Research › Search › Judgment

Uttarakhand High Court · body

2017 DIGILAW 219 (UTT)

ASHOK HARIWAL v. STATE OF UTTARAKHAND

2017-04-07

U.C.DHYANI

body2017
JUDGMENT U.C. Dhyani, J. (Oral) 1. By means of present Application under Section 482 Cr.P.C., the applicant seeks to quash the charge sheet no. 95 of 2013, order dated 10.06.2015 as well as the entire proceedings of Criminal Case No. 86 of 2013, State vs. Ashok Hariwal & others, under Sections 498-A, 323, 506 of IPC and Section ¾ of the Dowry Prohibition Act, pending in the Court of 1st Judicial Magistrate, Dehradun. 2. The accused-applicant is husband of the victim, who lodged the first information report against 6 named accused including the applicant (husband) for the offences punishable under Sections 498-A, 323, 506 of IPC and Section ¾ of the Dowry Prohibition Act, alleging therein that the accused persons subjected her to cruelty, assaulted and threatened her with dire consequences on account of non-fulfillment of demand of dowry. The Court was taken through the contents of the FIR. It is not necessary for the Court to reproduce the whole FIR for the sake of brevity. Suffice will it be to say, for the purpose of adjudication of the present Petition, that, on a bare reading of the first information report, ingredients of subjecting the victim to cruelty are prima facie made out against the applicant. The Court has been informed that even the charge has been framed against the accused-applicant which has been brought on record as annexure-3. 3. The scope of discharge has been highlighted by Hon’ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs. State of U.P. & another, AIR 2013 SC 52 . 4. It is submitted by learned counsel for the applicant that the accuse-applicant has been summoned in a routine manner and charge has wrongly been framed against him. It is also submitted that the victim is habitual of ‘framing’ her husband in similar cases. Learned counsel for the applicant also submitted, among other things, that the proceedings against the co-accused have been stayed by the co-ordinate Bench of this Court. It may be made clear at this stage that if the criminal proceedings have temporarily been stayed against the co-accused, this Court is not required to stay the proceedings against the applicant-husband as well. The co-accused persons are relatives of the victim’s husband, whereas the applicant is husband of the victim. 5. It may be made clear at this stage that if the criminal proceedings have temporarily been stayed against the co-accused, this Court is not required to stay the proceedings against the applicant-husband as well. The co-accused persons are relatives of the victim’s husband, whereas the applicant is husband of the victim. 5. Hon’ble Supreme Court in Amit Kapoor vs. Ramesh Chander and another, (2013) 1 Supreme Court Cases (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 Cr.P.C. Some of those principles, which are relevant in the context of present case, can be summarized as below: i. Though there are no limits of the powers of the Court under Section 482 of the Code 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 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. ii. 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. iii. 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. iv. 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. v. 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 loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. vi. v. 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 loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. vi. Where there is an express legal bar enacted in any of the provisions of the Code 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. vii. 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. viii. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. ix. 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 original jurisdiction. x. 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 does 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 the evidence. xi. Even in such cases, the Court would not embark upon the critical analysis of the evidence. xi. 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. xii. 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. xiii. 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. xiv. 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. xv. Where the charge-sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. xvi. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that 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 exist. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration. 6. It is settled law that the factual controversy need not be gone into by the Court while exercising jurisdiction under Section 482 Cr.P.C. and hence this Court need not deal with factual aspects of the case in detail. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration. 6. It is settled law that the factual controversy need not be gone into by the Court while exercising jurisdiction under Section 482 Cr.P.C. and hence this Court need not deal with factual aspects of the case in detail. Whether such offences were, in fact, committed by the applicant, or not, has to be examined by the Trial Court. Apparently, there is nothing on record to say that the applicant, prima facie, did not commit such offence. Foundation of criminal offence is, therefore, laid against the accused-applicant on a bare reading of the allegations levelled against him in FIR. 7. Criminal proceeding pending against him therefore, should not be quashed. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution. 8. It is also the settled law that 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 in the Section itself. The applicant, in the instant case, is unable to pass those tests. 9. This Court, therefore, is of the view that no interference is called for in the proceedings of the Court below in exercise of its inherent jurisdiction. Application under Section 482 Cr.P.C. filed on behalf of the applicant is therefore, dismissed. 10. As prayed, liberty is granted to the applicant to take all the factual pleas before the Court below for securing his acquittal at an appropriate stage.