Ramesh Rathor Vs. the State of Madhya Pradesh - Court Judgment

SooperKanoon Citationsooperkanoon.com/1043478
CourtMadhya Pradesh High Court
Decided OnJan-17-2013
AppellantRamesh Rathor
RespondentThe State of Madhya Pradesh
Excerpt:
(1) m.cr.c. no.3521/2012 m.cr.c no.3521/2012 17.01.2013 petitioners by shri manish datt, senior advocate along with shri rahul sharma, advocate. respondent no.1/state by shri akilesh shukla, deputy government advocate. respondent no.2 by shri anil khare, senior advocate along with shri som mishra, advocate. this petition has been preferred by the petitoners/accused persons seeking relief of quashment of criminal proceeding pending under the domestic violence act, 2005 (in short act of 2005) pending in the court of jmfc, bhopal as mj.no.379/2011 against them also.2. according to complaint under section 12 of the act of 2005, on 24/06/2010 marriage between neelesh rathore and the respondent was solemnized in bhopal. husband was working in u.k and was earning about 40,000 pound per year. on 24-25 may, 2010 amount of rs.90,000/- was deposited in the account of husband for preparation of marriage. after marriage ie on 3/07/2010 respondent and husband visited bhopal. respondent informed her mother that she is facing trouble in matrimonial house because dowry was less. on 06/07/2010, husband (2) m.cr.c. no.3521/2012 quarrelled with her and assaulted her and further demanded more money. on paymment of rs.50,000/- fd and rs.25,000/- cash husband took the respondent with him in vida.3. from 18/08/2010 to 09/10/2010 girl remained in india. after visiting uk on tourist visa for sometime with her husband, she was again subjected to demands and to cruelty. on 10/10/2010 petitioner left for uk to live with her husband. on 19/10/2010 on the occassion of birthday of girl, she was beaten by her husband. for that incident, respondent lodged a report in u.k. however, husband was tried and acquitted there on 17.3.2011.4. on 13/12/2010 parents of the respondent rushed to uk and stayed there till 19.12.2010. in that duration also she was subjected to violence. in uk, respondent came to knot that her husband already had a relationship with another lady and is not at all interested in her. on 14/08/2011, husband and their family members started making allegation on character of the girl also. all the dowry articles have been kept in house at nagpur by the husband. on 15/09/2011 matter was reported to police. a case at kolar road police station, bhopal (3) m.cr.c. no.3521/2012 againt the husband and his family members was registered at crime no.431/2011 under sections 498- a, 420, 467, 468 and 406, of i.p.c.5. in aforesaid background, on 22/11/2011 mother of the girl on her behalf preferred aforesaid complaint under sections 12 read with 18,19, 20, and 22 of the act of 2005 in the court of jmfc seeking relief of sharing residence in nagpur and also at scotland and for stridhan, maintenance and permenent compensation etc.6. it is submitted by learned counsel for petitioner that while husband and respondent are residing in uk, and nothing wrong has happend in india, case is not tenable. placing reliance on air 200.scc 232.(kans raj vs. state of punjab & others) and it is prayed that for fault of husband all the menbers cannot be said to be held to be liable for committing cruelty with the girl. placing reliance on air 199.sc 12.(m/s pepsi food ltd & another vs. special judicial magistrate and other) it is prayed that no specific material against particular accused person is mentioned in the complaint. hence criminal case should be quashed against them.7. learned counsel for petitioner furtherp placing reliance on 2007 (4) mplj 19 (ajay kant sharma (4) m.cr.c. no.3521/2012 & another vs. smt. alka sharma) and it is submitted that before passing any order on the application it is obligatory for magistrate to see whether report of protection officer has been received or not.8. placing (2011) 6 scc 47.(ruchi majoo vs. sanjeev majoo), and submitted that complaint allegation against husband and family members if are not specific worth constituted a crime then complaint is liable to be quashed. placing reliance (2009) 10 scc 60.(bhaskar lal sharma & another vs. monica), j.2012911) sc 4.(geeta mehrotra & anr vs. state of u.p), (2010) 7 scc 66.(preeti gupta & another vs. state of jharkhand) and submited that restrain should be maintained. issue on every small and big point and small incidents should not be reflected in the criminal complaints.9. learned counsel for petitioner further placing reliance on (2008) 4 scc 64.vimlaben ajitbhai patel vs. vatslaben ashokbhai patel, submitted that right of shared residence in domestice violance cases is available in self acquired property of husband only.10. per contra, it is submitted by learned counsel for the respondent that initiation of proceedings (5) m.cr.c. no.3521/2012 under the domestic violence act report of the protection officer is not a condition precedent. if urgent remedy is needed then nothing prevents the court to pass necessary order in the matter. in such background only, court below has directed the petitioner to not to alienate their immovable property and further directed them to not to leave the country.11. in the present case this complaint under the domestic violence act has been preferred by the mother of the petitioner because girl was not available in india as she was living in uk. according to the provision of section 12 of the act of 2005 there appears no bar if incident of domestic violence have been brought in the notice of the court by a third person. for assessing the truth of the complaint, presence of the girl may be required by the court, but for initiation of complaint it is not at all required 12. learned counsel for the respondent, placing reliance on (2012) 3 scc 13.(lee kun hee, president sansung corporation, south korea & ors vs. state of uttar pradesh and others) submitted that specific act of the each member of the matrimonial family shall be brought on record at the time of evidence. on the ground of vegueness of allegations only complaint cannot be quashed. (6) m.cr.c. no.3521/2012 further placing reliance 2007 (4) mplj 193 ajay kant sharma vs. smt. alka sharma submitted that report of the protection officer is not required for initiation of proceeding.13. on careful perusal of complaint annexure a/3 which is running in 11 pages in 33 paragraphs it reveals that most of the allegations are made against the husband only. in respect of the father of the husband i.e petitioner no.1, in para 4 it was disclosed that he expressed annoyance on receiving less amount in dowry. in para 7 it is disclosed that he demanded rs.10 lacs for withdrawal of the cases and to keep respondent with them. in para 9 it is disclosed that he levelled false allegations on the character of girl in bhopal. in para 16 it is disclosed that he continued to show his bad behaviour with the family members of the respondent. in para 18 fact of pendency of criminal case against him is also disclosed in this respect. meaning thereby in complaint, sufficient material has been disclosed against the petitioner no.1.14. but in so far as younger brother of the petitioner i.e petitioner no.2 is concerned, in entire complaint, his reference has come only in para 8 and 19. in paragraph 8 it is disclosed that along with his father (7) m.cr.c. no.3521/2012 he came in bhopal to collect amount of rs.10 lacs. in para 19 it is disclosed that he prepared some false e- mails and documents. these two facts if admitted and as it is found proved even then no action is possible against the petitioner no.2 under the act of 2005 in present complaint.15. on careful perusal of aforesaid facts and law placed before this court, it becomes proceedings cannot be quashed mearly on the ground that proceeding under the act of 2005 was initiated on the basis of the complaint of the mother of girl on her behalf and protection order was passed prior to receiving of report of protection officer.16. but it is also true that as against petitioner nikhil rathore complaint does not disclose any such fact which can be held him liable under provision of act of 2005.17. most of the allegations are against the husband and some of against the father of the husband. whether thse are true or not is a matter of trial to be decided at the time of disposal of application. but as against petitioner nikhil rathore on the face of the proceedings, no sufficient allegations are made, hence continuation of such proceedings against him would be nothing but the abuse of process of law. (8) m.cr.c. no.3521/2012 18. resultantly, this petition deserve to be allowed in part. proceedings under the domestic violence act is quashed against the petitioner nikhil rathore (brother of the husband). proceeding shall continue against husband and his father, as usual. petition is allowed in part as indicated above. (tarun kumar kaushal) judge dcs/-
Judgment:

(1) M.Cr.C. No.3521/2012 M.Cr.C No.3521/2012 17.01.2013 Petitioners by Shri Manish Datt, Senior Advocate along with Shri Rahul Sharma, Advocate. Respondent no.1/State by Shri Akilesh Shukla, Deputy Government Advocate. Respondent no.2 by Shri Anil Khare, Senior Advocate along with Shri Som Mishra, Advocate. This petition has been preferred by the petitoners/accused persons seeking relief of quashment of criminal proceeding pending under the Domestic Violence Act, 2005 (in short Act of 2005) pending in the court of JMFC, Bhopal as MJ.No.379/2011 against them also.

2. According to complaint under section 12 of the Act of 2005, on 24/06/2010 marriage between Neelesh Rathore and the respondent was solemnized in Bhopal. Husband was working in U.K and was earning about 40,000 pound per year. On 24-25 May, 2010 amount of Rs.90,000/- was deposited in the account of husband for preparation of marriage. After marriage ie on 3/07/2010 respondent and husband visited Bhopal. Respondent informed her mother that she is facing trouble in matrimonial house because dowry was less. On 06/07/2010, husband (2) M.Cr.C. No.3521/2012 quarrelled with her and assaulted her and further demanded more money. On paymment of Rs.50,000/- FD and Rs.25,000/- cash Husband took the respondent with him in Vida.

3. From 18/08/2010 to 09/10/2010 girl remained in India. After visiting UK on tourist visa for sometime with her husband, she was again subjected to demands and to cruelty. On 10/10/2010 petitioner left for UK to live with her husband. On 19/10/2010 on the occassion of birthday of girl, she was beaten by her husband. For that incident, respondent lodged a report in U.K. However, husband was tried and acquitted there on 17.3.2011.

4. On 13/12/2010 parents of the respondent rushed to UK and stayed there till 19.12.2010. In that duration also she was subjected to violence. In UK, respondent came to knot that her husband already had a relationship with another lady and is not at all interested in her. On 14/08/2011, husband and their family members started making allegation on character of the girl also. All the dowry articles have been kept in house at Nagpur by the husband. On 15/09/2011 matter was reported to Police. A case at Kolar Road Police Station, Bhopal (3) M.Cr.C. No.3521/2012 againt the husband and his family members was registered at crime no.431/2011 under Sections 498- A, 420, 467, 468 and 406, of I.P.C.

5. In aforesaid background, on 22/11/2011 mother of the girl on her behalf preferred aforesaid complaint under sections 12 read with 18,19, 20, and 22 of the Act of 2005 in the Court of JMFC seeking relief of sharing residence in Nagpur and also at Scotland and for stridhan, maintenance and permenent compensation etc.

6. It is submitted by learned counsel for petitioner that while husband and respondent are residing in UK, and nothing wrong has happend in India, case is not tenable. Placing reliance on AIR 200.SCC 232.(Kans Raj Vs. State of Punjab & others) and it is prayed that for fault of husband all the menbers cannot be said to be held to be liable for committing cruelty with the girl. Placing reliance on AIR 199.SC 12.(M/s Pepsi Food Ltd & another Vs. Special Judicial Magistrate and other) it is prayed that no specific material against particular accused person is mentioned in the complaint. Hence criminal case should be quashed against them.

7. Learned counsel for petitioner furtherp placing reliance on 2007 (4) MPLJ 19 (Ajay Kant Sharma (4) M.Cr.C. No.3521/2012 & another Vs. Smt. Alka Sharma) and it is submitted that before passing any order on the application it is obligatory for Magistrate to see whether report of Protection Officer has been received or not.

8. Placing (2011) 6 SCC 47.(Ruchi Majoo Vs. Sanjeev Majoo), and submitted that complaint allegation against husband and family members if are not specific worth constituted a crime then complaint is liable to be quashed. Placing reliance (2009) 10 SCC 60.(Bhaskar Lal Sharma & another vs. Monica), J.2012

911) SC 4.(Geeta Mehrotra & anr Vs. State of U.P), (2010) 7 SCC 66.(Preeti Gupta & another Vs. State of Jharkhand) and submited that restrain should be maintained. Issue on every small and big point and small incidents should not be reflected in the criminal complaints.

9. Learned counsel for petitioner further placing reliance on (2008) 4 SCC 64.Vimlaben Ajitbhai Patel Vs. Vatslaben Ashokbhai Patel, submitted that right of shared residence in Domestice Violance cases is available in self acquired property of husband only.

10. Per Contra, it is submitted by learned counsel for the respondent that initiation of proceedings (5) M.Cr.C. No.3521/2012 under the Domestic Violence Act report of the Protection Officer is not a condition precedent. If urgent remedy is needed then nothing prevents the Court to pass necessary order in the matter. In such background only, court below has directed the petitioner to not to alienate their immovable property and further directed them to not to leave the country.

11. In the present case this complaint under the Domestic Violence Act has been preferred by the mother of the petitioner because girl was not available in India as she was living in UK. According to the provision of Section 12 of the Act of 2005 there appears no bar if incident of Domestic Violence have been brought in the notice of the Court by a third person. For assessing the truth of the complaint, presence of the girl may be required by the Court, but for initiation of complaint it is not at all required 12. Learned counsel for the respondent, Placing reliance on (2012) 3 SCC 13.(Lee Kun Hee, President Sansung Corporation, South Korea & ors Vs. State of Uttar Pradesh and others) submitted that specific act of the each member of the matrimonial family shall be brought on record at the time of evidence. On the ground of vegueness of allegations only complaint cannot be quashed. (6) M.Cr.C. No.3521/2012 Further placing reliance 2007 (4) MPLJ 193 Ajay Kant Sharma Vs. Smt. Alka Sharma submitted that report of the Protection officer is not required for initiation of proceeding.

13. On careful perusal of complaint Annexure A/3 which is running in 11 pages in 33 paragraphs it reveals that most of the allegations are made against the husband only. In respect of the father of the husband i.e petitioner no.1, in para 4 it was disclosed that he expressed annoyance on receiving less amount in dowry. In para 7 it is disclosed that he demanded Rs.10 lacs for withdrawal of the cases and to keep respondent with them. In para 9 it is disclosed that he levelled false allegations on the character of girl in Bhopal. In para 16 it is disclosed that he continued to show his bad behaviour with the family members of the respondent. In para 18 fact of pendency of criminal case against him is also disclosed in this respect. Meaning thereby in complaint, sufficient material has been disclosed against the petitioner no.1.

14. But in so far as younger brother of the petitioner i.e petitioner no.2 is concerned, in entire complaint, his reference has come only in para 8 and 19. In paragraph 8 it is disclosed that along with his father (7) M.Cr.C. No.3521/2012 he came in Bhopal to collect amount of Rs.10 lacs. In para 19 it is disclosed that he prepared some false e- mails and documents. These two facts if admitted and as it is found proved even then no action is possible against the petitioner no.2 under the Act of 2005 in present complaint.

15. On careful perusal of aforesaid facts and law placed before this Court, it becomes proceedings cannot be quashed mearly on the ground that proceeding under the Act of 2005 was initiated on the basis of the complaint of the mother of girl on her behalf and protection order was passed prior to receiving of report of protection officer.

16. But it is also true that as against petitioner Nikhil Rathore complaint does not disclose any such fact which can be held him liable under provision of Act of 2005.

17. Most of the allegations are against the husband and some of against the father of the husband. Whether thse are true or not is a matter of trial to be decided at the time of disposal of application. But as against petitioner Nikhil Rathore on the face of the proceedings, no sufficient allegations are made, hence continuation of such proceedings against him would be nothing but the abuse of process of law. (8) M.Cr.C. No.3521/2012 18. Resultantly, this petition deserve to be allowed in part. Proceedings under the Domestic Violence Act is quashed against the petitioner Nikhil Rathore (brother of the husband). Proceeding shall continue against husband and his father, as usual. Petition is allowed in part as indicated above. (Tarun Kumar Kaushal) JUDGE dcs/-