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Judgment
Since both the petitions carry same factual tenor and texture and subject matter is also same therefore, both these criminal revision petitions taken
into consideration simultaneously and are decided by the common order. For convenience sake, facts of Cr.R.No.87/2017 are taken into consideration.
The instant criminal revisions have been preferred by the petitioners/accused against the order dated 10.01.2017 (in Cr.R.No.87/2017) and order
dated 06.02.2017 (in Cr.R.No.447/2017) passed in Case No.208/2016 whereby in sum and substance the respective applications of petitioners under
Section 227/228 of Cr.P.C. for discharge have been rejected.
The brief facts necessary for adjudication are that on 01.05.2014 marriage was solemnized between Pradumn Dubey (son of present petitioners)
i.e. petitioner No.1 in Cr.R.No.447/2017 and respondent No.2 Smt. Richa Bhargawa as per Hindu rites and rituals at Guna. It appears that due to
some domestic incompatibility, respondent No.2/wife started living at her parental home at Kolaras, District Shivpuri (M.P.) since 24.02.2015. The
dispute between the couple could not be resolved, therefore, on alleged grounds of living adulterous life as well as cruelty committed by respondent
No.2, then husband-Pradumn Dubey filed a divorce petition against the respondent No.2/wife on 05.04.2016.
In his petition, he levelled specific allegations about leading adulterous life and prior to marriage, conceiving from some other male and later on
aborted. Husband levelled specific allegation against respondent No.2 of having relationship with one, Ashutosh Pandey. As per allegations, she lived
with Ashutosh Pandey at his village Nohrikala as his wife for sometime and after dispute with him, she came back to her parental home and
thereafter, marriage with Pradumn Dubey (petitioner No.1 of Cr.R.447/2017) solemnized. Later on, this fact came to the knowledge of husband
through call details of her mobile as well as from other source. All details of leading adulterous life by respondent No.-2 have been narrated in divorce
petition. Respondent No.2 contested the case and led her part of evidence.
After considering the rival submissions and evidence, Principal Judge, Family Court Guna vide judgment dated 06.09.2017 allowed the petition under
Section 13 of Hindu Marriage Act filed by the petitioner-Pradumn Dubey and decree of divorce was issued and by way of divorce couple declared
separate.
It is worthwhile to mention the fact that on 05.04.2016 divorce petition was filed and on 05.05.2016 wife caused her appearance in the Court and
immediately thereafter, on 15.05.2016 she lodged FIR under Section 498-A of IPC and Section 3/4 of Dowry Prohibition Act, showing the dates of
alleged offence between 01.05.2014 i.e. date of marriage to
10.2015, the date from which she started living separately. In the said FIR, there is not even a whisper in respect of allegation of committing
attempt to rape and outraging her modesty by her brother-in-law -Rahul Dubey (Petitioner No.2 in Cr.R.447/2017).
On 23.06.2016, she lodged another FIR vide Crime No.327/2016 at Police Station Guna Kotwali for the offence under Sections 376 and 511 of IPC
against all the petitioners for committing the offence of attempt to rape and outraging her modesty. In the said FIR, period of incident shown to be
from 05.06.2014 to 28.02.2015. Perusal of FIR indicates the date of event as
06.2014 at Haridwar and thereafter, one more incident of attempt to rape by her brother-in-law -Rahul Dubey around one year back from the date
of FIR.
Investigation carried out and charge-sheet submitted. Trial Court framed the charges against all the petitioners (except petitioner No.2 in
Cr.R.No.447/2017) in respect of Sections 498-A, 376/109, 354/109 of IPC and brother-in-law -Rahul Dubey (petitioner No.2 of Cr.R.447/2017) was
saddled with Sections 498-A, 376/511 and Section 354 of IPC .
Meanwhile, divorce petition filed by the husband-Pradumn Dubey was allowed vide judgment and decree dated 06.09.2017, in which this fact has
been considered that respondent No.2 lodged a false FIR to the offence of attempt to rape to exert pressure over the petitioners.
Meanwhile on 26.09.2019 during the pendency of present petitions, first FIR lodged against all the petitioners under Section 498-A of IPC and
Section 3/4 of Dowry Prohibition Act also resulted in acquittal of all the petitioners on merits and the said judgment dated 26.09.2019 is on record.
Therefore, through this revision petition, petitioners have challenged the rejection of application for discharge preferred by them under Sections
227/228 of Cr.P.C.. In Cr.R.No.447/2017, petitioners (husband and brother-in-law of respondent No.2-wife) also preferred revision against order
dated 6. 02.2017 whereby charge has been framed against the petitioners in respect of offence under Sections 498-A, 376/511 and Section 354 of IPC
for Rahul Dubey and Section 498-A, 376/109 and 354/109 of IPC against Pradumn Dubey.
It is the submissions of counsel for the petitioners that it is factually clear that FIR of leveling allegations of attempt to rape and outrage her
modesty are complete abuse of the process of Court and such process cannot be allowed for harassment. He relied upon the judgment rendered by
the Hon'ble Apex Court in the case of State of Haryana Vs. Bhajanlal and Ors., AIR 1992 SC 604.
It is further submitted that after filing of divorce petition by the husband as counter blast, respondent No.2 lodged FIR under Section 498-A of IPC
without mentioning therein any allegations of attempt to rape whereas she filed the said FIR on 15.05.2016 and at that point of time, if subsequent FIR
is seen then it is clear that she referred the incident dated 05.06.2014 and the incident is of one year thereafter. Therefore, she could have narrated
the said allegations in her first FIR filed under Section 498-A of IPC. It appears that when she realized that she is not getting sufficient material to
harass the present petitioners only on the basis of offence under Section 498-A of IPC then she resorted to another FIR including the offence under
Sections 376 and 354 of IPC, which is clear abuse of process of law and she cannot be permitted to start litigation at her whims on flimsy pretext and
harass the petitioner till eternity. He referred the vagueness made by the prosecutrix in her written complaint, FIR and police statement/statement
under Section 161 of Cr.P.C. He further submits that although this is revision petition but since this Court exercises the inherent jurisdiction under
Section 482 of Cr.P.C., also then scope of revision is not limited. He relied upon the case of Rajiv Thapar & Ors vs Madan Lal Kapoor, 2013 (3) SCC
331 to submit that even in revisional jurisdiction if the injustice is caused then same can be taken care of. Here in the present case petitioners are
constantly harassed by the wife. FIR is a delayed FIR and an afterthought.
Learned counsel for the respondent opposed the prayer and prayed for dismissal of petition.
Counsel for the complainant also raised the point regarding merits of the case and submits that trial Court would decide the case and allegations
prima facie apparently exist and therefore, same needs to be tried through leading evidence.
Heard the learned counsel for the parties and perused the case dairy/documents.
In the present case, petitioners have filed the revision petitions in which one is against order of discharge and another is against order of framing
charge. Scope of revision is not so limited as tried to be projected by the counsel for respondent because revisional Court can see the correctness,
legality or propriety of any order passed as well as the regularity of any proceeding of any Court below.
Therefore, looking to the scope as provided in Section 397 and 401 of Cr.P.C., this Court has sufficient jurisdiction to look into correctness or
propriety of any order passed by the Sessions Court. So far as present case is concerned, respondent No.2 lodged the FIR on 23.06.2016 by filing a
written complaint. Contents of written complaint and FIR are almost identical. Later on, her police statement was taken on same day i.e.
06.2016 then also she repeated the allegations but next day in her statement under Section 164 of Cr.P.C. before the Magistrate, she made her
statement only in one para and the same is reproduced as under for ready reference:-
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Perusal of the said statement indicates that she referred the role of her brother-in-law-Rahul Dubey but she nowhere refers the role of her
husband or her father and mother-in-law (petitioners of Cr.R.No.87/2017). The statement recorded just after one day i.e. 24.06.2016 therefore, it
cannot be assumed that by the efflux of time, she forgot the details of incident. She tries to improve upon some contents qua Rahul Dubey which were
not earlier lodged in the written complaint, FIR or police statement. Material contradictions and omissions exist in all her statements and contents of
her written complaint as well as F.I.R. This shows her intention.
This fact has material bearing that after marriage (on 01.05.2014) her brother-in-law- Rahul Dubey started misbehaving with her and first incident
is of dated 05.06.2014 one month after the date of marriage. Apparently such allegation comes under the doubt for the reason that if she was so upset
by the advances of her brother-in-law then she should have immediately reported her family members, husband as well as father/mother-in-law or to
the police. She left her matrimonial home on 24.02.2015 and the said fact reflected in the judgment and decree dated 06.09.2017 passed by the
Principal Judge, Family Court, Guna. When she left her matrimonial home within 10 months of her marriage on 24.02.2015 and thereafter, if any
advances were made by the brother-in-law -Rahul Dubey then she had one more opportunity to raise her voice and/or to mention the said fact in
earlier FIR. The Police Station Kolaras District Shivpuri registered the case vide Crime No.204/2016 against all four petitioners of the instant case for
alleged offence under Section 498-A of IPC and 3/4 of Dowry Prohibition Act on which trial was conducted before the JMFC Kolaras, District
Shivpuri and vide judgment dated 26.09.2019 the said case resulted into acquittal of all the four petitioners/accused.
Reference of one compromise deed (Ex.P-3 of the said case) also finds place in judgment of the trial Court in which she accepted the fact that
she was not allowed restrained by the petitioner/husband to go to the place of her brother-in-law (thtkth -Akhil) because her husband did not like the
idea of going and staying for day's together at her sister and brother-in-law's place. In the said compromise deed dated 03.12.2014, she accepted that
she wants to live happily with her matrimonial family and she would not be restrained by the family members/petitioners.
The facts of misbehavior by Rahul Dubey could have reflected in the settlement deed dated 03.12.2014 because as per the allegations, first
incident of misbehavior by brother-in-law -Rahul Dubey was committed on 5. 06.2014 at Haridwar therefore, on 03.12.2014, she could have referred
this fact in compromise deed and could have ensured her modesty and chastity but same does not find place in the settlement deed or in the judgment
dated 26.09.2019 passed by the JMFC, Kolaras. On this ground also, it appears that she filed the instant cases on false pretext just for harassment.
Interestingly, first FIR under Section 498-A of IPC was filed by the prosecutrix at Police Station Kolaras on 15.05.2016 and after one month she
again filed an FIR with same allegations of dowry demand but with addition of Section 354 and 376 of IPC. Second FIR was filed at Police Station
Guna Kotwali, District Guna. This shows the bend of mind and motive of respondent No.2 to keep harassing the petitioners on the pretext or the other.
These facts create sufficient doubt about the actual disposition of respondent No.2 and her intention to wreak vengeance. Criminal law cannot be used
as a tool for oppression, harassment and embarrassment to the common man. Here respondent No.2 tried to misuse the process of law for extending
harassment to the petitioners. She knows that all petitioners are Government Teachers and their entanglement in criminal proceedings would cost them
heavily. Therefore, she is enjoying peevish pleasure.
When divorce proceedings successfully pursued by the petitioner/husband Pradumn Dubey and when all four petitioners successfully contested the
trial of Section 498-A of IPC then again relegating them back for the trial for same offence under Section 498-A of IPC would be travesty of justice
because long drawn litigation itself is a type of punishment or at-least harassment to the common man which cannot be permitted in those cases where
malice of complainant is apparent on record.
Even otherwise on merits, no allegations of attributes of Section 376 or 354 of IPC existed or reiterated by the complainant in her statement under
Section 164 of Cr.P.C. qua other petitioners because allegations are only against Rahul Dubey but since the mens rea or ill-motive is apparent which is
being established by the documents available on record, therefore, this Court cannot sit with blind eyes to allow the continuation of the abuse of
process of law. Interestingly, her case suffers from delay and latches also because she could not explain delay and factual inconsistency in her
complaint and statements.
In the case of Sh. Satish Mehra vs Delhi Administration & Anr. 1996 (9) SCC 766 the Hon'ble Apex Court has reiterated the scope of Section
227 of Cr.P.C. which is reproduced as under:-
“15.But when the Judge is fairly certain that there is no prospect of the case ending in conviction the valuable time of the Court should not be
wasted for holding a trial only for the purpose of formally completing the procedure to pronounce the conclusion on a future date. We are mindful that
most of the Sessions Courts in India are under heavy pressure of work-load. If the Sessions Judge is almost certain that the trial would only be an
exercise in futility or a sheer waste of time it is advisable to truncate or snip the proceedings at the stage of Section 227 of the Code itself.â€
In the cumulative analysis and going through the judgment of the Apex Court in the case of Rajiv Thapar (Supra) and in the facts and
circumstances of the case, this Court finds that it is case where interference would advance the cause of justice therefore, this Court intends to allow
both the revisions filed by the petitioners.
Even otherwise, this Court does not find any ground to proceed further in the litigation and trial Court erred in rejecting the application under
Section 227/228 of Cr.P.C. for discharge as well as erred in framing charge as per impugned order dated 10.01.2017 (in Cr.R.No.87/2017) and order
dated 06.02.2017 (in Cr.R.No.447/2017) and both the impugned orders are hereby set-aside and no case for trial has been made out by the
prosecution.
Resultantly, petitioners are discharged from the clutches of charges under Sections 498-A and 376/109, 354/109 of IPC and petitioner Rahul
Dubey for the offence under Sections 498-A, 376/511 and Section 354 of IPC. They are set free.
E-copy/Certified copy, whichever is available, of this order be provided to the petitioners and E-copy of this order be sent to the trial Court
concerned for compliance. It is made clear that E-copy of this order shall be treated as certified copy for practical purposes in respect of this order.
Both the revision petitions stand allowed and disposed of accordingly.