Upon hearing the parties counsel and perusal of record, I find that the facts of this case are different from the facts of the case of Geeta Mahrotra Vs. State of U.P. and others (supra), relied by the applicants; that the applicant nos.3 to 5 are real brothers/sisters of husband of opposite party no.2, while applicant nos.1 and 2 are real uncle and aunt of opposite party no.2 and merely on the ground of their being uncle in-laws, Dewars and Nanads, they may not take any advantage of the law laid down therein. It is pertinent to mention that in above case, the question of inherent jurisdiction was involved and the applicants though have also raised the question of jurisdiction but in view of the facts apparent on the face of the records and mentioned in divorce petition filed against opposite party no.2 (copy at Annexure No.3), the above plea does not lie in the mouth of applicants as in above petition, it has been specifically mentioned that the parties are residents of Varanasi and until and unless any cogent evidence is produced otherwise, during trial the above averments of applicants are not sufficient for quashing the charge sheet. The applicants may not take contradictory plea about jurisdiction for avoiding their prosecution. It is pertinent to mention that specific allegations have been made against the applicants and there appears no illegality in the impugned order of cognizance of the Magistrate upon submission of charge sheet. It will not be correct to say that the impugned order of cognizance is bad for want of application of mind by the Magistrate. It is also pertinent to mention that upon further investigation charge sheet has not been filed against co-accused Jagdish Sharma.
In view of the discussions made above, I find that learned counsel for the applicants have failed to show any sufficient cause for quashing the impugned charge sheet as well as cognizance order.
Allahabad High Court
Awdhesh Sharma And 4 Others vs State Of U.P. & Another on 28 May, 2015
Bench: Harsh Kumar
Citation;2016 CRLJ(NOC)64 ALL
Heard Sri Gulab Chandra, learned counsel for the applicants, Sri Ran Vijay Singh, learned counsel for the opposite party no.2, learned AGA and perused the record.
The present application under section 482 Cr.P.C. has been moved by Sri Awdhesh Sharma and four others for quashing the charge sheet no.33 of 2014 dated 18.1.2015 as well as order of cognizance of the date, in case crime no.420 of 2013, under sections 498-A, 323, 504, 506, 376,511, 328 IPC and ¾ D.P. Act, P.S. Maruadih, District Varanasi relating to sessions trial no.138 of 2015, State Vs. Virendra Kumar Singh pending before Additional Sessions Judge/Special Judge, Varanasi.
Learned counsel for the applicants contended that the applicant no.1 is younger brother of co-accused Paras Nath Sharma and is chacha of his son Virendra Kumar Singh; that the marriage of Virendra Kumar Singh was solemnized with opposite party no.2 on 5.5.2011; that on 14.12.2013, F.I.R. of present case has been lodged by opposite party no.2 at case crime no.420 of 2013, under sections 498-A, 323, 504, 506, 376, 511, 328 IPC and ¾ D.P. Act; that father of Virendra Kumar Singh had purchased a plot in District Bhadohi in the name of his wife and after construction of house, is living separately with his family at Bhadohi; that the applicant no.1 is Chachiya Sasur, applicant no.2 is Chachiya Saas, applicant nos.3 and 4 are Dewars and applicant no.5 is unmarried Nanad of opposite party no.2; that opposite party no.2 with false and concocted facts and mala fide intentions has lodged the F.I.R. falsely implicating the applicants and several other members of the family; that it is wrong to say that applicants or any of them used to make any demand of Rs.10,00,000/- towards dowry or was treating the opposite party no.2 with cruelty in connection with non fulfillment of demand of dowry or otherwise; that the allegations against the applicant nos.3 and 4 in the F.I.R. of causing her unconscious by injections by applicant no.4 Anil Singh (Dewar) and of attempting to rape her by applicant no.3 Devendra @ Guddu are absolutely wrong; that the husband of opposite party no.2 has filed petition under section 13 of Hindu Marriage Act for dissolution of marriage before the Family Court, Varanasi on 12.11.2013 numbered as Petition No.1149 of 2013; that upon getting the knowledge of divorce petition, the opposite party no.2 has lodged the F.I.R. with inordinate delay on 14.12.2013 for the incidents allegedly taken place on different dates up to 2.12.2013; that there is no injury report on record; that the opposite party no.2 had started living separately with her husband w.e.f. January, 2013 in separate house at plot no.44, Rajpura, Awas Scheme, Phase-II in District Bhadohi from where she left for her maika on 28.6.2013, so the Varanasi Courts have no jurisdiction to try the dispute and the territorial jurisdiction of inquiry and trial may only be of the Courts at Bhadohi in view of provisions of sections 177 and 179 Cr.P.C.; that the F.I.R. has been wrongly lodged at Police Station of District Varanasi; that the applicants and other co-accused filed Writ Petition No.25152 of 2013, which was disposed of vide order dated 19.12.2013; that opposite party no.2 also filed criminal case no.135 of 2014, under Protection of Women from Domestic Violence Act, which was dismissed as withdrawn; that the statement of opposite party no.2 under section 164 Cr.P.C. has been recorded after a long time; that during investigation several independent witnesses have stated that prosecution version is wrong and incorrect; that the additional charge sheet submitted after further investigation on 18.1.2015 against applicants, suffers from misuse of process of law, upon which, the Magistrate has taken cognizance without application of mind; that no case is made out against the applicants under any of the sections 498-A, 323, 504, 506, 376, 511, 328 IPC and ¾ D.P. Act; that there is a tendency of falsely roping in the member of entire family in such cases, as has been observed by Hon'ble the Apex Court in the case of Geeta Mahrotra Vs. State of U.P. and others ADJ 2012 (10) 464; that the applicants are on bail and have never misused the liberty of bail; that the charge sheet is liable to be quashed in order to prevent abuse of process of court and to secure the ends of justice.
Learned counsel for the opposite party no.2 and learned AGA vehemently opposed the prayer for quashing the charge sheet or cognizance order. They contended that the application has been moved with absolutely false and baseless allegations and mala fide intention to delay and defraud the disposal of trial; that it is wrong to say that opposite party no.2 was living separately with her husband or with other co-accused at Bhadohi; that it is wrong to say that the F.I.R. has been wrongly lodged in District Varanasi or it should have been lodged at District Bhadohi; that in divorce petition Annexure No.3, the opposite party no.2 and her husband have been mentioned as residents of Varanasi and in para 15 of the petition, it has been specifically stated that they are residents of Varanasi so courts at Varanasi have jurisdiction to try the case; that in view of above facts, the plea of jurisdiction taken by applicants is self contradictory; that the opposite party no.2 has been treated with cruelty in connection with demand of dowry since the very beginning of her married life within the local limits of District Varanasi, as all the accused-persons live jointly, as an Undivided Hindu Family in Ramsinghpur, District Varanasi, used to make demands of dowry and treated the first informant with cruelty in connection with non fulfillment of demand of dowry; that at the time of marriage enough dowry was given as mentioned in F.I.R. but the accused-persons were not satisfied and due to this reason, while in present days even in lower middle class families newly wed couples usually go for honeymoon, the husband of first informant, who is unemployed and non earning person, was sent/left for Gurgaon only 3rd day of marriage; that in Annexure No.3 divorce petition, it has been stated in para 10 that the husband of first informant is unemployed, has no source of income and is trying to get service; that in F.I.R. specific and brief averments have been made against all the accused-persons; that the applicant nos.1 and 2 also used to hurl taunts upon the first informant for non fulfillment of demand of dowry causing her mental cruelty; that the behavior of accused-persons towards the applicant was inhuman and caused her great mental agony; that sometimes words causes more deep and grievous pain than by physical injury; that on 28.6.2013 after abusing her and keeping her ornaments and valuables, opposite party no.2 was ousted from the home with a warning for not coming back without the desired sum of Rs.10 lacs; that on 8.9.2013, a panchayat did take place at the instance of mother and brother of opposite party no.2 in which, all the accused-persons participated and 1.12.2013 was fixed on which date the opposite party no.2 was to be fetched by co-accused, her husband; that since no one turned up to fetch opposite party no.2, the brother of opposite party no.2 with certain respectable persons went to the Sasural of opposite party no.2, where he was treated badly by the accused-persons; that while she was hoping that better sense will prevail on the accused-persons, the divorce petition was got filed against her with false and baseless allegations on her character as well as regarding her alleged ailments; that the accused are influential persons and due to their influence F.I.R. of opposite party no.2 could not be lodged and she was compelled to send it through registered post upon which, F.I.R. was lodged under the direction of Circle Officer; that in statements recorded by I.O., the independent witnesses have stated that the accused-persons live jointly and the Joint Hindu Family of accused-persons is an example; that the accused-persons with mala fide intentions are not permitting to proceed the sessions trial in furtherance of cognizance order taken upon submission of charge sheet and are using every tactics to stop the proceedings and delay and defraud the disposal of sessions trial; that in the writ petition filed by accused-persons for quashing the F.I.R., the prayer was refused; that again the application for quashing the charge sheet was moved by husband and parents-in-law of opposite party no.2 (some of co-accused), which too was rejected and now the application for quashing the charge sheet has been moved by present applicants, the another set of co-accused; that the facts of the case of Geeta Mahrotra Vs. State of U.P. and others (supra) relied by applicants are different, and the above case law is not applicable to the facts of the case and the applicants may not take benefit of above case law.
Before we proceed further, it would be apt to refer the provisions of Section 482 Cr. P. C. and the latest law on the point.
482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."
In the case of Rishipal Singh Vs. State of U. P. and another (2014) 7 SCC 215 the apex Court has observed:
"A bare perusal of Section 482 CrPC makes it crystal clear that the object of exercise of power under this section is to prevent abuse of process of court and to secure ends of justice. There are no hard-and-fast rules that can be laid down for the exercise of the extraordinary jurisdiction, but exercising the same is an exception, but not a rule of law. It is no doubt true that there can be no straitjacket formula nor defined parameters to enable a court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case. The courts have to be very circumspect while exercising jurisdiction under Section 482 CrPC.
11. This Court in Medchl Chemicals & Pharma (P) Ltd. v. Biological E. Ltd. 2000(3) SCC 269 Ltd. has discussed at length about the scope and ambit while exercising power under Section 482CrPC and how cautious and careful the approach of the courts should be. We deem it apt to extract the relevant portion from that judgment, which reads:
"Exercise of jurisdiction under the inherent power as envisaged in Section 482 of the Code to have the complaint or the charge-sheet quashed is an exception rather than a rule and the case for quashing at the initial stage must have to be treated as the rarest of rare so as not to scuttle the prosecution. With the lodgement of first information report the ball is set to roll and thenceforth the law takes its own course and the investigation ensues in accordance with the provisions of law. The jurisdiction as such is rather limited and restricted and its undue expansion is neither practicable nor warranted. In the event, however, the court on a perusal of the complaint comes to a conclusion that the allegations levelled in the complaint or charge-sheet on the face of it does not constitute or disclose any offence as alleged, there ought not to be any hesitation to rise up to the expectation of the people and deal with the situation as is required under the law. Frustrated litigants ought not to be indulged to give vent to their vindictiveness through a legal process and such an investigation ought not to be allowed to be continued since the same is opposed to the concept of justice, which is paramount".
12. This Court in a plethora of judgments has laid down the guidelines with regard to exercise of jurisdiction by the courts under Section 482 CrPC. In State of Haryana v. Bhajan Lal 1992 Supp (1) SCC 335 this Court has listed the categories of cases when the power under Section 482 can be exercised by the Court. These principles or the guidelines were reiterated by this Court in (1)CBI v. Duncans Agro Industries Ltd. 1996 (5) SCC 591; Rajesh Bajaj v. State (NCT of Delhi) 1999 (3) SCC 259; and Zandu Pharmaceuticals Works Ltd. v. Mohd. Sharaful Haque (2005) 1 SCC 122. This Court in Zandu Pharmaceuticals Works Ltd. observed that:
The power under Section 482 of the Code should be used sparingly and with circumspection to prevent abuse of process of court, but not to stifle legitimate prosecution. There can be no two opinions on this, but, if it appears to the trained judicial mind that continuation of a prosecution would lead to abuse of process of court, the power under Section 482 of the Code must be exercised and proceedings must be quashed.
Also see Om Prakash v. State of Jharkhand 2012 (12) SCC 72.
What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 CrPC. While exercising the power under the provision, the courts have to only look at the uncontroverted allegation in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact."
Yet in another case of Vijayender Kumar Vs. State of Rajasthan (2014) 3 SCC 389, a 3-Judge bench of the Apex Court in para-8 has observed as under:
"8. Similar is the law noticed in Dalip Kaur (2009) 14 SCC 696. In that case the matter was remanded back to the High Court because of non-consideration of relevant issues as noticed in para 10, but the law was further clarified in para 11 by placing reliance upon the judgment of this Court in R. Kalyani v. Janak C. Mehta (2009) 1 SCC 516. It is relevant to extract para 11 of the judgment which runs as follows: (Dalip Kaur case (supra) SCC p. 700) "11. There cannot furthermore be any doubt that the High Court would exercise its inherent jurisdiction only when one or the other propositions of law, as laid down in R. Kalyani v. Janak C. Mehta (supra) is attracted, which are as under: (SCC p. 523, para 15) ''(1) The High Court ordinarily would not exercise its inherent jurisdiction to quash a criminal proceeding and, in particular, a first information report unless the allegations contained therein, even if given face value and taken to be correct in their entirety, disclosed no cognizable offence.
(2) For the said purpose the Court, save and except in very exceptional circumstances, would not look to any document relied upon by the defence.
(3) Such a power should be exercised very sparingly. If the allegations made in the FIR disclose commission of an offence, the court shall not go beyond the same and pass an order in favour of the accused to hold absence of any mens rea or actus reus.
(4) If the allegation discloses a civil dispute, the same by itself may not be a ground to hold that the criminal proceedings should not be allowed to continue."
In para-12 it was further observed:
"12. The learned counsel for the respondents is correct in contending that a given set of facts may make out a civil wrong as also a criminal offence and only because a civil remedy may also be available to the informant/ complainant that itself cannot be a ground to quash a criminal proceeding. The real test is whether the allegations in the complaint disclose a criminal offence or not. This proposition is supported by several judgments of this Court as noted in para 16 of the judgment in Ravindra Kumar Madhanlal Goenka v. Rugmini Ram Raghav Spinners (P) Ltd. (2010) 3 SCC (Cri) 1011"
In the case of Hamida V. Rashid, (2008) 1 SCC 474, the Hon'ble Apex Court has held that "ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under section 482 at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice."
In the case of Monica Kumar V. State of Uttar Pradesh, (2008) 8 SCC 781, the Hon'ble Apex Court has held that " inherent jurisdiction under section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself."
Upon hearing the parties counsel and perusal of record, I find that the facts of this case are different from the facts of the case of Geeta Mahrotra Vs. State of U.P. and others (supra), relied by the applicants; that the applicant nos.3 to 5 are real brothers/sisters of husband of opposite party no.2, while applicant nos.1 and 2 are real uncle and aunt of opposite party no.2 and merely on the ground of their being uncle in-laws, Dewars and Nanads, they may not take any advantage of the law laid down therein. It is pertinent to mention that in above case, the question of inherent jurisdiction was involved and the applicants though have also raised the question of jurisdiction but in view of the facts apparent on the face of the records and mentioned in divorce petition filed against opposite party no.2 (copy at Annexure No.3), the above plea does not lie in the mouth of applicants as in above petition, it has been specifically mentioned that the parties are residents of Varanasi and until and unless any cogent evidence is produced otherwise, during trial the above averments of applicants are not sufficient for quashing the charge sheet. The applicants may not take contradictory plea about jurisdiction for avoiding their prosecution. It is pertinent to mention that specific allegations have been made against the applicants and there appears no illegality in the impugned order of cognizance of the Magistrate upon submission of charge sheet. It will not be correct to say that the impugned order of cognizance is bad for want of application of mind by the Magistrate. It is also pertinent to mention that upon further investigation charge sheet has not been filed against co-accused Jagdish Sharma.
In view of the discussions made above, I find that learned counsel for the applicants have failed to show any sufficient cause for quashing the impugned charge sheet as well as cognizance order. Learned counsel for the applicants has failed to prove that exercise of inherent powers of this Court is necessary in order to prevent any abuse of process of court or otherwise to secure the ends of justice. The application is devoid of merits and is liable to be dismissed.
The application under section 482 Cr.P.C. is dismissed accordingly.
Interim order, if any, stands vacated.
Order dated:- 28.5.2015 Tamang
No comments:
Post a Comment