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2013 DIGILAW 689 (UTT)

Praveen v. State of Uttarakhand

2013-10-29

U.C.DHYANI

body2013
JUDGMENT : U.C. Dhyani, J. By way of present application / petition, moved under Section 482 of Cr. P.C., the applicants seek to quash the charge-sheet dated 23.07.2009, summoning order dated 10.12.2009, as well the entire proceedings of criminal case no. 664 of 2009, State vs Praveen and others, under Sections 323, 504, 506, 498-A of IPC and Section ¾ of the Dowry Prohibition Act, pending in the court of Judicial Magistrate, Laksar, Haridwar. 2) Informant-respondent no. 2 lodged an FIR on 15.04.2009, in police station Laksar against six accused persons, including the applicants, for the offences punishable under Sections 323, 506, 498-A of IPC and Section ¾ of the Dowry Prohibition Act. After the investigation, charge-sheet was submitted against the present applicants. Cognizance was taken on said charge-sheet and the accused-applicants were summoned to face the trial for the offences complained of against them. Aggrieved against the same, the accused-applicants moved this application under Section 482 of Cr. P.C. 3) Applicant no. 1 is husband, applicant no. 2 is father-in-law, applicant no. 3 is mother-in-law, application no. 4 is married sister-in-law (nanad) and applicant no. 5 is brother-in-law (nandoi) of the daughter of respondent no. 2. 4) As per the FIR, daughter of respondent no. 2 was married to applicant no. 1 on 28.05.2006, at Kanpur, according to Hindu rites and rituals. After the marriage of Udita (victim), her husband and in-laws started harassing her for want of bringing sufficient dowry. They repeatedly made a demand for dowry. On 15.09.2008, Udita was assaulted and sent to her parental home. 5) Learned counsel for the applicants submitted, among other things, that the current FIR was counterblast to the proceedings under Section 9 of the Hindu Marriage Act initiated by applicant no. 1 against the daughter of respondent no. 2. It is also contended that applicant no. 4 is married sister-in-law of the victim. Applicant no. 5 is the husband of applicant no. 4. Copies of Voter Identity Cards of applicants no. 4 and 5 are enclosed as Annexure –3 to show that they were living separately within the jurisdiction of Ijjat Nagar, District Bareilly (U.P.) and have no concern with the familial affairs of applicant no. 1 and the daughter of respondent no. 2. 5 is the husband of applicant no. 4. Copies of Voter Identity Cards of applicants no. 4 and 5 are enclosed as Annexure –3 to show that they were living separately within the jurisdiction of Ijjat Nagar, District Bareilly (U.P.) and have no concern with the familial affairs of applicant no. 1 and the daughter of respondent no. 2. It is further contended that theirs’ is a separate family establishment at Bareilly and are not expected to interfere in the familial affairs of the couple (Praveen and Udita). Copy of domicile certificate is also filed to indicate that applicants no. 4 and 5 are the permanent residents of Bareilly (U.P.) since 1996. Present incident allegedly took place on 15.09.2008. It is submitted on behalf of the applicants that whereas marriage of the estranged couple took place on 28.05.2006, applicants no. 4 and 5 were residing separately at Bareilly since 1996. 6) Learned counsel for the applicants also placed reliance upon the pronouncement of Hon’ble Apex Court in Preeti Gupta and another vs State of Jharkhand and another, (2010) 7 SCC 667 , wherein Hon’ble Court observed that to find out the truth is a Herculean task in a majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. 7) The allegations leveled against applicants no. 4 and 5 are general and sweeping in nature. They are part and parcel of separate household. They have been living separately from the family of estranged couple and therefore, were not expected to interfere in their familial affairs. In such view of the matter, it will be proper to allow the application under Section 482 of Cr. P.C. filed by applicants no. 4 and 5. 8) Application under Section 482 of Cr. P.C. filed on behalf of applicants no. 4 and 5 is, accordingly, allowed. Charge-sheet dated 23.07.2009, summoning order dated 10.12.2009, as well the entire proceedings of criminal case no. 664 of 2009, State vs Praveen and others, under Sections 323, 504, 506, 498-A of IPC and Section ¾ of the Dowry Prohibition Act, pending in the court of Judicial Magistrate, Laksar, District Haridwar are hereby quashed qua applicants no. 4 and 5 only. 9) But the same is not applicable in respect of applicants no. 1, 2 and 3, who constitute the nucleus of the matrimonial home of the victim. 4 and 5 only. 9) But the same is not applicable in respect of applicants no. 1, 2 and 3, who constitute the nucleus of the matrimonial home of the victim. They are integral part of the matrimonial home of the victim. 10) 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. 11) 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? 12) A perusal of the record of the instant case will suggest that the reply to the aforesaid questions is in the negative as regards the role of applicants no. 1, 2 and 3, as a consequences thereof, there is no occasion to quash the criminal proceedings pending against the accused-applicants no. 1, 2 and 3 in exercise of jurisdiction vested under Section 482 of Cr. P.C. Hon’ble Supreme Court, in the above noted case, also observed as under: “28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr. P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations leveled by the prosecution / complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations leveled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations leveled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. Even if the accused is successful in showing some suspicion or doubt, in the allegations leveled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations leveled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has leveled allegations bringing out all ingredients of the charge(s) leveled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations leveled, trial must be held.” 13) When the factual foundation of the offences complained of against applicants no. 1, 2 and 3 is laid, there is hardly any scope to interfere in the proceedings of the court below in so far as applicants no. 1, 2 and 3 are concerned. 14) The inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. The applicants no. 1, 2 and 3 in the instant case are unable to pass those tests. 15) The application under Section 482 of Cr. P.C. moved on behalf of applicants no. 1, 2 and 3 is therefore dismissed, but with the direction upon learned Judicial Magistrate, Laksar to decide the bail applications of applicants no. 2 and 3 on the same day, subject to their surrender before the court concerned.