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2013 DIGILAW 606 (UTT)

Vicky Kumar v. Babita

2013-09-24

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. The applicants, by means of present application / petition under Section 482 of Cr. P.C., seek to quash the entire proceeding of criminal case no. 28 of 2009, Babita Devi vs. Vicky Kumar and others, pending in the court of Judicial Magistrate, Rudraprayag, under Sections 120-B, 325, 498-A, 452, 504, 506 of IPC as well as summoning order dated 16.04.2009. 2) Respondent filed a criminal complaint case against the accused-applicants in the court of Chief Judicial Magistrate, Rudraprayag. Statement of the respondent was recorded under Section 200 of Cr. P.C. The statements of Rati Ram and Mahendra were recorded under Section 202 of Cr. P.C. After perusing the material on record, learned Chief Judicial Magistrate, Rudraprayag, vide order dated 16.04.2009, summoned the accused-applicants Vicky Kumar and Ajay for the offences punishable under Sections 120-B, 325, 498-A, 452, 504, 506 of IPC. Learned Chief Judicial Magistrate also summoned accused-applicants Hari Om and Dinesh under Sections 498-A, 120-B, 452, 504, 506, 325/109 IPC. Accused-applicant Smt. Savitri was summoned under Sections 498-A, 120-B, 325 of IPC, accused-applicant Smt. Swati under Sections 498-A and 120-B of IPC and accused-applicant Smt. Babli under Sections 498-A, 120-B, 325/109 of IPC. Aggrieved against the same, present application under Section 482 of Cr. P.C. was moved by the accused-applicants. 3) Learned counsel for the applicants contended, among other things, that the criminal complaint case filed by the respondent against the applicants was counterblast to the complaint filed by the applicant no. 1 against the father and brother of the respondent. Learned counsel also contended that the incident allegedly took place within the jurisdiction of police station Nagina, District Bijnor (U.P.) and the court at Rudraprayag has no jurisdiction to try the case. Learned counsel for the respondent, on the other hand, submitted that the court at Rudraprayag has jurisdiction to take cognizance of the offences in view of Sections 178, 179 and 180 of Cr. P.C. Learned counsel for the respondent also submitted that, on the basis of statements brought on record, a prima facie case was made out against the applicants for the offences for which they were summoned by the trial court. 4) Section 177 of Cr. P.C. deals with ordinary place of inquiry and trial. Section 178 of Cr. P.C. Learned counsel for the respondent also submitted that, on the basis of statements brought on record, a prima facie case was made out against the applicants for the offences for which they were summoned by the trial court. 4) Section 177 of Cr. P.C. deals with ordinary place of inquiry and trial. Section 178 of Cr. P.C. says that when an offence is committed partly in one local area and partly in another, or where an offence is continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be inquired into or tried by a Court having jurisdiction over any of such local places. Section 179 of Cr. P.C. prescribes that when an act is an offence by reason of anything which has been done and of a consequence which has ensued, the offence may be inquired into or tried by a Court within whose local jurisdiction such thing has been done or such consequence has ensued. The marriage of respondent was solemnized with applicant no. 1 at Nagina, Bijnor. The alleged harassment, cruelty, assault, abuse, threatening took place at Nagina. The respondent had no option but to leave her matrimonial home in the wake of such harassment and to take shelter at her parental home at Rudraprayag. The offence punishable under Section 498-A of IPC is a continuing offence. It cannot, therefore, be said that the court at Rudraprayag has no jurisdiction to take cognizance of the offence. 5) Applicant no. 1 is the husband of the respondent. Applicant no. 2 is the father-in-law, applicant no. 3 is mother-in-law, applicant no. 4 is brother-in-law (devar) of the respondent. Applicants no. 1 to 4 live in the same household. Applicant no. 5 is uncle-in-law, applicant no. 6 is aunt-in-law and applicant no. 7 is married sister-in-law (nanad) of the respondent. Applicants no. 5, 6 and 7 live separately. They are not part of the household of respondent and her husband. The allegations against applicants no. 5, 6 and 7 are general, sweeping and vague in nature. It, therefore, cannot be said that, theirs’ is a triable case, in as much as, no prima facie case worth substance is made out against them (applicants no. 5, 6 and 7). The application under Section 482 of Cr. The allegations against applicants no. 5, 6 and 7 are general, sweeping and vague in nature. It, therefore, cannot be said that, theirs’ is a triable case, in as much as, no prima facie case worth substance is made out against them (applicants no. 5, 6 and 7). The application under Section 482 of Cr. P.C. in respect of said applicants (applicants no. 5, 6 and 7) should, therefore, succeed in order to prevent the abuse of process of the Court. 6) There is no hesitation in coming to the conclusion that a prima facie case is made out against applicants no. 1 to 4 in view of the statements recorded under Sections 200 and 202 of Cr. P.C. and the other documents thus brought on record. 7) Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330 has desired the High Courts to follow the following steps while dealing with applications under Section 482 of Cr. P.C. The same reads as under: • Step one: Whether the material relied upon by the accused is sound, reasonable, and indubitable i.e. the material is of sterling and impeccable quality? • Step two: Whether the material relied upon by the accused would rule out the assertions contained in the charges leveled against the accused i.e. the material is sufficient to reject and overrule the factual assertions contained in the complaint i.e. the material is such as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false? • Step three: Whether the material relied upon by the accused has not been refuted by the prosecution/complainant; and/or the material is such that it cannot be justifiably refuted by the prosecution/complainant? • Step four: Whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice? 8) Hon’ble Supreme Court has provided guideline that if the reply to the aforesaid four steps is in the affirmative, then only proceedings under Section 482 of Cr. P.C. should be allowed. In the instant case, the reply to most of the aforesaid questions, is in the negative in respect of applicants no. 1, 2, 3 and 4. 8) Hon’ble Supreme Court has provided guideline that if the reply to the aforesaid four steps is in the affirmative, then only proceedings under Section 482 of Cr. P.C. should be allowed. In the instant case, the reply to most of the aforesaid questions, is in the negative in respect of applicants no. 1, 2, 3 and 4. 9) 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. One of the principle is that 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 basic ingredients of a criminal offence are not satisfied then the court may interfere. 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. 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. 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. 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. 10) Having found a prima facie case against the applicants no. 10) Having found a prima facie case against the applicants no. 1, 2, 3 and 4 and taking a leaf out of the Hon’ble Apex Court’s book, this Court is of the opinion that whereas application under Section 482 of Cr. P.C. in respect of applicants no. 1, 2, 3 and 4 should fail, the same should succeed in respect of applications no. 5, 6 and 7. 11) The application under Section 482 of Cr. P.C. filed by applicants no. 1, 2, 3 and 4 is, therefore, dismissed with the observation that if the said applicants surrender before the court below and seek bail, their bail applications in the criminal complaint case be decided by the court below on the same date. 12) The application under Section 482 of Cr. P.C. filed on behalf of applicants no. 5, 6 and 7 is allowed. The entire proceedings of criminal case no. 28 of 2009, Babita Devi vs Vicky Kumar and others, pending in the court of Judicial Magistrate, Rudraprayag, under Sections 120-B, 325, 498-A, 452, 504, 506 of IPC as well as summoning order dated 16.04.2009 are hereby quashed qua applicants no. 5, 6 and 7.