Tag Archives: MP High court

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.

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#LOC #QUASH for #US based #NRI #husband! Classic #MP #HC case, citing cogent reasons why LOC should be quashed

#LOC #QUASH for #US based #NRI husband! Classic #MPHC case, citing cogent reasons why LOC should be quashed

Honourable court quashes LOC even though opposite party opposes. Husband has already obtained AB which is cited by the Hon court. Hon court cites key Madras HC decision on similar issue

COURT SCALES

From the case we note that that : ///it would be relevant to mention herein that since the petitioner’s application for anticipatory bail was pending, he did not appear before the authorities, but, duly cooperated through emails. ///

and the Honourable court observes : /////In the present case, also as the petitioner was already released on bail by the Court, the apprehension that the petitioner may not make himself available and amenable to law, has gone. Thus, in view of the aforesaid, the petition filed by the petitioner is allowed. The Look Out Circular dated 10.03.2016 issued against the petitioner is hereby quashed.///

 

Madhya Pradesh High court

W.P. No. 11468/2016

(SUMIT KUMAR VS. STATE OF M.P. & OTHERS)

15.11.2016

Shri Anil Khare, learned senior counsel with Shri Harjas Singh Chhabra, learned counsel for the petitioner.

Shri B.D. Singh, learned Government Advocate for the respondents/State.

The petitioner has filed the present petition praying for quashment of Look Out Circular (LOC) dated 10.03.2016 passed by the respondents against the petitioner.

The petitioner has entered into the marriage with one Jaya Sharma on 05.07.2013 as per rituals of Arya Samaj. Thereafter, the marriage was took place as per Hindu Rituals on 08.03.2014. The complainant i.e. wife of the petitioner has went with him at America. She, thereafter, made a complaint that the petitioner and his parents are harassing her with regard to dowry and further used to physically assault her. On the basis of these allegations she had lodged an FIR on 08.08.2015. The petitioner lives in USA since 2007 and is working there since then. As soon as, the petitioner got the knowledge about the registration of FIR. He himself reached out to the Indian Embassy located in Washington DC and explained the whole situation to the highest officers in the Indian Embassy. The Indian Embassy, thereafter, passed all the information in the form of written document to the DGP Office Bhopal via Ministry of External Affairs. The family members of the petitioner also submitted their written statements to the Policy Authorities. As the FIR was lodged against the petitioner, the petitioner, therefore, filed an application for anticipatory bail under Section 438 of the Cr.P.C before this Hon’ble Court, which was registered as M.Cr.C. No. 5117/2016. This Court vide order dated 28.04.2016 has granted the anticipatory bail to the applicant, subject to certain conditions. During the pendency of this case for grant of anticipatory bail to the petitioner the Police Authorities filed a charge-sheet against the petitioner’s parents as well as the petitioner under Section 299 of the Cr.P.C. While seeking permission to file the charge-sheet, the City Superintendent of Police vide its letter dated 28.03.2016, written to respondent No. 2 stating for issuance of Look Out Circular (LOC) against the petitioner. Thereafter, the charge-sheet was handed over to the petitioner’s family at the time of filing of the same. When the brother of the petitioner came to know that the LOC has been issued against the petitioner. The petitioner’s brother, therefore, wrote to respondent No. 2 and also respondent No. 3 intimating the grant of anticipatory bail to the petitioner. It has been further stated that the petitioner is willing to appear before the trial Court and thus requested the respondent No. 2 to cancel the Look Out Circular opened against the petitioner. It has further been stated that from the letter dated 28.03.2016, it is clear that the LOC is issued solely on the ground that the petitioner is not appearing before the Court, however, it would be relevant to mention herein that since the petitioner’s application for anticipatory bail was pending, he did not appear before the authorities, but, duly cooperated through emails. It has further been stated that the reason for issuance of LOC has now become non existence as the petitioner after grant of anticipatory bail wants to come to India to duly appear before the trial Court. The petitioner has stated that the LOC has been issued arbitrarily without any justifiable reasons as the petitioner was duly cooperating with the investigation and always wanted to appear before the authorities subject to decision in his anticipatory bail application. Thus, against the said action of the respondents, the petitioner has filed the present writ petition.

The respondents have filed their reply and submits that as the petitioner was not appearing before the authorities and, therefore, the LOC was issued against the petitioner and the proceedings of issuance of LOC were initiated before grant of anticipatory bail by this Court. However, in view of the fact of grant of anticipatory bail to the petitioner, the respondents have submitted that the petitioner shall be released on bail immediately on his arrest as per the mandate of this Hon’ble Court in anticipatory bail order. It has further been stated that on prior intimation of date and place at which petitioner Sumit Kumar would come to India from USA, the answering respondents/police shall make all arrangements to ensure that he is not arrested and is given a reasonable time to fulfill the conditions for grant of bail as per the order passed by this Court i.e. Annexure P/4.

Learned senior counsel appearing on behalf of the petitioner submits that the sole object of issuance of LOC is to make the presence of the person who is not appearing before the Court in spite of issuance of non bailable warrant. He submits that in the present case, the petitioner is always ready to appear before the trial Court. He further submits that as now the anticipatory bail has been granted by this Court and, therefore, the LOC be quashed. He further submits that the petitioner wants to appear before the trial Court, however, due to issuance of LOC, the moment the petitioner would land in India, the immigration department would dealt him and hand over him to the Police Authorities of the said jurisdiction who make keep him in custody till an Officer of Bhopal Police does not reach to arrest him. He further submits that the said exercise would amounts to curtailing the personal liberty of the petitioner irrespective of the fact that he has been granted anticipatory bail. He further submits that the petitioner did not appear before the authorities, as his application for anticipatory bail was pending before this Court. He further submits that the LOC is to be issued only in the case where a person after issuance of the non bailable warrant did not appear before the authorities. However, in the present case, the LOC was issued on 10.03.2016 and non bailable warrant is issued against the petitioner on 25.04.2016. Thus, the LOC is issued prior to issuance of non bailable warrant. He further relied on the judgement passed by the Madras High Court in the case of Arockia Jeyabalan Vs. The Regional Passport Officer, Mount Road, Chennai & Others, 2014-4-L.W. 841. In such circumstances, the learned senior counsel submits that the LOC be quashed.

On the other hand, learned counsel appearing for the respondents supports the issuance of the LOC. He submits that the investigating agency is very within its jurisdiction to issue a Look Out Circular in cases where the accused was deliberately evading arrest or not appearing in the trial Court despite non-bailable warrant. The circular issued by the Central Government, it provides that a request for issuance of LOC is to be made by the investigating officer to the competent authority of the Central Government and the person against whom the LOC is issued must join investigation by appearing before the IO or should surrender before the Court concerned or should satisfied the Court that LOC was wrongly issued against him and if the IO satisfied that the LOC has been wrongly issued he may withdrawn it. He further argues that now as the anticipatory bail has been granted to the petitioner then, the Police Authorities shall make all arrangements to ensure that he is not arrested and he will be given a reasonable time to fulfill the conditions for grant of bail. I have heard learned counsel for the parties and perused the record.

The petitioner had married to one Jaya Sharma in the year 2013 and FIR was lodged by Jaya Sharma i.e. complainant for offences punishable under Section 498-A, 506 and 34 of the Indian Penal Code and also Section 3/4 of the Dowry Prohibition Act on 08.08.2015 to the Police Station Mahila Thana, Bhopal. As soon as, the petitioner got the information about the registration of FIR against him. As he is residing at USA, he went to the Indian Embassy and explaining them about the all incident. The Petitioner duly followed with all Police Officers via email, thereby, stating that the petitioner’s clear intention to cooperate with the investigation. As the FIR was registered against the petitioner, the petitioner, therefore, filed an application under Section 438 of the Cr.P.C for grant of anticipatory bail. This Court vide order dated 28.04.2016 has allowed the application submitted by the petitioner and grant the anticipatory bail to the petitioner. In the mean time, the respondents have issued a Look Out Circular against the petitioner and, therefore, he is not able to come back to India to fulfill the conditions of the bail order, as the moment he would land in India, the immigration authorities at the Airport would arrest him in terms of the Look Out Circular opened against the him. The object of Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. However, in the present case, as the petitioner has already been released on anticipatory bail and, therefore, there is no reason to keep the LOC pending against the petitioner.

It has been stated by learned senior counsel that the petitioner is ready to appear before the trial Court and cooperate with the investigation and, therefore, there is no reason to keep the LOC pending against the petitioner. The Madras High Court in the case of Arockia Jeyabalan (supra) in paragraph 12 has held as under:-“The object of a Look Out Circular is to ensure that a person is available for interrogation or trial or enquiry. Now that the Court has released him on bail subject to certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone.”

The Madras High Court in the said case has held that the object of the LOC is to ensure that a person is available for interrogation or trial or enquiry and now as the Court has released him on bail on certain conditions as well as sureties, the apprehension that the petitioner may not make himself available and amenable to law, has gone. In the present case, also as the petitioner was already released on bail by the Court, the apprehension that the petitioner may not make himself available and amenable to law, has gone. Thus, in view of the aforesaid, the petition filed by the petitioner is allowed. The Look Out Circular dated 10.03.2016 issued against the petitioner is hereby quashed.

(Ms.Vandana Kasrekar)

Judge

#NRI #husband gets #Anticipatory #bail . Wife claims dowry & torture, husband shows proof of PAYING her mother thru bank!!

#NRI #husband gets #Anticipatory #bail . Wife claims dowry & torture, husband shows proof of PAYING her mother Rs. 100000 thru bank!!

Wife claims husband earns 2 crores in USA, but demanded 10 lakhs as dowry from her mother 😦 😦 !!!

The case shows that

] ///Learned counsel for the petitioner submitted that he has filed
] documents of ICICI Bank in order to demonstrate that far from
] demanding dowry from Jaya Sharma, he had, in fact, transferred about
] Rs. 1,00,000/- in the name of Alka Sharma, the mother of the victim,
] during the period between 16-04-2015 and 04-07-2014. The petitioner
] has also filed numerous photographs of the estranged couple taken on
] various occasions in U.S., portraying perfect picture of marital
] bliss and harmony. Copy of order dated 06-10-2015 showing that Sumit
] had obtained â??Limited Divorceâ? from a Circuit Court in Montgomery
] County, Maryland, U.S.A. has also been filed. Copy of another order
] dated 07-06-2015, dismissing a petition for want of evidence, filed
] by victim Jaya Sharma before the same Court for protection, has also
] been filed. Documents and copies of E-mail have also been filed for
] showing that the petitioner took keen interest in victim Jaya’s
] career as a dentist in U.S. and arranged for her studies and her
] attendance in various dental clinics. It has also been contended that
] as per application submitted by the victim the petitioner earns
] approximately Rs.2,00,00,000/- in U.S. In such a situation, the
] allegation that he demanded Rs.10,00,000/- in dowry from the mother
] of the victim, who is a widow, is ridiculous.////
]

 

Madhya Pradesh High Court

Sumit Kumar vs The State Of Madhya Pradesh on 28 April, 2016

MCRC-5117-2016

(SUMIT KUMAR Vs THE STATE OF MADHYA PRADESH)

28-04-2016

Shri Anil Khare, Senior Advocate with Shri Jasmeet Singh Hora, Advocate for the petitioner.

Shri Pradeep Gupta, Panel Lawyer for the respondent/State.

Heard on this first application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on behalf of petitioner Sumit Kumar in Crime No.107/2015 registered by Mahila Police Station, District-Bhopal, under sections 498- A and 506 read with section 34 of the Indian Penal Code and section 3 and 4 of the Dowry Prohibition Act, 1961.

As per prosecution case, petitioner Sumit Kumar, who is based in Maryland United States of America, married victim Jaya Sharma in the Court on 05-07-2014 by Hindu rites on 08-03-2014, at Bhopal. Victim’s mother Alka Sharma had given her house-hold items worth Rs.10,00,000/- in the marriage. On 09-03-2014, the parents of Sumit Kumar asked him not to take the victim to her matrimonial home at Gorakhpur until and unless her mother paid Rs.10,00,000/- in dowry. The mother of the victim was constrained to give Rs.4,00,000/- more in cash on 10-03-2014. Thereafter, the victim was taken to Gorakhpur where the parents of the petitioner continued to harass and taunt her for dowry. Thereafter, the victim went to America with the petitioner on 13-03-2014. Even in America, petitioner Sumit Kumar kept harassing and beating her for dowry. On 01-05-2015, they returned to Gorakhpur. On 05-05-2015, she was sent to Bhopal. On 08-05-2015, petitioner Sumit Kumar came to Bhopal and demanded Rs.10,00,000/- for getting some work done in their house at Bangalore. Even on that occasion, victim’s mother Alka Sharma paid Rs.4,00,000/- to petitioner Sumit Kumar. Thereafter, petitioner’s parents Narsingh and Pushpa told the victim on telephone that unless she brought Rs.10,00,000/-, she would not be admitted in the matrimonial home. After that, she stayed with petitioner’s parents at Gorakhpur between 23-05-2015 and 26-05-2015. When they returned to America, petitioner took her to a doctor for the purpose of getting her declared mentally ill. The Doctor sent her to a shelter house home, wherefrom she returned to India with the help of a Social Organisation and Indian Embassy in US.

Learned counsel for the petitioner submitted that he has filed documents of ICICI Bank in order to demonstrate that far from demanding dowry from Jaya Sharma, he had, in fact, transferred about Rs. 1,00,000/- in the name of Alka Sharma, the mother of the victim, during the period between 16-04-2015 and 04-07-2014. The petitioner has also filed numerous photographs of the estranged couple taken on various occasions in U.S., portraying perfect picture of marital bliss and harmony. Copy of order dated 06-10-2015 showing that Sumit had obtained â??Limited Divorceâ? from a Circuit Court in Montgomery County, Maryland, U.S.A. has also been filed. Copy of another order dated 07-06-2015, dismissing a petition for want of evidence, filed by victim Jaya Sharma before the same Court for protection, has also been filed. Documents and copies of E-mail have also been filed for showing that the petitioner took keen interest in victim Jaya’s career as a dentist in U.S. and arranged for her studies and her attendance in various dental clinics. It has also been contended that as per application submitted by the victim the petitioner earns approximately Rs.2,00,00,000/- in U.S. In such a situation, the allegation that he demanded Rs.10,00,000/- in dowry from the mother of the victim, who is a widow, is ridiculous.

In aforesaid circumstances, relying upon the case of Arnesh Kumar vs. State of Bihar and another, (2014) 8 SCC 273, learned Senior Counsel for the petitioner has prayed for anticipatory bail.

It may be noted here that Narsingh and Pushpa, parents of the petitioner, have been granted the benefit of anticipatory bail by order dated 23-12-2015 passed in M.Cr.C.No.21163/2015 by this Court.

Learned Panel Lawyer for the respondent/State on the other hand, has opposed the application on the ground that there are specific allegations of harassment for dowry and cruelty against the petitioner. This is a case where an Indian bride was taken to U.S. and was subjected to cruelty for dowry. Keeping in view the facts and circumstances of the case in their entirety, particularly the documents filed by the petitioner and the fact that custodial interrogation does not appear to be necessary, as also the observations made by the Apex Court in the case of Arnesh Kumar (supra) with regard to offences under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act, 1961, this Court is of the view that the applicant deserves the benefit of anticipatory bail.

Consequently, the application is accordingly allowed. Now the question arises as to what conditions may be imposed in order to ensure that the petitioner, who is admittedly based in U.S., does not flee from justice. In this regard, learned counsel for the petitioner has submitted that the petitioner has a job in U.S. and if his passport is directed to be deposited, he would lose his job which would virtually shatter his life. Relying upon the judgment rendered by the Apex Court in the case of Suresh Nanda vs. C.B.I., 2008 Cri.L.J. 1599 and by High Court of Chhattisgarh in the case of Pushpal Swarnkar vs. State of Chhattisgarh in Criminal Revision No.715/2008, it has been held that the Court has no jurisdiction to impound the passport and it can only be done by the Passport Authority under section 10(3) of the Passports Act, 1967. It has further been prayed that short of depositing the passport, the Court may impose any condition for ensuring co-operation of the petitioner during investigation and trial. Keeping in view the aforesaid contentions, it is directed that in the event of his arrest, the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs.10,00,000/- and two solvent sureties in the sum of Rs.5,00,000/- each to the satisfaction of the Arresting Officer for his appearance before the trial Court on all dates and for complying with the conditions enumerated in sub section (2) of section 438 of the Code of Criminal Procedure. Certified copy as per rules.

(C V SIRPURKAR) JUDGE

Wife claims husband earns 2 crores in USA, but demanded 10 lakhs as dowry from her mother 😦 😦 !!!

 

///Learned counsel for the petitioner submitted that he has filed documents of ICICI Bank in order to demonstrate that far from demanding dowry from Jaya Sharma, he had, in fact, transferred about Rs. 1,00,000/- in the name of Alka Sharma, the mother of the victim, during the period between 16-04-2015 and 04-07-2014. The petitioner has also filed numerous photographs of the estranged couple taken on various occasions in U.S., portraying perfect picture of marital bliss and harmony. Copy of order dated 06-10-2015 showing that Sumit had obtained â??Limited Divorceâ? from a Circuit Court in Montgomery County, Maryland, U.S.A. has also been filed. Copy of another order dated 07-06-2015, dismissing a petition for want of evidence, filed by victim Jaya Sharma before the same Court for protection, has also been filed. Documents and copies of E-mail have also been filed for showing that the petitioner took keen interest in victim Jaya’s career as a dentist in U.S. and arranged for her studies and her attendance in various dental clinics. It has also been contended that as per application submitted by the victim the petitioner earns approximately Rs.2,00,00,000/- in U.S. In such a situation, the allegation that he demanded Rs.10,00,000/- in dowry from the mother of the victim, who is a widow, is ridiculous.////

 

Madhya Pradesh High Court

Sumit Kumar vs The State Of Madhya Pradesh on 28 April, 2016

MCRC-5117-2016

(SUMIT KUMAR Vs THE STATE OF MADHYA PRADESH)

 

28-04-2016

Shri Anil Khare, Senior Advocate with Shri Jasmeet Singh Hora, Advocate for the petitioner.

Shri Pradeep Gupta, Panel Lawyer for the respondent/State.

Heard on this first application for anticipatory bail under section 438 of the Code of Criminal Procedure filed on behalf of petitioner Sumit Kumar in Crime No.107/2015 registered by Mahila Police Station, District-Bhopal, under sections 498- A and 506 read with section 34 of the Indian Penal Code and section 3 and 4 of the Dowry Prohibition Act, 1961.

As per prosecution case, petitioner Sumit Kumar, who is based in Maryland United States of America, married victim Jaya Sharma in the Court on 05-07-2014 by Hindu rites on 08-03-2014, at Bhopal. Victim’s mother Alka Sharma had given her house-hold items worth Rs.10,00,000/- in the marriage. On 09-03-2014, the parents of Sumit Kumar asked him not to take the victim to her matrimonial home at Gorakhpur until and unless her mother paid Rs.10,00,000/- in dowry. The mother of the victim was constrained to give Rs.4,00,000/- more in cash on 10-03-2014. Thereafter, the victim was taken to Gorakhpur where the parents of the petitioner continued to harass and taunt her for dowry. Thereafter, the victim went to America with the petitioner on 13-03-2014. Even in America, petitioner Sumit Kumar kept harassing and beating her for dowry. On 01-05-2015, they returned to Gorakhpur. On 05-05-2015, she was sent to Bhopal. On 08-05-2015, petitioner Sumit Kumar came to Bhopal and demanded Rs.10,00,000/- for getting some work done in their house at Bangalore. Even on that occasion, victim’s mother Alka Sharma paid Rs.4,00,000/- to petitioner Sumit Kumar. Thereafter, petitioner’s parents Narsingh and Pushpa told the victim on telephone that unless she brought Rs.10,00,000/-, she would not be admitted in the matrimonial home. After that, she stayed with petitioner’s parents at Gorakhpur between 23-05-2015 and 26-05-2015. When they returned to America, petitioner took her to a doctor for the purpose of getting her declared mentally ill. The Doctor sent her to a shelter house home, wherefrom she returned to India with the help of a Social Organisation and Indian Embassy in US.

Learned counsel for the petitioner submitted that he has filed documents of ICICI Bank in order to demonstrate that far from demanding dowry from Jaya Sharma, he had, in fact, transferred about Rs. 1,00,000/- in the name of Alka Sharma, the mother of the victim, during the period between 16-04-2015 and 04-07-2014. The petitioner has also filed numerous photographs of the estranged couple taken on various occasions in U.S., portraying perfect picture of marital bliss and harmony. Copy of order dated 06-10-2015 showing that Sumit had obtained â??Limited Divorceâ? from a Circuit Court in Montgomery County, Maryland, U.S.A. has also been filed. Copy of another order dated 07-06-2015, dismissing a petition for want of evidence, filed by victim Jaya Sharma before the same Court for protection, has also been filed. Documents and copies of E-mail have also been filed for showing that the petitioner took keen interest in victim Jaya’s career as a dentist in U.S. and arranged for her studies and her attendance in various dental clinics. It has also been contended that as per application submitted by the victim the petitioner earns approximately Rs.2,00,00,000/- in U.S. In such a situation, the allegation that he demanded Rs.10,00,000/- in dowry from the mother of the victim, who is a widow, is ridiculous.

In aforesaid circumstances, relying upon the case of Arnesh Kumar vs. State of Bihar and another, (2014) 8 SCC 273, learned Senior Counsel for the petitioner has prayed for anticipatory bail.

It may be noted here that Narsingh and Pushpa, parents of the petitioner, have been granted the benefit of anticipatory bail by order dated 23-12-2015 passed in M.Cr.C.No.21163/2015 by this Court.

Learned Panel Lawyer for the respondent/State on the other hand, has opposed the application on the ground that there are specific allegations of harassment for dowry and cruelty against the petitioner. This is a case where an Indian bride was taken to U.S. and was subjected to cruelty for dowry. Keeping in view the facts and circumstances of the case in their entirety, particularly the documents filed by the petitioner and the fact that custodial interrogation does not appear to be necessary, as also the observations made by the Apex Court in the case of Arnesh Kumar (supra) with regard to offences under section 498-A of the Indian Penal Code and section 4 of the Dowry Prohibition Act, 1961, this Court is of the view that the applicant deserves the benefit of anticipatory bail.

Consequently, the application is accordingly allowed. Now the question arises as to what conditions may be imposed in order to ensure that the petitioner, who is admittedly based in U.S., does not flee from justice. In this regard, learned counsel for the petitioner has submitted that the petitioner has a job in U.S. and if his passport is directed to be deposited, he would lose his job which would virtually shatter his life. Relying upon the judgment rendered by the Apex Court in the case of Suresh Nanda vs. C.B.I., 2008 Cri.L.J. 1599 and by High Court of Chhattisgarh in the case of Pushpal Swarnkar vs. State of Chhattisgarh in Criminal Revision No.715/2008, it has been held that the Court has no jurisdiction to impound the passport and it can only be done by the Passport Authority under section 10(3) of the Passports Act, 1967. It has further been prayed that short of depositing the passport, the Court may impose any condition for ensuring co-operation of the petitioner during investigation and trial. Keeping in view the aforesaid contentions, it is directed that in the event of his arrest, the petitioner shall be released on bail on his furnishing a personal bond in the sum of Rs.10,00,000/- and two solvent sureties in the sum of Rs.5,00,000/- each to the satisfaction of the Arresting Officer for his appearance before the trial Court on all dates and for complying with the conditions enumerated in sub section (2) of section 438 of the Code of Criminal Procedure. Certified copy as per rules.

(C V SIRPURKAR) JUDGE

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/

Maintenance granted 30+ years after divorce! though husband remarried long ago!, MP HC

In India life long maintenance is the norm. There are so many cases where women have come back to claim the moollah after divorce. However this one takes the case, in that woman seeks maintenance approx 30 years after divorce  and wins that too !!

  • In addition to other objections, The husband’s counsel argues that “…submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, …”
  • However the honourable court opines that “…… So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. ….”
  • and “…it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected….”
  • and the honourable court goes on to decide that “…So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, ….”*****

    HIGH COURT OF MADHYA PRADESH: PRINCIPAL SEAT AT JABALPUR

    FIRST APPEAL No.168/2013

    SUNIL KUMAR VERMA

    Versus

    SMT. KAMALA BAI

    Present:
    Hon’ble Shri Justice Rajendra Menon

    Hon’ble Shri Justice Sushil Kumar Gupta

    Shri R.P. Agrawal, learned Senior Counsel with Shri Vivek Rusia, learned counsel for the appellant.

    Shri Shobhitaditya, learned counsel for the respondent.

    Whether approved for reporting- Yes

    JUDGMENT

    ( 17/07/2015)

    Per: Sushil Kumar Gupta, J.

  1. This appeal under Section 28 of The Hindu Marriage Act, 1955 (in short ‘Act 1955’) arises out of the judgment and decree passed by the IInd Additional Principal Judge of Family Court, Bhopal in RCS No.599-A/2008, whereby the appellant has been directed to pay amount of Rs.15,000/- per month as maintenance to the respondent.
  2. It is undisputed fact that the appellant got married with respondent before 55 years. It is also undisputed that appellant was retired from the post of Principal Secretary Water Resources Department. It is also undisputed that appellant and respondent lived as husband-wife about 20 years and out of their wedlock respondent blessed with two daughters. It is also undisputed that appellant filed a Civil Suit No.35-A/1978 for divorce under Section 13 of Act 1955 against respondent and vide order dated 21.08.1978, Court of Additional District Judge, Bhopal has granted the decree of divorce in favour of appellant. It is also undisputed that appellant got re-married with Dr. Indra Sharma. It is also undisputed that both the parties are living separately. It is also undisputed that in favour of the respondent Chief Judicial Magistrate has granted maintenance Rs.3,000/- per month. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  3. Apart from the aforesaid undisputed facts the brief facts of the case are that respondent has filed an application under Section 25 of Act 1955 before the Family Court Bhopal claiming maintenance of Rs.3.00 lacs per year from the appellant on the ground that appellant is a man of crores and he has got Rs.26,000/- per month from the pension and he has also possessed 90-92 bighas agriculture land by which he is earning 10-15 lacs per-annum. It is also pleaded that appellant also having a big house in Indore by which he is earning Rs.35,000/- per month as a rent. It is also stated that appellant also lend the money on interest. It is also stated that appellant is having many luxury vehicles and his second wife is in service. It is also stated that respondent is receiving only Rs.3,000/- per month which is not sufficient for her maintenance. She is not having any means for earning therefore she prays for grant of Rs.3 lacs per year as a maintenance.
  4. Besides the admissions as aforesaid in P. No.2, appellant, in reply, refuted the pleadings of the respondent and pleaded that with malafide intention, within a year, the respondent has filed this application under Section 25 of Act 1955. Appellant also stated that with the consent of both parties he is already paying maintenance of Rs.3,000/- to the respondent by virtue of order dated 20.07.2007 passed by the competent Court. It is also stated by the appellant that at the time of divorce respondent was given 8.2 Hectare (32 Bigha) agriculture land from the ancestral property of appellant and by way of cultivation she is already earning Rs.3.00 lacs per year. It is also stated that he is getting only Rs.20,000/- as a pension and Rs.11,000/- as a rental income. Accordingly, on these grounds he prayed for dismissal of the petition.
  5. In support of her application respondent, besides herself, examined Lalit Sustani (PW-2) and Smt. Pramila Singh (PW-3) and in defence the appellant examined himself.
  6. After appreciating and marshaling of evidence, learned trial Court allowed the petition of the respondent and passed the impugned order as stated in para No.1.
  7. Learned counsel for the appellant challenging the impugned judgment and decree on the ground that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. That the respondent is residing in Gram Sustani Pargana District- Rajgarh and deliberately described herself resident of Bhopal and filed the application before the Family Court at Bhopal. Neither the appellant nor the respondent are residing at Bhopal therefore, the Family Court Bhopal has no territorial jurisdiction to decide the petition. It is further submitted that the respondent is already getting maintenance of Rs.3,000/- per month from the appellant in compliance of consent order passed by the Chief Judicial Magistrate, Rajgarh and in compliance of that order, appellant is already paying maintenance of Rs.3,000/- per month to the respondent. It is also submitted that learned trial Court did not consider this fact that respondent is already owner of agriculture land measuring 8.2 Hectare in Gram Sustani and earning Rs.3.00 lacs per year by way of cultivation. It is also submitted that appellant is a retired Government Servant and he is getting Rs.32,000/- per month by way of pension which is also insufficient for himself. It is further submitted that learned Family Court has directed to pay Rs.15,000/- per month out of Rs.32,000/- which is highly excessive and disproportionate earning of appellant.
  8. Per contra, learned counsel for the respondent opposes the submissions advanced by the learned counsel for the appellant and submitted that impugned order passed by the learned trial Court are based on proper appreciation and marshaling of evidence and does not require any interference and he prayed for dismissal of appeal.
  9. Having heard and considered the arguments advanced by the learned counsel for the parties and perused the entire record minutely.
  10. Before coming to the factual aspect of this case, we would like to reproduce the relevant provision of Act 1955.
    • “25. Permanent alimony and maintenance.:-
      • (1) Any Court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case] it may seem to the Court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.
      • (2) ***********
      • (3) *********** ” 
    • [19. Court to which petition shall be presented.–
      • Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction–
      • (i) the marriage was solemnized, or
      • (ii) the respondent, at the time of the presentation of the petition, resides, or 
      • (iii) the parties to the marriage last resided together, or
      • [(iii-a) in case the wife, is the petitioner, where she is residing on the date of presentation of the petition, or] 
      • (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]
  11. The first contention raised by the learned counsel, appearing for the appellant, is that learned Family Court has committed jurisdictional error while entertaining the application under Section 25 of Act 1955. He submitted that respondent is residing in Gram Sustani, District-Rajgarh and this petition has been filed in Bhopal describing herself resident of 25, Betwa Apartment, Bhopal. He further submitted that neither the appellant nor the respondent are residing at Bhopal therefore, Family Court Bhopal have no territorial jurisdiction to decide the petition.
  12. So far as the territorial jurisdiction of Family Court Bhopal entertaining application under Section 25 of Act 1955 of the respondent. Firstly it is pertinent to mention here that no such objection was taken by the appellant, before the lower Court, in his written statement. In reply appellant has not raised any objection that respondent is not living on the given address 25, Betwa Apartment, Bhopal. In para No.12 of petition respondent specifically pleaded about jurisdiction of Family Court Bhopal and stated that appellant has got decree of divorce from Ist Additional District & Sessions Judge, Bhopal in Civil Suit No.35-A/1978 by dated 21.08.1978 therefore, this Court has territorial jurisdiction to here this petition but in reply of this para No.12 no objection has been raised by the appellant about territorial jurisdiction and this objection has been raised first time in appeal before this Court.
  13. Despite this fact that this objection has been raised first time in this Court, even though keeping in view the provisions of Section 25 of Act 1955, Family Court Bhopal has territorial jurisdiction to hear the petition of respondent under Section 25 of Act 1955.
  14. Section 25 of Act 1955 clearly provided that “any Court exercising jurisdiction under this Act, at the time of passing any decree or at any time subsequent thereto” that clearly shows that Family Court Bhopal having territorial jurisdiction to entertain the petition under Section 25 of Act 1955 because appellant has filed divorce petition against respondent before the Ist Additional Sessions Judge, Bhopal showing her address at Bhopal and decree of divorce has been granted in his favour and at that time no order was passed in favour of respondent for permanent alimony and maintenance, therefore, keeping in view the provision under Section 25 of Act 1955 where under Section 13 of Act 1955 that petition has been filed in Bhopal Court therefore, respondent has every right and having jurisdiction to file petition under Section 25 of Act 1955 at Bhopal. Therefore, Bhopal Court has jurisdiction to entertain the petition of the respondent. Therefore the objection raised by the learned counsel for the appellant about the territorial jurisdiction has no substance.
  15. The second contention made by the learned counsel, appearing for the appellant, is that there is huge delay in filing the present petition under Section 25 of Act 1955 therefore, is not maintainable. He further submitted that divorce decree was passed on 21.09.1978 and for about 30 years no objection for maintenance was filed by the respondent and after lapse of 30 years, this petition has been filed on 05.01.2009, therefore is not maintainable.
  16. So far as this objection as per provision of the Section 25 of Act 1955 “any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto” respondent has right to file application for permanent alimony and maintenance and there is no specific limitation provided for filing such petition under Section 25 of Act 1955. So far as the delay in filing of this petition it is admitted fact that in the year 2007, application for granting the maintenance under Section 125 of the Cr.P.C., 1973 has been filed by the respondent and in that application appellant was agreed to pay Rs.3,000/- per month as a maintenance to the respondent and at that time also no such objection was raised and after passing that order on 02.07.2008 immediately on 05.01.2009, this petition has been filed under Section 25 of Act 1955 therefore, this submission of the learned counsel for the appellant also having no force and is rejected.
  17. The third contention made by the learned counsel for the appellant is that no positive evidence is produced by respondent to show the income of appellant. He further submitted that at present appellant is getting only Rs.32,000/- monthly as a pension, Rs.7,500/- per month as a rent of Indore house and Rs.2,900/- per month out of the earning of agriculture and out of which he has to pay income tax expenditure, agriculture operation and maintenance of house of Indore. In the addition, learned counsel for the appellant also submitted that in such a way appellant’s monthly income comes to 22 to 26 thousands but learned trial Court wrongly recorded the finding in para No.16 of the judgment is Rs.43,000/- per month. This finding is based on misreading of evidence and liable to be set aside. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
  18. Appellant Sunil Kumar Verma (non-appellant No.1) admitted in para No.16 of cross-examination that he is having 18 hectare (about 72 Bigha) of agriculture land. In para No.21 of the cross-examination he again admitted that he is getting Rs.11,000/- rental income from his house. He has also admitted in para No.10 that he is getting Rs.32,000/- as a pension therefore, it indicates that appellant getting Rs.32,000/- pension, Rs.11,000/- per month rental income total income is Rs.43,000/- per month. Though appellant stated in para No.10 of his examination-in-chief that he is having 3.5 bigha agriculture land by which he is getting Rs.35,000/- per year agriculture income but keeping in view the admission in para no.16 of the cross- examination of the appellant he is having 18 hectare (about 72 bigha) agriculture land, certainly he is earning lacs of the rupees from the agriculture land, therefore, it is amply proved by the evidence of the appellant that he is having income more than Rs.50,000/- per month and learned trial Court has not committed any error in giving the finding that appellant is earning Rs.43,000/- per month. Therefore, it is found proved that appellant is having sufficient means to pay the permanent alimony and maintenance to the respondent.
  19. So far as the another contention has been raised by the appellant that the respondent having sufficient means to maintain herself, therefore she is no entitled for any maintenance.
  20. So far as this submission made by learned counsel for the appellant, it is not required for the respondent to prove this fact that she is unable to maintain herself Under Section 25 of Act 1955, it is not requirement of the law in aforesaid provisions that if the wife having sufficient means and able to maintain herself, she cannot get the permanent alimony and maintenance.
  21. Relevant part of the provisions of Section 25 of Act 1955 and provisions of Section 125 of the Code of Criminal Procedure, 1973 (in short ‘Code 1973’) have some difference and reads as under:-
    • “Section 25. Permanent alimony and maintenance:-
      • (1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto…..
      • (2) *********
      • (3) *********
    • Section 125. Order for maintenance of wives, children and parents :-
      • (1) If any person having sufficient means neglects or refuses to maintain-
      • (a) his wife, unable to maintain herself, or
      • (b) *********
      • (c) *********
      • (d) ********* .”
  22. However, under Section 25 of Act 1955 order for permanent alimony and maintenance is passed while exercising jurisdiction under Act, 1955 at the time of passing any decree or at any time subsequent thereto, but under Section 125 of the Code 1973 an application for maintenance can be filed independently at any time when a person having sufficient means neglects are refuses to maintain, his wife “unable to maintain herself” thereby means if wife able to maintain herself is not entitled for maintenance under Section 125 of the Code 1973, but under Section 25 of Act 1955 there is no such requirement of law.
  23. So far as awarding the Rs.15,000/- per month as permanent alimony and maintenance, it is also not excessive or exorbitant looking to the status of the appellant as he was being posted and retired from Principal Secretary Water Resources Department, M.P. Government. He is earning more than Rs.43,000/- per month. He is having one house in Indore. His second wife is a Doctor and she is also in service and getting salary, therefore appellant having no liability and responsibility.
  24. Hon’ble Apex Court in the case of Vinny Parmvir Parmar Vs. Parmvir Parmar (2011) 13 SCC 112 that “As per Section 25, while considering the claim for permanent alimony and maintenance of either spouse, the respondent’s own income and other property, and the income and other property of the applicant are all relevant material in addition to the conduct of the parties and other circumstances of the case. It is further seen that the court considering such claim has to consider all the above relevant materials and determine the amount which is to be just for living standard. No fixed formula can be laid for fixing the amount of maintenance. It has to be in nature of things which depend on various facts and circumstances of each case. The court has to consider the status of the parties, their respective needs, the capacity of the husband to pay, having regard to reasonable expenses for his own maintenance and others whom he is obliged to maintain under the law and statute. The courts also have to take note of the fact that the amount of maintenance fixed for the wife should be such as she can live in reasonable comfort considering her status and mode of life she was used to live when she lived with her husband.”
  25. On the aforesaid discussion, we are of the considered opinion that learned trial Court has not committed any error in passing the decree of permanent alimony and maintenance against the appellant, therefore, we are not inclined to interfere in the impugned order passed by the learned Family Court, hence this appeal sans merit and liable to be dismissed, therefore, this appeal is hereby dismissed.

There is no order as to costs.

(Rajendra Menon)                 (Sushil Kumar Gupta)
Judge                                    Judge

Ajay/-

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