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2010 DIGILAW 912 (ALL)

Opendra v. State Of U. P.

2010-03-18

VIJAY KUMAR VERMA

body2010
Heard Sri Ram Jee Saxena Advocate appearing for the applicant and A.G.A. for the State. 2. By means of this application under Section 482 of the Code of Criminal Procedure ( in short the Cr.P.C.), the applicant Opendra has invoked inherent jurisdiction of this court to quash the charge sheet No.1 of 2010 of case Crime No. 1053 of 2009, under Sections 498-A/304-B I.P.C. and Section 3/4 Dowry Prohibition Act in Criminal case No. 170 of 2010,( State Vs. Nanak Chand and others) pending in the court of Addl. Chief Judicial Magistrate, Hapur, district Ghaziabad. 3. The first and foremost statement made by the learned counsel for the applicant is that the offence punishable under Section 304-B I.P.C. would not be made out against the applicant, as according to averments made in the F.I.R. and Statements of the witnesses, the acid was administered to the deceased by the co-accused Smt. Neeraj (Jethani) of the deceased and Nanak (phupha) of the husband of deceased and one unknown person and no allegation about administering acid to the deceased has been levelled against the applicant Opendra, who is the Jeth of the deceased. 4. Further submission made by the learned counsel for the applicant is that the applicant is serving in Indian Army and he was not present at the time of alleged incident and hence on this ground also, no offence against the applicant is made out. 5. On the other hand the learned A.G.A. vehemently contended that the offence punishable under Sections 498-A, 304-B I.P.C. as well as 3/4 Dowry Prohibition Act are made out against the applicant also. It is also submitted that to attract Section 304-B I.P.C., physical presence of the accused is not essential and if ingredients of Section 304-B I.P.C. are satisfied in any case, then the husband and other relatives subjecting the deceased to cruelty for or connection with the demand of dowry soon before her death, would be liable for her dowry death, as defined under Section 304-B I.P.C. and hence in the present case, the offence punishable under Section 304-B I.P.C. is made out against the applicant also, as the deceased was subjected to cruelty for or in connection with the demand of dowry by the applicant and other accused persons. 6. 6. I have carefully gone through the averments made in the F.I.R. and the statements of the witnesses recorded under Section 161 Cr.P.C. It is true that the allegation of administering the acid to the deceased has not been levelled against the applicant Opendra, who is the jeth of the deceased, but it cannot be said that no offence against him is made out. The allegation of making demand of dowry and causing harassment of the deceased has been levelled against the applicant Opendra also in the F.I.R. and Statement of the complainant Harendra Singh recorded under Section 161 Cr.P.C. What offence would be made out against the applicant, can be considered at the time of framing the charge by the trial court and at this stage this court cannot express any opinion as to whether the offence punishable under Section 304-B I.P.C. is made out or not against the applicant. 7.For the aforesaid reasons, the charge sheet cannot be quashed against the applicant. 8. However, considering the facts and circumstances of the case, it is directed that if the applicant moves application for appearance/surrenders before the court concerned within 60 days from today, the court concerned shall fix date on that application for surrenders/appearance. In the meantime the court concerned shall seek instruction from the prosecution side. In case, the applicant moves the application for bail on the day of appearance or surrenders, the same shall be considered and disposed of expeditiously, if possible on the same day by both the courts below, keeping in view the law/guidelines laid down in Smt. Amrawati and another versus State of U.P. 2004 (57) ALR (290) (Seven Judges' Judgment of this Court) and Hon'ble Apex Court judgment in Lal Kamlendra Pratap Singh vs. State of U.P. and others 2009 (3) A.D.J. 322 (SC), but having regard to the observations made by the Division Bench of this Court in Pradeep Tyagi Vs. State of U.P. and others 2009 (65) ACC 44 and Sheo Raj Singh @ Chhuttan vs. State of U.P. and others 2009 (65) ACC 781. 9.The applicant is serving in Indian Army and no allegation of administering the acid to the deceased has been levelled against him. State of U.P. and others 2009 (65) ACC 44 and Sheo Raj Singh @ Chhuttan vs. State of U.P. and others 2009 (65) ACC 781. 9.The applicant is serving in Indian Army and no allegation of administering the acid to the deceased has been levelled against him. Hence it is directed that if for any reason, the disposal of the bail application of the applicant on the same day is not possible, then both the courts below may release the applicant on interim bail till final disposal of his bail application. 10. It is also directed that for a period of 60 days from today, no coercive action shall be taken against the application in aforesaid case by the police or court. 11. With the aforesaid direction/ observation, the application under Section 482 Cr.P.C. is finally disposed of.