Sunday, 18 October 2015

Precaution to be taken by magistrate while issuing process in case involving matrimonial offence

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.
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
Dated;MARCH 16, 2015

ADARSH KUMAR GOEL, J.
Citation;2015CriLJ2031, 2015(2)Crimes104(SC), I(2015)DMC764SC,2015(2)BomCR(Cri)453,


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. Bharti1
 , Manoj Mahavir
Prasad Khaitan vs. Ram Gopal Moddar and another2
 and
Geeta Mehrotra and another vs. State of Uttar Pradesh
 and another3
 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.
1 (2009) 10 SCC 184
2 (2010) 10 SCC 673
3 (2012) 10 SCC 741

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:
4 (2012) 8 SCC 460

 “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]; 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, fatherin-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 motherin-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 fatherin-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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