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2020 DIGILAW 157 (ALL)

Ravindra Kumar Yadav v. State of U. P.

2020-01-14

VIKAS KUNVAR SRIVASTAV

body2020
JUDGMENT : 1. The case is called out. 2. In the revised call of the list, learned counsel Sri S.K. Upadhyay, Advocate appears on behalf of the applicant to press his case. Learned A.G.A. for the State is also present. 3. In the nut shell, the case, as emerging from the materials available on record, seems to have arisen from a matrimonial dispute which is long drawn. The parties to the marriage respectively, the applicant-Ravindra Kumar Yadav and the opposite party no.2-Anita Yadav entered into their marital life by virtue of marriage on 23.04.2000. Thereafter, they fell into dispute and differences in their marital life which resulted into going out of the wife from her matrimonial home. Consequent thereupon, a suit for restitution of conjugal rights was filed by the applicant-husband which was decreed on 28.09.2005 in his favour. 4. Learned counsel for the applicant vehemently press this fact for the reason to show the justification of the complaint filed by the opposite party no.2-wife on 22.04.2006 which is subsequent to decree of restitution of conjugal rights. 5. Learned counsel for the applicant further states that instead of obeying the decree of Conjugal Rights, she (opposite party no.2) remained busy in continuing the dispute on this way or that way and therefore, filed a complaint against the applicant on 27.06.2006 with an allegation that a motor bike was given, by the parents of the complainant in dowry which was fraudulently and deceitfully converted into the name of applicant. As such, she charged him for committing offences under Section 420, 467, 468 and 506 of I.P.C. 6. Learned counsel further argues that in the above context, the statements under Section 200 and 202 Cr.P.C. were recorded and the Court took cognizance of offences under Section 420, 467, 468 and 506 of I.P.C. and issued summons vide order dated 20.01.2007. 7. The order sheet reveals that effort of personal service upon opposite party no.2, of notice of the case was repeatedly made but all went in vain. However, from the materials available on record, it becomes clear that the opposite party no.2-the wife is residing in Lucknow separately and also, neither the registered post A.D. nor the processes issued by the Court could be served upon her. 8. Learned A.G.A. for the State is present. However, from the materials available on record, it becomes clear that the opposite party no.2-the wife is residing in Lucknow separately and also, neither the registered post A.D. nor the processes issued by the Court could be served upon her. 8. Learned A.G.A. for the State is present. The legal issue involved necessary for disposal of application under Section 482 Cr.P.C. is to be addressed by him. Therefore, heard the case to decide it finally on merit. 9. The moot question involved in the case is that whether the Court was justified in taking the cognizance of offence under Section 420, 467, 468 and 506 of I.P.C. and the another question that whether the defence, as argued by the learned counsel for the applicant may be taken into consideration for quashing the summoning order at this stage by the High Court in application under Section 482 Cr.P.C. 10. So far as, the power of taking cognizance of the Court is concerned, undoubtedly, the Court has to make prima facie satisfaction as to the allegations made in the complaint and the supporting evidences. The record shows that the complainant has pleaded the factum of marriage with the applicant and presentation of motor bike as gift in the marriage with him. While hearing the revision, it is not disputed on the part of applicant also. So far as the allegations as to changing ownership fraudulently in deceitful manner is concerned, if originally the bike is not in the name of the applicant and if allegation is made that mutation of the name of the applicant is made in place of his wife without her knowledge and consent in the papers namely registration of the vehicle though is to be adjudged on the basis of evidences on establishing it true or false in the course of trial, but that is sufficient for satisfaction of magistrate for taking cognizance of offence to call the accused-applicant for trial. Before holding any allegation as true or discarding the same holding false, what is necessary is to see whether an error is committed by the Magistrate while taking cognizance of the offence on the basis of facts alleged and materials placed before it. It is not necessary to look into or appreciate evidences whether it is contradictory, inconsistent, false or true etc. It is not necessary to look into or appreciate evidences whether it is contradictory, inconsistent, false or true etc. Hon'ble the Supreme Court in appeal against the order of High Court held in AIR 2019 SC 1910 (Mohd. Allauddin Khan Vs. State of Bihar and others) that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. Para 17 of the judgment of Hon'ble the Supreme Court quoted hereunder: "17. In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings Under Section 482 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") because whether there are contradictions or/and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case." 11. All facts of complaint stated before the Court of magistrate supported with applicant statement on oath by the complainant and her witness alongwith the documents relating to the name over the documents relating to bike showing the name of complainant and afterwards the conversion into the name of applicant, is prima facie fulfilling elements of offences charged over the accused-applicant namely under Sections 420, 467 and 468 of the I.P.C., as they are defined in the I.P.C. 12. It is argued by the applicant that all these allegations have arisen out of matrimonial dispute. After the marriage transfer of the name was consented. But this is a defence, it may or may not be consented is to be adjudged by the magistrate, if pursuant to the summon, the applicant who is accused, appears before it and put his said defence alongwith evidences. The Court has to weigh the evidences of both the parties in the light of pending matrimonial dispute, keeping into consideration that the complaint is filed after a decree of restitution of Conjugal Rights. It would be too early to record any finding in this regard by this Court. 13. The Court has to weigh the evidences of both the parties in the light of pending matrimonial dispute, keeping into consideration that the complaint is filed after a decree of restitution of Conjugal Rights. It would be too early to record any finding in this regard by this Court. 13. As such, at this stage, the Court sitting under Section 482 Cr.P.C. is not capable to weigh the evidences put forth or proposed by the applicant under Section 482 Cr.P.C. 14. In view of the above, the application under Section 482 Cr.P.C. does not deserve to be allowed for quashing of the summoning order and further proceeding. 15. In criminal law, the accused faces the risk of losing personal liberty. Hon'ble the Supreme Court in an erudite judgment in Arnesh Kumar Vs. State of Bihar and Anr., (2014) 8 SCC 273 expressed a serious concern about the manner in which arrests were being made in matrimonial disputes under Section 498-A of the Indian Penal Code. Directions were given in all states to instruct their police not to mechanically resort the power of arrest under Section 41 of the Cr.P.C. and imply the provision of notice under Section 41-A of the Cr.P.C. 16. In present case, the accused-applicant was summoned after taking cognizance of the offences by the magistrate vide order dated 20.01.2007 fixing a date for his appearance on 08.03.2007. The court passing the summoning order was Special Additional Chief Judicial Magistrate, CBI (Ayodhya Prakaran Lucknow) whereas, the case according to the accused, pertains to district Barabanki and thereafter, the proceeding was transferred to Fourth Additional Civil Judge, Junior Division, Room No.36. In the light of the aforesaid facts, the applicant takes the plea of having been mislead thereby. He specifically stated in affidavit para 24 that the order of Summoning has not been served upon the petitioner and as and when it has come into knowledge of the petitioner, he managed the fund and get the copy of the court and the delay in approaching this Hon'ble is neither deliberate nor intentional. 17. The issuance of process by the magistrate after taking cognizance of the offences against the accused is only with a view to procure and ensure the attendance of the accused in trial. 17. The issuance of process by the magistrate after taking cognizance of the offences against the accused is only with a view to procure and ensure the attendance of the accused in trial. In a case, where after a prolonged litigation the parties are in bitter relation between them and the accused-applicant is feared of the coercive processes like arrest and detention into custody, if willing to appear before the Court so as to get the proceeding pending against him, his appearance should be facilitated in the interest of justice. 18. In the present case, the materials on record are sufficient to reveal that the parties by reason of matrimonial dispute arisen just after their marriage in the year 2000, fell into bitter relations with each other. However, a decree of restitution of Conjugal Rights is passed in favour of the applicant, even then instead of getting into the matrimonial life, again the parties are litigating several cases, the present case is one of them. 19. Exercising the extraordinary power of the Court conferred under Section 482 Cr.P.C., this Court directs the applicant to appear before the Court concerned within three weeks from the date certified copy is issued, alongwith his counsel and the learned Court of Magistrate concerned is directed to record his appearance through counsel, without taking him into custody subject to his producing proper bail bonds and sureties to the satisfaction of the Court concerned, on the same day of the appearance. 20. In doing so, the learned court is directed not to enforce the coercive process/orders, if any, passed by it for the purpose of taking him into custody or to make his arrest. The purpose, as discussed here in above is only to decide the case between the parties and not to harass by physical arrest. 21. Learned A.G.A. would have no objection in passing such direction to the Court concerned as the interest of the State is also in getting dispose of huge pendency in the criminal courts. 22. It is further made clear that if the parties are willing and consented to get their dispute settled amicably by way of compromise then the same may be taken by the Court into consideration for the purpose of disposal of the case as soon as possible. 23. With the aforesaid observations, the application under Section 482 Cr.P.C. is disposed of.