which respondent No.2 alongwith her father and other relatives were present in an extremely aggressive manner and threatened that they would implicate the applicants in false case under the Domestic Violence and Dowry Prohibition Act in order to harass and humiliate the applicants and tarnish their reputation. They abused applicant Nos. 2 & 4 and attempted to assault the applicant No.1. In this regard applicant No.4 lodged a complaint against the said intimidation and threatening in the Police-Station at Neemuch. https://twitter.com/ATMwithDick
  3. 3. On 01/12/2016, respondent No.2 filed a complaint against the applicants at the Mahila Thana, Indore alleging that the she was treated with cruelty by the applicants in order to extract the dowry from her parents. There upon the applicants were summoned by the Mahila Thana, Indore. Whereupon the police recorded the statement of the applicants and respondent No.2 . During counseling proceedings and respondent No.2 could not substantiate her case against the applicants and then she sought some time to think and to provide evidence of her allegations against the applicants. On 18/12/2016, another counseling session was conducted, in which they came to the conclusion that the differences have arisen between them and respondent No.2 was agreed to file a petition for dissolution of the marriage by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955 with the condition that she wanted back of her belongings that may be lying at the house of applicant No.1. On 18/12/2016, the respondent No.2 collected her remaining belongings under the supervision of the SHO, Mahila Thana from their rented housed situated at Nipaniya, Indore and the Police-Station Mahila Thana filed a closure report before the Court of Judicial Magistrate First Class.
  4. 4. On 06/01/2017, the respondent No.2 again made a false complaint against the applicants with identical facts at Police-Station-Lasudiya, Indore, where FIR bearing Crime No. 14/2017 got registered for the offence under Sections 498(A) and 323/34 of the IPC against the applicants. Then the applicant No.1 tried in every possible manner to bring to the notice of the Police-Station-Lasudiya, Indore that the said FIR had been registered on the basis of a false and malicious complaint and that the said issues between the parties stood resolved, with the written consent of the respondent No.2, during the previous proceedings in the Mahila Thana, Indore, in December 2016. However, no heed was paid to the requests of the applicant No.1 and charge-sheet was filed against the applicants before the Court of Additional Chief Judicial Magistrate, Indore. The aforesaid charge-sheet is completely malafide and illegal and there is no ground for prosecution of the applicants are available. Only vague and omnibus allegations has been made in the complaint, which are totally false and concocted, therefore, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR is liable to be quashed. https://twitter.com/ATMwithDick
  5. 5. Per contra learned counsel appearing on behalf of respondents has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the petition deserves to be dismissed.
  6. 6. I have considered the rival contentions raised on behalf of the parties and have perused the documents placed on record along with the present application.
  7. 7. The parameters on which the indulgence can be shown for exercising powers available under Section 482 of the Cr.P.C. with respect to matrimonial matters have been laid down by the Apex Court in the case of Geeta Mehrotra Vs. State of U.P. (2012) 10 SCC 741 in the following manner: ” 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 M.Cr.C.No10858/2017 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 specifically if it happens soon after the wedding.
  8. 8. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal Vs. Devi Polymers (P) Ltd; (2016) 6 SCC 310, wherein the Hon’ble Court referred to the earlier decision, observed in the following manner:- “15. In Madhavrao Jiwajirao Scindia v. Sambhajirao Chandrojirao Angre [Madhavrao Jiwajirao Scindia Vs. Sambhajirao Chandrojirao Angre, (1988) 1 SCC 692, 1988 SCC (Cri) 234}, this Court observed as follows: (SCC p. 695, para 7) “7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction are bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage.” https://twitter.com/ATMwithDick
  9. 9. However, it has been held by the Apex Court in the case of Satish Mehra Vs. State (NCT of Delhi) and anotdher, AIR 2013 SC 506 that the power to interdict a proceeding either at the threshold or at an intermediate stage of the trial is inherent in a High Court on the broad principle that in case the allegations made in the FIR or the criminal complaint, as the case may be, prima facie do not disclose a triable offence, there can be no reason as to why the accused should be made to suffer the agony of legal proceedings. Thus, such power would be available for exercise not only at the threshold of a criminal proceeding but also at a relatively advanced stage thereof, namely, after framing of charge against the accused.
  10. 10. It has been held in the case of State of Haryana Vs. Bhajan Lal, AIR 1992 SC 604, that where a criminal proceedings is manifestly attended with male 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, extraordinary or inherrent powers reserved to the High Court under Section 482 of the Code of Criminal Procedure can be exercised to quash the first information report.
  11. 11. In the context of the law laid down by the Apex Court , the plain reading of the FIR lodged by the respondent No.2, goes to show that the allegations relating to commission of offence punishable under Section 498(A) of the IPC are omnibus and do not refer to any specific act of the applicants. Although she has made an allegation that on 27/04/2014, when they had gone to Shimla (H.P.) for their honeymoon, the applicant No.1-taunted her alleging that her father has not given anything in the dowry and on Diwali festival of the year 2014, the applicants beat her with respect to demand of dowry, but she has not made any complaint regarding these incidents till 2016, which clearly indicates that all these allegations are vague and false. https://twitter.com/ATMwithDick
  12. 12. On 18/12/2016, at Mahila Thana Indore respondent No.2 made the following statement, which reads as under:- ” I, Trupti W/o Anup Agrawal, give this undertaking today i.e. on 18/12/2016 after counseling at Mahila Thana, Indore both of us husband and wife thinks that our thoughts does not match and it is not possible for us to live together any more. I wants to return my belongings from my husband and he is agreed to return the same. We will transfer our belongings with mutual understanding and we will file a divorce petition before the Court with mutual consent.”
  13. 13. The reproduced portion makes it clear that after counseling sessions both the parties came to the conclusion that the differences have arisen between them, therefore, they cannot be live together and respondent No.2 was agreed to file a petition for divorce by mutual consent under Section 13(B) of the Hindu Marriage Act, 1955. In the context of the aforesaid understanding which has been arises between the parties, Mahila Thana Indore filed a closure report of the matter on 13/12/2016.
  14. 14. However, on 06/01/2017, the respondent lodged FIR at Police-Station Lasudiya for the same ground by suppressing the proceedings of Mahila Thana, Indore. In the FIR lodged at Police-Station-Lasudiya she alleged that even after 2-3 counseling sessions, the applicants persisted for their demand of dowry, which is absolutely contrary to the proceedings held at Mahila Thana, Indore. From the proceeding of Mahila Thana, Indore, it is transpired that after 2-3 days of the marriage respondent No.2 stayed with her husband-Anup Agrawal and sister-in-law-Alka Agrawal at Indore. Applicant No.1-Anup Agrawal due to his transfer left to Ahemdabad and then to Pune alone for the reasons that respondent No.2 was working at ICICIU Bank, Indore and she did not go with him. From the impugned FIR, it is clear that respondent No.2 is living separately since 23/11/2015 and she has not interested to live with her husband, therefore, it is difficult to believed that the applicants subjected her to cruelty on the pretext of demand of dowry. From the statement of the respondent No.2 given before the Mahila Thana, Indore, it is apparent that applicant Nos. 2 & 4 never lived with her, therefore, it cannot be accepted that they made any demand of dowry with the respondent No.2 and ill treated her with regard to the fulfillment of their demand. After counseling at Mahila Thana, Indore respondent No.2 and applicant No.1-Anup Agrawal, agreed that they will file a petition for divorce in writing and the parties were rided for court proceedings for the reason that the respondent No.2 does not want to live with applicant No.1 anymore. It is also pertinent to note that the respondent No.2 has already filed a divorce petition against applicant No.1 at family Court, Indore. While Mahila Thana, Indore has filed a closure report on the complaint filed by respondent No.2, then registration of FIR against the applicants for the same ground at Police-Station Lasudiya is nothing but a sheer abuse of the process of law.
  15. 15. Under these circumstances, the present application under Section 482 of the Cr.P.C. is allowed. Consequently, FIR bearing Crime No. 14/2017 dated 06/01/2017 for commission of offence under Sections 498(A) and 323/34 of the IPC registered at Police-Station-Lasudiya, Distric-Indore and charge-sheet dated 27/06/2017 filed in respect of the aforesaid FIR are hereby quashed.

Certified copy as per rules.

(S.K. Awasthi) Judge

skt Digitally signed by Santosh Kumar Tiwari Date: 2018.04.17 10:30:08 +05’30’

Anup Agrawal vs The State Of Madhya Pradesh on 16 April, 2018
— Read on indiankanoon.org/doc/193260203/

wife filed dowry case 14 years ago, married thrice after leaving him, but #498A still continues. Husband deepak consumed poison inside Indore court

His wife filed dowry case on him 14 years ago, has married thrice after leaving him but case of still continues on him. Tired of seeing no solution to his ordeal, Deepak consumed poison inside court premises in Indore.

 

498a 14 years ago, wife married 3 times after !!

Personal appearance of #Parents #relatives (except husband) #exempted in #498a case : #Supreme Court : #Arnesh #Kumar

“…In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial.

“……14. In the result, the appeal is allowed, the judgment and order of the High Court dated 17.04.2017 as well as order of the Sub-Divisional Judicial Magistrate dated 13.08.2013 are set aside, application filed by the appellants under Section 205 Cr.P.C. is allowed. The personal appearance of the appellants is exempted….”

 

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.387 OF 2018
(arising out of SLP(Crl.)No.6786 of 2017)

SRI RAMESHWAR YADAV & ORS. … APPELLANTS

VERSUS

TEH STATE OF BIHAR & ANR. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

This appeal has been filed against the judgment dated 17.04.2017 of the Patna High Court by which judgment application filed by the accused-appellants under Section 482 of the Code of Criminal Procedure challenging the order dated 13.08.2013 passed by the Sub-Divisional Judicial Magistrate, Patna has been dismissed by the High Court.

  1. Brief facts necessary to be noted for deciding the appeal are:

The second respondent filed a complaint in the Court of Sub-Divisional Judicial Magistrate, Patna alleging offence committed by the accused as well as Arnesh Kumar, her husband. The Magistrate vide order dated 11.10.2012 finding a prima facie case under Section 498A and Section 4 of the Dowry Prohibition Act summoned the accused as well as Arnesh Kumar, husband of the complainant. The accused as well as Arnesh Kumar filed an application for anticipatory bail during the pendency of the said application. Non-bailable warrants were issued by the Magistrate on 23.12.2012. All the accused that is appellants as well as Arnesh Kumar filed an application dated 17.01.2013 praying for recall of non-bailable warrant and dispensing with their physical appearance in the case. It was appellants’ case that said application was filed because appellant No.1, father of Arnesh Kumar is a retired Army Official residing in Pune with appellant No.2 and other appellants were also residents of Pune, Maharashtra and they have to come from a distance. It was prayed by the accused that they be exempted from the personal appearance in the case. All the accused except Arnesh Kumar, husband of complainant were granted anticipatory bail. Anticipatory bail was granted by the District and Sessions Judge, Patna on 21.06.2013 to all the accused except Arnesh Kumar, husband of the complainant. The Sub-Divisional Magistrate by order dated 13.08.2013 rejected the application filed by the accused under Section 205 Cr.P.C.

3. While rejecting the application on
13.08.2013, the Magistrate gave the following
reasons:

(i) Petitioners appear to be hale and
hearty and are not suffering from any
type of disease which may be impediment
in appearing before the court.

(ii) Nature of offences requires that
accused-petitioners and also the
complainant should be present before the
court preferably on each and every date
expecting good sense prevails upon them.

(iii) Their appearance is also
desirable for the purpose of
conciliation since the very enactment of
Section 498A of IPC and Dowry
Prohibition Act primarily meant for
restoration of conjugal harmony.

  1. Challenging the order dated 13.08.2013, an application under Section 482 Cr.P.C. was filed which has been dismissed by the Patna High Court. The High Court dismissed the application taking a new ground that a prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused. Once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C., at a subsequent stage, such an application would not be maintainable. Aggrieved by the said order this appeal has been filed.
  2. We have considered the submissions of the learned counsel for the parties and perused the records.

  3. Section 205 Cr.P.C. and Section 317 Cr.P.C. which are relevant in this case are extracted:

“ Section 205. Magistrate may
dispense with personal attendance of
accused.—

(1) Whenever a
Magistrate issues a summons, he may,
if he sees reason so to do, dispense
with the personal attendance of the
accused and permit him to appear by
his pleader.

(2) But the Magistrate inquiring
into or trying the case may, in his
discretion, at any stage of the
proceedings, direct the personal
attendance of the accused, and, if
necessary, enforce such attendance
in the manner hereinbefore provided.

  317. Provision for inquiries and
trial being held in the absence of
accused in certain cases.—

(1) At any
stage of an inquiry or trial under
this Code, if the Judge or
Magistrate is satisfied, for reasons
to be recorded, that the personal
attendance of the accused before the
Court is not necessary in the
interests of justice, or that the
accused persistently disturbs the
proceedings in Court, the Judge or
Magistrate may, if the accused is
represented by a pleader, dispense
with his attendance and proceed with
such inquiry or trial in his
absence, and may, at any subsequent
stage of the proceedings, direct the
personal attendance of such accused.

(2) If the accused in any such case
is not represented by a pleader, or
if the Judge or Magistrate considers
his personal attendance necessary,
he may, if he thinks fit and for
reasons to be recorded by him,
either adjourn such inquiry or
trial, or order that the case of
such accused be taken up or tried
separately.”

  1. The Magistrate has rejected the application filed under Section 205 Cr.P.C. on different grounds as noticed above. The High Court took entirely new grounds for dismissing the application filed under Section 482 Cr.P.C. without adverting to the grounds which were taken by the Magistrate for declining the prayer.
  • We first take up the grounds given by the High Court for rejecting the application. The High Court has observed that prayer for exemption from personal appearance under Section 205 Cr.P.C. can only be made at the stage of first appearance of the accused and once the accused appears before the court in person without making any application for dispensing with the personal appearance under Section 205 Cr.P.C. at a subsequent stage, such an application would not be maintainable.

  • The High Court has noticed that the accused had already appeared after obtaining the order of pre-arrest bail and furnishing bond and sureties to the satisfaction of the court. The pre-arrest bail was granted to the accused by the District and Sessions Judge by order dated 21.06.2013 and thereafter the accused appeared before the court as has been noticed in paragraph 8 of the judgment of the High court itself.

  • The observation of the High Court that the accused has filed application under Section 205 Cr.P.C. at a subsequent stage after appearing before the court is factually incorrect. The application was filed by the accused under Section 205 Cr.P.C. on 17.01.2013. Thus, the application under Section 205 Cr.P.C. was filed prior to the appearance in the court and the same would have very well been considered by the Magistrate despite their appearance in the court after obtaining the pre-arrest bail. The grant of exemption from personal appearance in the court on each and every date was required to be considered in view of the fact that application was filed on 17.01.2013 much before their appearance in the court. Further, the Magistrate had not rejected the application on the ground that application is not entertainable after appearance of the accused before the court. We, thus, are of the view that aforesaid ground given by the High Court for rejecting the application is unfounded. There is one more reason due to which the High Court’s order cannot be sustained.

  • The High Court in its order observed that there is another provision that is Section 317 Cr.P.C. which gives discretion to the court to exempt a person from personal appearance. The High Court observed that the remedy available to the accused was under Section 317 Cr.P.C. and not under Section 205 Cr.P.C. Section 317 Cr.P.C. which empowers the Magistrate, at any stage of inquiry or trial for reasons to be recorded to exempt attendance of the accused. The Magistrate was not powerless to consider the prayer under Section 317 Cr.P.C. as per the view taken by the High Court. Thus, we do not find any impediment in the power of the Magistrate to consider the application of accused for their exemption from personal appearance.

  • Now, we advert to the reasons given by the Magistrate for rejecting the application. As noticed above, first reason given by the Magistrate is that all the accused appear hale and hearty and there is no suffering from any type of disease which may be impediment in appearing before the court. Application was not filed by the accused on the ground that they suffer from any physical illness and hence the said reason given by the Magistrate is wholly out of place. The second reason is that accused and complainant should be present before the court on each and every date expecting good sense prevail between them. We fail to see this as any valid ground for not considering actual grounds given by the accused for seeking exemption. Third ground given was regarding conciliation which requires the appearance of the accused desirable.

  • With regard to this ground it is sufficient to notice that application under Section 482 Cr.P.C. was not filed by the husband, Arnesh Kumar whose pre-arrest bail was already rejected. The present appellants, thus, were not pressing application under Section 482 Cr.P.C. for Arnesh Kumar, the husband who could have very well participated in the proceedings. Thus, the above ground was also not available for rejection of the application. In the application the grounds which were given by the appellants was that, appellant No.1 father of Arnesh Kumar is retired Army personnel and residing in Pune with his wife that is appellant No.2. Appellant Nos.3 and 4 were also residing at Pune. Arnesh Kumar, the husband was working at Hyderabad. The Magistrate has not considered the grounds which were taken by the appellants for seeking exemption. It was on the record before the High Court that distance between residence of the accused and the place of trial at Patna is 1750 kms. It was further stated that appellant No.3, Ashok Kumar Yadav was a business man and running Company in Pune and appellant No.4 was a student of BCA in Pune. Taking into consideration the entire facts and circumstances and the grounds taken by the appellants in their application under Section 205 Cr.P.C. as well as in the application under Section 482 Cr.P.C. filed before the High Court, we are of the view that sufficient grounds were made out for granting exemption from personal appearance of the appellants in the trial. The Magistrate committed error in not adverting to the grounds taken for praying the exemption and rejected the application on the reasons which were unfounded. The Magistrate under Section 205 sub-Section (2) Cr.P.C. is empowered at any stage to direct personal appearance of the accused hence as and when personal appearance of the accused is required the Magistrate is empowered to issue necessary orders if so decides.

  •   14. In the result, the appeal is allowed, the judgment and order of the High Court dated 17.04.2017 as well as order of the Sub-Divisional Judicial Magistrate dated 13.08.2013 are set aside, application filed by the appellants under Section 205 Cr.P.C. is allowed. The personal appearance of the appellants is exempted. This, however, shall not preclude the Magistrate to pass appropriate orders under Section 205(2) Cr.P.C. if and when personal appearance of the appellants is required.

    ……………………..J.
    ( A.K. SIKRI )

    ……………………..J.
    ( ASHOK BHUSHAN )

    NEW DELHI,

    MARCH 16, 2018.

    Hon HC is very concerned that wife’s getting ONLY 84 LAKHS from 498a quash & settlement. ONLY 84 lakhs !

    Hon HC says it repeatedly checked with the wife before she agreed to take ONLY 84 lakhs …… before quasing 498a etc cocktail !!

    By the way, she filed a 498a cocktail to get the settlement done !!


    IN THE HIGH COURT OF JUDICATURE AT BOMBAY

    CRIMINAL APPELLATE JURISDICTION

    WRIT PETITION NO.1260 OF 2017
    1. Nipul Chandravadan Panchal,
    Age 40 years, Occ: Architect

    2. Mrs. Neela Chandravadan Panchal,
    Age 63 years, Occ: Housewife

    3. Chandravadan Panchal,
    Age 70 years, Occ: No

    Residing at 302, Mary Anne Heights, 3rd Road, GPS III, Opp: Cafe-Coffee Day,
    Santacruz (East), Mumbai-400 055. …. Petitioners

    – Versus –

    1. The State of Maharashtra

    2. Mrs. Vaishali Nipul Panchal,
    Age 36 years, Occ: Service,
    R/a Room No.7, Building No.1,
    Kangra Bhavan, 232, Dr. Anny
    Besent Road, Opp: Potdaar
    Hospital, Warli, Mumbai. …. Respondents
    Mr. P.R. Yadav i/by Ms Priyanka Dubey for the Petitioners.
    Dr. F.R. Shaikh, APP, for the Respondent-State.
    Mr. D.V. Saroj for Respondent No.2.
    CORAM: S.C. DHARMADHIKARI & PRAKASH D. NAIK, JJ.

    DATE : APRIL 07, 2017 ORAL JUDGMENT

    (Per Shri S.C. DHARMADHIKARI, J.) :

     

    1. 1. Rule. The respondents waive service. By consent, rule is made returnable forthwith and the petition is taken up for final disposal.
    2. 2. The complainant Vaishali is present in Court. She admits that on 4-6-2015 her statement was recorded by the concerned police station, namely, Vakola Police Station, Mumbai and an FIR was registered. The FIR No.254/2015 alleges offences punishable under Sections 498A, 406, 341, 504, 323 and 34 of the Indian Penal Code.
    3. 3. A request is made by the accused including the husband of the respondent/original complainant to quash this FIR.
    4. 4. The only contention raised in support of this petition is that, this is a fall out of a matrimonial dispute. That discord and dispute led to the husband approaching the Family Court at Bandra, Mumbai with a petition seeking divorce. That petition bearing No.A-1425 of 2015 was later on sought to be converted into a petition and a joint one. The relief was altered to that of a decree of divorce by mutual consent under Section 13-B of the Hindu Marriage Act, 1955.
    5. 5. Our attention has been invited to the Consent Terms tendered in the Family Court and the altered Consent Terms. Pages 77 to 84 of the paper-book have been perused by us carefully. One of the clauses in the Consent Terms postulates that the sum deposited in the account and mentioned in the Terms cannot be withdrawn by the complainant/wife unless she agrees to quashing of this criminal proceedings.
    6. 6. The nature of this settlement and which prima facie appears to us to be one sided, compelled us to call upon the Advocate appearing for the second respondent/complainant to request her to remain present.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
    7. 7. She has remained present and has tendered an affidavit confirming the above arrangement.
    8. 8. She says that she is completely familiar and can speak and equally read and write in English language. She has perused the affidavit. That is drafted as per her instructions and reflects the position correctly.
    9. 9. Though she is not aware of the legal proceedings and provisions, we have sufficiently clarified to her that the affidavit being tendered on record and the prosecution being quashed on the ground that it is purely a private one arising out of a strained matrimonial relationship, then, she would have waived her rights which she has as wife and stated to be voluntarily. We called upon her and repeatedly, whether this arrangement and as reflected in the affidavit is arrived at willingly and her consent is free and unequivocal.
    10. 10. This query was raised by us especially because there are rights of a child, a minor son at the relevant time aged eight years. The custody of this minor son is handed over to the wife. The mother is now going to fend for herself in a City like Mumbai with only a sum of Rs.84 lakhs, that too deposited in the Bank account and as permanent alimony. The same is full and final settlement for all claims of the wife/mother including for permanent alimony. No separate amounts are provided for the child as well.
    11. 11. Upon our limited questioning, she says that she wants an end to all these proceedings and desires to resume her life with her son. She wants nothing more from the in-laws or the husband.
    12. 12. Once she repeatedly says that she is agreeable to the criminal prosecution being quashed and with the above understanding as well, then, we have no alternative but to quash this criminal prosecution which is a fall out of a dispute between the husband and wife, a direct impact after the complaint for domestic violence was lodged, the husband’s petition for Divorce. Then going by this settlement and which is confirmed, we allow the petition. Rule is made absolute in terms of prayer clause (a). No order as to costs.
    13. 13. The consequence being not only the FIR is quashed but even the criminal case and charge-sheet which is filed in the Court of the Metropolitan Magistrate, 71st Court, Bandra, Mumbai.http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick.
    14. 14. However, since the complainant/wife says that in the interest of her child as also on account of her lack of faith, trust and love for the husband, the criminal prosecution should be quashed and she is ready for the same, in the event the Family Court’s jurisdiction under Section 26 of the Hindu Marriage Act, 1955 r/w Section 114 of the Code of Civil Procedure, 1908 is invoked for variation or modification of the Terms and particularly the clause for payment, our order passed today quashing the criminal prosecution shall not be an impediment for the Family Court to exercise its jurisdiction and in accordance with law. Clarifying thus, the petition is allowed.

     

    (PRAKASH D. NAIK, J.)

    (S.C. DHARMADHIKARI, J.)


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