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2021 DIGILAW 113 (ALL)

Sheoraj Singh v. State Of U. P.

2021-01-21

GAUTAM CHOWDHARY, K.J.THAKER

body2021
JUDGMENT : Heard Sri Ishir Sripat, learned counsel for the petitioners and learned A.G.A. for the State. Petitioners have made the following prayers: (i) issue a writ of certiorari quashing the First Information Report dated 10.12.2020 registered as Case Crime no. 0626 of 2020, under Sections 304B, 498A IPC and¾Dowry Prohibition Act, P.S. Ghandhi Park, District Aligarh. (ii) issue a writ of mandamus directing the respondent no. 2 not to arrest the petitioners in Case Crime no. 0626 of 2020, under Sections 304B, 498A IPC and ¾ Dowry Prohibition Act, P.S. Ghandhi Park, District Aligarh. (iii) Any other or further writ, order or direction as is deemed fit and proper by this Hon'ble Court. Facts in nutshell for our puposes are that daughter of the first informnat had married Pushpendra Singh. The daughter of the first informant on 2.8.2020 gave birth a girl child at Jaideep Nursing Home, which was now creator of the problem between the parties. It is a matter of fact that after delivery when the deceased was shifted to Varun Hospital, she died. The respondent no. 3 preferred a complaint under Section 156(3) Cr.P.C., which was registered as Application No. 256/11/20 before the Chief Judicial Magistrate, Aligarh. The court of C.J.M., Aligarh directed the concerned police station to submit a report on the said complaint. The police station submitted a report before the learned Chief Judicial Magistrate along with death certificate issued by the hospital. Unfotunately, death of the Vimlesh was projected as death for dowry and all six petitioners were arrayed as accused. Learned counsel for the petitioner relied upon the reports issued by the hospital and the report of the police but the first informant was bent on seeing all accused to be prosecuted. Going through the factual scenario and as the investigation is on and the death is occurred during seven years of the marriage, at this stage, we would be loath in interfering with the investigation. It has been argued by learned counsel for the petitioner that entire allegations made in the impugned F.I.R. against the petitioners are false and baseless and the petitioners have been falsely implicated only for the purpose of harrassment. Brief allegations levelled in the F.I.R. are that the daughter of the first informant Vimlesh married to Pushpendra Singh on 16.11.2016 in which nearly Rs. Brief allegations levelled in the F.I.R. are that the daughter of the first informant Vimlesh married to Pushpendra Singh on 16.11.2016 in which nearly Rs. 12 lakhs were spend by him but the family of the husband was not happy and kept demanding for dowry and a Car. A girl child was born out of the wedlock within one year of the marriage and thereafter the daughter of the first informant was expecting another child in the month of August, 2020. Learned A.G.A. further contended that the inlaws threatened the daughter of the first informant that if she will give birth to another girl child then they will get her kill during the delivery of the child. Learned A.G.A. further contended that on 2.8.2020 the daughter of first informant gave birth to a girl child at Jaideep Nursing Home Aligarh and as soon as the girl child was born, the petitioners went in to meet the doctor and suddenly the wife of first informant who was also present in the nursing home during the delivery heard her daughter, Vimlesh, now deceased, shouting in pain. It has been argued that the petitioners have not committed any offence and prima facie no case is made out against them and hence the present F.I.R. is liable to be quashed. Per contra learned A.G.A. has submitted that from the perusal of the allegations made in the F.I.R., it cannot be said that no cognizable offence is made out, hence the impunged F.I.R. is not liable to be quashed. It has been well settled by the Hon'ble Apex Court that the jurisdiction should be exercised sparingly and only in exceptional cases while quashing a complaint, F.I.R. or a chargesheet and Courts should not interfere with the investigations of cognizable offences as a matter of routine . On the contrary, if no prima facie case is made out from the the F.I.R. or the complaint, the F.I.R. or the chargesheet may be quashed in exercise of powers under Article 226 or inherent powers under Section 482 of the Cr.P.C. The Hon'ble Apex Court, in the case of State of Haryana and others Vs. Ch. Bhajan Lal, AIR 1992 SC 6005 Supreme Court held that those guidelines should be exercised sparingly and that too in the rarest of rare cases. Ch. Bhajan Lal, AIR 1992 SC 6005 Supreme Court held that those guidelines should be exercised sparingly and that too in the rarest of rare cases. Guidelines are as follows: (1) Where the allegations made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety to do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 156(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a noncognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can every reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) 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." The Hon'ble Apex Court, further in the case of Union of India vs. Prakash P. Hinduja and Another, (2003) 6 SCC 195 has rediscussed the scope of quashing. Howver, in the said case, The Hon'ble Apex Court has narrowed down the scope of Ch. Howver, in the said case, The Hon'ble Apex Court has narrowed down the scope of Ch. Bhajan Lal (supra) and held as follows: "The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings are: (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused, (2) where the uncontroverted allegations made in the FIR or the complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of the Code of Criminal Procedure or the Act concerned to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection." In case of State of Haryana v. Bhajan Lal & Ors. (supra) also, in guideline number 3 it was laid down that where the uncontroverted allegations made in the F.I.R. or complaint and the evidence collected in support of the same do not disclose the commission of any offence and do not make out a case against the accused, the Court may quash the FIR as well as the investigations, however a note of caution was added by observing that the power of quashing a criminal proceeding should be exercised sparingly and with circumspection and that too in the rarest of rare cases. It was held that the Court would not be justified in embarking upon an inquiry as to the reliability or genuineness or otherwise of the allegations made in the F.I.R. or the complaint. The Hon'ble Apex Court, further in the various precedents i.e. Rupan Deol Bajaj v. K.P.S. Gill; reported in (1995) SCC (Cri) 1059, Rajesh Bajaj v. State of NCT of Delhi; reported in (1999) 3 SCC 259 and Medchl Chemicals & Pharma (P) Ltd. v. Biological E Ltd. & Ors; reported in 2000 SCC (Cri) 615, has made crystal clear that if a prima facie case is made out , the Court should not quash the complaint. On the contrary, it was held that the Courts should not hesitate to quash the complaint if no prima facie case is made out. On the contrary, it was held that the Courts should not hesitate to quash the complaint if no prima facie case is made out. However, as a note of caution while considering such petitions, the Courts should be careful. Thus, there is no conundrum about the legal proposition that in case a prima facie case is made out, the F.I.R. or the proceedings in consequence thereof cannot be quashed. Further the Full Bench of this Court also in the case of Ajit Singh @ Muraha v. State of U.P. (2006(56) ACC433) reaffirmed the stand taken by the earlier Full Bench in Satya Pal v. State of U.P. (2000 Cr.L.J. 569) after considering the various decisions including State of Haryana vs. Bhajan Lal ( AIR 1992 SC 604 ) no case of interference with the investigation is made out until and unless cognizable offence is not exfacie discernible or there is any statutory restriction operating on the power of the Police to investigate a case. In the instant case, there are allegations in the impugned F.I.R. that the petitioners have committed murder of the deceased for illegal demand of dowry. It is alleged that deceased Smt. Vimlesh died due to post delivery complications and no conspiracy was made to kill the deceased. No offence under Section 304B IPC is made out against the petitioners. The family members of the husband of the deceased tried to their best and shifted her to a superior hospital but the deceased could not be saved. The first informant is trying to misuse process of law and by means of the present case he is trying to create pressure on the husband of the deceased to give custody of the children to the first informant. The submissions raised by learned counsel for petitioners relate to the questions of fact and thus, can not be examined by this Court in proceedings under Article 226 of the Constitution of India. The appreciation of evidence or the reliability of the allegations can not be examined at this stage. In State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC. 550, para 11). In State of Orissa v. Saroj Kumar Sahoo (2005) 13 SCC 540 it has been held that probabilities of the prosecution version cannot be analysed at this stage. Likewise, the allegations of mala fides of the informant are of secondary importance. The relevant passage reads thus: (SCC. 550, para 11). "11......It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with." From the above discussed case laws and after giving our thoughful consideration to the facts of the instant case, it can be safely concluded that the contentions raised by the learned counsel for the petitioner(s) can not be examined by this Court at this stage. The adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Article 226 of the Constitution of India. In view of the material on record no case of inteference is made out and the impugned criminal proceeding cannot be said to be manifestly attended with malafide and maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal venonmous agenda. F.I.R. or criminal proceedings can be quashed only according to the parameters laid down by Hon'ble Apex Court in catena of its judgement. However, if the petitioners appears before the court below seeking their liberty by way of application under Section 438 Cr.P.C., and or 437 read with 439 Cr.P.C., the same shall be decided immidiately as at this stage role of each of the accused is not borne out. The petitioners are not relevant who are not stationed at the same place when the offence took place. In that view of the matter, we direct the petitioners to move the court below for to be enlarged on bail. None of the observations are for grant or refuse of bail but are under the realm of writ jurisdiction. The petitioners are not relevant who are not stationed at the same place when the offence took place. In that view of the matter, we direct the petitioners to move the court below for to be enlarged on bail. None of the observations are for grant or refuse of bail but are under the realm of writ jurisdiction. We refuse to intertain the petition as we are not hundred percent sure as what is the role genesis from each of the accused and therefore, we are restraining ourselves from entertaining this petition at this stage as we do not think at this stage that the prosecution can be nibbed in its inception. In the light of above, we are of the opinion that present petition does not fall in any of such category, wherein this Court can exercise jurisdiction under Article 226 of the Constitution of India to quash the impugned F.I.R. Hence no ground exists for quashing of the F.I.R. or staying the arrest of the petitioner(s). In view of aforesaid, the petition lacks merit and thus, liable to be dismissed. Accordingly, petition is dismissed.