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Wednesday, March 18, 2015

In Neelu Chopra, parents of the husband were too old. The husband Rajesh had died and main allegations were only against him. This Court found no cogent material against other accused. In Manoj Mahavir, the appellant before this Court was the brother of the daughter-in- law of the accused who lodged the case against the accused for theft of jewellery during pendency of earlier 498A case. This Court found the said case to be absurd. In Geeta Mehrotra, case was against brother and sister of the husband. Divorce had taken place between the parties. The said cases neither purport to nor can be read as laying down any inflexible rule beyond the principles of quashing which have been mentioned above and applied to the facts of the cases therein which are distinguishable. In the present case the factual matrix is different from the said cases. Applying the settled principles, it cannot be held that there is no triable case against the accused. 17. Accordingly, we allow this appeal and set aside the impugned order passed by the High Court.

REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.456 OF 2015
                 (ARISING OUT OF SLP (CRL.) NO.6437 OF 2013


TARAMANI PARAKH                                ...APPELLANT

VERSUS

STATE OF M.P. & ORS.                                       ...RESPONDENTS

                               J U D G M E N T

ADARSH KUMAR GOEL, J.

1.    Leave granted.

2.    This appeal has been preferred against judgment and order  dated  20th
February, 2013 passed by the High Court of Judicature of Madhya  Pradesh  at
Gwalior in Misc. Criminal Case No.9759 of 2012.

3.    The appellant was married to Respondent No.2 on 18th  November,  2009.
She lodged complaint dated 19th May, 2011 alleging that Respondent No.2  and
his parents harassed her with demand of dowry amounting  to  cruelty.   This
led to registration of FIR being Crime No.15811 under Sections  498-A/34  of
IPC at Police Station Hujrat Kotwali, Gwalior.  After investigation,  charge
sheet was filed against Respondent No.2  and  his  parents  which  has  been
registered as Criminal Case No.163/12 before the Judicial  Magistrate  First
Class, Gwalior.
4.    The respondents accused moved the High Court under Section 482 of  the
Code of Criminal Procedure for quashing the proceedings by  submitting  that
the behaviour of the appellant was not cordial and in spite  of  efforts  of
the accused, she failed to improve her behaviour and  her  father  took  her
with him on 22nd May, 2010.  The husband filed a petition  under  Section  9
of the Hindu Marriage Act.  In mediation proceedings, the  appellant  stated
that  she  did  not  want  to  live  with  her  husband.     Thereupon,  the
respondent filed a divorce petition on 26th April, 2011 which  was  pending.
 It was thereafter that the appellant filed  the  impugned  complaint  dated
19th May, 2011 which contained false allegations.

5.    The petition was contested by the appellant.

6.    The High Court relying upon judgments of this Court  in  Neelu  Chopra
and another vs. Bharti[1],  Manoj  Mahavir  Prasad  Khaitan  vs.  Ram  Gopal
Moddar and another[2] and Geeta Mehrotra and  another  vs.  State  of  Uttar
Pradesh and another[3] held that since there were no  specific  allegations,
the criminal proceedings against  the  accused  amounted  to  abuse  of  the
court's  process.   Accordingly,  the  High  Court  quashed   the   criminal
proceedings.

7.    Aggrieved by the above, the appellant has approached this Court.
8.    We have heard learned counsel for the parties and perused the record.
9.    Learned counsel for the appellant submitted that it  was  the  conduct
of the accused on account of their not being satisfied with the dowry  given
and the inability of the appellant's family to meet such  demands  that  the
appellant was forced to leave the matrimonial home.  The appellant was  keen
to continue in the matrimonial home and to  return  home  even  after  being
forced to leave but the accused refused to take her back.  The  husband  has
filed a divorce petition which is without any legal  basis.   The  appellant
lodged the complaint after filing of the divorce  petition  for  the  reason
that the appellant had earlier remained  hopeful  that  the  matter  may  be
amicably settled. It was only after she lost  all  hopes  that  she  had  to
initiate criminal proceedings in respect of cruelty meted out to  her.   The
High Court in proceedings under Section 482 could not quash the  proceedings
merely with the observation that the allegations were  omnibus.   The  power
of quashing could be exercised sparingly and only if no case  was  made  out
from the allegations taken as correct or where the complaint was  absurd  or
legally not maintainable.   In  the  FIR,  the  appellant  has  specifically
mentioned that the accused harassed  her  for  dowry  by  taunting  her  and
beating her.  It  was  already  mentioned  that  she  was  deprived  of  her
belongings by the accused.
10.   Learned counsel for the accused  respondents  supported  the  impugned
order passed by the High Court.
11.   Law relating to quashing is well  settled.   If  the  allegations  are
absurd or do not made out any case or if it can be held that there is  abuse
of process of law, the proceedings can be quashed but if there is a  triable
case the Court does not go into reliability or otherwise of the  version  or
the counter version.  In matrimonial cases, the Courts have to  be  cautious
when omnibus allegations are made particularly  against  relatives  who  are
not generally concerned with the affairs of the couple.   We  may  refer  to
the decisions of this Court dealing with the issue.   Referring  to  earlier
decisions, in Amit Kapoor vs. Ramesh Chander and Anr.[4], it was observed:
 "27.1. Though there are no limits of the powers of the Court under  Section
482 of the Code but the more the power, the more due care and caution is  to
be exercised in invoking  these  powers.  The  power  of  quashing  criminal
proceedings, particularly, the charge framed in terms of Section 228 of  the
Code should be exercised very sparingly and  with  circumspection  and  that
too in the rarest of rare cases.

27.2. The Court should apply the  test  as  to  whether  the  uncontroverted
allegations as made from the record of the case and the documents  submitted
therewith prima facie establish the offence or not. If the  allegations  are
so patently absurd and inherently improbable  that  no  prudent  person  can
ever reach such a conclusion and where the basic ingredients of  a  criminal
offence are not satisfied then the Court may interfere.

27.3. The High Court should not unduly interfere. No meticulous  examination
of the evidence is needed for considering whether  the  case  would  end  in
conviction or not at the stage of framing of charge or quashing of charge.


27.4. Where the exercise of such power is absolutely  essential  to  prevent
patent miscarriage of justice and  for  correcting  some  grave  error  that
might be committed by the subordinate courts even in such  cases,  the  High
Court should be loath to  interfere,  at  the  threshold,  to  throttle  the
prosecution in exercise of its inherent powers.

27.5. Where there is an express legal bar enacted in any of  the  provisions
of the Code or  any  specific  law  in  force  to  the  very  initiation  or
institution and continuance of such criminal  proceedings,  such  a  bar  is
intended to provide specific protection to an accused.


27.6. The Court has a duty to balance the freedom of a person and the  right
of  the  complainant  or  prosecution  to  investigate  and  prosecute   the
offender.

27.7. The process of the court  cannot  be  permitted  to  be  used  for  an
oblique or ultimate/ulterior purpose.


27.8. Where the allegations made and as they appeared from  the  record  and
documents annexed therewith to predominantly  give  rise  and  constitute  a
"civil wrong" with no "element of criminality"  and  does  not  satisfy  the
basic ingredients of a criminal offence,  the  court  may  be  justified  in
quashing the charge. Even in such cases, the court  would  not  embark  upon
the critical analysis of the evidence.

27.9. Another very significant caution that the courts have  to  observe  is
that it cannot examine the  facts,  evidence  and  materials  on  record  to
determine whether there is sufficient material on the  basis  of  which  the
case would end in a conviction; the court is concerned  primarily  with  the
allegations taken as a whole whether they will constitute  an  offence  and,
if so, is it an abuse of the process of court leading to injustice.


27.10. It is neither necessary nor is the court called upon to hold a  full-
fledged enquiry or to appreciate evidence  collected  by  the  investigating
agencies to find out whether it is a case of acquittal or conviction.

27.11. Where allegations give rise to a civil claim and also  amount  to  an
offence, merely because a civil claim is maintainable, does not mean that  a
criminal complaint cannot be maintained.


27.12. In exercise of  its  jurisdiction  under  Section  228  and/or  under
Section 482, the Court cannot take  into  consideration  external  materials
given by an  accused  for  reaching  the  conclusion  that  no  offence  was
disclosed or that there was possibility of his acquittal. The Court  has  to
consider the record and documents annexed therewith by the prosecution.

27.13. Quashing of a charge is  an  exception  to  the  rule  of  continuous
prosecution. Where the offence is even broadly satisfied, the  Court  should
be more inclined to permit  continuation  of  prosecution  rather  than  its
quashing at that initial stage. The Court is not  expected  to  marshal  the
records  with  a  view  to  decide  admissibility  and  reliability  of  the
documents or records but is an opinion formed prima facie.


27.14. Where the charge-sheet, report under  Section  173(2)  of  the  Code,
suffers from fundamental legal defects, the Court may  be  well  within  its
jurisdiction to frame a charge.

27.15. Coupled with any or all of the above, where the Court finds  that  it
would amount to abuse of process  of  the  Code  or  that  the  interest  of
justice favours, otherwise it may quash the  charge.  The  power  is  to  be
exercised ex debito justitiae i.e. to do real and  substantial  justice  for
administration of which alone, the courts exist.


 (Ref. State of W.B. v. Swapan Kumar Guha [(1982)  1  SCC  561  :  1982  SCC
(Cri) 283 : AIR 1982 SC 949]; Madhavrao  Jiwajirao  Scindia  v.  Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC (Cri) 234];  Janata  Dal  v.
H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 :  AIR  1993  SC  892];
Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995)  6  SCC  194  :  1995  SCC
(Cri) 1059]; G. Sagar Suri v. State of U.P. [(2000) 2 SCC  636  :  2000  SCC
(Cri) 513];  Ajay Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003  SCC  (Cri)
703]; Pepsi Foods Ltd. v. Special Judicial Magistrate [(1998) 5  SCC  749  :
1998 SCC (Cri) 1400 : AIR 1998  SC  128];  State  of  U.P.  v.  O.P.  Sharma
[(1996) 7 SCC 705 : 1996 SCC (Cri) 497]; [pic]Ganesh  Narayan  Hegde  v.  S.
Bangarappa [(1995) 4 SCC 41 : 1995  SCC  (Cri)  634];  Zandu  Pharmaceutical
Works Ltd. v. Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005 SCC (Cri)  283];
Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. [(2000) 3  SCC  269
: 2000 SCC (Cri) 615 : AIR 2000 SC 1869]; Shakson  Belthissor  v.  State  of
Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri) 1412]; V.V.S. Rama Sharma  v.
State of U.P. [(2009) 7 SCC 234 : (2009) 3 SCC  (Cri)  356];  Chunduru  Siva
Ram Krishna v. Peddi Ravindra Babu [(2009) 11 SCC 203 : (2009) 3  SCC  (Cri)
1297]; Sheonandan Paswan v. State of Bihar [(1987) 1  SCC  288  :  1987  SCC
(Cri) 82]; State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 :  1992  SCC
(Cri) 192 : AIR 1991 SC 1260]; Lalmuni Devi v. State of Bihar [(2001) 2  SCC
17 : 2001 SCC (Cri) 275]; M. Krishnan v. Vijay Singh [(2001)  8  SCC  645  :
2002 SCC (Cri) 19]; Savita v. State  of  Rajasthan  [(2005)  12  SCC  338  :
(2006) 1 SCC (Cri) 571] and S.M. Datta v. State of  Gujarat  [(2001)  7  SCC
659 : 2001 SCC (Cri) 1361 : 2001 SCC (L&S) 1201]).

27.16.  These  are  the  principles  which   individually   and   preferably
cumulatively (one or more)  be  taken  into  consideration  as  precepts  to
exercise of extraordinary and wide plenitude and jurisdiction under  Section
482 of the Code by the High Court.  Where  the  factual  foundation  for  an
offence has been laid down, the courts should be reluctant  and  should  not
hasten to quash the  proceedings  even  on  the  premise  that  one  or  two
ingredients have not been stated or do not appear to be satisfied  if  there
is substantial compliance with the requirements of the offence."


12.   In Kailash Chandra Agrawal & Anr. vs. State of U.P. & Ors.   (Criminal
Appeal No.2055 of 2014 decided on 6.9.2014), it was observed:
"9.   We have gone through the FIR and the criminal complaint.  In the  FIR,
the appellants have not been named and in the criminal complaint  they  have
been named without attributing any specific role to them.  The  relationship
of the appellants with the husband of the complainant is distant.   In  Kans
Raj vs. State of Punjab & Ors. [(2000) 5 SCC 207], it was observed:-


"5.........A tendency has, however, developed for roping  in  all  relations
of the in-laws of the deceased wives in the matters of dowry  deaths  which,
if not discouraged, is likely to affect the case  of  the  prosecution  even
against the real culprits. In their over  enthusiasm  and  anxiety  to  seek
conviction for maximum people, the parents of the deceased have  been  found
to be making efforts for involving other relations which  ultimately  weaken
the case of the prosecution even against the  real  accused  as  appears  to
have happened in the instant case."

The Court has, thus, to be careful in summoning  distant  relatives  without
there being specific material.  Only the husband, his  parents  or  at  best
close family members may be expected to demand dowry or to harass  the  wife
but not distant relations, unless there  is  tangible  material  to  support
allegations made against such distant relations.   Mere  naming  of  distant
relations is not enough to summon them in absence of any specific  role  and
material to support such role.

10.   The parameters for quashing proceedings in a  criminal  complaint  are
well known.  If there are triable issues, the Court is not  expected  to  go
into the veracity of the rival versions but where on the  face  of  it,  the
criminal proceedings are abuse of  Court's  process,  quashing  jurisdiction
can be exercised.  Reference may be made to  K.  Ramakrsihna  and  Ors.  vs.
State of Bihar and Anr. [(2000) 8 SCC 547], Pepsi Foods Ltd.  and  Anr.  vs.
Special Judicial Magistrate and Ors. [(1998) 5 SCC 749],  State  of  Haryana
and Ors. vs.  Ch.  Bhajan  Lal  and  Ors.  [(1992)  Suppl  1  SCC  335]  and
Asmathunnisa vs. State of A.P. represented by the  Public  Prosecutor,  High
Court of A.P., Hyderabad and Anr. [(2011) 11 SCC 259]."

13.   In the present case, the complaint is as follows:

"Sir, it is submitted that I was married on 18.11.09 with  Sidharath  Parakh
s/o Manak Chand Parak, r/o Sarafa Bazar in front of  Radha  Krishna  Market,
Gwalior according to the Hindu  rites  and  customs.   In  the  marriage  my
father had given gold and silver ornaments, cash amount and household  goods
according  to  his  capacity.   After  the  marriage  when  I  went  to   my
matrimonial home, I was treated nicely by the members of the  family.   When
on the second occasion I went to my matrimonial, my  husband,  father-in-law
and mother-in-law started harassing me for brining  the  dowry  and  started
saying that  I  should  bring  from  my  father  25-30  tolas  of  gold  and
Rs.2,00,000/- in cash and  only  then  they  would  keep  me  in  the  house
otherwise not.  On account of this my husband also used to beat  me  and  my
father-in-law and my mother-in-law used to torture me by giving the  taunts.
 In this connection I used to tell my  father  Kundanmal  Oswal,  my  mother
Smt. Prem Lata Oswal, uncle Ashok Rai Sharma and uncle  Ved  Prakash  Mishra
from time to time.  On 2.4.2010 the members of the family of my  matrimonial
home forcibly sent me to the house of my parents in Ganj Basoda  along  with
my brother Deepak.  They snatched my clothes and  ornaments  and  kept  with
them.  Since then till today  my  husband  has  been  harassing  me  on  the
telephone and has not come to take me back.  Being compelled,  I  have  been
moving this application before you.  Sir, it is prayed that action be  taken
against husband Sidharath Parakh, my father-in-law Manak  Chand  Parakh  and
my  mother-in-law  Smt.  Indira  Parakh  for  torturing  me  on  account  of
demanding the dowry."

14.   From reading of the complaint, it cannot be  held  that  even  if  the
allegations are taken as proved no case is made out.
15.   There are allegations against Respondent  No.2  and  his  parents  for
harassing the complainant which forced her to leave  the  matrimonial  home.
Even now she continues to be separated from  the  matrimonial  home  as  she
apprehends lack of  security  and  safety  and  proper  environment  in  the
matrimonial home.  The  question  whether  the  appellant  has  infact  been
harassed and treated with cruelty is a matter of trial but  at  this  stage,
it cannot be said that no case is made out.  Thus, quashing  of  proceedings
before the trial is not permissible.
16.   The decisions referred to in  the  judgment  of  the  High  Court  are
distinguishable.  In Neelu Chopra, parents of  the  husband  were  too  old.
The husband Rajesh had died and main  allegations  were  only  against  him.
This Court found  no  cogent  material  against  other  accused.   In  Manoj
Mahavir, the appellant before this Court was the brother of the daughter-in-
law of the accused who lodged the case against  the  accused  for  theft  of
jewellery during pendency of earlier 498A case.  This Court found  the  said
case to be absurd.  In Geeta Mehrotra, case was against brother  and  sister
of the husband.  Divorce had taken place  between  the  parties.   The  said
cases neither purport to nor can be read as laying down any inflexible  rule
beyond the principles of  quashing  which  have  been  mentioned  above  and
applied to the facts of the cases therein  which  are  distinguishable.   In
the present case the factual  matrix  is  different  from  the  said  cases.
Applying the settled principles, it cannot be held that there is no  triable
case against the accused.
17.   Accordingly, we allow this appeal and set  aside  the  impugned  order
passed by the High Court.

                                ..........................................J.
                                  [T.S. THAKUR]

                               ...........................................J.
                                                       [ ADARSH KUMAR GOEL ]
NEW DELHI
MARCH 16, 2015
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[1]    (2009) 10 SCC 184
[2]    (2010) 10 SCC 673
[3]    (2012) 10 SCC 741
[4]    (2012) 8 SCC 460

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