Santosh Pandey Vs. the State of Madhya Pradesh - Court Judgment

1 M.Cr.C.No.9627/2012 M.Cr.C No.9627/2012 19.03.2013 Petitioner by Dr.

Anuvad Shrivastava, Advocate.

Shri Punit Shroti, Panel Lawyer for respondent/ State.

Respondent no.2 by Shri Anubhav Jain, Advocate.

Present petition has been preferred under section 482 Cr.P.C for quashment of criminal case No.1683/2010 pending in the court of JMFC, Chhatarpur under section 498A IPC read with section 3/4 Dowry Prohibition Act.

Earlier such petition M.Cr.C No.3349/2011 was dismissed for want of prosecution and restoration was declined with a liberty to file new petition.

According to petition, on 09/05/2005 petitioner married to respondent no.2 and started living together in Bhopal.

Right from the beginning, respondent no.2 used to quarrel with the petitioner on some or other issues.

On 20/02/2007 while respondent no.2/wife left the house of the petitioner and started living with her parents in Chhatarpur, petitioner made a report (Annexure P-1) to Mahila Thana Bhopal.

On 25/03/2008 petitioner filed a petition for Restitution of Conjugal Rights in Family Court Bhopal.

Ex parte order was passed for restitution of conjugal rights in favour of the petitioner.

At a subsequent stage, respondent no.2 preferred an application under Order 9 Rule 13 C.P.C for quashment 2 M.Cr.C.No.9627/2012 of order of restitution of conjugal rights.

Aforesaid application was also found to be groundless and was dismissed.

On 24/09/2009, respondent no.2 preferred private criminal complaint under section 498A IPC against the petitioner and his family membeRs.On 22/10/2009 aforesaid complaint was dismissed for want of appearance of respondent no.2 and her counsel in the Court of JMFC, Chhatarpur.

On 8/07/2010, petitioner preferred petition for divorce under section 13 of Hindu Marriage Act against the respondent no.2 in the Family Court Bhopal.

In aforesaid back drop on 9/07/2010, Respondent no.2 lodged police report against the petitioner under section 498A IPC read with section 3/4 Dowry Prohibition Act.

About 2 months prior to the aforesaid FIR i.e on 20/05/2010, petitioner lodged FIR at police station Kotwali, Chhatarpur (Annexure P-11) against one Rajendra Gupta for committing theft of mobile set.

Alleged theft was committed on 24/02/2008, but report was made after a period of two yeaRs.Prior to FIR i.e.on 30/03/2010 respondent no.2 came forward with affidavit (Annexure P-12) defending Brajendra Gupta stating that aforesaid mobile of petitioner remained with her and she permitted Brajendra Gupta to use it.

In the meantime, respondent no.2 preferred an application under section 125 Cr.P.C also in the court of JMFC Chhatarpur for maintenance amount against the 3 M.Cr.C.No.9627/2012 petitioner.

On 03/10/2012 Family court Bhopal granted divorce to the petitioner on the ground of desertion and cruelity.

According to respondent no.2, she lodged FIR on 09/07/2010 at Kotwali, Chhatarpur, in addition to constant torture committed by him through out matrimonial life while she was badly beaten by the petitioner.

Order of divorce has been assailed by the respondent no.2 in the High court in FiRs.Appeal.

Learned counsel for the petitioner prayed for quashment of FIR on the ground (1) Earlier criminal private complaint was rejected for want of prosecution, (2) Civil court has granted divorce on the ground of cruelity committed by wife, (3) Wife supported one Brajendra Gupta as against the petitioner, indicative of lack of loyality with husband, (4) FIR is a fall out of case of divorce which has been instituted by the petitioner againt the respondent no.2/wife.

Per Contra, learned counsel for the respondent submits that since 2007 respondent no.2 was constantly tortured by petitioner.

She was forced to live separately.

FIR has been lodged by her only after the incident in which petitioner assaulted her.

Decree of divorce has also been challenged by the respondent no.2 in the High Court.

In such a situation, truthfulness of the contents of FIR cannot be decided on the basis of face value of the documents.

Rather it is a matter of trial will be decided by evidence only.

4 M.Cr.C.No.9627/2012 Placing reliance on 2005 AIR SCW 356.(Sushil Kumar Sharma versus Union of India & otheRs.learned counsel for the petitioner submits that where complaint/FIR is not bonafide and if had been filed with a oblique motive then its misuse should be checked.

Further placing reliance on (2010) 10 SCC 67.(Manot Mahavir Prasad Khaitan versus Ram Gopal Poddar and another) submits that to prevent injustice power under section 482 Cr.P.C should be exercised and instant relief should be granted to the petitioner.

Per Contra placing reliance on (2008) 1 SCC 47.(Hamida versus Rashid @ Rasheed and otheRs.and AIR 198.SCC 1 (State of Bihar versus Murad Ali Khan & otheRs.learned counsel for the respondent No.2 submits that quashment of a case at pre-mature stage should be avoided and these powers should be used with great care and caution.

After considering the rival contentions, it emerged that dispute between the husband and wife is going on since last about 4–5 yeaRs.Allegations and counter allegations is the routine feature of this couple.

Civil and criminal cases are being filed by them under legal advice given to them.

Truthfulness of the contents of the FIR cannot be ascertained at its face value.

Decree of divorce is also under challenge in the High Court, In view of the aforesaid, it is not a case worth quashment of criminal proceedings.

So long divorce 5 M.Cr.C.No.9627/2012 petition does not attain finality, litigation will continue.

Nature of allegations and counter allegations are of similar type in all cases whether civil or criminal.

In such a situation, finding of fact regarding truthfulness of the contents of FIR is necessary so that it can be established once for all whether any cruelity has been committed by any of the spouse or not.

It is possible in trial only.

No case for quashment of criminal proceeding is made out.

Petition is dismissed.

(Tarun Kumar Kaushal) Judge tarun