Research › Search › Judgment

Allahabad High Court · body

2020 DIGILAW 693 (ALL)

Om Prakash Sharma v. State of U. P.

2020-03-04

RAM KRISHNA GAUTAM

body2020
JUDGMENT : 1. This application under Section 482 of Cr.P.C. has been filed by Om Prakash Sharma, Rakesh Sharma @ Badri, Ram Prakash Sharma, Aman Sharma, Sonu Sharma, Suraj Sharma, Renu Sharma and Priyanka Sharma, with a prayer for setting aside entire criminal proceeding of Criminal Case No. 702 of 2019, State Vs. Rakesh Sharma @ Badri and others, arising out of Case Crime No. 326 of 2018, under Sections 498A, 323, 506 IPC & 3/4 of D.P. Act, P.S. Bhadohi, District Bhadohi, pending in the court of Chief Judicial Magistrate, Bhadohi. 2. Learned counsel for the applicants argued that applicants are innocent. They have been falsely implicated in this very case crime number, wherein, admittedly marriage was performed in year 2007 and this report was got lodged in year 2018 i.e. after 11 years of marriage and till then, there was no complaint regarding any demand of dowry or cruelty with regard to it. Whereas, this First Information Report was lodged, with accusation of giving assault by all those eight accused persons, who are entire family members. But no medical report for injury of any grievous nature is there. Investigation resulted in submission of chargesheet for offence punishable under Sections 498A, 323, 506 IPC read with Section 3/4 of D.P. Act. Meaning thereby, it was a simple hurt. Eight persons have vehemently assaulted but she has suffered simple injury. The law laid down by Apex Court in Geeta Mehrotra and another Vs. State of U.P. and another reported in 2012 Lawsuit (SC) 716, is for such type of false implication of role of family members in a case of dowry demand and cruelty with regard to it. Hence, this application with above prayer. 3. Learned counsel for the opposite party No. 2 vehemently opposed the argument with this contention that demand of dowry and cruelty with regard to it, was since the marriage but informant was compelled to suffer in anticipation of things being right in future and she suffered all these 11 years but kept mum, when excess was excessed and she was thrown near National Inter College, Bhadohi, then and only then, she got the case lodged. There is a medical report. Hence, this application be dismissed. 4. Learned AGA also vehemently opposed. 5. Apex Court in Geeta Mehrotra Vs. There is a medical report. Hence, this application be dismissed. 4. Learned AGA also vehemently opposed. 5. Apex Court in Geeta Mehrotra Vs. State of U.P. and others (supra), while appreciating circumstances of cases of dowry demand and cruelty with regard to it, in a proceeding under Section 482 of Cr.P.C. has propounded in Paragraphs Nos. 23 to 26:- "23. In the instant case, the question of territorial jurisdiction was just one of the grounds for quashing the proceedings along with the other grounds and, therefore, the High Court should have examined whether the prosecution case was fit to be quashed on other grounds or not. At this stage, the question also crops up whether the matter is fit to be remanded to the High Court to consider all these aspects. But in matters arising out of a criminal case, fresh consideration by remanding the same would further result into a protracted and vexatious proceeding which is unwarranted as was held by this Court in the case of Ramesh vs. State of Tamil Nadu (supra) that such a course of remand would be unnecessary and inexpedient as there was no need to prolong the controversy. The facts in this matter on this aspect was although somewhat different since the complainant had lodged the complaint after seven years of delay, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant's husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them. 24. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them. 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. 25. 25. In the case at hand, when the brother and unmarried sister of the principal accused Shyamji Mehrotra approached the High Court for quashing the proceedings against them, inter-alia, on the ground of lack of territorial jurisdiction as also on the ground that no case was made out against them under Sections 498A,/323/504/506 including Sections 3/4 of the Dowry Prohibition Act, it was the legal duty of the High Court to examine whether there were prima facie material against the appellants so that they could be directed to undergo the trial, besides the question of territorial jurisdiction. The High Court seems to have overlooked all the pleas that were raised and rejected the petition on the solitary ground of territorial jurisdiction giving liberty to the appellants to approach the trial court. 26. The High Court in our considered opinion appear to have missed that assuming the trial court had territorial jurisdiction, it was still left to be decided whether it was a fit case to send the appellants for trial when the FIR failed to make out a prima facie case against them regarding the allegation of inflicting physical and mental torture to the complainant demanding dowry from the complainant. Since the High Court has failed to consider all these aspects, this Court as already stated hereinbefore, could have remitted the matter to the High Court to consider whether a case was made out against the appellants to proceed against them. But as the contents of the FIR does not disclose specific allegation against the brother and sister of the complainant's husband except casual reference of their names, it would not be just to direct them to go through protracted procedure by remanding for consideration of the matter all over again by the High Court and make the unmarried sister of the main accused and his elder brother to suffer the ordeal of a criminal case pending against them specially when the FIR does not disclose ingredients of offence under Sections 498A/323/504/506, IPC and Sections 3/4 of the Dowry Prohibition Act." 6. In the present case, report was after 11 years of marriage. There is no grievous hurt. Accused persons are family members. They are husband, Jeth, son of Jeth, Jethani, having no concern with alleged demand of dowry. In the present case, report was after 11 years of marriage. There is no grievous hurt. Accused persons are family members. They are husband, Jeth, son of Jeth, Jethani, having no concern with alleged demand of dowry. Hence, there seems to be sufficient ground for considering a bald allegation against them, that too, after 11 years of alleged demand of dowry, permitting a quashing of entire proceeding of above case against the family members. 7. But regarding husband, there is an accusation and substance. Hence, for husband, applicant No. 1-Om Prakash, this application is being dismissed. 8. For rest of accused i.e. Rakesh Sharma @ Badri, Ram Prakash Sharma, Aman Sharma, Sonu Sharma, Suraj Sharma, Renu Sharma and Priyanka Sharma, the same is being allowed and proceeding of above criminal case is being quashed. 9. However, in the interest of justice, it is provided that if the applicant No. 1-Om Prakash Sharma, appears and surrenders before the court below within thirty (30) days from today and applies for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this 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. 10. For a period of thirty (30) days from today or till the disposal of the application for grant of bail, whichever is earlier, no coercive action shall be taken against the applicant No. 1 Om Prakash Sharma. 11. However, in case, the applicant does not appear before the Court below, within the aforesaid period, coercive action shall be taken against him. 12. With the aforesaid directions, this application stands dismissed accordingly.