HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Criminal Misc. application No. 10090 of 2011 Amit Garg and others Versus State of U.P. and others Hon'ble Ravindra Singh,J.
This application has been field by the applicants Amit Garg, Mahesh Chandra Garg and Smt. Mahdu Garg with a prayer to quash the charge sheet dated 8.12.2010 in case crime no. 150 of 2010 under sections 498-A,323,506 and section ¾ of D.P. Act P.A. Mahila Thana district Rampur.
The facts in brief are that the F.I.R. of this case has been lodged by O.P. No.3, Smt. Shilpi on 20.10.2010 at 7.30 p.m. in respect of the alleged incident dated 10.10.2010 occurred at about 8.00 p.m. at P.S. Mahila Thana district Rampur in case crime no. 150 of 2010 under sections 498-A,323,506 I.P.C. and section ¾ of D.P.Act It is alleged that the marriage of O.P. No.3 was solemnized with the applicant Amit Garg on 1.5.2005, in the said marriage, an amount of about Rs. 20 lacs was spent by the parents of O.P. No.3, but the applicants demanded some more dowry for which unbearable remarks were passed by them and they pressurised O.P. No.3 to bring more money and valuable articles from her father's house. Her in- laws had taken her Stridhan, cloths, ornaments and under pressure the amount of Rs. 23,630/- was withdrawn from her saving account. Under compelling circumstances the aforesaid amount was given to the husband of O.P. No.3 by her father through bank draft. At the time of the marriage F.D.R. of Rs. 1 lac was prepared in the name of O.P. No.3, she was compelled to break the F.D.R. also before its maturity. The said money was also taken by her in- laws. On 24.11.2006 O.P. No.3 gave birth of a female child, which paved the way of difficulties, in the birth ceremony the in- laws of O.P. No.3 demanded 2 lacs from the parents of O.P. No.3, the father of O.P. No.3 has spent about 1,20,000/- in that ceremony. O.P. No.3 was being regularly tortured by her in -laws, even her mobile phone was taken away by them, she became ill, the patents of O.P. No.3 had made attempts to settle the dispute with the help of the relatives but the in -laws of O.P. No.3 could not be persuaded. Ultimately, on 12.10.2007 O.P. No. 3 went to her parent's house, then the in laws of O.P. No.3 gave assurance for not committing cruelty, she went to their house, again she was subjected to cruelty, in the month of August, 2008, on the day of Raksha Bandhan the husband of O.P. No.3 demanded dowry, she was beaten by kicks and fists and in a miserable condition she was forced to sit in the train, then she came to her parent's house, on 10.10.2010, the applicants along with their relatives came to the parents house of O.P. No.3 for the purpose of compromise,at about 8.00 p.m. then demanded I- ten vehicle and Rs. 5 lacs in lieu of bringing O.P. no.3 to their house, but the father of O.P. No.3 refused to fulfil the aforesaid demands, then they committed mar-peet with O.P. No.3 and her father, after extending threat to life, they left her parent's house. After lodging the F.I.R the I.O. investigated the matter and recorded the statement of Smt. Shilpi Agarwal,Ashok kumar and Alok Kumar who supported the prosecution version, thereafter, the charge sheet dated 18.12.2010 has been submitted in the court of leaned C.J.M. Rampur on which the learned C.J.M. Rampur has taken cognizance on 29.1.2010,being aggrieved from the charge sheet and the order of cognizance taken by the learned C.J.M. Rampur the present application has been filed with a prayer to quash the same.
Heard Sri Rahul Jain, learned counsel for the applicant, learned A.G.A. for the State of U.P. and Sri Dharmendara Singhal, appearing on behalf of O.P. No.3.
On query made by the court for settling the dispute through meditation, the leaned counsel for O.P. no.3 replied in negative.
It is contended by the learned counsel for the applicants that the allegation made in the F.I.R. are absolutely false and baseless, and without doing proper investigation the charge sheet has been submitted on which the learned C.J.M. Rampur has taken cognizance without applying judicial mind on 29.1.2011the order dated 29.1.2011 by which the cognizance has been taken is illegal, because the learned magistrate concerned has not perused the case diary nor applied the mind to the allegation made in the said charge sheet, even the order dated 29.1.2011 shows that the charge sheet was not perused by the learned C.J.M Rampur. It is further contended that O.P. No.3 has filed case no. 792 of 2002 before the C.J.M. under section 12 of he Protection of Women From Domestic Violence Act, 2005, claiming Rs. 15,000/- per month to her and her children as maintenance, which was rejected on 1.2.2010 as not pressed, on 3.2.2010 O.P. No.3 filed an application claiming protection under section 18 of the Act, and claiming Rs. 20,000/- as maintenance, on 1.6.2009, the learned A.C.J.M. Rampur directed the applicant to pay Rs. 7,000/- per months to O.P. No.3 and 5,000/- per month to Km. Ashima on 14.7.2009, application for enhancement of the maintenance amount was made, which is pending. The F.I.R. of the present case is based on false and frivolous allegations, which have been made for the purpose of harassment of the applicant due to ulterior motive, in such circumstances the charge sheet as well as the order taking cognizance passed by the learned C.J.M. Rampur may be quashed.
In reply to the above contention, it is submitted by the learned A.G.A. and Sri Dharmendra Singhal, learned counsel appearing on behalf of O.P. No. 3 that on the basis of the allegation made in the F.I.R. and the material collected by the I.O. the charge sheet is prima facie are disclosing the commission of the offence publishable under sections 498-A,323, and 504 I.P.C. and section ¾ of D.P. Act, considering the same the learned magistrate concerned has taken cognizance on 29.1.2011. The learned C.J.M. has not committed any error in taking cognizance.
Considering the facts and circumstances of the case and the submissions made made by the learned counsel for the applicants, learned A.G.A. and Sri Dharmendra Singhal, appearing on behalf of O.P. No.3 and from the perusal of the record it appears that the learned magistrate has taken cognizance on 29.1.2011 by passing the following order.
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The order passed by the learned C.J.M. reveals that he has taken the cognizance but he has not mentioned therein that he has perused the charge sheet, no inference can be drawn that he has perused the charge sheet, in taking the cognizance. The Supreme Court has dealt with in an identical issue in the case of Fakhruddin Ahmad Versus of State of Uttranchal 2009(64) A.C.C.7741 in its 15th paragraph which is read as under :
"Nevertheless, it is well settled that before a Magistrate can be said to have taken cognizance of an offence, it is imperative that he must have taken notice of the accusations and applied his mind to the allegations made in the complaint or in the police report or the information received from a source other than a police report, as the case may be, and the material filed therewith. It needs little emphasis that it is only when the Magistrate applies his mind and is satisfied that the allegations, if proved, would constitute an offence and decides to initiate proceedings against the alleged offender, that it can be positively stated that he has taken cognizance of the offence. Cognizance is in regard to the offence and not the offender. "
In view of the above verdict of the Supreme court in the above mentioned case, it appears that the leaned C.J.M. Rampur has not perused the charge sheet and perused order dated 29.1.2011 in a causal routine manner, he has not applied his judicial mind,the impugned order dated 29.1.2011 is illegal and the same is hereby set aside but it is directed that the learned C.J.M. Rampur shall pass a fresh order on the charge sheet submitted by the I.O. in accordance with law.
With this direction this application is finally disposed of.
Dt. 3.5.2011 NA