Tag Archives: abuse of process of court

IPC 498a Dowry case against in-laws is an ABUSE of process of law, hence quashed ! MP HC

Angry wife files 498a against husband and 4 in laws including brother in law , sister in law etc. Hon MP High Court finds the case against in laws an ABUSE of process of law and quashes the same .

Madhya Pradesh HC Extends Direction For Functioning Of Court Amid ...

Madhya Pradesh High Court

Ravikant vs Smt. Radhika Kuderiya on 20 May, 2020

Author: Rajendra Kumar Srivastava

HIGH COURT OF MADHYA PRADESH : JABALPUR.
S.B : HON'BLE SHRI JUSTICE RAJENDRA KUMAR SRIVASTAVA

M.CR.C. NO.10332/2019

Ravikant and others.

Vs.

Smt. Radhika Kuderiya & another.


PRESENT :


Shri Anoop Kumar Saxena, learned counsel for the petitioners.
Shri Sudhir Kumar Sharma, learned counsel for the respondent No.1.
Shri Gulab Singh, Panel Lawyer for the respondent No.2-State.

ORDER

(20.5.2020)

Accused/petitioners have filed the instant petition under Section 482 of the Cr.P.C. (in short ”the Code”) against the order dated 1.12.2018, passed by I Additional Sessions Judge, Bijawar, District Chhatarpur (MP), in Criminal Revision No.01/2018, whereby learned Judge affirmed the order dated 18.12.2017, passed by Judicial Magistrate First Class, Badamalahra, District Chhatarpur (MP), in Criminal Case No.523/2017, in which learned JMFC took cognizance against the accused/petitioners under Section 498-A of Indian Penal Code (hereinafter referred to as IPC for short).

2. Briefly stated facts of the case, before the trial Court, are that the marriage of complainant/respondent No.1 was solemnized with accused/petitioner No.1 on 26.4.2014. Accused/petitioner No.2 is father-in-law and accused/petitioner No.3 is mother-in-law, accused/ petitioner No.4 is sister-in-law and accused/ petitioner No.5 is brother-in-law of complainant/ respondent No.1. At the time of marriage, accused/petitioners demanded Rs.5 lacs and one Bollero Jeep as dowry. The parents of complainant/respondent No.1 gave Rs.5 lacs and Bollero Jeep as well as other articles of gold and valuable property to the accused/petitioners at the time of marriage. After the marriage, complainant/respondent No.1 went with accused/petitioners at matrimonial home peacefully. Thereafter, accused/petitioners snatched ornaments from her and they tortured and humiliated her. They used to tell her that they want a beautiful wife or daughter-in-law. Complainant/respondent No.1 became pregnant. Accused/ petitioners did not provide proper medical treatment, therefore, she underwent abortion. After some time, accused/ petitioners again pressurised her for pregnancy, but they told her that accused/petitioner No.4 is issueless, so complainant/respondent No.1 delivered a child. Complainant/respondent No.1 was very weak at that time, but she was pressurised for pregnancy by accused/ petitioners. She again became pregnant, but accused/ petitioners did not provide proper medical treatment to her. Thereafter, her father gave her him Rs.1 lakh so that accused/ petitioners may provide proper medical treatment. Thereafter, she delivered a male child on 13.6.2016. Thereafter, accused/ petitioners pressurised to give her child to her sister-in-law, accused/petitioner No.4, but complainant/respondent No.1 refused to accept this proposal, then accused/petitioners humiliated and tortured her. Thereafter, complainant/respondent No.2 left her matrimonial home and she is residing at her father’s home since 1.6.2017, but accused/petitioners went to snatch her child. Accused/petitioner N.1 initiated a proceeding at Parivar Paramarsh Kendra, Chhatarpur. She appeared before Parivar Paramarsh Kendra, Chhatarpur, but accused/petitioners did not sign the proceeding and proceeding was dismissed. Complainant/respondent No.1 lodged a complaint before Superintendent of Police, Tikamgarh, on 29.8.2017 and 25.9.2017, but they did not initiate any proceeding against the accused/petitioners. Thereafter, she filed a complaint before the learned Judicial Magistrate First Class, Badamalahra, District Chhatarpur. Learned JMFC enquired into the matter and took the statements of complainant/respondent No.1 and other witnesses under Sections 200 and 202 of the Code and took cognizance under Section 498-A of IPC against the accused/petitioners. Accused/petitioners filed a Criminal Revision against this order before I Additional Sessions Judge, Bijawar, learned I ASJ Bijawar, dismissed the said revision, then they filed this Misc. Criminal Case.

3: Learned counsel for the accused/petitioners submits that accused/petitioners have been falsely implicated in this case. Accused/petitioners No.2 to 5 are residing separately from accused/petitioner No.1 and they have no nexus with day-to-day family affairs of accused/petitioner No.1. Learned Court below without appreciating the above fact took cognizance against the accused/petitioners No. 2 to 5. There is general allegation against the accused/ petitioners, so no case is made out against the accused/ petitioners under Section 498-A of IPC. Complainant/ respondent No.1 committed cruelty with accused/petitioner No.1 and other accused/petitioners. Complainant/respondent No.1 did not want to reside with accused/petitioner No.1 without any reasonable cause. Complainant/respondent No.1 refused to live with accused/ petitioner No.1 on 30.6.2017. Thereafter, she had gone to her parents house. Thereafter, on 7.3.2018, accused/ petitioners filed a petition under Section 9 of the Hindu Marriage Act for restitution of conjugal rights before the learned Addl. Sessions Judge Bijawar. Apart from this, accused/petitioner No.1 initiated a proceeding before the Incharge Parivar Paramarsh Kendra, Chhatarpur, on 10.7.2017. Complainant/respondent No.1 appeared before the said Addl. Sessions Judge Bijawar and Parivar Paramarsh Kendra, but she refused to reside with accused/ petitioner No.1 and thereafter submitted a false complaint before JMFC Badamalahra. So, it is evident that complainant/respondent No.1 did not want to reside with accused/petitioner No.1 without any reasonable cause and she falsely initiated a criminal proceeding against the accused/ petitioner No.1. Accused/ petitioner No.1 is deprived of love and affection towards his son. He is ready to keep complainant/respondent No.1 with him, so this proceeding is misuse of process of law. Therefore, learned counsel for accused/petitioners prays for setting aside the order of Courts below and quashing the entire proceeding under Complaint Case No.423/2017, pending in the Court of JMFC Badamalahra, under Section 498-A of IPC.

4: Learned counsel for the complainant/respondent No.1 and respondent No.2-State submit that there is prima-facie material which is available on record, therefore, this is not a proper case in which inherent jurisdiction can be invoked and the petition is liable to be dismissed.

5: Heard both the parties and perused the record.

6: This is a case of matrimonial dispute, therefore, it has to be seen as to how to deal with a petition under Section 482 of Cr.P.C. for quashing the FIR and subsequent criminal proceedings.

7: It has been held by the Hon’ble Apex Court in the case of Harshendra Kumar D. Vs. Rehatilata Koley AIR 2011 SC 1090 that controverted documents or material of unimpeachable or sterling character may be considered while exercising jurisdiction under Section 482 of Cr.P.C. It is also clear that this is a case of matrimonial dispute.

8: The Apex Court in the case of Rakhi Mishra Vs. State of Bihar and others reported in AIR 2017 S.C. 4019 has held as under:- “This Court in Sonu Gupta Vs. Deepak Gupak Gupta and ors. (2015) 3 SCC 424, 426: (AIR 2015 SC (Supp) 684) held as follows: “At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”

9: The Apex Court in the case of Kans Raj Vs. State of Punjab and others reported in (2000) 5 SCC 207 has held as under:- “In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implicationssuch relations cannot be held guilty for the offence relating to dowry deaths. 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.”

10 : The Apex Court in the case of Preeti Gupta & anothers Vs. State of Jharkhand & another reported in AIR 2010 SC 3363 has held as under:- “28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. 29. The courts are receiving a large number of cases emanating from Section 498-A of the Indian Penal Code which reads as under:- “498-A. Husband or relative of husband of a woman subjecting her to cruelty.–Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.–For the purposes of this section,`cruelty’ means:- (a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.” 30. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

11 : The Apex Court in the case of Arnesh Kumar Vs. State of Bihar reported in 2014(8) SCC 273 has held as under:- “4. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand- mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share is 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge-sheeting in cases under Section 498-A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal. 5. Arrest brings humiliation, curtails freedom and cast scars forever. Law makers know it so also the police. There is a battle between the lawmakers and the police and it seems that police has not learnt its lesson; the lesson implicit and embodied in the Cr.P.C. It has not come out of its colonial image despite six decades of independence, it is largely considered as a tool of harassment, oppression and surely not considered a friend of public. The need for caution in exercising the drastic power of arrest has been emphasized time and again by Courts but has not yielded desired result. Power to arrest greatly contributes to its arrogance so also the failure of the Magistracy to check it. Not only this, the power of arrest is one of the lucrative sources of police corruption. The attitude to arrest first and then proceed with the rest is despicable. It has become a handy tool to the police officers who lack sensitivity or act with oblique motive.”

12 : The Hon’ble Apex Court in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another reported in (2012) 10 SCC 741 has held as under:- “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 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 specially if it happens soon after the wedding.

21. It would be relevant at this stage to take note of an apt observation of this Court recorded G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: “

12.There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.”

The view taken by the judges in this matter was that the Courts would not encourage such disputes.”

13 : The Apex Court in the case of State of Haryana and others Vs. Bhajan Lal and others reported in 1992 Supp (1) SCC 335 as held as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reporduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused; (2) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code; (3) Where the uncontroverted allegations made in the FIR or ‘complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused; (4) where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code; (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala 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.

14 : In the light of aforesaid legal position. I would proceed to decide this petition.

15 : Accused/petitioners produced the copy of complaint which has been submitted by him before the Parivar Paramarsh Kendra, Chhatarpur, on 10.7.2017. He alleged in this complaint that complainant/respondent No.1 is living separately without any reasonable cause and also he suspected about her character, thereafter proceeding was registered. Complainant/respondent No.1 appeared before the Parivar Paramarsh Kendra, Chhatarpur. She deposed before the Parivar Paramarsh Kendra, Chhatarpur, that accused/petitioner No.1 has relation with another girl. Accused/petitioner No.1 committed cruelty with her. Accused/petitioners did not provide proper medical treatment at the time of her pregnancy and accused/ petitioner No.3 also committed cruelty with her, so she left her matrimonial home. Her father provided medical treatment. Thereafter, her brother-in-law came at her parental house and she had come with him. Then she lived with accused/petitioner No.1. All other family members had gone to Village. Thereafter, accused/petitioner No.1 committed cruelty with her. Accused/petitioner No.1 did not maintain her properly. She wanted that her mother-in- law, sister-in-law and brother-in-law may appear before the Parivar Paramarsh Kendra. They should take responsibility that complainant/respondent No.1 would be safe in matrimonial home. Thereafter, learned Member of Parivar Paramarsh Kendra found that both the parties are not living with each other, so they may solve the matter through the Court. These documents are uncontroverted documents, so these documents can be considered in this proceedings.

16 : It is evident that complainant/respondent No.1 alleged general allegation about demand of dowry, cruelty and humiliation against all accused/petitioners. Accused/ petitioner No.1 is the husband of complainant/respondent No.1. Complainant/respondent No.1 alleged the act of cruelty against accused/petitioner No.1. She alleged the act of cruelty against the accused/petitioner No.1 before Parivar Paramarsh Kendra Chhatarpur, so act of cruelty will be investigated during the trial. Although, learned counsel for accused/petitioners submits that complainant/ respondent No.1 is residing separately without any reasonable cause, complainant/respondent No.1 has deprived the accused/petitioner No.1 of love and affection of a child. Accused/petitioner No.1 is ready to keep complainant/respondent No.1 with him, so he filed a petition under Section 9 of the Hindu Marriage Act and also initiated a proceeding before Parivar Paramarsh Kendra, Chhatarpur, but complainant/respondent No.1 refused to life with accused/petitioner No.1 without any reasonable cause and lodged a false complaint, but all these facts will be investigated during the trial. So, it is not a proper case in which inherent jurisdiction can be invoked with regard to accused/petitioner No.1. Accused/petitioner No.1 is the husband of complainant/respondent No.1. Complainant/ respondent No.1 alleged various acts of cruelty against accused/petitioner No.1, so the petition is liable to be dismissed with regard to accused/petitioner No.1.

17 : So far as accused/petitioner Nos. 2 to 5 are concerned, accused/petitioner No.2 is father-in-law, accused/ petitioner No.3 is mother-in-law, accused/ petitioner No.4 is sister-in-law and accused/petitioner No.5 is brother-in-law of complainant/respondent No.1. Complainant/respondent No.1 also stated before the Parivar Paramarsh Kendra, Chhatarpur, that lastly, accused/ petitioner No.5 came to her parents house and he brought her at matrimonial home and she lived with accused/petitioner No.1 and all other family members had gone in another house of village. So, it is evident that lastly respondent No.1 lived with accused/petitioner No.1. During this period, some dispute arose against the accused/petitioner No.1 and complainant/respondent No.1. Thereafter, complainant/respondent No.1 left her matrimonial house and she had gone to her parents house. Complainant/respondent No.1 did not allege any specific incident and act of cruelty against accused/petitioners No. 2 to 5. There are general allegations against accused/ petitioners No. 2 to 5. She did not allege any act of demand of dowry against accused/petitioner Nos. 2 to 5 before the Parivar Paramarsh kendra, Chhatarpur. So, it appears that accused/petitioners No. 2 to 5 have been implicated in malafide manner in this case on account of being family members of accused/petitioner No.1. Therefore, proceeding initiated against accused/petitioners No. 2 to 5 is abuse of process of law, so this is a proper case in which inherent jurisdiction can be invoked with regard to accused/petitioners No. 2 to 5.

18: Accordingly, the M.Cr.C. stands partly allowed. The present petition filed by accused/petitioner No.1 stands dismissed and so far as it relates to accused/petitioners No. 2 & 5, order dated 1.12.2018, passed by I Additional Sessions Judge, Bijawar, District Chhatarpur (MP), in Criminal Revision No.01/2018 and proceeding of Complaint Case No.523/2017, pending in the Court of JMFC for offence under Section under Sections 498-A of IPC, stands quashed.

(RAJENDRA KUMAR SRIVASTAVA) JUDGE A.Praj.

Digitally signed by ASHWANI PRAJAPATI Date: 2020.05.20 15:04:07 +05’30’

Absurd and #Fake #498a counter blast to husband’s #RCR quashed by #MPHC

Whether prosecution U/S 498A and S 294 of IPC can be quashed?

Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted.

38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”

12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases

13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.

 

Madhya Pradesh High Court

Kunaldev Singh Rathore @ Kunal Dev … vs State Of M.P on 2 December, 2016

(02.12.2016 )

  1. 1. Applicants, vide instant application under Section 482 of the Code of Criminal Procedure, 1973 (for brevity ‘CrPC’) seek quashing of FIR bearing Crime No.614/2013 dated 18.12.2013 for commission of offences punishable under Sections 323, 294, 498-A and 506 of the Indian Penal Code (in short ‘IPC’) registered at police Station Kotwali District Bhind (M.P.). Further, the quashing of Criminal Case No.183/2014 has also been sought, which has been registered in furtherance to the said FIR.
  2. 2. The facts leading to filing of instant application are that a marriage was solemnized between the applicant No.1 and respondent No.2 on 21.11.2007 and a son has born out of the wedlock. According to the complaint made by respondent No.2, the present applicants were harassing her since the date of marriage for demand of Indica Car, however, she tolerated the harassment with a hope that one day the applicants will mend their ways and will treat the respondent No.2 properly. Although, the situation did not improve and one day the respondent No.2 was thrown out of the matrimonial home along with her son, whereafter, she started living with her parents at Madho Ganj, Bhind. Respondent No.2 did not have any means to maintain herself and she did not want to burden her parents, an application for maintenance by her and the son was filed, in which the notices were issued, however the applicants did not accept the summons issued by the Court and on 8.9.2013 the applicants are alleged to have visited the house of parents of respondent No.2. During their visit, the applicants pressurized respondent No.2 to withdraw the case filed by her, failing which it was threatened that she will face dire consequences.
  3. 3. Due to the incident dated 8.9.2013 the respondent No.2 submitted a complaint before the police and requested to register the FIR against the applicants. Although, the police did not take any action prompting the respondent No.2 to file complaint case before the concerned Magistrate under Section 200 of the Code of Criminal Procedure, 1973, who, in turn, instructed police to submit report under Section 156(3) CrPC. The police informed the Magistrate that it is taking cognizance of the matter and will record the FIR for commission of offences punishable underSections 323, 294, 506 and 498-A read with Section 34 of IPC. Consequently, on 18.11.2013, an FIR for the said incident was registered bearing Crime No.614/2013 at police Station City Kotwali District Bhind.
  4. 4. After completion of investigation, the police has filed charge-sheet against all the applicants on 6.2.2014 before the concerned Magistrate for the offences mentioned in the FIR. In order to seek quashing of criminal proceedings, the instant application has been filed.
  5. 5. It has been stated before this Court that in respect to instant case, no other matter has been pending for similar relief. Further, it has been stated that the applicants have preferred instant application rather than invoking the revisional jurisdiction citing the reason that this Court underSection 482 CrPC has wider jurisdiction.
  6. 6. According to learned counsel for the applicants, the plain reading of the content of the FIR does not reveal commission of offences levelled against the applicants. Moreover, the FIR has been lodged in order to defeat the proceedings initiated by the applicant No.1 under Section 9 of the Hindu Marriage Act, 1955 for restitution of conjugal rights. It has also been contended that the respondent No.2 herself has violated the law by siphoning the gold of the present applicants and fleeing away to her parental home. In support of the contention, learned counsel for the applicants placed reliance on the complaint (Annexure P/4) submitted before the police. Accordingly, it is contended that the prosecution has been launched to misuse the criminal justice system and it is a fit case for interference. FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  7. 7. Per contra, learned counsel appearing on behalf of respondent No.1-State has supported the criminal prosecution on the ground that prima facie the allegations levelled against the applicants are made out, therefore, the application deserves to be dismissed. According to learned counsel for respondent No.2, she had already moved application for maintenance and the application under Section 9 of HMA has been filed subsequently by the applicant No.1 which itself shows the intention of the applicants to cause delay in decision of application for maintenance filed by her. As per learned counsel for respondent No.2, the Supreme Court in the case of Taramani Parakh vs State of M.P., 2015 (2) JLJ 1 (SC), has held that legitimate prosecution cannot be stifled by resorting to petition underSection 482 CrPC as there has to be a trial conducted to arrive at a conclusion about the participation of accused persons in the crime. Therefore, the application merits no consideration and liable to be dismissed.
  8. 8. 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.
  9. 9. The parameters on which the indulgence can be shown for exercising powers available underSection 482 CrPC 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 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 specially if it happens soon after the wedding. 21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [(2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: (SCC p. 698, para 12) “12. There has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their ‘young’ days in chasing their ‘cases’ in different courts.” The view taken by the Judges in that matter was that the courts would not encourage such disputes.”
  10. 10. In another judicial pronouncement by the Supreme Court in the case of Ramesh Rajagopal v. 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 v. 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.” FOLLOW http://twitter.com/ATMwithDick on twitter or https://vinayak.wordpress.com/ on wordpress FOR 100s of high court and supreme court cases
  11. 11. In the context of the law laid down by the Apex Court, the plain reading of the complaint submitted by respondent No.2, which has been reproduced in the FIR dated 18.12.2013, goes to show that the allegations relating to commission of offence punishable under Section 498-A of IPC are omnibus and do not refer to any specific act of the applicants. According to the complaint, the respondent No.2 was subjected to cruelty due to non- fulfillment of demand of Indica Car in dowry by the applicants. It is undisputed in the instant case that the marriage was solemnized on 21.11.2007. Although the complaint is silent about the fact as to when she left the matrimonial house. Further, with respect to this allegation, the applicants have brought on record the registration certificate issued by transport department on 10.1.2008 with respect to Indica Car. Moreover, the documents reflecting TATA Sumo in the name of applicant No.2 and other four-wheeler have also been brought on record. On cumulative consideration of these circumstances, it is revealed that the accusations regarding cruelty and harassment for demand of Indica Car are absurd and improbable. At this stage, it is important to note that the documents tantamount to material filed by the applicants in their defence and as per the judicial pronouncement by the Supreme Court on consideration of defence material at a preliminary stage in a criminal prosecution, such documents cannot be made basis for taking any decision. But, the Apex Court in the case of Rukmini Narvekar v. Vijaya Satardekar, (2008) 14 SCC 1, has held as under: “21. We should also keep in mind that it is well settled that a judgment of the Court has not to be treated as Euclid’s formula [vide Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887 : JT (2008) 8 SC 621] ]. As observed by this Court in Bharat Petroleum Corpn. Ltd. v. N.R. Vairamani(2004) 8 SCC 579 : AIR 2004 SC 4778, observations of courts are neither to be read as Euclid’s formula nor as provisions of the statute. 22. Thus, in our opinion, while it is true that ordinarily defence material cannot be looked into by the court while framing of the charge in view of D.N. Padhi case [(2005) 1 SCC 568 : 2005 SCC (Cri) 415] , there may be some very rare and exceptional cases where some defence material when shown to the trial court would convincingly demonstrate that the prosecution version is totally absurd or preposterous, and in such very rare cases the defence material can be looked into by the court at the time of framing of the charges or taking cognizance. In our opinion, therefore, it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of the charges, though this should be done in very rare cases i.e. where the defence produces some material which convincingly demonstrates that the whole prosecution case is totally absurd or totally concocted. 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred.”
  12. 12. Accordingly, the documents referred to by the applicants with regard to vehicles owned by them can be looked into. Furthermore, the offence under Section 294 of the IPC is not made out as the incident has taken place within the house of the complainant-wife. It appears that the prosecution has been initiated on account of scuffle which has taken place on 8.9.2013. However, in order to drag more offences against the applicants, the allegations with regard to demand of Indica car have been made. Further, the reliance has been placed by learned counsel for respondent No.2 on the judgment of Hon’ble Supreme Court in Taramani Parakh’s case (supra), wherein the Court in paragraph 11 has observed that if the allegations are absurd and do not make any case or if it can be held that there is abuse of process then the proceedings can be quashed. However, the Court has been cautioned from entering into the reliability of the evidence and to discuss about the version and counter version.
  13. 13. In the considered opinion of this Court, in the case at hand, as discussed above, the allegations are absurd and have been levelled to make the case more grave. Therefore, following the mandate of Hon’ble the Supreme Court, the powers under Section 482 CrPC are exercised for quashing the FIR to the extent it relates to the offences under Section 498-A and 294 of the IPC.
  14. 14. In this view of the matter, the present application under Section 482 CrPC is partly allowed. Accordingly, the FIR and the consequent proceedings so far as they relate to the offences punishable under Sections 498-A and 294 of the IPC are quashed. However, with regard to remaining offences, the proceedings shall continue.
  15. 15. It is made clear that the trial Court shall decide the case without being influenced by the observations made by this Court.

(S.K.Awasthi) Judge.

Wife earning equal to husband denied maintenance in DV. Sessions & Delhi HC ALSO deny maintenance !

In this case a woman earning approximately 40,000 p.m. tries to get more money from her husband. courts reject maintenance and also residence order. It is also found that the complainant / wife is a government servant Government servant is also entitled to HRA which should be equivalent to HRA earned by the respondent (husband) and therefore the said relief is also declined. The Hon Del HC also denies maintenance. The HC goes further to call the appeal an abuse of the process of law


Delhi High Court

Smt Ranjana Gupta vs Rajnesh Gupta & Ors on 11 February, 2014

Author: Indermeet Kaur

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Judgment:11.02.2014.

CRL.REV.P. 637/2013

SMT RANJANA GUPTA ….. Petitioner
Through Mr.Kuldeep Kumar, Adv.

versus

RAJNESH GUPTA & ORS ….. Respondents
Through Ms.Fizani Hussain, APP.

CORAM: HON’BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.(Oral)

1 The petitioner is aggrieved by the impugned order dated 29.07.2013 endorsing the finding of the learned MM dated 28.03.2012 vide which the order passed on the complaint case (CC No.174/2003) under Section 12 of the Protection of Women from Domestic Violence Act, 2005 (hereinafter referred to as ‘PWDVA’) had been disposed of without granting any relief to the petitioner. Relevant would it be to extract that part of the order passed by the learned MM. It reads as under:-

“9. Relief.

As far as relief is concerned, complainant has sought firstly
protection order u/s 18 PW DV Act. Complainant has been residing
separately since 05.10.2004. There are no complaints in the
intervening period or even prior to that for commission of acts of
domestic violence by the respondent. Accordingly, no relief u/s 18 PW
DV Act is made out.

Secondly complainant has prayed for relief u/s 19 & 20 PW DV Act.
Admittedly, respondent is residing in the house of his parents and
has no separate accommodation. Similarly, the complainant is residing
with her parents and is financially independent. Admittedly salary of
complainant is approximately Rs. 40,000/- per month. Similarly
respondent is earning a salary of approximately Rs. 39-40 thousand
per month. I feel that financially both the parties are equally
placed. Therefore, I am not inclined to pass any maintenance order.
Residence order is also declined for the reason that complainant
being a Government servant is also entitled to HRA which should be
equivalent to HRA earned by the respondent and therefore the said
relief is also declined.

Now coming to Section 22 PW DV Act. Complainant has not placed on
record any proof that she has suffered any injury due to harassment
caused by the respondent, therefore, I am not inclined to pass any
compensation order and the same is declined.

Petition is accordingly disposed off.”

2 This order was assailed before the Sessions Judge. The Sessions Judge as noted supra has endorsed this finding passed by the trial Court.

3 Learned counsel for the petitioner is aggrieved by this fact finding. His submission is that the order has been passed by both the two courts below cursorily on surmises and conjectures without applying the settled legal proposition; submission being that the mother- in-law of the petitioner namely Urmil Gupta had been deleted from the complaint case on an application filed by her without any formal order; this was on the pretext that a female does not qualify as a respondent under the ‘PWDVA’; submission being that this was based on a wrong proposition of law as the Hon’ble Apex Court in 2011 (2) SCALE 94 Sou Sandhya Manoj Wankhade Vs. Manoj Bhimrao Wankhade & Ors. had in this context noted that the Legislature did not intend to exclude a female relative of the husband or male partner from the ambit of a complaint that can be made under the provisions of ‘PWDVA’. Submission being that in this case the allegations of the petitioner were specific that the mother-in-law of the petitioner namely Urmil Gupta had kept her jewellery articles and the same had not been returned. Attention has been drawn to internal page 4 of the order of the learned MM; submission being that a specific allegation had been made by the petitioner that her entire jewellery articles were with her mother-in-law. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

4 The Court had further noted that the test of cross-examination has been passed by the petitioner; it thus stood proved that the jewellery articles were with the mother-in-law but the same had not been returned and the two courts below not directing the mother-in-law to return the jewellery articles of the petitioner to her in terms of Section 19 (8) of the ‘PWDVA’ has committed an illegality.

5 The trial Court record had been requisitioned. The same has been perused. Before adverting to these arguments propounded by the learned counsel for the petitioner, it would be relevant to state that this Court is sitting in revisional jurisdiction and unless and until, there is patent illegality or perversity pointed out that this Court can interfere in the fact finding; the scope of interference in revisional jurisdiction is limited as the fact finding returned by the two competent courts cannot be easily interfered with.

6 Learned MM in para 8 had framed an issued which reads as under:- “Whether prima facie case of domestic violence is made out?”

7 The evidence led by the complainant and the respondent has been discussed. It had noted that there was an allegation made by the complainant that her jewellery is with the mother-in-law although the mother-in-law is not a party to the present complaint. The Court had thereafter gone on to hold that the complainant has been able to prove the allegations of cruelty and harassment meted out by the respondent to the complainant and has proved the same; it has noted that she had resided in the house for about 8-9 months and thereafter she was living separately. It had also noted that separate proceedings under Section 498-A and 406 of the IPC are pending against the respondent and his family members. The fact findings returned by the learned MM nowhere recorded a positive fact that the complainant had been able to prove that her jewellery articles were lying with the mother-in-law. The Sessions Judge noted these facts in the correct perspective and held that the petitioner had taken a vacillating stand as far as her jewellery is concerned and although in her complaint, she had stated that she had handed over her gold jewellery on advice of her husband to him but in her cross-examination she denied that the gold jewellery articles were being retained by the respondent. The respondent in his evidence had categorically stated that the gold articles had been taken back by the complainant when she had left her matrimonial home.

8 The findings returned by the Sessions Judge read here as under:-

“7. List of respondents was not filed along with application under
Section 12 of PWDV Act. It is only in Domestic Investigation Report
(DIR) filed by the Protection Officer, names of four respondents i.e.
Rajnesh Gupta/husband (R-1), Satish Chand Gupta/father-in-law (R-2),
Urmil Gupta/mother-in-law(R-3) and Anju Gupta/sister-in-law (R-4)
were mentioned. An application on behalf of respondents to drop the
proceedings against respondent no. 2 to respondent no. 5 was filed.
Learned Counsel for appellant submits that names of Smt. Urmil
Gupta/mother-in- law (R-3) and Smt. Anju Gupta/sister-in-law (R-4)
had been deleted from the arrays of the parties, although both of
them had filed reply before the Trial Court. He submits that Learned
Trial Court has not given any reasons in the impugned order as to how
Urmil Gupta (R-3) and Anju Gupta (R-4) were dropped and no order was
passed by Learned Trial Court on the application filed on behalf of
respondent no. 2 to respondent no. 5 for dropping the proceedings
against them.

8. It is submitted that in her affidavit in evidence dated
30.11.2010, appellant/complainant has stated that she was tortured
and manhandled by her husband/R-1, his parents, sister in law and
brother in law, right from the day one of her marriage. She deposed
that on 16.01.2004, her husband had advised her to hand over her gold
ornaments which were received from her parents side and from her in-
law side and the said ornaments are still in possession of her mother-
in-law. It is stated that she was mentally tortured at all the
regular intervals. On 17.01.2004, her husband, her parents and sister-
in-law abused her for not bringing car and AC. It is stated that in
March 2004, her husband and mother-in-law abused appellant and told
her to leave her job. In September 2004, her husband and in-laws
started increasing pressure on her to leave her matrimonial home and
to bring AC, car and Rs. 5,00,000/- . She was threatened that if
their demands were not fulfilled, her husband and parents-in-law
would kill her by burning while preparing food. It is stated that
respondents with common intention used to threaten her to kill and
assault. Appellant/complainant further stated that she handed over
gold jewellery on the advise of her husband (R-1). In cross
examination, appellant/complainant denied that no gold or dowry
articles were retained by respondents or that she had taken back all
her gold and many costly articles at the time of leaving of her
matrimonial home. She denied the suggestion that remaining dowry
articles were returned after registration of a case under Section 498-
A/406/34 IPC. On the other hand, in his affidavit husband/R-1 deposed
that appellant/complainant had deserted her matrimonial home without
any reason on 5.10.2004. She left her matrimonial home in a pre-
planned manner and she had taken away all her gold and silver
jewellery. In cross examination, he reiterated that gold articles
mentioned in the list, were taken back by appellant/complainant when
she left her matrimonial home.

9. On perusal of evidence adduced by the parties, Learned Trial Court
found that complainant was a victim of domestic violence and a prima-
facie case of domestic violence was made out against husband/R-1. It
was found that there were no specific allegations against father-in-
law/R-2 and no case of domestic violence was made out against Ajay
Gupta/R-5 (nandoi). Similarly no case is made out against Smt. Urmil
Gupta (R-3) and Smt.Anju Gupta (R-4). Learned trial Court further
noted that appellant/complainant was residing separately since
05.10.2004 and there were no complaints during the intervening period
or even prior to that for commission of domestic violence by the
respondents. It was found that husband/R-1 was residing in the house
of his parents and had no separate accommodation. Similarly,
appellant/complainant was residing with her parents and was
financially independent. Trial Court found that both the parties were
financially equally placed, therefore, no maintenance order was
passed. Residence order was also declined for the reason that
appellant/complainant was a Government servant, who was also entitled
to House Rent Allowance (HRA). Learned Trial Court found that
appellant/complainant had not placed on record any proof that she
suffered injury due to alleged harassment caused by the respondents.
In view of the aforesaid reasons, no relief was granted to
appellant/complainant.” https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com

9 These fact findings in no manner call for any interference. The scope of misuse of proposition of law as noted in the judgment of Sou Sandhya Manoj Wankhade (supra) would not arise as there was no fact finding that the jewellary articles/istridhan were lying with the mother- in-law. Moreover, on a specific query put to the learned counsel for the petitioner about the proceedings under Sections 498-A/406 of the IPC, there has been no denial. It is but obvious that these sections would also encompass the same relief.

10 This petition is an abuse of the process of the Court. Dismissed with costs of Rs.5,000/-.

INDERMEET KAUR, J

FEBRUARY 11, 2014

A

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