THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 1 Jabalpur, Dated : 18-01-2018 Shri [ENTITY], counsel for the applicant. Shri [ENTITY], Govt. Advocate for the respondent No.1/State. None for the respondent No.2. This petition has been filed under [SECTION] of [ACT] for quashing the proceedings of R.C.T.No.6094/2011 pending against the applicant in the court of learned JMFC, Bhopal for the offence punishable under [SECTION]98A, 506/34 of [ACT] r/[SECTION] of [ACT]. Brief facts of the case are that on 16.05.2011 the complainant non applicant No.2, wife of the applicant lodged a complaint at Police Station [ENTITY], Bhopal against the applicant averring that her marriage was solemnized with applicant on 01.12.2009 but behaviour of the present applicant- husband and co-accused-Smt. [ENTITY] and brother-in- law [ENTITY] was not good with her. They demanded dowry and used to harass her. On that police registered Crime No.35/2011 for the offence punishable under [SECTION], 506/34 of [ACT] r/[SECTION] of [ACT] against the present applicant, co-accused mother-in-law Smt. [ENTITY] and brother-in-law [ENTITY]. After investigation, charge-sheet was filed against the applicant and co-accused on which [CASE NUMBER] was registered which is pending before JMFC, Bhopal. Learned counsel for the applicant submitted that applicant lodged a false report against the applicant to harass him and his mother and brother. The applicant is working as Assistant Grade III in the office of Commissioner, Tribal THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 2 Development, Bhopal. Soon after the marriage, she was treating him most contemptuously and often lost her temper and used to quarrel with him on flimsy grounds. Though the applicant was very much upset at such behavior of the non-applicant No.2 yet he tried his best to persuade himself to adjust but this attempt became futile. She even got her abortion done without the consent of the applicant. On December 2010 when she became pregnant again, she again left her matrimonial house without the consent of the applicant and took away all the jewellery and other valuable articles with her without informing the applicant. The applicant and his relatives tried to bring her back but she did not return and threatened the applicant to falsely implicate him in a dowry case. Therefore, the applicant filed an application on 16.02.2011 in [ENTITY] and on 22.02.2011 in [ENTITY], Bhopal. On 23.02.2011, the non-applicant came in [ENTITY] and clearly stated that she wants to stay away from her husband's family and wants to live with her husband only. In these circumstances, the applicant was left with no alternative other than filing the application for restitution of conjugal rights. So he filed [CASE NUMBER] before the Family Court, Bhopal on 03/03/11 for restitution of conjugal rights, against non-applicant, so, as a counterblast, non-applicant No.2 lodged a false and fabricated report dated 16.05.2011 against the applicant which was an afterthought so the proceedings of [CASE NUMBER] be quashed. In this regard, learned counsel for the applicant also placed reliance on unreported order dated 28.07.2017 passed by this Court in the case of [PRECEDENT] v. State of Madhya THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 3 Pradesh in [CASE NUMBER] and the judgment of this court passed in the case of [ENTITY] & Ors. v. State of M.P. & Anr. reported in ILR (2011) MP 2923. This Court has gone through the record and arguments put forth by the counsel for the applicant. The Apex Court in the case of State of Haryana v. Bhajan Lal reported in 1992 Supp. (1) SCC 335 held as under:- "The power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. The extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whim or caprice. The court will not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint. The following categories of cases can be stated by way of illustration wherein the extraordinary power under [SECTION] or the inherent powers under [SECTION] [ACT] can be exercised by the High Court 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 FIR do not disclose a cognizable offence, justifying an investigation by police officers under [SECTION] of the Code except under an order of a Magistrate within the purview of [SECTION] of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 4 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] 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." This shows that High Court may exercise inherent powers to quash an FIR, when 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 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. The report lodged by the complainant reads as under:- mijksDr fo"k; esa ys[k gS fd esjk fookg eksgEen tkosn iq= Lo0 Jh eksgEen tkfgn vk;q&o;Ld] fuoklh&edku uaoj&,&485] U;w v'kksdk xkMZu] Hkksiky ds lkFk fnukad&01@12@2009 dks veku 'kknh gkWy] Hkksiky esa gqvk Fkk THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 5 esjs ?kj okyksa us viuh gSfl;r ds vuqlkj ngst esa ?kjsyw lkeku fn;k Fkk 'kknh ds Ms<+ nks ekg ckn Hkh esjs ifr o lkl nsoj us eq>s ngst de ykus ds rkus nsuk 'kq: dj fn;s ;g yksx eq>s dgrs gS fd rqEgkjs ?kj okyksa us ngst esa dwM+k djdV fn;k gSA esjs lkFk ;g yksx tkuoj tSlk O;ogkj djrs vkSj eq>s [kkus ugha nsrs vkSj dgha vkrs tkrs rks eq>s ,d dejs esa rkyk yxkdj can djds pys tkrs gSaA eq>s esjs ?kj okyksa ls Hkh ugha feyus fn;k tkrk vkSj uk gh esjs ?kj okyksa ls Qksu ij ckr djokbZ tkrh gS] ftlls eSa ekufld :i ls ijs'kku jgus yxh] blh chp eSa xHkZorh gqbZ rks ;g yksx eq>s esjs ek;ds NksM+ x;s vkSj esjk dksbZ bykt ugha djok;k vkSj xyr lyr nokbZ f[kyokdj esjk xHkZikr djok fn;k vkSj uk gh esjk dksbZ bykt djk;k tkrkA eq>ls esjs ifr vkSj llqjky okyksa us dgk fd rqe vius ?kj ls 1 yk[k :i;s ysdj vkvks ugha rks ge rqEgs ,sls gh ijs'kku djrs jgsaxs vkSj rqEgs ekW ugha cuus nsaxs ugha rks rqEgs tku ls [kRe dj nsaxs vkSj viusa csVs dh nwljh 'kknh dj nsaxsA ,d fnu esjs HkkbZ vkSj ekek eq>ls feyusa esjs llqjky vk, rks esjs ifr }kjk bu yksxksa dks ?kj esa ugha vkus fn;k vkSj ckgj ls gh dg fn;k fd rqe yksxksa us viuh yM+dh dks ngst esa dqM+k dckM+k lkeku fn;k gS ;fn rqe viuh yM+dh ls feyuk pkgrs gks rks eq>s ,d yk[k :i;s nks rks eSa rqEgkjh yM+dh ls feyus nwWxk] ugha rks ge mls ,sls gh ijs'kku djrs jgsaxsA fnukad&29@01@2011 dks esjh ekrk ,oa HkkbZ fQjkst eq>ls feyus esjs llqjky vk, rks esjs ifr] lkl] nsoj }kjk esjh ekrk ,oa HkkbZ ds lkFk cn~rehth dh vkSj ? kj ds vanj vkus ugha fn;k vkSj ngst dh ekWx djus yxs] fd ,d yk[k ykvksa rHkh eSa rqEgs rqEgkjh yM+dh ls feyus nwWxkA esjh ekW us dgk fd esjh iq=h vHkh orZeku esa xHkZorh gS mldks bykt dh l[r t:jr gS vki yksx gesa gekjh iq=h ls D;ksa ugha feyusa ns jgs] rks tkosn vkSj mldh ekW us eq>s dejs ls ? klhVdj ?kj ds ckgj dj fn;k vkSj njoktk yxk fy;k vkSj dgk fd viuh yM+dh dks ys tkvksa vkSj ,d yk[k :i;s ykvksa rHkh eSa@ge rqEgkjh yM+dh dks lgh ls j[ksaxs ugha rksa ge mls tku ls [kRe dj nsaxsA tkosn us dgk eSa ljdkjh ukSdjh esa gwW ,oa esjh ekrk Hkh ljdkjh deZpkjh jg pqdh gS gesa lc dkuwuh dk;Zokgh ekywe gS gekjk dksbZ dqN ugha fcxkM+ ldrk gSA tc ls vkt fnukad rd eSa vius ekrk firk ds ;gkW etcwjho'k jg jgh gwWA esjs ifr ,oa llqjky i{k okyksa }kjk ,d >wBk vkosnu i= efgyk Fkkuk ijke'kZ dsUnz esa izLrqr fd;k Fkk ftlds lEca/k esa Hkh tkosn ,oa esjs llqjky okyksa us eq>s ys tkus ds lEca/k esa dksbZ ckr ugha dh mYVk eq>ls ngst dh ekWx dhA rFkk nkSckjk ijke'kZ dsUnz }kjk cqykusa ij esjs ifr ,oa llqjky i{k okyksa esa ls dksbZ ugha vk;kA egksn;k th eSa vc mDr izdj.k ds lEca/k esa dksbZ ijke'kZ ugha pkgrh gwWA eSa vius ifr ,oa llqjky i{k okyksa ds f[kykQ dkuwuh dk;Zokgh djuk pkgrh gwWA THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) 6 vr% [ENTITY] th ls fuosnu gS fd esjs ifr eks0 tkosn lkl ijohu [kkue] nsoj eks0 lehj ds fo:) mfpr vkijkf/kd izdj.k ,oa ngst ekWx ds lEca/k esa vkijkf/kd izdj.k iathc) dj eq>s ,sls ngst ds yksfHk;ksa vkSj bl izdkj ds vlkekftd yksxksa ls U;k; fnykus dh d`ik djsa rFkk buds f[kykQ dkuwuh dk;Zokgh djokus dh d`ik djsaA eSa ekuuh; egksn; dh lnSo vkHkkj jgwWxhA If we examine the FIR in the light of above principle laid down by the Apex Court, from the FIR offence under [SECTION] of [ACT] and under [SECTION] of [ACT] is prima facie made out against the present applicant. Only on the ground that non-applicant lodged the report after filing applications by the applicant before Mahila police Station and [CASE NUMBER] before the Family Court, Bhopal for restitution of conjugal right, it cannot be said at this stage that the report lodged by the non-applicant is false and on the contrary during the course of argument it is admitted by the learned counsel for the applicant that the [CASE NUMBER] filed by the applicant for restitution of conjugal rights, against non-applicant was dismissed by the court on merits. This fact also strengthens the allegation made by the complainant in her FIR against the applicant. Facts of the cases [PRECEDENT] (supra) and Dashrath P.
Bundela & Ors. (supra) relied upon the learned counsel of the applicant do not match with the present case. In that cases, there was no specific allegation mentioned against the accused /applicants in the FIR, while in this case in the FIR specific allegation was made by the non-applicant no.2 against the applicant. So those judgments do not help applicant much.
On the other hand Apex Court in the case of [PRECEDENT] held that High Court in exercise THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) of its jurisdiction under [SECTION] [ACT] must make just and rightful choice-at this stage neither truthfulness of the allegations levelled by the complainant can be evaluated nor can weight of defence evidence be determined- Where allegations bring out all ingredients of charge levelled, and material placed before Court prima facie shows truthfulness of allegations, trial must proceed even when accused is successful in raising some suspicion or doubt in allegations levelled- This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The Apex Court in the case of [PRECEDENT] page 52 held that allegations against applicants- specific not only against husband but also against parents in-law of the complainant wife- Whether or not those allegations are true - is a matter which cannot be determined at stage of framing charges, any determination can take place only at the conclusion of trial. The Apex Court in the case of [PRECEDENT] also held that quashing of FIR - High Court is entitled only to examine the allegations - not to appreciate evidence by shifting material collected during investigation.
In the instant case it is apparent from the record that after investigation of the report lodged by non applicant no.2 Police found prima facie case against the applicant and co-accused and filed charge sheet against them. From the FIR offence under [SECTION] of [ACT] and under [SECTION] of [ACT] are prima facie made out. Whether the THE HIGH COURT OF MADHYA PRADESH MCRC-7126-2011 (MOHD. JAVED Vs STATE OF MADHYA PRADESH & ANR.) allegations levelled by non applicant no.2 in the report are true or not cannot be ascertained at this stage on evaluating the evidence on merits. Only on the points raised by the learned Counsel for the applicant at this stage it cannot be assumed that non applicant no.2 lodged false FIR against applicant for harassing him. So the FIR and the criminal proceedings pending against applicant cannot be quashed. The applicant is at liberty to raise all pleas before the Trial Court at appropriate stage.
As a fallout and consequence of the aforesaid discussion, the petition is devoid of merit, it deserves to be and is accordingly, dismissed. The learned magistrate is directed to proceed in accordance with law expeditiously.
([ENTITY]) Judge (ra) Date: 2018.02.01 15:34:46 +05'30'