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2017 DIGILAW 1695 (ALL)

SUNIL KUMAR @ SONU v. STATE OF U. P.

2017-07-20

ABHAI KUMAR

body2017
JUDGMENT : Abhai Kumar, J. 1. Heard learned counsel for the applicants, learned counsel for the opposite party no.2, learned A.G.A. for the State and perused the record. 2. This application under Section 482 Cr.P.C. has been filed with the prayer to quash the charge sheet dated 3.6.2008 filed by the investigating officer under Section 498-A, 323, 504 & 506 I.P.C. and 3/4 of D.P. Act, Police Station Muradnagar, District Ghaziabad and for staying the further proceeding of Case No.2279 of 2008 (State vs. Sunil and others) under Section 498-A, 323, 504 & 506 I.P.C. and 3/4 of D.P. Act, pending in the court of IInd Additional Chief Judicial Magistrate, Ghaziabad. 3. In the present case, an FIR was lodged by the opposite party no.2 against the applicants under Section 498-A, 323, 504 & 506 I.P.C. and 3/4 of D.P. Act. After investigation, charge sheet was submitted against the applicants. Aggrieved by that, this petition has been filed. 4. It is submitted by the learned counsel for the applicants that all the family members of husband alongwith nearest relatives made accused in the present matter, whereas no specific allegation is being made against any of the applicants. No such incident is said to have happened as has been mentioned in the FIR. It is further submitted that the applicant nos.1, 4 and 5 are in government job and living separately. They are falsely implicated in the matter. It is further submitted that under the pressure of the opposite party no.2, the applicant no.1 started living separately with her but the opposite party no.2 without any reason started living in her parental house. 5. Learned counsel for the opposite party no.2 submitted that all the applicants are equal responsible for torture and cruelty to the opposite party no.2 in regard to demand of dowry and specific allegation against all the applicants are being made in the FIR and as per statement recorded under Section 161 Cr.P.C. 6. The FIR is very elaborate consisting the incident of several years i.e. ranging from marriage of the opposite party no.2 till 2007-08. 7. The FIR is very elaborate consisting the incident of several years i.e. ranging from marriage of the opposite party no.2 till 2007-08. 7. The FIR starts with general allegation against all the applicants regarding demand of dowry in the shape of Car and Rs.2 lacs, then it is narrated that immediately after coming to matrimonial house, all jewelleries and Rs.11,000/- were taken by mother-in-law, father-in-law, husband and sister-in-law (Nanad), then it is stated in the FIR that several times money was given to the applicants. It is specifically mentioned at one place in the FIR that father of complainant gave Rs.30,000/- to her mother-in-law and Chachiya Sas at Delhi. During the intervening period, all the applicants were alleged to have assaulted the complainant and due to assault, 15 days pregnancy was aborted. In the FIR, there is constant repetition of the allegation of cruelty meted to the complainant and demand of Rs.20 lacs for purchasing the house. Same allegations were corroborated by the complainant in the statement under Section 161 Cr.P.C. The statement of other witnesses taken by the investigating officer are having similar grounds. 8. Before going into the merits of this case, the observation of Hon'ble Apex Court is required to be produced. 9. In the case of Geeta Mehrotra and another vs. State of U.P. and another, 2012 Law Suit (SC) 716, the Court has clearly laid down the principle where any matrimonial dispute is there and certain criminal proceeding is initiated by wife entangling all family members of husband. The Court observed as follows: "14. Facts of the FIR even as it stands indicate that although a prima facie case against the husband Shyamji Mehrotra and some other accused persons may or may not be constituted, it surely appears to be a case where no ingredients making out a case against the unmarried sister of the accused Shyamji Mehrotra and his brother Ramji Mehrotra appear to be existing for even when the complainant came to her in-law's house after her wedding, she has alleged physical and mental torture by stating in general that she had been ordered to do household activities of cooking meals for the whole family. But there appears to be no specific allegation against the sister and brother of the complainant's husband as to how they could be implicated into the mutual bickering between the complainant and her husband Shyamji Mehrotra including his parents." 10. The Hon'ble Apex Court also discussed the law laid down in Ramesh Vs. State of Tamil Nadu, 2005 SCC (Criminal) 735, where their Lordships of Supreme Court observed as follows: "17. Their Lordships of the Supreme Court in this matter had been pleased to hold that the bald allegations made against the sister in law by the complainant appeared to suggest the anxiety of the informant to rope in as many of the husband's relatives as possible. It was held that neither the FIR nor the charge sheet furnished the legal basis for the magistrate to take cognizance of the offences alleged against the appellants. The learned Judges were pleased to hold that looking to the allegations in the FIR and the contents of the charge sheet, none of the alleged offences under Section 498 A, 406 and Section 4 of the Dowry Prohibition Act were made against the married sister of the complainant's husband who was undisputedly not living with the family of the complainant's husband. Their Lordships of the Supreme Court were pleased to hold that the High Court ought not to have relegated the sister in law to the ordeal of trial. Accordingly, the proceedings against the appellants were quashed and the appeal was allowed." 11. The Hon'ble Apex Court also quoted the observations made by it in G.V. Rao vs. L.H.V. Prasad and others, 2000 (3) SCC 693 as under: "20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that: "There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. Their Lordships observed therein with which we entirely agree that: "There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes." 12. However, the Hon'ble Apex Court made it ample clear that the law laid down in the present case is not a blanket view rather it is to be used by way of caution. The Court observed as under: "24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding." 13. The law laid down by the Hon'ble Apex Court is to be seen in the facts and circumstances of the respective cases and in case it is found that material does not disclose any offence against the family members of husband, then High Court should quash the proceeding. On the basis of the observation made by Apex Court, it can be said that the complicity of husband and his parents can be taken into consideration on a different perspective and if certain allegation are there regarding the demand of dowry and cruelty, then they will be treated on different footing. 14. Keeping in view the law laid down by Hon'ble Apex Court, if we see the facts of the case, then we find that from the very beginning there is a general allegation against the applicants and there is a conscious effort to entangle all the family members so as to pressurize the husband and his parents in settling the dispute. To certain extent, the opposite party no.2 succeeded in that and the husband of the opposite party no.2-applicant no.1 started living separately. It is alleged by the applicants that the opposite party no.2 without any reason deserted the husband and started living with her parental house. At one place in the FIR, it is stated that jewelleries as well as Rs.11,000/- were kept by husband, mother-in-law, father-in-law and sister-in-law (Nanad). The name of Nanad Geeta is apparently included just to entangle her also in the matrimonial dispute otherwise when jewelleries and money is taken by the above referred persons how the Nanad will also take it. At one place in the FIR, it is stated that jewelleries as well as Rs.11,000/- were kept by husband, mother-in-law, father-in-law and sister-in-law (Nanad). The name of Nanad Geeta is apparently included just to entangle her also in the matrimonial dispute otherwise when jewelleries and money is taken by the above referred persons how the Nanad will also take it. Similarly all the actions that are alleged against the applicant nos.4 to 8 are general in nature, although at some places specific names are also taken. Nowhere, it is alleged that the applicant nos.4 to 9 assaulted the opposite party no.2 separately or at any time they demanded the dowry separately from the applicant nos.1 to 3. At one place, it is stated that Rs.30,000/ were given to the mother-in-law and Chachiya Sas at Delhi. If mother-in-law is there, then how and why Chachiya-Sas will take money. 15. All the facts that are being narrated in the FIR as well as stated before the investigating officer against the applicant nos.4 to 8 are general in nature and they does not constitute any offence against them and in view of law propounded by the Hon'ble Apex Court, the proceeding against them is liable to be quashed. 16. So far as the applicant nos.1 to 3 are concerned, the applicant no.1 is husband, the applicant no.2 is father-in-law and applicant no.3 is mother-in-law, they cannot be exonerated from the allegation, which are being made against them. From the facts, it can be inferred that there is constant dispute between husband and wife. Wife is admittedly living separately. In a matrimonial dispute if wife is meted with cruelty and demand of dowry is made, the parents of husband who are living with him, then they are also prima facie responsible for that. The witnesses have also deposed against them in the statement under Section 161 Cr.P.C. In the facts and circumstances of the case, they including husband can not be absolved of the charges. 17. Accordingly, the application under Section 482 Cr.P.C. succeeds partly. 18. The proceeding in Case No.2279 of 2008 (State vs. Sunil and others) under Section 498-A, 323, 504 & 506 I.P.C. and 3/4 of D.P. Act, pending in the court of IInd Additional Chief Judicial Magistrate, Ghaziabad is hereby quashed against the applicant nos.4 to 8 whereas the proceeding against the applicant nos. 1 to 3 will go on. 18. The proceeding in Case No.2279 of 2008 (State vs. Sunil and others) under Section 498-A, 323, 504 & 506 I.P.C. and 3/4 of D.P. Act, pending in the court of IInd Additional Chief Judicial Magistrate, Ghaziabad is hereby quashed against the applicant nos.4 to 8 whereas the proceeding against the applicant nos. 1 to 3 will go on. 19. However, it is directed that in case the applicant nos.1 to 3 appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by Allahabad High Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as Judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.