Madhya Pradesh High Court
Pankaj Kumar Mishra vs The State Of Madhya Pradesh on 21 November, 2024
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 21st OF NOVEMBER, 2024
MISC. CRIMINAL CASE No. 12294 of 2022
PANKAJ KUMAR MISHRA
Versus
THE STATE OF MADHYA PRADESH AND ANOTHER
Appearance:
Shri Ankur Maheshwari and Shri Divakar Vyas- Advocates for applicant.
Shri Naval Kishor Gupta - Public Prosecutor for respondent/State.
Shri Jai Prakash Kushwah- Advocate for respondent No.2.
ORDER
This application, under Section 482 of Cr.P.C., has been filed for
quashment of FIR, charge-sheet and consequential proceedings arising out of
FIR in Crime No.139 of 2018 registered at Police Station Mahila Thana, Padav,
Gwalior for offence under Section 498-A/34 of IPC and under Section 4 of
Dowry Prohibition Act.
2. The prosecution story, in short, is that complainant/respondent no.2
lodged an FIR against applicant and her in-laws that she got married to
applicant on 03-02-2014 as per Hindu rites and rituals. As per the demand
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raised by her in-laws, her father had given Rs.5 lacs in cash, gold ornaments of
15 tolas, Diamond ring of Rs.50,000, cloths to applicant worth Rs.60,000/-,
apart from household articles. In all, Rs.30 lacs were spent in the marriage.
After marriage, applicant and her in-laws started making demand of dowry and
also started harassing her physically and mentally. Her in-laws used to pass
taunt that applicant is a Software Engineer and at least Rs.1 Cr. should have
been spent in the marriage. Applicant badly assaulted her in Rewa. When she
informed the incidents to her parents, then they tried to convince her that with
passage of time, the things would improve. When her father talked to her in-
laws and applicant on phone, then they also misbehaved with him. She went to
Hyderabad, where husband was working. She got pregnant but her husband and
in-laws started abusing her and said that now the expenses would increase and
accordingly, the pregnancy was got aborted. In the engagement of her sister-in-
law, applicant and her in-laws misbehaved with the parents of the complainant
and said that by performing marriage in Gwalior, they have saved lot of money
accordingly, in-laws and all her relatives were invited to Gwalior. In Gwalior,
applicant and her in-laws said that her father had earned a lot of money but has
performed marriage like a miser, and accordingly, he should make arrangement
of further amount of Rs.50 lakh. Applicant is the only son of her parents-in-law
and he has no other son to fulfill his dreams. However, her parents somehow
convinced applicant and her in-laws. With an intention to save her matrimonial
life, She was somehow tolerating the harassment. After one year of marriage,
the harassment went to such an extent where she started thinking to put an end
to her life. In the month of March 2015, applicant went to Sweden and
accordingly, she also went to Sweden in the year 2015. She also got job in
Sweden. However, the cruelty of applicant continued in Sweden. She made
complaint to Swedish authorities also. In the year 2016, her husband came back
to India. In the engagement of her another sister-in-law Priyanka, a further
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demand of Rs.50 lakhs was made. When her father expressed his inability to
pay so much of amount, then again she was beaten. In the month of March
2017, applicant again came back and extended a threat to her parents in
Gwalior. When her parents opposed then she was beaten by applicant. Thus, it
was alleged that applicant and her in-laws have made her life miserable in last 4
years. For various days, even food was not given and every time, taunts were
being passed that they have performed marriage in the family of beggars. Now
the things have crossed all limits. Accordingly, FIR was lodged for offence
under Section 498-A/34 of IPC and Section 4 of Dowry Prohibition Act.
3. Challenging the FIR lodged by respondent No.2, it is submitted by
counsel for applicant, that his parents and sister had filed Cr.A. No.1545 of
2023 and the Supreme Court by order reported in the case of Priyanka Sharma
Vs. State of M.P. and others, reported in 2023(2) MPLJ (Cri) (SC) 586 has
quashed the FIR and criminal proceedings against all the relatives of applicant.
In fact, divorce had already taken place in Sweden and only thereafter,
respondent No.2 lodged an FIR. It is submitted that the allegations made by
respondent No.2 in her FIR are false, baseless, therefore, they are liable to be
quashed.
4. Per contra, the application is vehemently opposed by counsel for State
and complainant.
5. Heard the learned counsel for applicant.
6. So far as the quashment of FIR against the relatives of applicant are
concerned, it is clear from para 21 to 23 of the Judgment passed in the case of
Priyanka Sharma (Supra) that the said judgment has been confined to the case
of relatives of applicant. In para 21 of the judgment, it is held that lodging of
FIR by respondent No.2 is “retaliatory tactic, in as much as appellants herein are
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concerned.” In para 22 of the judgment, it was mentioned that divorce petition
was filed in Sweden and therefore, there was no occasion per se for respondent
No.2 after coming from Sweden to visit the matrimonial home, much less reside
there. Furthermore, it is well established principle of law that for prosecuting
the near and dear relatives of the husband, the allegations must be clear and
specific and ambiguous and general allegations are not sufficient to compel the
relatives of the husband to face the ordeal of trial. Therefore, the evidence was
considered by Supreme Court in the light of position of the co-accused who are
the relatives of applicant who is the husband.
Divorce has taken place and its effect
7. It is submitted by counsel for applicant that Sweden Court has already
granted divorce, therefore, the allegations against applicant are false and
baseless.
8. Considered the submissions made by Counsel for applicant.
9. Section 13 of CPC which deals with conclusiveness of the judgment
passed by foreign Courts reads as under:
13. When foreign judgment not conclusive.– A foreign judgment
shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any
of them claim litigating under the same title except–
(a) where it has not been pronounced by a Court of competent
jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on
an incorrect view of international law or a refusal to recognise the law
of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are
opposed to natural justice;
(e) where it has been obtained by fraud;
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(f) where it sustains a claim founded on a breach of any law in force in
India.
10. Now, the decree of divorce passed by Sweden Court shall be considered
in the light of Section 13 of CPC.
11. Although it was submitted by counsel for applicant that a joint
application was filed by applicant and respondent No.2 for grant of divorce, but
the pleadings of divorce petition indicate that it was not a joint application for
grant of divorce by mutual consent. The pleadings raised by applicant in the
divorce petition read as under :
I am filing divorce as I am facing cruel behaviour from wife, she has
been abusing me. I have already requested my wife for mutual
divorce. However, she is not ready for the same and haven’t responded
yet. Also, she is pressurizing my parents and my sister by calling them
to call me back in India.
I want divorce as soon as possible on the grounds of Cruelty (Which
will also make this divorce valid in India, my home country). The
address mentioned in the apartment is owned by me. I am already
paying major part of loan amount and I have no other place to live. I
would like to have right to remain in residence (kvarsittanderatt) also,
because of my wife abusive behaviour I want my wife to move out
until the division of the couples matrimonial property. My wife is full
time working with good salary and can afford to live outside.
I want an interim decision for kvarsittanderatt.
Please note, we do not have any kids at the moment.
12. Thus, it is clear that the divorce petition filed by applicant was not joint
and it was filed by making allegations against respondent no.2.
13. In the decree of divorce, it is mentioned as under:
After some deliberation, Nikhita Gautam has requested them.
Pankaj Mishra has opposed Nikhita Guatam’s requestSignature Not Verified
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6REAONS FOR JUDGEMENT
Nikhita Gautam has right to divorce.
HOW TO APPEAL, See appendix (TR-02)
The appeal is addressed to the svea court of appeal but is submitted to
the district court at the latest on August 29, 2019.
14. From the plain reading of decree, the following reasons make the decree
inconclusive:
(i) The decree is unreasoned, because the decree was prayed on
the ground of cruelty by respondent No.2, but no reasons have been
assigned to show that whether respondent No. 2 was found to be cruel
towards applicant or not;
(ii) Respondent No.2 had raised some objections which were not
accepted by applicant, but what was the nature of such objections
which were not accepted by applicant is not clear;
(iii) Respondent No.2 had never prayed for divorce, but still it was
held that respondent no. 2 has right to divorce;
(iv) Aforesaid observation clearly means that even Sweden Court
had found applicant at fault, otherwise, would not have observed that
respondent no. 2 has a right to divorce; or otherwise
(v) The aforesaid observation with regard to the right of
respondent no. 2 to take divorce is false and incorrect because
respondent no.2 had never prayed for divorce.
15. From plain reading of decree, it is clear that foreign judgment is
inconclusive and is duly covered by Section 13 of CPC because (i) it is an
unreasoned order (ii) it has not given verdict on merits by discussing the
material and allegations (iii) the decree of divorce has been passed by ignoring
the Law of this Country as there is no finding that respondent no.2 was cruel
towards applicant.
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16. Thus, the divorce decree relied upon by applicant is of no assistance for
applicant.
Merits of the case
17. This Court has already considered the allegations made by respondent No.
2 in the FIR. The allegations of demand of dowry, physical and mental
harassment against applicant, who is the husband of respondent No.2 are clear
and specific.
18. So far as the contention of counsel for applicant that the allegations are
false and are products of mala fide intention is concerned, it is suffice to
mention here that this Court while exercising power under Section 482 of
Cr.P.C. cannot consider the reliability and correctness of the allegations, and the
proceedings can be quashed only when the uncontroverted allegations do not
make out an offence.
19. In the light of judgments passed by the Supreme Court in the cases of
XYZ v. State of Gujarat reported in (2019) 10 SCC 337, State of Tamil Nadu
Vs. S. Martin & Ors. reported in (2018) 5 SCC 718, Ajay Kumar Das v. State
of Jharkhand, reported in (2011) 12 SCC 319, Mohd. Akram Siddiqui v.
State of Bihar reported in (2019) 13 SCC 350, State of A.P. v. Gourishetty
Mahesh reported in (2010) 11 SCC 226, M. Srikanth v. State of Telangana,
reported in (2019) 10 SCC 373, CBI v. Arvind Khanna reported in (2019) 10
SCC 686, State of MP Vs. Kunwar Singh by order dated 30.06.2021 passed
in Cr.A. No.709/2021, Munshiram v. State of Rajasthan, reported in (2018) 5
SCC 678, Teeja Devi v. State of Rajasthan reported in (2014) 15 SCC 221,
State of Orissa v. Ujjal Kumar Burdhan, reported in (2012) 4 SCC 547, S.
Khushboo v. Kanniammal reported in (2010) 5 SCC 600, Sangeeta Agrawal
v. State of U.P., reported in (2019) 2 SCC 336, Amit Kapoor v. Ramesh
Chander reported in (2012) 9 SCC 460, Padal Venkata Rama Reddy Vs.
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Kovuri Satyanarayana Reddy reported in (2012) 12 SCC 437 and M.N. Ojha
v. Alok Kumar Srivastav reported in (2009) 9 SCC 682, this Court can quash
the proceedings only if the uncontroverted allegations do not make out an
offence. Furthermore, this Court in exercise of powers under S..482 of Cr.P.C.
(S.528 of BNSS) cannot conduct a roving enquiry to hold as to whether the
allegations made in the FIR are correct or not.
20. The three Judges Bench of Supreme Court in the case of Neeharika
Infrastructure (P) Ltd. v. State of Maharashtra, reported in (2021) 19 SCC
401 has held as under :
13. From the aforesaid decisions of this Court, right from the decision
of the Privy Council in Khwaja Nazir Ahmad, the following principles
of law emerge:
13.1. Police has the statutory right and duty under the relevant
provisions of the Code of Criminal Procedure contained in Chapter
XIV of the Code to investigate into cognizable offences.
13.2. Courts would not thwart any investigation into the cognizable
offences.
13.3. However, in cases where no cognizable offence or offence of
any kind is disclosed in the first information report the Court will not
permit an investigation to go on.
13.4. The power of quashing should be exercised sparingly with
circumspection, in the “rarest of rare cases”. (The rarest of rare cases
standard in its application for quashing under Section 482 CrPC is not
to be confused with the norm which has been formulated in the
context of the death penalty, as explained previously by this Court.)
13.5. While examining an FIR/complaint, quashing of which is
sought, the Court cannot embark upon an enquiry as to the reliability
or genuineness or otherwise of the allegations made in the
FIR/complaint.
13.6. Criminal proceedings ought not to be scuttled at the initial stage.
13.7. Quashing of a complaint/FIR should be an exception and a rarity
than an ordinary rule.
13.8. Ordinarily, the courts are barred from usurping the jurisdiction
of the police, since the two organs of the State operate in two specific
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9recognised to secure the ends of justice or prevent the above of the
process by Section 482 CrPC.
13.9. The functions of the judiciary and the police are complementary,
not overlapping.
13.10. Save in exceptional cases where non-interference would result
in miscarriage of justice, the Court and the judicial process should not
interfere at the stage of investigation of offences.
13.11. Extraordinary and inherent powers of the Court do not confer
an arbitrary jurisdiction on the Court to act according to its whims or
caprice.
13.12. The first information report is not an encyclopaedia which must
disclose all facts and details relating to the offence reported.
Therefore, when the investigation by the police is in progress, the
court should not go into the merits of the allegations in the FIR. Police
must be permitted to complete the investigation. It would be
premature to pronounce the conclusion based on hazy facts that the
complaint/FIR does not deserve to be investigated or that it amounts
to abuse of process of law. During or after investigation, if the
investigating officer finds that there is no substance in the application
made by the complainant, the investigating officer may file an
appropriate report/summary before the learned Magistrate which may
be considered by the learned Magistrate in accordance with the known
procedure.
13.13. The power under Section 482 CrPC is very wide, but
conferment of wide power requires the Court to be cautious. It casts an
onerous and more diligent duty on the Court.
13.14. However, at the same time, the Court, if it thinks fit, regard
being had to the parameters of quashing and the self-restraint imposed
by law, more particularly the parameters laid down by this Court in
R.P. Kapur and BhajanLal, has the jurisdiction to quash the
FIR/complaint.
13.15. When a prayer for quashing the FIR is made by the alleged
accused, the Court when it exercises the power under Section 482
CrPC, only has to consider whether or not the allegations in the FIR
disclose the commission of a cognizable offence and is not required to
consider on merits whether the allegations make out a cognizable
offence or not and the court has to permit the investigating
agency/police to investigate the allegations in the FIR.
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21. So far as mala fides are concerned, the Supreme Court in the case of
Renu Kumari Vs. Sanjay Sharma reported in (2008) 12 SCC 346 has held as
under :
9. “8. Exercise of power under Section 482 CrPC in a case of this
nature is the exception and not the rule. The section does not confer
any new powers on the High Court. It only saves the inherent power
which the Court possessed before the enactment of CrPC. It envisages
three circumstances under which the inherent jurisdiction may be
exercised, namely, (i) to give effect to an order under CrPC, (ii) to
prevent abuse of the process of court, and (iii) to otherwise secure the
ends of justice. It is neither possible nor desirable to lay down any
inflexible rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with procedure can
provide for all cases that may possibly arise. The courts, therefore,
have inherent powers apart from express provisions of law which are
necessary for proper discharge of functions and duties imposed upon
them by law. That is the doctrine which finds expression in the section
which merely recognises and preserves inherent powers of the High
Courts. All courts, whether civil or criminal possess, in the absence of
any express provision, as inherent in their constitution, all such
powers as are necessary to do the right and to undo a wrong in the
course of administration of justice on the principle of
quandolexaliquidalicuiconcedit, concederevidetur et id sine quo res
ipsaeesse non potest (when the law gives a person anything, it gives
him that without which it cannot exist). While exercising the powers
under the section, the court does not function as a court of appeal or
revision. Inherent jurisdiction under the section, though wide, has to
be exercised sparingly, carefully and with caution and only when such
exercise is justified by the tests specifically laid down in the section
itself. It is to be exercised ex debitojustitiae to do real and substantial
justice for the administration of which alone the courts exist.
Authority of the court exists for advancement of justice and if any
attempt is made to abuse that authority so as to produce injustice, the
court has the power to prevent abuse. It would be an abuse of process
of the court to allow any action which would result in injustice and
prevent promotion of justice. In exercise of the powers the court
would be justified to quash any proceeding if it finds that
initiation/continuance of it amounts to abuse of the process of court or
quashing of these proceedings would otherwise serve the ends of
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justice. When no offence is disclosed by the report, the court may
examine the question of fact. When a report is sought to be quashed, it
is permissible to look into the materials to assess what the report has
alleged and whether any offence is made out even if the allegations
are accepted in toto.
9. In R.P. Kapur v. State of Punjab this Court summarised some
categories of cases where inherent power can and should be exercised
to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the
institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint
taken at their face value and accepted in their entirety do not constitute
the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal
evidence adduced or the evidence adduced clearly or manifestly fails
to prove the charge. (AIR p. 869)
10. In dealing with the last category, it is important to bear in mind the
distinction between a case where there is no legal evidence or where
there is evidence which is clearly inconsistent with the accusations
made, and a case where there is legal evidence which, on appreciation,
may or may not support the accusations. When exercising jurisdiction
under Section 482 CrPC, the High Court would not ordinarily embark
upon an enquiry whether the evidence in question is reliable or not or
whether on a reasonable appreciation of it accusation would not be
sustained. That is the function of the trial Judge. Judicial process
should not be an instrument of oppression, or, needless harassment.
The court should be circumspect and judicious in exercising discretion
and should take all relevant facts and circumstances into consideration
before issuing process, lest it would be an instrument in the hands of a
private complainant to unleash vendetta to harass any person
needlessly. At the same time the section is not an instrument handed
over to an accused to short-circuit a prosecution and bring about its
sudden death. The scope of exercise of power under Section 482 CrPC
and the categories of cases where the High Court may exercise its
power under it relating to cognizable offences to prevent abuse of
process of any court or otherwise to secure the ends of justice were set
out in some detail by this Court in State of Haryana v. BhajanLal. A
note of caution was, however, added that the power should be
exercised sparingly and that too in the rarest of rare cases. The
illustrative categories indicated by this Court are as follows : (SCC pp.
378-79, para 102)
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(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
156(1) of the Code except under an order of a Magistrate within the
purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same do not
disclose the commission of any offence and make out a case against
the accused.
(4) Where the allegations in the FIR do not constitute a cognizable
offence but constitute only a non-cognizable offence, no investigation
is permitted by a police officer without an order of a Magistrate as
contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd
and inherently improbable on the basis of which no prudent person
can ever reach a just conclusion that there is sufficient ground for
proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions of the Code or the Act concerned (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 Act concerned, 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.’
11. As noted above, the powers possessed by the High Court under
Section 482 CrPC are very wide and the very plenitude of the power
requires great caution in its exercise. The court must be careful to see
that its decision, in exercise of this power, is based on sound
principles. The inherent power should not be exercised to stifle a
legitimate prosecution. The High Court being the highest court of a
State should normally refrain from giving a prima facie decision in a
case where the entire facts are incomplete and hazy, more so when the
evidence has not been collected and produced before the Court and the
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issues involved, whether factual or legal, are of magnitude and cannot
be seen in their true perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard to cases in which the
High Court will exercise its extraordinary jurisdiction of quashing the
proceeding at any stage. [See Janata Dal v. H.S. Chowdhary and
Raghubir Saran (Dr.) v. State of Bihar.] It would not be proper for the
High Court to analyse the case of the complainant in the light of all
probabilities in order to determine whether a conviction would be
sustainable and on such premises arrive at a conclusion that the
proceedings are to be quashed. It would be erroneous to assess the
material before it and conclude that the complaint cannot be
proceeded with. When an information is lodged at the police station
and an offence is registered, then the mala fides of the informant
would be of secondary importance. It is the material collected during
the investigation and evidence led in the court which decides the fate
of the accused person. The allegations of mala fides against the
informant are of no consequence and cannot by themselves be the
basis for quashing the proceedings. [See Dhanalakshmi v. R.
Prasanna Kumar, State of Bihar v. P.P. Sharma, RupanDeol Bajaj v.
Kanwar Pal Singh Gill, State of Kerala v. O.C. Kuttan, State of U.P.
v. O.P. Sharma, Rashmi Kumar v. Mahesh Kumar Bhada,
SatvinderKaur v. State (Govt. of NCT of Delhi) and Rajesh Bajaj v.
State NCT of Delhi.]”
22. Thus, it is clear that where the allegations made in the FIR, makes out a
cognizable offence, then mala fides of the complainant becomes secondary.
23. Considering the totality of the facts and circumstances of the case, this
Court is of the considered opinion that the allegations made against applicant are
prima facie sufficient to prosecute him.
24. Accordingly, the application fails and is hereby dismissed.
(G.S. Ahluwalia)
Judge
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