Rajesh Kumar Singh And 3 Others vs State Of U.P. & Another
2015 Latest Caselaw 3048 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 23
 
Case :- 	APPLICATION U/S 482 No. - 7629 of 2015
 

 
Applicant :- 	Rajesh Kumar Singh & others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- 	  Dhirendra Kumar Srivastava
 
Counsel for Opposite Party :- Govt. Advocate, Sudeep Dwivedi
 
Hon'ble Pramod Kumar Srivastava, J.

Heard learned counsel for the applicants and opposite party no. 2 and learned AGA for the State.

This application under section 482 Cr.P.C. was preferred for quashing the proceedings of complaint case No. 1037/ 2012 Poonam Singh v. Rajesh Kumar Singh & others u/ss 494, 498-A, 323, 504, 506 IPC & section ¾ D.P. Act pending in the court of Judicial Magistrate (/Addl. Civil Judge, J.D.- II), Mirzapur.

From the perusal of record and even FIR the admitted prosecution case is that the altercation between the parties after some time of marriage which was alleged as mental cruelty in the FIR. Then informant (OP no.-2 wife Poonam Singh) sensed that there was conspiracy in her husband's house, so she deserted the place. Her allegation was that her husband Rajesh had performed second marriage. Her application u/s 156(3) was registered as complaint case in which after her statement u/s 200 CrPC and statements of two witnesses u/s 202 CrPC four persons were summoned for offences u/ss 498-A, 323, 504, 506 IPC. Proceeding ofconcerned complaint case has been challenged in present petition u/s 482 CrPC by all accused.

Learned counsel for the appellant-accused contended that second marriage of husband was performed with consent of OP no.-2 wife when she could not give birth to any child. The other relatives (/applicants no.- 2, 3, 4) ad no concern with second marriage, and they reason to demand dowry from OP no.-2 wife. Therefore proceeding of complaint case is abuse of process of court which should be quashed.

Learned counsel for OP no.-2 contended that there is no error in summoning order of trial court as applicants no. 2, 3, 4 had helped the husband applicant no.-1 husband and attended his second marriage.

A perusal of records makes it explicitly clear that this is a matrimonial dispute between husband and wife which converted into criminal proceeding of complaint case, and applicant no.-2, 3, 4 are made accused because they are relatives of husband (/applicant no.-1). It appears that cause of action, that is second marriage was performed during the period when wife (OP no.-2/ complainant) was living with her husband (/applicant no.-1).

Attending second marriage of any persons by friend, neighbours, relatives cannot lead to inference of conspiracy or abetment. People in this society attend such functions relating to marriage because of customs, friendships, formalities and social reasons even in absence of any personal interest. Attending such functions cannot make them accused of abetment or conspiracy of such acts. Bigamy is purely personal act of person committing it.

The Apex court in Chand Dhawan (Smt) v. Jawahar Lal, (1992) 3 SCC 317 held:

"So far as other respondents are concerned, it may be said that they had been unnecessarily and vexatiously roped in. The allegations in the complaint so far as these respondents are concerned are vague. It cannot be assumed that they had by their presence or otherwise facilitated the solemnisation of a second marriage with the knowledge that the earlier marriage was subsisting. - - - - In this background, the allegations made against respondents 3 to 7 imputing them with guilty knowledge unsupported by other material would not justify the continuance of the proceedings against those respondents."

A perusal of record also reveals that there is no specific allegations against appellants no. 2, 3, 4 in complaint or statements u/ss 200 or 202 CrPC except the fact that they had cooperated in second marriage of applicant no.-1 husband. Summoning order by Magistrate had not specified as to why appellants no. 2, 3, 4 had been made accused and summoned especially any specific evidence against them except for their casual reference in complaint and statements of witnesses u/ss 200, 202 CrPC. Therefore their summoning in the said case appears erroneous. In Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741 Apex Court held as under:

"25. 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 allegations 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 emphasise by highlighting is that, if the FIR as it stands does not disclose specific allegation against the 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 cognizance 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 process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing, especially in cases of matrimonial disputes 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 overimplication 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.

26. 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 498-A/323/504/506 IPC 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.

27. The High Court in our considered opinion appears 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 do 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 498-A/323/504/506 IPC and Sections 3/4 of the Dowry Prohibition Act."

in light of above discussion a perusal of records of original case reveals that proceeding of complaint case in question is rightly being carried out against husband Rajesh Kumar Singh (appellant no.-1), but there is no legal justification or propriety to carry out said proceeding against other applicants no. 2, 3 & 4 (Rameshwar Singh, Dhruv and Shiv Kumar). Therefore it would be unfair and contrary to interest of justice to continue the criminal proceeding and direct the applicants to go through protracted procedure of trial. The continuation of criminal proceeding in this case would tantamount to abuse of process of law. Since the possibility of conviction of is bleak and continuation of criminal case would put the accused to great oppression and prejudice, and extreme injustice would be caused to them by not quashing the pending criminal proceeding against them.

Therefore by exercising inherent jurisdiction of this Court and for preventing the abuse of process of court, this petition u/s 482 CrPC is partially allowed only for the applicants no. 2, 3 & 4. The proceedings of complaint case No. 1037/ 2012 Poonam Singh v. Rajesh Kumar Singh & others u/ss 494, 498-A, 323, 504, 506 IPC & section 3/4 D.P. Act pending in the court of Judicial Magistrate (/Addl. Civil Judge, J.D.- II), Mirzapur are hereby quashed (Rameshwar Singh, Dhruv and Shiv Kumar). But proceeding of said case will proceed against applicant no.-1 Rajesh Kumar Singh in accordance with law.

Let a copy of this order be sent to the trial court concerned immediately for ensuring compliance.

Order Date :- 09.10.2015

Sanjeev