Research › Search › Judgment

Uttarakhand High Court · body

2013 DIGILAW 274 (UTT)

Dharmendra v. Om Prakash

2013-05-22

U.C.DHYANI

body2013
JUDGMENT Hon’ble U.C. Dhyani, J. (oral) The applicant, by means of present application / petition under Section 482 of Cr.P.C., seeks to quash the summoning order dated 16.10.2008 passed by Judicial Magistrate, Laksar, District Haridwar, in criminal complaint case no. 428 of 2008, Om Prakash vs Dharmendra and others. 2. A criminal complaint was filed by the respondent against the applicant and others in respect of offences punishable under Section 496, 497, 498, 120-B of IPC. After recording the statements under Section 200 and 202 of Cr.P.C. of the complainant and the witnesses respectively, accused Dharmendra was summoned to face the trial for the offence punishable under Section 504 and 498 of IPC only. Aggrieved against said order, present application under Section 482 of Cr.P.C. was moved by the accused-applicant Dharmendra. 3. Notice was issued to respondent Om Prakash. The notice was served upon him personally, but none appeared for him before this Court. 4. The response of the respondent was awaited on 10.05.2013 and 21.05.2013, but none appeared on his behalf. 5. When Meenu was sent to Nari Niketan, the same was challenged by the present applicant Dharmendra by way of filing criminal misc. application no. 507 of 2008, which criminal misc. application was decided by this Court on 20.08.2008. The said order has, infact, decided the whole controversy involved in the instant petition under Section 482 of Cr.P.C. 6. The judgment and order dated 20.08.2008 is being reproduced here-in-under for the purpose of resolving the controversy in hand: “There is a conflicting version about the marital status of the girl Meenu as well as petitioner Dharmendra. At some places, it is found that Meenu’s stand was that she is married to Ramesh but this marriage was performed by Om Prakash (respondent), her step-father, against her will as well as by force and that she loves petitioner Dharmendra and, voluntarily, is residing with him. Elsewhere her stand seems to be that she is not married to Ramesh and that she is married to petitioner Dharmendra. Meenu as well as the petitioner are present before me today and they both have stated that they are married to each other. I do not want to enter into any controversy about the marital status of either the petitioner or Meenu. Meenu as well as the petitioner are present before me today and they both have stated that they are married to each other. I do not want to enter into any controversy about the marital status of either the petitioner or Meenu. The undisputed and uncontroverted fact, however, is that the girl Meenu, as per her School Certificate, is above the age of 18 years. She also does appear to be well about 18 years of age. Even by appearance, she looks to me to be much more than 18 years. With whomsoever she wants to live, irrespective of the marital status, is her desire. Viewed thus, the action, in the impugned order, of the learned Magistrate directing her to be placed in the Women Observation Home was against well established principles of law because even the impugned order shows that when Meenu was produced before the Magistrate, she had expressed her desire to live with the petitioner. She had stated before the Magistrate also that her real father had died and respondent Om Prakash being her step-father, after taking money, had married her off to Ramesh against her wish and by force. Based upon the aforesaid discussion, I dispose of this petition by setting Meenu at liberty. Meenu is at liberty to go wherever she likes. Copy of this order shall be given to the learned Government Advocate for its implementation and compliance in letter and spirit.” 7. Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. Those principles can be summarised as follows: 1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. 2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. 2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basis ingredients of a criminal offence are not satisfied then the court may interfere. 3. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. 4. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. 5. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. 6. Where there is an express legal bar enacted in any provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. 7. The court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. 8. The process of the court cannot be permitted to be used for an oblique or ultimate / ulterior purpose. 9. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its inherent or original jurisdiction. 10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a civil wrong with no element of criminality and do not satisfy the basic ingredients of a criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence. 11. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction; the court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. 12. It is neither necessary nor is the court called upon to hold a full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. 13. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution. 14. Quashing of a charge is an exception to the rule of continuous prosecution. The court has to consider the record and documents annexed with by the prosecution. 14. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. 15. Where the charge-sheet, report under Section 173(2) CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. 16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists. 8. The High School Marksheet of the victim Meenu was enclosed as Annexure 1 to the application under Section 482 of Cr.P.C. Said marksheet indicates that the date of birth of Meenu is 30.06.1989. The incident allegedly took place on 10.03.2008. By this analogy, the victim was aged 18 years plus as on the date of incident. Victim submitted before this Court on 20.08.2008 that she has married to Dharmendra, the present applicant. In other words, Meenu was major on the date of alleged incident and she submitted before this Court that she has married to Dharmendra on her own volition. 9. In the background of these facts, how can it be said that Dharmendra enticed or took away or detained with criminal intent a married woman i.e. Meenu? On the fact of it, no offence punishable under Section 498 of IPC was made out against the present applicant Dharmendra. Prima facie, on a bare reading of a complaint, the ingredients of offence punishable under Section 504 of IPC were also not made out against the applicant. In such a situation, it will be a futile exercise to keep the criminal complaint pending for the decision of learned Judicial Magistrate, Laksar. This Court should step in under Section 482 of Cr.P.C. to quash the pending proceedings. 10. The application / petition under Section 482 of Cr.P.C. is accordingly allowed. In such a situation, it will be a futile exercise to keep the criminal complaint pending for the decision of learned Judicial Magistrate, Laksar. This Court should step in under Section 482 of Cr.P.C. to quash the pending proceedings. 10. The application / petition under Section 482 of Cr.P.C. is accordingly allowed. The summoning order dated 16.10.2008 passed by Judicial Magistrate, Laksar, District Haridwar, in criminal complaint case no. 428 of 2008, Om Prakash vs Dharmendra and others is hereby quashed so far as it relates to the present applicant Dharmendra.