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Allahabad High Court · body

2008 DIGILAW 730 (ALL)

Amit Kumar v. State of U. P. And Vineet Kumar Agrawal (Advocate)

2008-03-31

AMAR SARAN

body2008
JUDGMENT : Amar Saran, J. Heard learned Counsel for the applicants, Shri R.K. Mishra, learned Counsel for the complainant and learned Additional Government Advocate. 2. Learned Counsel for the applicants submits that in this case three FIRs have been lodged and cognizance has eventually been taken on the charge sheet filed by the police of Kanpur Nagar and proceedings have taken place in case No. 27 of 2008, under sections 498-A/323/504/506 IPC and 3/4 of Dowry Prohibition Act, pending in the court of Metropolitan Magistrate-Ill, Kanpur Nagar and the cognizance order was passed on 16.1.2008 by the aforesaid Magistrate on the basis of the charge sheet. 3. It is argued by the learned Counsel for the applicants that no action should have been taken on the basis of three FIRs. 4. In this connection learned Counsel for opposite party No. 2 has drawn my attention to an order passed in Criminal Misc. Writ Petition No. 14322 of 2007 preferred by the applicants wherein the Division Bench of this Court observed that a second FIR ought not to have been registered with regard to the same allegations. However, the Bench disposed of the matter with the direction that the FIR registered on 25.6.2007 may be taken for the purpose of investigation and the second FIR may be merged into the same and it is for the Kanpur Nagar district police authorities to take appropriate action with regard to the investigation whether it may be done by Mahila Thana or police station Baddhad Naka or any other authorities as may deem fit. 5. The third FIR also relates to the same subject matter and in my view the same could have also been merged and investigated by the police of Mahila Thana, which has investigated the matter as admittedly the allegations in all the three FIRs are common. 6. Furthermore, it has been held in the case of Union of India (UOI) Vs. Prakash P. Hinduja and Another, (2003) 6 SCC 195 , that even if there are any defect in the investigation, the same stands cured on the filing of the charge sheet and a cognizance order cannot be interfered only because there are some weaknesses in the process of investigation unless a miscarriage of justice has resulted in consequence of the defect in investigation. 7. 7. On a perusal of the FIR, I find that although the allegations largely relate to Delhi where opposite party No. 2 was assaulted and tortured in her matrimonial home, but the consequences of the said action were also experienced in Kanpur Nagar as she was brought there and medical examination was conducted. There is also allegation that threats were received when she was in Kanpur Nagar on 4.4.2007 and the demand for dowry persisted even when the victim had returned to Kanpur Nagar. u/s 179 of the Code of Criminal Procedure an offence can be tried either where the act is done or its consequence ensues. 8. The case cited by the learned Counsel for the applicants Manish Ratan and Others Vs. State of M.P. and Another, (2007) 1 SCC 262 , was a case where none of the allegation related to Datia where cognizance had been taken, but they only related to Jabalpur. The said case is, therefore, distinguishable from the present case. 9. It was next argued by the learned Counsel for the applicant that this matter should be sent to the Mediation Centre. Learned Counsel for opposite party No. 2 strongly opposed this request. 10. Mediation is a voluntary process and if either party is not agreeable to the mediation, the mediation proceedings cannot be forced on the said party. 11. Moreover, I note that the victim has not been assaulted once, but twice and there are two injury reports, which were not annexed with the application, but filed with the counter affidavit. 12. The first injury report dated 28.3.2005 when the victim Charu Gupta was medically examined by the EMO, KPM. Hospital, Kanpur, has been filed as CA 1 to counter affidavit, which disclosed injuries received four days back (that corresponded with the date of incident mentioned in the FIR) which showed lacerated wounds on the head and as many as six injuries, some of which are multiple in nature. 13. The second incident when the victim was medically examined at the LLR Hospital, Medical College, Kanpur Nagar at 11.30 P.M. on 3.4.2007 also reveals traumatic swelling over right ankle joint, with suspected fracture of right lower 1/3rd Tibia fibula at ankle joint for which x-ray was advised. Bruises on right shoulder joint red blue in colour measuring 6.5. cm x 5.8 cm in vertical direction. Multiple bruises on both the hip and back. Bruises on right shoulder joint red blue in colour measuring 6.5. cm x 5.8 cm in vertical direction. Multiple bruises on both the hip and back. Traumatic contusion at right tempura parietal region measuring 3.2 cm x 3 cm oval in shape for which CT scan of head was advised. 14. Therefore, on account of this fact also this is not a good case for sending the matter to the Mediation Centre. 15. Moreover, from the facts of the case, it cannot be said that prima facie no offence has been made out. 16. In this view of the matter, there is no force in this application. It is accordingly rejected.