Research › Search › Judgment

Allahabad High Court · body

2016 DIGILAW 1994 (ALL)

Anjani Kumar Mishra v. State of U. P.

2016-05-23

KARUNA NAND BAJPAYEE

body2016
JUDGMENT Karuna Nand Bajpayee, J. This application u/s 482 Cr.P.C. has been filed seeking the quashing of charge sheet dated 9.6.2010 in case crime no.2781 of 2009, u/s 498-A, 406, 323, 506 I.P.C., P.S. Kotwali, district Ghazipur. 2. List has been revised. Despite repeated calls none has appeared on behalf of the opposite party no.2. Sri Arvind Kumar Shukla, Learned counsel for the applicant is present along with learned AGA. This application is of year 2010. In the wake of heavy pendency of cases in this Court where dockets are already bursting on their seams there is no justifiable reason to further procrastinate the matter. Therefore, the Court is proceeding to decide this case on merits on the basis of its record taking the assistance of learned A.G.A. representing the State. 3. The counsel for the applicant submits that the case at hand is an out come of false implication wherein the opposite party no.2 who was married to some another person Mangroo Chaurasiya in the year 1992 has lodged the F.I.R. against the applicant with allegations that she and the applicant had got married about 12 years before in accordance with Hindu rites and rituals in a temple and they were living as husband and wife but the applicant had subjected her with all sort of cruelty and harassment and had got her abortion done on five earlier occasions against her will and being posted as Constable in police department, the applicant continuously gives threat to her life and has ultimately snatched her mobile and one lac seventy thousand rupees by committing marpit and has eventually abandoned her. Submission of the counsel is that actually the applicant is a married man who leads a family having a wife namely Indu and two minor children and in fact he has neither any concern with the opposite party no.2 nor has any relation with her as alleged in the F.I.R. and the criminal case in question has been set up at the instance of one person Visheshwar Mishra who is inimical with applicant and the opposite party no.2 has been used as a tool to falsely implicate the applicant. Submission is that the entire criminal case set up against the applicant is false and frivolous and is liable to be quashed in as much as no offence u/s 498-A I.P.C. is made out for the reason that the opposite party no.2, who was married to one Mangroo Chaurasiya earlier and has not been divorced, cannot be treated to be the wife of applicant and if there is no legal marriage in between applicant and opposite party no.2, the offence u/s 498-A I.P.C. would not have any application in the present matter. The counsel for the applicant has placed reliance on the pronouncement of Supreme Court in Shiv Charan Lal Verma and another Vs. State of M.P., (2007) 15 SCC 369 , Preeti Gupta and another Vs. State of Jharkhand and another, (2010) 7 SCC 667 , U. Suvetha vs. State by Inspector of Police and another, (2009) 3 SCC 36 . 4. Learned A.G.A. Shri Vimlendu Tripathi has vehemently opposed the submissions made on behalf of the applicant and has submitted that the arguments of the applicant's side are in the nature of his defence and in view of the crucially disputed question of facts, it would not be proper for this Court to adjudicate upon such factual controversy and determine as to whether the stand taken by the applicant is correct or not. Learned A.G.A. has further submitted that the factum of second marriage by the opposite party no. 2 with the applicant no. 1 without dissolution of her first marriage with alleged Mangroo Chaurasiya and the factum of having no concern or relationship of applicant with the opposite party no. 2 as is being claimed by the applicant are such issues which require subtle appreciation of evidence led by the parties before the trial court and any determination over such issues would not be in consonance with the scope of inherent power of this Court under Section 482 of Cr.P.C. and even the case laws cited by the counsel for the applicant also do not take the case of the applicant very far. Learned A.G.A. further contends that the above noted stand taken by the applicant that the opposite party no. Learned A.G.A. further contends that the above noted stand taken by the applicant that the opposite party no. 2 is not his legally wedded wife and he has no concern with her and hence offence under Section 498A is not made out in the light of judgement of the Supreme Court in Shiv Charan Lal Verma's case (supra) is quite fallacious inasmuch as in said case, the controversy had ripened up to the Supreme Court after full fledged trial and the appellants before the Supreme Court had challenged their conviction under Section 306 and 498A I.P.C. and after considering the evidence of prosecution witnesses the Hon. Supreme Court came to the conclusion that since the marriage with the deceased itself was null and void as the same was performed during the life time of first wife, the conviction of appellants before the Supreme Court under Section 498A of I.P.C. was not proper. The applicant cannot seek any benefit from the aforesaid dicta of Hon. Supreme Court inasmuch as the prosecution of applicant accused in the case at hand is at its very threshold. So far as judgement of Hon. Apex Court in U. Suvetha's case (supra) is concerned, it was a case in which the question as to whether the term "relative of husband of a woman" within the meaning of Section 498A of I.P.C. should be given an extended meaning was involved and the facts of the case were that the appellant before the Supreme Court was alleged to be the girl friend of husband and she was implicated in the case as a relative of husband along with other accused persons including the husband of said case for offence under Section 498A of I.P.C. While dealing with this question the Hon. Apex Court concluded that by no stretch of imagination a girlfriend or even a concubine in an etymological sense would be relative for the purpose of Section 498A of I.P.C. and the word relative brings within its purview status and such a status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise. With such observation it was held that the appellant before the Supreme Court was not a relative of the husband of the first informant. If no marriage has taken place, the question of one being relative of another would not arise. With such observation it was held that the appellant before the Supreme Court was not a relative of the husband of the first informant. According to learned A.G.A., this analysis makes it clear that the applicant cannot derive any benefit out of said case law of U. Suvetha's case (supra) as the controversy involved in the case at hand is altogether different and there was ample material available in the case diary at the stage of taking cognizance by the court below to conclude that the opposite party no. 2 is the wife of applicant. Learned A.G.A. contends that it is altogether different and a distinct question of fact as to whether the opposite party no. 2 can be treated as legally wedded wife of the applicant or not in the given circumstances of the case, which can only be decided after due appreciation of evidence to be led by the parties during the trial. 5. According to learned A.G.A., so far as the case law cited by the applicant in Preeti Gupta's case (supra) is concerned, the same is also not applicable in the facts of the case at hand as the Hon. Supreme Court was dealing with a complaint case in the nature of matrimonial dispute launched under Section 498A , 406, 341, 323 and 120B of I.P.C. and it was concluded therein that the careful consideration of the averments of the complaint and statements of the all the witnesses recorded at the time of filing of the complaint did not disclose any specific allegation or any specific role against the appellants before the Supreme Court. Under such circumstances, the Apex Court observed that the matrimonial litigations are being filed across the country in the heat of moment over trivial issues without proper deliberations and large number of complaints are not even bonafide and are filed with oblique motive. Learned A.G.A. has this tried to distinguish the case laws relied upon by applicant's counsel and has emphasized upon their non-applicability in the facts of the present case. 6. Learned A.G.A. has this tried to distinguish the case laws relied upon by applicant's counsel and has emphasized upon their non-applicability in the facts of the present case. 6. In the last learned A.G.A. has also tried to demonstrate that whatever acts have been perpetrated against the opposite party would still constitute several offences defined in the Indian Penal Code even if during the course of trial she fails to prove that her relationship with the applicant was having a full- fledged legitimacy according to law in the strict sense of the term. Beating somebody and snatching her valuables or misappropriating them or torturing somebody or forcing somebody to abort the child are not treated as offences only when they are committed with or against a lawfully wedded wife. Challenging the legitimacy of relationship and the final findings with regard to the same would be relevant only in determining whether the offence u/s 498-A is constituted or not. The other offences shall still be made out. Therefore in any view of the matter, keeping in perspective all the allegations and abundant material available in the case diary against the applicant, there cannot be any justification to quash the charge-sheet or the impugned criminal proceedings. 7. In the light of aforesaid submissions made at Bar, the record of the case has been perused and it is found that the opposite party no. 2 has also filed a counter affidavit through her counsel who is not present before the Court. A careful perusal of the record reveals that the opposite party no. 2 has made allegations to the effect that she had married with applicant 12 years back and was living with him as husband and wife in the full gaze of the world and they were treated as long married couple by all and sundry but she has been ill-treated, harassed and has been subjected to cruelty making forced abortions on five earlier occasions with continuous threats being extended by the applicant to kill her by pouring kerosene and she was also beaten up badly and when she made complaint to the police station Kotwali Ghazipur, neither her medical examination was conducted nor her report was lodged just because the applicant is working as constable in police department. As such ultimately she had to move application before the D.G.P., U.P. for registration of criminal case against the applicant and for appropriate action against him and it was only thereafter that the case in question was registered on 9.9.2009 initially as Case Crime No. Nil of 2009, under Sections 498A, 406 I.P.C., at P.S.- Kotwali District- Ghazipur, whereas later on the case was registered as case crime no. 2781 of 2009 and after due investigation, a charge sheet no. 283 of 2010, dated 9.6.2010 has been submitted before the court below which has taken cognizance of the offence under Sections 498A, 406, 323, 506 I.P.C. vide order dated 18.6.2010. 8. On the other hand, the stand taken by the applicant in this criminal misc. application is that the applicant is a married man having wife namely Indu and two minor children and the applicant is in police service since 1993 and he has no concern whatsoever with the opposite party no. 2 who has been used by his opponent namely Vishweshar Mishra as a tool to anyhow implicate the applicant in the present criminal case on false charge that the opposite party no. 2 is wife of applicant. Further stand taken by the applicant is that the opposite party no. 2 was married to one Mangroo Chaurasiya in the year 1992. Stand taken by the applicant is that because of the matrimonial discord the opposite party no. 2 had filed a case for maintenance under Section 125 of Cr.P.C. as Case No. 302 of 1997 (Smt. Sheela Chaurasiya vs. Mangroo Chaurasiya), in which a maintenance of Rs. 350/- per month was granted by the order dated 14.10.1999 and ultimately the case was decided on the basis of compromise with the terms that above named Mangroo Chaurasiya has given a total sum of Rs. 1,50,000/- as one time maintenance and the other due amount of Rs. 5250/- through bank draft no. 220348 dated 19.3.2009 and it was also agreed upon that civil/criminal cases between those parties would be closed on the basis of compromise. 1,50,000/- as one time maintenance and the other due amount of Rs. 5250/- through bank draft no. 220348 dated 19.3.2009 and it was also agreed upon that civil/criminal cases between those parties would be closed on the basis of compromise. Further stand taken by the applicant in the supplementary affidavit is that abovenamed Vishweshar Nath Mishra is next door neighbour of the applicant and a criminal case under Section 307 I.P.C. is pending in between the applicant's family and said Vishweshar Nath Mishra and at his instance, the witnesses shown by the investigating officer of the present criminal case have made false statements against the applicant during the course of investigation. 9. This Court has also perused the counter affidavit filed by the opposite party no. 2 wherein she has rebutted the stand taken by the applicant in his pleadings and has disclosed that the applicant had obtained job in the police service in a fraudulent manner and after due inquiry the service of the applicant was terminated on 3.4.2010 and a criminal case is also pending against him regarding the cheating and forgery committed by him as Case Crime No. 1769 of 2009, under Sections 419/420 I.P.C., P.S.-Line Bazar, District- Jaunpur in which sanction for prosecution and filing of charge-sheet was granted by the S.P.(Railway), Gorakhpur vide his order dated 17.2.2010. It has also been disclosed in para-8 of the counter affidavit of the opposite party no. 2 that she has divorced and has separated from the alleged Mangroo Chaurasiya. It has also been disclosed in para-28 of the counter affidavit of the opposite party no. 2 that she had approached the Human Right Commission, whereupon an inquiry was conducted by the concerned Circle Officer wherein it was found that the applicant was very much living in his official quarter with the opposite party no. 2 as husband and wife. 10. The Court has also perused the statements of Sheela Devi, Guddu, Rajesh Tiwari, Constable Vishnu Kumar Pandey, Constable Rama Shankar Yadav and Sub Inspector Brij Bihari Singh which were recorded by the investigating officer under Section 161 of Cr.P.C. during course of investigation. 11. This Court also finds that the applicant in his rejoinder affidavit has although generally denied the averments of opposite party no. 11. This Court also finds that the applicant in his rejoinder affidavit has although generally denied the averments of opposite party no. 2 made by her in the counter affidavit but the applicant has not disclosed any such fact, which may effectively or convincingly controvert or may have any substantial effect over the averments made by the opposite party no. 2 in para- 8 and 28 of her counter affidavit. 12. In view of above noted materials and pleadings available on record, this court finds force in the submission made by learned A.G.A. It appears that the stand taken by the applicant that the opposite party no. 2 is not his legally wedded wife and he has no concern with her and hence offence under Section 498A is not made out in the light of judgement of the Supreme Court in Shiv Charan Lal Verma's case (supra) appears to be wholly fallacious inasmuch as in said case, the controversy had reached up to the Supreme Court after full fledged trial and the appellants before the Supreme Court had challenged their conviction under Section 306 and 498A I.P.C. and it was only after considering the evidence of prosecution witnesses that the Hon. Supreme Court came to the conclusion that since the marriage with the deceased itself was null and void as the same was performed during the life time of first wife, the conviction of appellants before the Supreme Court under Section 498A of I.P.C. was not tenable. The applicant cannot seek any benefit from the aforesaid view of Supreme Court inasmuch as the case in hand is at the very door steps of the trial which has yet not begun and this court cannot have a pretrial before the actual trial begins and arrive at the final findings about the relative truth of the rival claims. Whether the earlier marriages of the applicant or the opposite party have been terminated or that they still subsist in the eyes of law and whether the factum of living together for twelve long years was as a result of a legitimate relationship sufficient to make the applicant liable for committing the offence u/s 498A are all questions depending upon the nature of proof and its rebuttal by rival sides and definitely depends upon the nature of evidence to be produced in the trial. 13. 13. So far as judgement of Hon. Supreme Court in U. Suvetha's case (supra) is concerned, it was a case in which the question as to whether the term "relative of husband of a woman" within the meaning of Section 498A of I.P.C. should be given an extended meaning was involved and the facts of the case were that the appellants before the Supreme Court was alleged to be the girl friend of husband and she was implicated in the case as a relative of husband along with other accused persons including the husband of said case for offence under Section 498A of I.P.C. While delving with this question the Hon'ble Supreme Court opined that a girlfriend or even a concubine cannot be deemed to be a relative for the purpose of Section 498A of I.P.C. and the word relative brings within its purview a status and such status must be conferred either by blood or marriage or adoption. If no marriage has taken place, the question of one being relative of another would not arise. In the facts and circumstances of that case the Hon. Supreme Court found that the appellant before the Supreme Court was not a relative of the husband of the first informant. This analysis makes it clear that the applicant cannot derive any benefit out of said case law of U. Suvetha's case (supra) as there was ample material available in the case diary at the stage of taking cognizance by the court below to conclude that the opposite party no. 2 lived with him for so many long years as the wife of applicant. The defence side has tried to make it a disputed question of fact as to whether the opposite party no. 2 can be treated as legally wedded wife of the applicant or not, which in the opinion of this Court can only be decided after due appreciation of evidence to be led by the parties during the trial and it shall be premature for this Court to finally adjudicate upon this fact in issue and that too in exercise of its jurisdiction u/s 482 Cr.P.C. which has its own discrete limitations. 14. 14. So far as the case law cited by the applicant in Preeti Gupta's case (supra) is concerned, the same is also not found applicable in the facts of the case in hand as the Hon. Supreme Court was dealing with a complaint case in the nature of matrimonial dispute initiated under Section 498A , 406, 341, 323 and of I.P.C. and it was concluded therein that the careful consideration of the averments of the complaint and statements of all the witnesses recorded at the time of filing of the complaint did not disclose any specific allegation or any specific role against the appellants before the Supreme Court. Under such eventuality, the Hon. Supreme Court in its wisdom has observed that the matrimonial litigations are being filed across the country in the heat of moment over trivial issues without proper deliberations and large number of complaints are not even bonafide and are filed with oblique motive. The observations made by Apex Court are illuminating beacons for this Court and this Court takes full cognizance of the same. But in the given peculiar facts of this case the applicant cannot make much out of it and even this case law does not go very far to help the applicant. 15. In the light of aforesaid factual matrix claimed by the either side, this Court has to consider as to whether the prayer sought by the applicant for quashing of the charge-sheet against him for offences under Sections 498A, 406, 323, 506 I.P.C. is liable to be accepted or not. For this purpose it is amply clear from the record of the case that the material available in the case diary is against the applicant and discloses commission of said offences by the applicant but the same has been controverted by the applicant on the basis of certain facts regarding earlier marriage of opposite party no. 2 with abovenamed Mangroo Chaurasiya in the year 1992 and the proceeding of maintenance launched by the opposite party no. 2 against said Mangroo Chaurasiya under Section 125 of Cr.P.C. and its culmination on the ground of compromise for a total sum of Rs. 1,50,000/- as one time maintenance. The applicant has also controverted the allegations against him by pressing the fact of enmity with his next door neighbour namely Vishweshar Nath Mishra suggesting his instrumentality in launching of criminal case in question against the applicant. 1,50,000/- as one time maintenance. The applicant has also controverted the allegations against him by pressing the fact of enmity with his next door neighbour namely Vishweshar Nath Mishra suggesting his instrumentality in launching of criminal case in question against the applicant. 16. This Court is conscious of the judicious limitations and the discrete restraint required to be exercised while using the inherent jurisdiction under Section 482 of Cr.P.C. and the advisability of its use in rarest for rare cases where the bare perusal of materials available in case diary does not disclose any offence or when there is any statutory bar in proceeding with the prosecution or where the prosecution itself is an abuse of the process of the court under the given facts. In the present matter, the stand taken by the applicant requires appreciation of evidence to determine disputed questions of fact which is the sole domain of a trial court. 17. It is so obvious that most of the contentions raised by Applicant's counsel relate to the above mentioned hotly contentious questions of fact. The court has also been called upon to adjudge the worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon on behalf of applicant. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. The submissions raised in the application on behalf of the applicant call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. 18. The law regarding sufficiency of material which may justify the summoning of accused and also the court's decision to proceed against him in a given case is well settled. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. 19. The court has to eschew itself from embarking upon a roving enquiry into the last details of the case. It is also not advisable to adjudge whether the case shall ultimately end in conviction or not. Only a prima facie satisfaction of the court about the existence of sufficient ground to proceed in the matter is required. 19. Through a catena of decisions given by Hon'ble Apex Court this legal aspect has been expatiated upon at length and the law that has evolved over a period of several decades is too well settled. The cases of (1) Chandra Deo Singh Vs. Prokash Chandra Bose AIR 1963 SC 1430 , (2) Vadilal Panchal Vs. Dattatraya Dulaji Ghadigaonker AIR 1960 SC 1113 and (3) Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 may be usefully referred to in this regard. The Apex Court decisions given in the case of R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and in the case of State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 have also recognized certain categories by way of illustration which may justify the quashing of a complaint or charge sheet. Some of them are akin to the illustrative examples given in the above referred case of Smt. Nagawwa Vs. Veeranna Shivalingappa Konjalgi 1976 3 SCC 736 . The cases where the allegations made against the accused or the evidence collected by the Investigating Officer do not constitute any offence or where the allegations are absurd or extremely improbable impossible to believe or where prosecution is legally barred or where criminal proceeding is malicious and malafide instituted with ulterior motive of grudge and vengeance alone, may be the fit cases for the High Court in which the criminal proceedings may be quashed. Hon'ble Apex Court in Bhajan Lal's case has also recognized certain other categories in which Section-482 of Cr.P.C. or Article-226 of the Constitution may be successfully invoked. 20. Illumined by the case law referred to herein above, this Court has already adverted to the entire record and facts of the case and has discussed them hereinbefore. 21. A threadbare discussion or giving specific findings on various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. 21. A threadbare discussion or giving specific findings on various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out offences and therefore a prima facie case against the accused is very much disclosed at this stage and I do not find any justification to quash the charge sheet or the proceedings against the applicants arising out of them as the case does not fall in any of the categories recognized by the Apex Court which may justify their quashing. 22. The prayer for quashing the same is refused as I do not see any abuse of the Court's process either. The application, therefore, being sans merit stands dismissed.