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Uttarakhand High Court · body

2012 DIGILAW 159 (UTT)

YOGENDRA KUMAR RAI v. STATE OF UTTARAKHAND

2012-04-13

B.S.VERMA

body2012
JUDGMENT (Hon’ble B.S. Verma, J.) 1. This Criminal Misc. Application U/S 482 Cr.P.C. has been filed for quashing the charge sheet dated 8.8.2010, under Sections 498-A, 506, 420, 376 I.P.C. filed before the Court of C.J.M. Dehradun, in Criminal Case No. 2912/2010, State Versus Yogendra Kumar Rai and others, and the summoning order dated 27.9.20 10, whereby the C.J.M. Dehradun whereby cognizance was taken against accused/applicant Yogendra Kumar Rai to face trial U/Ss 498-A, 504,420 and 376 I.P.C. 2. From perusal of record it shows that Smt. Mamta Rai lodged a written complaint against accused/applicant Yogendra Kumar Rai and Smt. Lakshmi Rai with the allegations that her marriage was solemnized with accused Yogendra Kumar Rai on 9.11.2008 in Maa Durga Temple Survey Chowk Dehradun. The said marriage was performed by Pandit Sri Balkrishna Shastri of the Temple Committee. The marriage was also witnessed by Sri Ajit Pradhan friend of her husband/accused Yogendra Kumar. Accused Yogendra Kumar is posted as Lt. Colonel in Army and after marriage he had kept her with him at various places as a wife like Pathankot, Himanchal etc. Their marriage was also registered by Registrar Hindu Marriage Dehradun. It is further mentioned in the written report that the marriage was performed with the result of her love affairs with Yogendra Kumar Rai. It is also alleged that after marriage accused/applicant Yogendra Kumar conjugal relations of husband and wife with the complainant and now Yogendra Kumar wants to get rid of the complainant for some reasons. It is also described in the F.I.R. that her husband Yogendra Kumar, her mother-in-law Smt. Lakshmi Rai and her sister-in-law Pushpa Kala Rai and Mohit Yogi, a friend of Pushpa Kala Rai threatened the complainant if she did not close her relations with Yogendra Kumar, she would be killed. On the basis of written complaint F.I.R. was lodged at P.S. Cantt. District Dehradun against Yogendra Kumar Rai and Smt. Lakshmi Rai and a case crime No. 111/2010, was lodged against them U/Ss 498-A, 506 I.P.C. The police investigated the matter and after completion of investigation submitted charge sheet against the accused persons. 3. On the basis of written complaint F.I.R. was lodged at P.S. Cantt. District Dehradun against Yogendra Kumar Rai and Smt. Lakshmi Rai and a case crime No. 111/2010, was lodged against them U/Ss 498-A, 506 I.P.C. The police investigated the matter and after completion of investigation submitted charge sheet against the accused persons. 3. After receipt of charge sheet in court the learned C.J.M. Dehradun took cognizance in the matter and issued summon against accused Yogendra Kumar Rai to face trial U/Ss498-A, 506 420, 376 I.P.C. and against Smt. Lakshmi Rai and Pushpkala Rai summons were issued to face trial U/Ss 498-A and 506 I.P.C. Feeling aggrieved the accused/applicant Yogendra Kumar Rai has preferred this application U/S 482 Cr.P.C. I have heard learned counsel for the parties and perused the material on record. 4. Learned counsel appearing on behalf of the applicant has contended that the applicant never married with Smt. Mamta Thapa and the marriage certificate issued by Maa Durga Mandir Samiti as well as the registration of marriage are not genuine documents and they have no sanctity and that is the reason that the applicant has filed a suit against the respondent Smt. Mamta Thapa under Section 11 of Hindu Marriage Act to declare the marriage a null and void and no offence is made out against the accused/applicant and the learned Magistrate also took cognizance against the applicant in a cursory manner and criminal proceedings against the applicant is patently an abuse of process of law. 5. On the other hand learned counsel appearing on behalf of respondent No.3 has vehemently submitted that there is documentary as well as oral evidence in case diary against the accused/applicant to establish prima facie offence of commission of rape by accused/applicant upon the respondent no.3 as the applicant does not accept his marriage with her and there is also prima facie evidence against the accused/applicant for threatening the respondent No.3 as well as cheating her. During investigation the police has collected evidence against the accused pertaining to cruelty therefore the accused/applicant is liable to be prosecuted under the offences for which cognizance has been taken by the learned C.J.M. 6. During investigation the police has collected evidence against the accused pertaining to cruelty therefore the accused/applicant is liable to be prosecuted under the offences for which cognizance has been taken by the learned C.J.M. 6. Learned counsel for the respondent No.3 also submitted that even though the complainant claimed to have married the accused, which fact has been established from documentary evidence, that does not improve the situation and the offence U/S 376 I.P.C. is made out against the accused which falls in fourth clause of Section 375 I.P.C. It is further contended since the complainant has given her consent in the belief that the accused is her husband, the accused is denying marriage, therefore, the clause ‘Fourthly’ of Section 375 I.P.C. has no application in the cast at hand. In support of his argument he has cited the case of Bhupinder Singh Vs. Union Territory of Chandigarh, reported in 2008 (8) SCC 531. He again submitted that the police after finding sufficient material against the accused has submitted charge sheet and the learned Magistrate has also taken the cognizance in the matter, therefore it will not be proper to quash the entire proceeding. In support of his contention he has cited before me the case of Central Bureau of Investigation Vs. K.M. Sha ran, reported in 2 008(4) SCC 471. 7. Having considered the above submissions of learned counsel for parties and going through the record, prima facie there is marriage certificate issued by Maa Durga Mandir Samiti and also the registration papers showing the marriage of parties registered with the Registrar of Hindu Marriages, as well as looking to the fact that the matter was investigated by police and the police after finding prima facie evidence against the accused persons submitted charge sheet against the accused persons. The learned Magistrate also after perusing the case diary has taken cognizance against the accused persons. 8. So far as the offence U/S 376 I.P.C. is concerned, there is evidence of Smt. Mamta Thapa that the accused had married with her and he had cohabitation with her at various places. On the other hand the case of applicant/accused is that he never married with her and false documents have been fabricated against him. 8. So far as the offence U/S 376 I.P.C. is concerned, there is evidence of Smt. Mamta Thapa that the accused had married with her and he had cohabitation with her at various places. On the other hand the case of applicant/accused is that he never married with her and false documents have been fabricated against him. He has filed suit against her U/S 11 of Hindu Marriage Act for declaring the marriage as null and void and the fate of the suit is still to come. The Hon’ble Apex Court in the case of Bhupinder Singh Vs. Union Territory of Chandigarh, reported in 2008 (8) SCC 53, has held that even though the complainant claimed to have married the accused, which fact is established from several documents, that does not improve the situation and the offence U/S 376 I.P.C. is made out against the accused and the offence falls in fourth clause of Section 375 I.P.C. In this case the applicant himself has denied the marriage, therefore, there is prima facie evidence of Smt. Mamta Thapa regarding cohabitation by accused with her. 9. In the case of Central Bureau of Investigation Vs. K.M. Sharan, reported in 2008(4) SCC 471 relied upon by learned counsel for respondent No.3, the Hon’ble Apex Court has held that in inherent power of High Court U/S 482 Cr.P.C. the High Court was not supposed to embark upon the enquiry whether the allegations in F.I.R. and the charge sheet were reliable or not and thereupon to render definite finding about truthfulness or veracity of the allegations. The High Court should have limited its consideration- whether allegations made in the FIR and the charge sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused. 10. The High Court should have limited its consideration- whether allegations made in the FIR and the charge sheet taken on their face value and accepted in their entirety would prima facie constitute an offence for making out a case against the accused. 10. In the case at hand there is documentary evidence relating to marriage of respondent No.3 with the applicant and she has also narrated the fact of marital relations among them and the accused/applicant has denied the marriage as well as cohabitation with the respondent No.3 and he has filed suit U/S 11 of Hindu Marriage Act for declaring the marriage as null and void, which is still pending and marriage has not yet been declared void, hence this court in proceeding U/S 482 Cr.P.C. is not supposed to enquire upon the truthfulness of the documents as well as the evidence of parties collected by police during investigation. I do not find any abuse of process of law when the learned Magistrate has taken cognizance against the accused persons to face trial after the police collected evidence during investigation and submitted charge sheet against the accused persons. The accused/applicant would have full opportunity to adduce evidence before the trial court in his defence. 11. The application lacks merit and is dismissed accordingly. 12. However, it is provided that if the bail application is moved by the applicant the same be expedited by the trial court without unnecessary delay. 13. The interim order dated 25.5.2011 is vacated.