Nitin Goel And Another vs State Of U.P. And Another
2014 Latest Caselaw 4173 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 53
 

 
Case :- APPLICATION U/S 482 No. - 26929 of 2013
 

 
Applicant :- Nitin Goel And Another
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Gaurav Kakkar,Ajay Pandey,L.K.Pandey
 
Counsel for Opposite Party :- Govt. Advocate,D.K.Srivastava
 

 
Hon'ble Virendra Vikram Singh,J.

By moving the present application under Section 482, Cr.P.C. the applicants have prayed that charge sheet dated 25.3.2013 submitted in case crime no.475 of 2012, under Sections 504, 506(2), 307, 120-B, IPC, 67 Information Technology Act and Section 3, 4, 6 of the Indecent Representation of Women (Prohibition) Act, 1986 and the entire proceedings of case no.528 of 2013 arisen out of the charge sheet, mentioned above, be quashed.

Heard Shri L.K. Pandey, learned counsel for the applicants, Shri D.K. Srivastava for O.P. No.2, learned AGA and perused the record.

It has been argued on behalf of the applicants with all the vehemence that O.P. No.2 is the wife of applicant no.1 Nitin Goel. After their marriage the relationship between the two were hostile inasmuch as O.P. No.2 lodged a case under Sections 498-A and 406, IPC at Jaipur and also lodged a case under the Domestic Violence Act at Allahabad. On behalf of the applicant as well, proceedings for divorce were initiated. Since the relationship between the parties were hostile, false implication is quite evident. Admittedly, the complainant, O.P. No.2 did not sustain any injury and as such there is no medical support of the prosecution version . It has also been argued that the applicants are the resident of Bulandshahar and they would have never committed offence at Allahabad where O.P. No.2 used to reside and this place was altogether alien to them. Since the case has been launched maliciously with false allegations, the application deserves to be allowed.

Learned counsel for the complainant and learned AGA opposed the application with the arguments that on the basis of the facts and evidence available a prima facie case is made out against the applicants, hence, no case for intervention of this Court is made out.

The brief facts, as it has been brought forth in the application of O.P. no.2 against the applicant, are that on 19.11.2012 date was fixed in the case under Domestic Violence Act at Allahabad. On this date at about 4.00 p.m. applicant no.1 along with two unknown persons approached to the house of the complainant, O.P. No.2 and asked her to withdraw the cases against him otherwise he will make her life miserable and shall also flash the MMS prepared by him. While the complainant, O.P. No.2 objected and raised protest that the applicant no.1 Nitin Goel with intent to kill fired with a Tamancha, which fortunately did not hit anyone. The witnesses arrived at the scene of occurrence. While taking retreat, the applicant no.1 extended threat to the complainant, his wife that she will not be spared in future and her MMS, which he has prepared, shall be made public. The occurrence in question was committed in criminal conspiracy with applicant no.2, father-in-law of the complainant, O.P. No.2.

This application moved by O.P. No.2 found favour from the Court and an investigation was ordered for registration of the criminal case, which ultimately culminated in terms of submission of charge sheet against the present applicants on 25.3.2013 for the offences mentioned above. On this charge sheet cognizance was taken by the Magistrate vide his order dated 3.4.2013.

The Court proposes to lay down the scope of the application under Section 482, Cr.P.C.

The Apex Court in the case of Madhavrao Jiwaji Rao Scindia Vs. Sambhajirao Chandrojirao Angre, AIR 1988 SC 709 has held as follows:-

"The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue."

Again in the case of State of Haryana Vs. Bhajan Lal, 1990 LawSuit (SC) 701 Hon'ble Apex Court laid down the grounds on which an application under Section 482, Cr.P.C. can be allowed. Ground nos.5 & 7 are material to be quoted.

"5.Where the allegations made in the F.I.R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

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."

In para 109 of this Judgment the Court has also given a note of caution to the effect that the power of quashing a criminal proceeding should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

Now, in view of the legal analogy laid down in the above cited cases has to be applied in the present set of facts and it has to be decided whether the prosecution version against the applicants is so absurd and inherently improbable that any prudent and reasonable person shall not believe the correctness of the prosecution version.

Since the evidence has come different against both the applicants, so the case of both the applicants shall be considered separately.

Applicant No.1-Nitin Goel

On behalf of the applicant much emphasis has been laid that the relationship of O.P. No.2, wife of applicant no.1 with the applicants were strained, bitter and hostile and thus, the chances of false implication were very much there. It is proper to mention it here that the hostility between the parties is like a double edged weapon, which may cut both of its end. If it was an instrument with the applicants to argue the false case, it was available to the O.P. No.2 or for the prosecution to claim it as the motive for commission of the offence in question. Thus, on the ground of hostility between the parties there is no ground to quash the charges.

Much stress has been laid on behalf of the applicants that no offence under Section 307, IPC can be said to have been made out against the applicant no.1 as it was a no injury case. The Court while appreciating the application under Section 482, Cr.P.C. has to proceed with the assumption that all the allegations made by the prosecution are correct. The allegation of the prosecution is that the applicant no.1 fired upon his wife with intent to kill, which did not hit her. If this allegation be taken to be correct, the offence under Section 307, IPC appears to have been made out against the applicant no.1.

In order to constitute an offence under Section 307, IPC it is not necessary that any injury must have been caused. Section 307, IPC itself provides for two different offences to wit where the injury is received by any person or otherwise. The Section also provides for two different punishment for the offences under these categories. A case of attempt to commit murder is punishable up to imprisonment up to ten years and if hurt is also caused, the offence gets still more aggravated and is punishable up to life imprisonment. Thus, the offence under Section 307, IPC is also made out in a case where no injury is caused to a victim, though for such offence the provision for lessor punishment under the same Section 307, IPC has been made. Thus, simply because the fire made by applicant no.1 did not hit O.P. No.2, the complainant, it cannot be taken that no offence under Section 307, IPC is made out.

From the other allegations against the applicant as well that he extended threat of life against the complainant, O.P. No.2 and further that he prepared the obscene MMS of his wife, which he utilised to extend threat to his wife that these MMS shall be made public to render her life miserable.

It is not disputed that the applicant no.1 was definitely present at Allahabad on the day of commission of offence as it has been admitted on behalf of the applicant no.1 in para 18 of his affidavit.

The court at this stage is not required to record a finding in detail as to what offence, described in the charge sheet, is made out specifically as that may harm any of the party during trial, but it is sufficient to record that from the facts of the case it can never be said that no offence is made out against applicant no.1 Nitin Goel, hence, the application, so far as it relates to applicant no.1, lacks merit and is liable to be rejected.

Applicant no.2-Jai Bhagwan Goel

Applicant no.2 is the father of applicant no.1. So far his participation in the offence is concerned, it is evident from the FIR itself that he was not present at the scene of occurrence nor he took any part in the commission of offence. The only role assigned to him is the mere suspicion or a farfetched apprehension in the mind of the complainant and other witnesses that the offence has been committed by the applicant no.1 in conspiracy with applicant no.2, his father. Thus, during the entire investigation no evidence of conspiracy has come up except the same suspicion and farfetched apprehension of the witnesses and the complainant. Thus, so far the criminal proceedings against applicant no.2 Jai Bhagwan Goel is concerned, they are simply abuse of process of the Court. There is no allegation that the applicant no.2 was instrumental in preparing the MMS or extending threat of making it public. Thus, the prosecution or the submission of charge sheet against applicant no.2 Jai Bhagwan Goel is simply the abuse of process and the proceedings and the charge sheet against applicant no.2 deserves to be quashed.

The application is dismissed so far the applicant no.1 Nitin Goel is concerned. The court below is directed to proceed with the trial against applicant no.1 expeditiously.

So far as the applicant no.2 is concerned, the application on his behalf is allowed and the charge sheet submitted against him for offence under Sections 504, 506(2), 307, 120-B, IPC, 67 Information Technology Act and Section 3, 4, 6 of the Indecent Representation of Women (Prohibition) Act, 1986 is, hereby, quashed along with the entire criminal proceedings pursuant thereto.

Dated: 8.08.2014

T. Sinha