Deepak Kumar And 3 Ors. vs State Of U.P.& 3 Ors.
2013 Latest Caselaw 94 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

                                                                                 Reserved on 15.1.2013
 
								AFR
 
		
 
		The High Court of Judicature at Allahabad,
 
			Lucknow Bench, Lucknow.
 
			
 
					District : Lucknow
 

 
			Criminal Misc Case No. 2969 of 2006
 
				(U/s 482 Cr.P.C.)
 
     1.   Deepak Kumar, aged about 30 years, son of Surya Kumar Pandey.
 
2. Uma Pandey, wife of Shri surya Kumar Pandey.
 
3. Kumari Rashmi, aged about 18 years, d/o Shri Surya Kumar Pandey.
 
4. Kumari Nidhi, aged about 13 years, d/o Surya Kumar Pandey.
 
	      (Resident of House No. 1364/Sector-1,LDA Colony,
 
	        Kanpur Road, Lucknow.)
 
                                                                                   ....Petitioners     
 
                                                  Vs.
 
1. State of U.P.
 
2. II-nd Additional Chief Judicial Magistrate, Lucknow.
 
3. Additional Chief Judicial Magistrate, Custom Court, Lucknow.
 
4. Smt. Sneh Lata, D/o Shri Shiv Bilas Bajpai, resident of 212/1072, Indira Nagar,Lucknow   
 
                                                                         .... Opposite parties
 
Hon'ble Vishnu Chandra Gupta,J.

Judgment

1. By means of the present petition under section 482 Code of Criminal Procedure (for short 'CPC.') the petitioners have prayed for quashing the charge-sheet no. 119 of 2005 dated 20.5.2005 arising out of case crime no. 191 of 2005 under sections 498A, 323, 506 I.P.C. and ¾ Dowry prohibition Act, Police Station- Ashiyana District- Lucknow and also the subsequent proceedings of Criminal Case No. 663 of 2005 pending in the court of Additional Chief Judicial Magistrate, Lucknow including summoning order and Issuance of non bailable warrants against them.

2. The facts of this case, in brief, are that the marriage of petitioner No. 1 Deepak Kumar was solemnized with informant Smt. Sneh Lata, resident of 21/1072, Indira Nagar, Lucknow according to Hindu rites and rituals on 26.2.2002 at Lucknow. She went to matrimonial home, but after some time her harassment started by her in-laws due to demand of Rs. 2 lac for the business of her husband as contractor. She refused and told that her father is not in a position to fulfill the demand of Rs. 2 lac. She was beaten and expelled from matrimonial home on 5.9.2004 after taking of her ornaments and other belongings. She came to her parental house. On 6.3.2005, her father Shiv Bilas Bajapai went to leave his daughter Sneh Lata to her in-laws house, but in-laws refused to keep her and persistently demanded of Rs. 2 lacs from her father. The in-laws said to his father that unless the said demand is fulfilled, she would not be allowed to live in matrimonial home.

3. The matter was reported to the police, but the police did not take any action in the matter. Thereafter on 26.10.2005 Deepak Kumar (Husband) Uma Pandey (mother- in- law) came to the house of informant Sneh Lata at Indira Nagar, Lucknow and requested to the father of Sneh Lata to send her along with them. They assured that neither they will make any demand of dowry nor harass her in future. Manoj Mishra brother-in-law of informant and Pramod Yadav were also present at that time. The father of informant said to them that one chance may be given to think and decide about the future of his daughter. Ultimately the father of the informant decided to send her daughter Sneh Lata to her matrimonial home. On the next day, the aforesaid petitioners took her back to her matrimonial home. However, she was again assaulted and harassed by her husband Deepak Kumar, Uma Pandey ( mother-in-law) and two sisters of her husband namely Rashmi and Nidhi. On 8.11.2005 at about 4.00 pm it was told by them that she was taken back to matrimonial home under a conspiracy. They again demanded of Rs. 2 lac. When she refused, her husband Deepak Kumar, mother-in-law and sisters of her husband assaulted her with kicks, fists and sticks and locked in a room where she remained for about ten days. There was a planning of in-laws to kill her by burn, but she any how managed her escape and came back to her parental house and got her medically examined.

4. The F.I.R. of this incident was lodged at police station on 27.11.2005. The police started investigation and filed charge-sheet no.119 dated 20.10.2005, on the basis of which, learned Magistrate took cognizance of the case and passed impugned orders.

5. Aggrieved by the impugned orders this petition has been filed to quash the same along with consequential proceedings pending as mentioned above.

6. Petitioners filed Writ Petition bearing no. 7729 of 2005 (M/B) in this court for quashing the FIR. This Court vide order dated 16.12.2005 stayed the arrest of the petitioners during investigation. However, after vacation of impugned order and filing of charge-sheet, the court issued non-bailable warrant against the petitioners.

7. From perusal of the record, it reveals that Deepak Kumar, the husband of Sneh Lata filed a suit under section 9 of the Hindu Marriage Act on 10th October, 2005 in the Family Court, Lucknow, which is still pending. Informant Sneh Lata also moved an application under section 156 (3) Cr.P.C. narrating the same fact up to the incident of 6.3.2005. The Chief Judicial Magistrate, Lucknow vide order dated 1.7.2005 rejected the same. Against the aforesaid order, Criminal Revision bearing No. 253 of 2005 was filed by Sneh Lata before Sessions Judge, Lucknow, who dismissed the same vide order dated 22.8.2005. Thereafter Sneh Lata filed a petition bearing Criminal Misc. Case No. 2094 (under section 482 Cr.P.C.) before this Court, which was also dismissed vide order dated 16.9.2005. The informant Sneh Lata also filed application under section 125 Cr.P.C. for grant of maintenance against her husband Deepak Kumar on 20.7.2005 reiterating the same fact. This application is said to be still pending. During the pendency of this application, the application under Section 9 of the Hindu Marriage Act having no. 1095 of 2010 was also filed by Smt. Sneha Lata on 07.06.2010 which is said to be still pending.

8. Counter affidavit has been filed on behalf of private opposite party by Dr. Hansraj Tiwari, Advocate reiterating the entire incident narrated in the FIR. It has not been denied that petition under Section 9 of the Hindu Marriage Act was filed by Deepak Kumar and application under Section 125 Cr.P.C. filed by Snehlata before Family Court, Lucknow. However, no specific reply has been given in respect of earlier proceedings filed by private respondent under section 156 (3) Cr.P.C.

9. In the instant petition rejoinder affidavit has also been filed annexing therewith a copy of petition under Section 9 of the Hindu Marriage Act filed by informant Smt. Sneh Lata.

10. Despite sufficient service of notice upon private opposite party and filing the counter affidavit, nobody has appeared on her behalf.

11. I have heard learned counsel for the petitioners and learned AGA.

12. Learned counsel for the petitioners has submitted that order summoning the accused persons/ petitioners and the proceedings pending before the court of Magistrate in pursuance of charge sheet No.119 dated 20.12.2005 may be quashed on the ground that proceedings are mala fide. On the similar fact the matter has already been concluded up to the stage of High Court after going through the merit of the case. He has further submitted that while rejecting the application under Section 156(3) Cr.P.C., the learned Magistrate observed that no proof has been filed by the applicant Snehlata in regard to assault to her and her brother when he had gone to leave her sister to her matrimonial home on 6.3.2005.

13. The present criminal case again filed by her with intention to harass the petitioners. In the FIR lodged by her she added the incident of dated 26.10.2005 and 08.11.2005. It has been shown that petition under Section 9 of the Hindu Marriage Act was filed on 10th October, 2005 before family court. Though in the FIR she stated that on 27.10.2012 she went to matrimonial home and remained there till 8th November, 2005. On this score, it has been contended that these two incidents were falsely included in the FIR to overcome the order of rejection passed in the petition under Section 156(3) Cr.P.C. It was also contended that Kumari Rashmi and Kumari Nidhi are unmarried sisters of the husband . No specific role has been assigned to them. Km. Rashmi got married during pendency of these proceedings. Both were minor at the time of alleged incident. At the time of alleged incident Km. Nidhi was aged about 12 years and Km. Rasmi was aged about 18 years. They have been included on the basis of false allegation to put pressure on the husband .

14. If the bundle of fact is taken together, it will clearly speak that action of informant Sneh Lata is not bona fide and is virtually result of mala fides and is a counter blast action.

15. Learned counsel for the petitioners relying upon the judgments of Apex Court in Preeti Gupta and another Vs. State of Jharkhand and another, (2010) 7 SCC 667 and Pashaura Singh Vs. State of Punjab and another, (2010) 11 SCC, 749 submitted that in absence of any specific allegation and role prosecution against family members of in-laws should be struck down. Relying upon another judgment of Apex Court in Geeta Mehrotra and another Vs. State of U.P. and another, 2012 SCCL .Com 518, also submitted that in this case proceedings were quashed in respect of those family members who were not residing with the husband though they were very close.

16. Learned A.G.A., on the contrary, submitted that for taking cognizance of the case sufficient material was available on record against the petitioners before the Magistrate. Specific role assigned to all the four petitioners. However, it is stated that in case any person is minor, he cannot be relieved from criminal action on the basis of his juvenility .

17. I have considered the submissions at bar and after going through the material available on record and also going through the judgments relied upon by the parties, the matter should be tested on the touch stone of the aforesaid authorities.

18. In the judgment of Preeti Gupta's case (Supra), the Apex Court in paragraphs no.28,29 and 30 held as under.

"28. We have very carefully considered the averments of the complaint and the statements of all the witnesses recorded at the time of the filing of the complaint. There are no specific allegations against the appellants in the complaint and none of the witnesses have alleged any role of both the appellants.

29. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.

30. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society."

19. In view of the aforesaid observations made by the Apex Court it is the duty of each and every court to examine the matrimonial matter in criminal side cautiously and with full care. The reason for this has also been given in paras 32, 33, 34, 35, 36 of the aforesaid judgment, which are reproduced herein below:

"32. It is a matter of common experience that most of these complaints under section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fiber of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fiber, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualized by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.

36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful."

20. Almost similar view has also been taken in paragraph 19 of Geeta Mehrotra's case (Supra).

21. From perusal of the allegation made in the F.I.R. and the statements made during investigation the allegations levelled against all the four persons are of general nature except the incident which is said to be taken on 26.10.2005 and 8.11.2005. In the incident on 26.5.2005, it has been stated that Deepak Kumar, his mother Uma Pandey took the informant to the matrimonial house under a conspiracy and she was again assaulted by all the four accused persons by kicks and fists and sticks and kept in a room for ten days.

22. It is not in dispute that Km. Rashmi and Km. Nidhi were unmarried sisters of husband when the F.I.R. was lodged. The age mentioned in the petition of those two sisters were not challenge.

23. In the Counter affidavit filed in writ petition no. 7729 of 2005 (M.B) the age of Km. Rashmi and Km. Nidhi was mentioned as 18 years and 13 years respectively. The instant petition has been filed in 2006. At the time of alleged incident occurred in 2005 they were less than 18 years of age. It is also worth notice that specific role has been assigned in the incident of 26.10.2005 to husband Deepak Kumar and his mother Uma Pandey and no specific role has been assigned to Km. Rashmi and Km. Nidhi in causing so called assault to informant Snehlata. It is not made clear who in what manner assaulted the informant.

24. There appears some force in the submissions of learned counsel for the petitioners that Deepak Kumar filed petition under section 9 of the Hindu Marriage Act on 10th October, 2005 and thereafter it does not appear to be probable that he will go and took back her wife and again harass and beat her.

25. Having considered the facts and circumstances of the case and without making any serious comment on merit of the case, this court is of the view that proceedings pending against unmarried sisters husband Km. Rashmi and Km. Nidhi, who were living with their brother Deepak Kumar at the time of alleged incident is liable to be quashed in absence of any specific allegations levelled against them. However, proceedings pending against petitioners Deepak Kumar and his mother Uma Pandey, who were alleged to have taken active role in the matter and against whom specific role has been assigned, cannot be quashed.

26. Consequently the petition is partly allowed.

27. The proceedings pending against petitioners Deepak Kumar and Uma Pandey may go on in the concern court of Magistrate. However, the proceedings pending against Petitioners Km. Nidhi and Rashmi are hereby quashed.

GSY

Dt. 02.04.2013