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Uttarakhand High Court · body

2019 DIGILAW 337 (UTT)

Ashish Nagpal v. State

2019-05-14

R.C.KHULBE

body2019
JUDGMENT : R.C. Khulbe, J. 1. The petitioners have invoked the provisions of Section 482 of the Code of Criminal Procedure, 1973 (hereinafter to be referred to as 'the Cr.P.C.') for quashing the charge-sheet no. 139/2013 u/s. 452, 352 and 506 IPC, submitted before the Addl. CJM, Kashipur (U.S. Nagar) on the basis of FIR No. 144/2013, along with the cognizance order dated 11.11.2013, on the basis of which Criminal Case No. 4007 of 2013, State v. Ashish Nagpal & another, was registered before the said Court. 2. In brief, on 22.4.2013, the respondent no. 3 (Smt. Neetu) filed an application u/s. 156(3) Cr.P.C. against the applicants and others, with the allegations that her marriage was solemnized on 27.11.2010 with the petitioner no. 1 Ashish Nagpal. After the marriage, the petitioners and other accused started to demand dowry. On 7.4.2013 at about 9 AM, when she was living with her father at Village Barhaini, the present petitioners Ashish Nagpal and Anil Madaan along with Gaurav Nagpal, Sapna Nagpal, Sakshi Thakkar, Vishal Thakkar, with 2-3 other persons, trespassed her house and began to snatch her son Arnav. On raising the hue and cry, Umrao Singh, Deepak and other people of village, came and could save the respondent no. 3. While leaving, the accused also extended the threat to kill her on some other day. 3. On this application u/s. 156(3) Cr.P.C., learned Judicial Magistrate, Kashipur ordered for registration of FIR on 10.6.2013. The FIR was, accordingly, registered at P.S. Kashipur on 17.6.2013. 4. After investigation, a charge-sheet was submitted by the I.O. only against the present petitioners under Sections 452, 352 and 506 IPC, on which, learned Additional Chief Judicial Magistrate, Kashipur took the cognizance on 11.11.2013. Feeling aggrieved, this petition has been filed by the petitioners. 5. Heard learned Counsel for the parties and perused the documents available in the file. 6. From the record, it is clear that Mr. Ramesh Chandra, father of respondent no. 3, initially filed an FIR against Ashish Nagpal, Ved Prakash, Sapna Nagpal, Rishu, Vishal Thakkar, Shreya Madaan and Anil Madaan on 9.6.2012 at 15:10 hours at P.S. Bazpur. During investigation, a compromise took place between the parties on the basis of which the I.O. submitted a final report in the matter on 22.7.2012. Thereafter, Mr. 3, initially filed an FIR against Ashish Nagpal, Ved Prakash, Sapna Nagpal, Rishu, Vishal Thakkar, Shreya Madaan and Anil Madaan on 9.6.2012 at 15:10 hours at P.S. Bazpur. During investigation, a compromise took place between the parties on the basis of which the I.O. submitted a final report in the matter on 22.7.2012. Thereafter, Mr. Ramesh Chandra filed an application on 1.9.2012 before the J.M. Kashipur with the prayer that since the compromise has arrived at the parties, the final report may be accepted accordingly. On the basis of that application, learned Judicial Magistrate accepted the final report on the same day i.e. on 1.9.2012. 7. The facts reveal that as per the compromise, the petitioner Ashish Nagpal had given 2 acres of land besides Rs. 15.00 lakh to his wife (respondent no. 3). Thereafter, the petitioner Ashish Nagpal filed the Divorce Petition No. 107 of 2013 u/s. 13 of the Hindu Marriage Act before the Principal Judge, Family Court, Udham Singh Nagar on 16.3.2013. After receiving the summons, respondent no. 3 filed the application u/s. 156(3) Cr.P.C. on 22.4.2013 before the court below for lodging the FIR against the persons accused therein. 8. After filing the application u/s. 156(3) Cr.P.C., the respondent no. 3 herself produced before the Women Helpline on 22.5.2013. She stated that on 7.4.2013, her husband and other persons came at her parental house and tried to snatch her son. After the alarm was raised, they ran away. 9. From a perusal of the statement of respondent no. 3, it is clear that she did not disclose the time of incident nor did she mention the name of Anil Madaan in her statement. Even she did not depose that the accused trespassed her house or threatened to kill her. Although, in the application u/s. 156(3) Cr.P.C., the time is mentioned but in the statement given before the Women Helpline, she did not disclose the name of Anil Madaan (petitioner no. 2). Hence, there is no allegation made by her that both the petitioners trespassed her parents' house and extended the threat to kill her. From the record, it is also clear that after filing the divorce petition by the petitioner Ashish Nagpal, the respondent no. 3 filed this application u/s. 156(3) Cr.P.C. as a counterblast. 2). Hence, there is no allegation made by her that both the petitioners trespassed her parents' house and extended the threat to kill her. From the record, it is also clear that after filing the divorce petition by the petitioner Ashish Nagpal, the respondent no. 3 filed this application u/s. 156(3) Cr.P.C. as a counterblast. Moreover, on a perusal of the charge-sheet dated 19.8.2013, it does appear that the charge-sheet was filed u/s. 452, 352 and 506 IPC against both the petitioners and cognizance was taken on 11.11.2013. It also appears that the said cognizance order was passed on the charge-sheet in a casual manner. Before taking the cognizance, learned Addl. CJM, Kashipur did not apply his judicial mind. There is no prima facie evidence available in file to show that the accused had trespassed into the house of respondent no. 3 or they had assaulted anyone. 10. The Hon'ble Apex Court in 'Sonu Gupta v. Deepak Gupta & others' reported in (2015) 3 SCC 424 has held that at the stage of cognizance and summoning, the Magistrate is required to apply his judicial mind, or, in other words, to find out whether prima facie case has been made out for summoning the accused persons. 11. In the case in hand, learned Addl. CJM, Kashipur took the cognizance against the petitioners on the charge-sheet itself. It has not passed a separate order before taking cognizance. The order is stereotyped and the same has been passed in a mechanical manner. The Magistrate concerned even did not peruse the evidence produced before it during investigation. Moreover, it does not show whether any prima facie case is made out against the petitioners. On a perusal of the order, I am of the view that learned Magistrate did not apply its mind judiciously, and no prima facie evidence is available on record against the petitioners. 12. In view of the aforesaid facts and circumstances of the case, the present application filed u/s. 482 Cr.P.C. is allowed. The impugned chargesheet no. 139/2013 u/s. 452, 352 and 506 IPC as well as the entire proceedings of Crl. Case No. 4007/13 along with the summoning order, pending before the Court of Addl. CJM, Kashipur, District Udham Singh Nagar, are hereby quashed. 13. Pending application, if any, stands disposed of.