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2017 DIGILAW 822 (ALL)

KM. SANGEETA AWASTHI v. STATE OF UTTAR PRADESH

2017-03-22

ANIL KUMAR SRIVASTAVA II

body2017
JUDGMENT : Anil Kumar Srivastava-II, J. Heard Shri R.P. Misra, learned counsel for the petitioner and learned A.G.A. 2. Notices were sent to Smt. Pappi alias Poonam, wife of Sushil Kumar, who is the victim in the matter, although the FIR was lodged by Moradhwaj Shukla, father of the victim. Since he has died during pendency of the petition, hence, specifically notices were sent to victim which were served upon her but none represents her before the Court. 3. The petition has been preferred to quash the proceedings of Criminal Case No. 4025/2001, pending before the Court of Chief Judicial Magistrate, Sitapur, arising out of crime No. 72/2001, under section 498-A, 323, 324 IPC and 3/4 Dowry Prohibition Act, Police Station Kotwali, District Sitapur, State v. Ram Sahare Awasthi and others, so far as it relates to the petitioner namely Kumari Sangeeta Awasthi. 4. Learned counsel for the petitioner submits that the petitioner is 'nanad' (sister of the husband of the victim), who was minor at the time of the alleged incident. It is further submitted in the first information report no specific allegation has been levelled against the petitioner except that she along with the husband of the victim namely Sushil Kumar Awasthi and wife of his elder brother, thrown out the petitioner from the house. It is further submitted that only a passing remark has been made. It is submitted that the husband Sushil Kumar has filed a petition under section 13, Hindu Marriage Act for divorce on 04.01.2001, i.e., much prior to the date of incident in the court of civil judge (senior division) Sitapur, which is pending. It is further submitted that even in the statement of the victim namely Puppi alias Poonam, recorded before the learned Magistrate, no specific allegation has been levelled against the petitioner, rather a passing remark has been made. 5. Learned counsel has placed reliance upon Geeta Mehrotra and another v. State of U.P. and another, 2013 (1) JIC 1 (SC). 6. Learned A.G.A. submits that there is sufficient evidence on record to proceed against the petitioner. Learned Magistrate on the basis of evidence collected by the Investigating Officer has taken cognizance of the matter and trial is proceeding. 7. Learned counsel has placed reliance upon Geeta Mehrotra and another v. State of U.P. and another, 2013 (1) JIC 1 (SC). 6. Learned A.G.A. submits that there is sufficient evidence on record to proceed against the petitioner. Learned Magistrate on the basis of evidence collected by the Investigating Officer has taken cognizance of the matter and trial is proceeding. 7. Perusal of the first information report shows that casual remark has been made by the complainant namely Moradhwaj Shukla, who is father of the victim namely Poonam alias Puppi against the petitioner. Petition under section 13 of the Hindu Marriage Act was filed on 04.01.2001 wherein it is stated by the husband of the victim namely Puppi alias Poonam that the petitioner has left her house and is residing at her parental house. In the statement recorded before the learned Magistrate, victim has admitted that she was not being tortured in her in laws house prior to 17.01.2001. Passing remark has been made over on 17.01.2001. Petitioner made a demand of Washing Machine and T.V. In the first information report demand on 17.01.2001 is not mentioned. 8. On the date of incident petitioner was a minor girl. In Geeta Mehrotra (supra) the Hon'ble Apex Court has specifically held in para 20 which is as under :- "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 v. L.H.V. Prasad and others, reported in 2000(2) JIC 114 (SC); (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. 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. 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." 9. The power under Section 482 Cr.P.C., 1973 is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice. Time and again, Apex Court and various High Courts, including ours one, have reminded when exercise of power under Section 482 Cr.P.C., 1973 would be justified, which cannot be placed in straight jacket formula, but one thing is very clear that it should not preempt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C., 1973 but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C., 1973 I need not go into various aspects in detail but it would be suffice to refer a few recent authorities dealing all these matters in detail, namely, State of Haryana and others v. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah v. State represented by Inspector of Police (2006) 7 SCC 296 , Hamida v. Rashid @ Rasheed and others (2008) 1 SCC 474 , Dr. Monica Kumar and another v. State of U.P. and others (2008) 8 SCC 781 , M.N. Ojha and others v. Alok Kumar Srivastav and another (2009) 9 SCC 682 , State of A.P. v. Gourishetty Mahesh and others JT 2010 (6) SC 588, Iridium India Telecom Ltd. v Motorola Incorporated and others 2011 (1) SCC 74 ; Rishipal Singh v. State of Uttar Pradesh and another, (2014) 7 SCC 215 ; N. Soundaram v. P.K. Pounraj and another, (2014) 10 SCC 616 and Manoj Kumar Sharma and others v. State of Chhattisgarh and another (2016) 9 SCC 1 . "In Manoj Kumar Sharma and Others (Supra) Hon'ble the Apex Court has relied upon the law laid down in State of Haryana v. Bhajan Lal (Supra) wherein it was held that though it may not be possible to lay down any precise, clearly defined, sufficiently channelised and inflexible guidelines or rigid formulae or to give an exhaustive list of myriad kinds of cases wherein power under Section 482 of the Code for quashing of the FIR should be exercised, there are circumstances where the court may be justified in exercising such jurisdiction. These are, where the FIR does not prima facie constitute any offence, does not disclose a cognizable offence justifying investigation by the police; where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused; where there is an expressed legal bar engrafted in any of the provisions of the Code; and where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. Despite stating these grounds, the Court unambiguously uttered a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too, in the rarest of rare cases; the Court also warned that the court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR or the complaint and that the extraordinary or inherent powers do not confer an arbitrary jurisdiction on the court to act according to its whims or caprice." 10. It has been held by the Hon'ble Apex Court in N. Soundaram v. P.K. Pounraj, and another, (2014) 10 SCC 616 that :- "13. It is well settled by this Court in a catena of cases that the power under Section 482 Cr.P.C., 1973 has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. (See State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335). The inherent power should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 Cr.PC. (See MCD v. Ram Kishan Rohtagi (1983) 1 SCC 1 . An investigation should not be shut out at the threshold if the allegations have some substance. (See Vinod Raghuvanshi v. Ajay Arora, (2013) 10 SCC 581 . It has been held by the Hon'ble Apex Court in Rishipal Singh v. State of Uttar Pradesh and another, (2014) 7 SCC 215 that :- "13. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the un-controverted allegations as made in the complaint prima facie establish the case. What emerges from the above judgments is that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the un-controverted allegations as made in the complaint prima facie establish the case. The courts have to see whether the continuation of the complaint amounts to abuse of process of law and whether continuation of the criminal proceeding results in miscarriage of justice or when the court comes to a conclusion that quashing these proceedings would otherwise serve the ends of justice, then the court can exercise the power under Section 482 Cr.PC. While exercising the power under the provision, the courts have to only look at the un-controverted allegations in the complaint whether prima facie discloses an offence or not, but it should not convert itself to that of a trial court and dwell into the disputed questions of fact." 11. In Lee Kun Hee and others v. State of U.P. and others JT 2012 (2) SC 237, Hon'ble the Apex Court has further laid down, the guidelines for exercise of the power by the High Court under Section 482 Cr.P.C., 1973 It has been held that Court in exercise of its jurisdiction under Section 482 Cr.P.C., 1973 cannot go into the truth or otherwise of the allegations and appreciate evidence, if any, available on record. Interference would be justified only when a clear case of such interference is made out. Frequent and uncalled interference even at the preliminary stage by High Court may result in causing obstruction in the progress of enquiry in a criminal case which may not be in public interest. It, however, may not be doubted, if on the face of it, either from the first information report or complaint, it is evident that allegation are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding, in such cases refusal to exercise jurisdiction may equally result in injustice, more particularly, in cases, where the complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint. 12. 12. Contents of the first information report does not disclose the allegation against the petitioner, who is sister of the husband, except casual references of her name. Even in the statement recorded before the learned Magistrate, no specific allegation has been levelled except a casual reference. There is no material on record to show the complicity of the petitioner in the incident. Accordingly, petition is allowed. Proceedings, so far as it relates to petitioner, in Criminal case No. 4025/2001, arising out of Crime No. 72/2001, under sections 498-A, 323, 324 IPC and 3/4 Dowry Prohibition Act, Police Station Kotwali, District Sitapur, are quashed.