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2006 DIGILAW 820 (ALL)

SHARDA PRASAD TIWARI v. STATE OF UTTAR PRADESH

2006-03-24

VINOD PRASAD

body2006
JUDGMENT Hon’ble Vinod Prasad, J.—Sharda Prasad Tiwari, Smt. Vijai Lakshmi, his wife and Deepak Tiwari, his son have filed the instant application, under Section 482 Cr.P.C, hereinafter referred to as the Code, invoking the power of this court under the said section, with the prayer to quash the charge sheet No. 132 of 2005 dated 23.7.2005 relating to crime No. 480 of 2004 under Section 498A/304-B, IPC and Section 3/4 of Dowry Prohibition Act. Police Station Naini District Allahabad which has culminated into registration of case No. 25344 of 2005, State v. Deepak Tiwari and others pending in the court of CJM Allahabad under the aforesaid sections. They have further prayed that during the pendency of this application further proceeding of the said case be stayed. 2. The facts are that Nand Kishore Sharma, resident of 123, Chaukhandi, Kidganj, Allahabad had married his daughter Gunja (deceased) with Deepak Tiwari @ Dipu (applicant No. 3) son of Sharda Prasad Tiwari (applicant No. 1) resident of Bakrana Tiwari (Ram Sagar), Chaka Block, Police Station Naini, Allahabad on 2.3.2001. He had given many domestic articles, jewelry and a car Maruti 800 according to the wishes of the applicants. On her return from the house of her-in-laws, Gunja told informant and other relatives her woes that the applicants demand more dowry of Rs. three lacs from her and on her refusal bet and tortured her mentally. The informant went to the applicants and pleaded his inability to pay such a huge amount. Applicant Deepak, on this came to the house of the informant and took Gunja to his house. After some time, informant went to the house of the applicants for bringing Gunja back for Rakshabandhan, when he was informed by Gunja that her woes continues if, the amount is not paid, then she will be done away with. The informant again went to the house of the applicants and requested them to stop the torture and showed his inability to pay the said amount. Gunja was again brought back by her husband Deepak and father-in- law Sharda Prasad Tiwari to their house on 12.9.04. On 13.10.04 informant’s son Amit Sharma was informed by an unknown man that his sister, Gunja, had been badly burnt by gas leak and she had been carried to Swaroop Rani Hospital. Gunja was again brought back by her husband Deepak and father-in- law Sharda Prasad Tiwari to their house on 12.9.04. On 13.10.04 informant’s son Amit Sharma was informed by an unknown man that his sister, Gunja, had been badly burnt by gas leak and she had been carried to Swaroop Rani Hospital. The informant immediately rushed to the hospital along with his other relatives and there he found his aforesaid daughter unconscious and badly burnt. That night Gunja breathed her last. Of being sure that the applicants have bet and burnt Gunja that the informant lodged a FIR against the applicants at police station Naini District Allahabad under Section 498A/304-B, IPC and 3/4 D.P. Act vide crime number 480 of 2004 (Annexure 1) on 14.10.04 at 1.15 PM. The post mortem of the deceased was conducted on 14.10.04 which indicated that the deceased whole body was burnt and skin had peeled off. The investigation was conducted by Circle Officers of Naini, Sorao and Colonelganj. It transpires that, at the instance of the informant the investigation was transferred to Circle Officer, Colonelganj, Allahabad, but subsequently, at the instance of accused the same was retransferred to Circle Officer Sorao, Allahabad. During the course of investigation all the witnesses, including the informant, his sons Amit and Vivekanand, his wife Smt. Kumud supported the FIR version. However it seems that the pressure was exerted on the informant and as a result of which the Maruti car given in marriage was returned to the informant and a LIC Policy of Rs. 5 lacs was got done, in favour of Riya, daughter of deceased with the help of Kamlesh Tiwari uncle of accused Deepak Tiwari applicants and brother of Sharda Parasad Tiwari applicants. It also transpires that the informant had moved applications also against the accused to Human Rights Commission. However because of pressure exerted on the informant and other witnesses, the family members of the deceased, filed affidavits denying the incident in the court of CJM, Allahabad. CJM, Allahabad also ordered for recording their statements under Section 164, Cr.P.C. on 14.2.2004. The informant in the said statement stated that he had lodged the FIR and the version mentioned in it is correct. CJM, Allahabad also ordered for recording their statements under Section 164, Cr.P.C. on 14.2.2004. The informant in the said statement stated that he had lodged the FIR and the version mentioned in it is correct. The statements of Amit Kumar Sharma and Vivekanand Sharma filed as Annexure 20, indicates that the affidavits were filed because of pressure and also because of a sought of compromise reached between the parties. The investigating officer finding prima facie case against the applicants submitted charge sheet against them in court on 23.7.2005, on the basis of which case number 25344 of 2005 was registered in the court of CJM, Allahabad on 6.10.2005 against the applicants. Hence this application for quashing of the case and the charge-sheet. 3. I have heard Sri Jagdish Singh Sengar and Sri Sudhir Solanki advocates on behalf of applicants and the learned AGA in opposition at a great length and have perused the application and Annexure appended therewith. 4. Sri Sengar contended that the charge sheet and proceeding be quashed because the informant and other witnesses have stated on affidavits and statements in court under Section 164, Cr.P.C. as well as statements recorded subsequently that they do not want to litigate the case. He further submitted that since there is contradictory evidence available on record and therefore it was the duty of the CJM, while summoning the applicants, to mention as to why he is accepting the version of the FIR and not subsequent statements of the witnesses. He contended that if, there are contradictory evidences available on record then it is duty of the magistrate to record a finding as to why he is accepting one version favourable to the prosecution and against the accused and not the other and, only after that, he should summon the accused. Learned AGA on the other hand submitted that there is no such procedure as has been canvassed by the applicants counsel. He contended that, at the stage of summoning, only a prima facie case based on some admissible evidence is to be seen and nothing more. He contended that, at the stage of summoning, the magistrate is not required to hold a pre trial exercise to fetch out the niceties of evidence and record a finding as to reliability of prosecution the statements on the basis of which he wants to summon the accused. 5. He contended that, at the stage of summoning, the magistrate is not required to hold a pre trial exercise to fetch out the niceties of evidence and record a finding as to reliability of prosecution the statements on the basis of which he wants to summon the accused. 5. From the submissions made above, the only point for determination is as to whether the magistrate is required to scan the contradictory evidence available in the case diary and record a finding as to why he is believing the statements favourable to the prosecution and not the other statement favourable to the accused before summoning the accused to stand the trial? But before adverting to the said question, a note on factual merit of the case. The FIR and the statements recorded at various stages of the investigation and even the statement under Section 164 Cr.P.C. of informant and Amit Kumar Sharma, it is clear that there is clear cut allegation of demand of dowry against the applicants from the deceased and for causing her death, because of that, by burning her. The marriage has taken place only a month more than 3 and half years. Thus the ingredients of Sections 498A and 304-B, IPC marriage within seven years of incident, demand of dowry by the accused and for causing death of the deceased because of the said demand, are present in the present case along with Section 3/4 D.P. Act. Hence the case falls within the mischief of the said offences. Learned counsel for the applicants also did not seriously challenged the making out of the offence but contended that, since there is contradictory evidences therefore the magistrate must record it’s satisfaction regarding acceptability of evidence against the applicant accused in the summoning order. Thus the material placed on the record of the case establishes prima facie offence against the applicants for which they have been summoned by the CJM, Allahabad. 6. Now, coming to the submission made by Sri Sengar, that the magistrate must record it’s satisfaction, before summoning the accused, if there are contradictory evidences available on record of the case diary as to why he is accepting the version against the accused, is concerned I see no force in this submission and it has been canvassed only to be rejected. The contention is against the scheme of the ‘Code’. The contention is against the scheme of the ‘Code’. The summoning of the accused is done under Section 204 of the ‘Code’. That Section provides that Section 204- "If in the opinion of the magistrate taking cognizance of an offence “there is sufficient ground for proceeding” the magistrate has to summon the accused. He has no choice in that event but to summon the accused. What is meant by “If in the opinion of the Magistrate taking cognizance of the offence means? Does it mean total congruent statements in the case diary, without any contradictions in it and then the magistrate should opine to summon the accused or contrarily, does it means a triable prima facie case only, leaving the contradictions to be tested at the stage of examination-in-chief, cross-examination and re-examination. The answer is negative in respect of the first meaning and affirmative in respect of second meaning. If the first meaning is allowed to prevail then, it will amount to recording a pre-witness-examination finding regarding his statements. How can that be allowed? Every witness has to be tested on the anvil of probability of his evidence and his statement has to be accepted as to be true or false, to record a finding of guilt or innocence of the accused and that can be done only after his examination in the case before the trial court is over. There is nothing in the scheme of the ‘Code’ which permits pre judging the contradictory statements before it is recorded and tested through examination in court. Contradictory in statements of a witness/witnesses has to tested for truthfulness and, acceptance or negation, of one of the two such statements and that can be done only after trial is over and a judgment is delivered or, in between, at the stage of charge, under various trial procedures provided under Chapters XVIII, XIX, XX and XXI of the ‘Code’, starting from Session’s trial and ending at summary trial. Which of the two contradictory statements are correct requires examination without which it is not possible to accept one of them. There is yet one another inherent defect in the submission of the counsel and that if, the magistrate will record a finding as to which of the two statement he accepts at the stage of summoning then why and for what purpose the trial will take place. There is yet one another inherent defect in the submission of the counsel and that if, the magistrate will record a finding as to which of the two statement he accepts at the stage of summoning then why and for what purpose the trial will take place. It will amount to accepting the prosecution version at the very thresh hold of the case or rejecting the same. This will make the rest of the trial procedure otiose. It has been held by the Supreme Court in case of State (Delhi Administration) v. I.K. Nangia, 1980 SCC (Cri) 220, that the magistrate has to issue process even if, there is strong suspicion against the accused. In the present case the charge-sheet has already been laid in court against the present applicants and, from the material on record of the case, it cannot be said that no offence disclosed at all against the present applicants. On the own showing of the applicants the witnesses have stated that they have given affidavits and statement, favourable to the accused, under Section 164, Cr.P.C. on the basis of compromise only reached outside the court. Thus, it cannot be said that the witnesses have denied their earlier statement anointing offence against the present applicants and hence the contention of the counsel for the applicant is devoid of any merit and deserves to be rejected and is rejected. The application is dismissed. Application Dismissed. ———