Laxmi Prasad And 3 Others vs State Of U.P. And Another
2017 Latest Caselaw 1751 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
(Judgment reserved on 22.05.2017)
 
(Judgment delivered on 03.07.2017)
 

 
Court No. - 02
 

 
Case :- APPLICATION U/S 482 No. - 3891 of 2017
 

 
Applicant :- Laxmi Prasad And 3 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Patanjali Mishra
 
Counsel for Opposite Party :- G.A.,Raghuvansh Chandra,Ramji Saxena
 

 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri Patanjali Mishra, learned counsel for the applicants, learned A.G.A. for opposite party No.1 and Sri Ramji Saxena, learned counsel for opposite party No.2.

2. This application has been filed praying to quash the order dated 17.01.2017 in Complaint Case No.543 of 2010 (Rama Shankar vs. Jeetendra Kumar and others) passed by Additional Chief Judicial Magistrate, Court No.10, Allahabad whereby the discharge application of the applicants under Section 245(2) Cr.P.C. was rejected.

3. Submissions of learned counsel for the applicants are as under:

(i) The applicants are residing at Delhi. The entire alleged offence took place at Delhi. Therefore, the court at Allahabad has no jurisdiction to try the case.

(ii) No specific allegation of demand of dowry has been made against the applicants herein who are father-in-law, mother-in-law, devar and nanad of the sister of the opposite party No.2. He refers to the statement of the victim Seema Jaiswal filed as Annexure-4 to the affidavit accompanying the application to submit that she has not even named the applicants herein for the allegation of dowry or any other allegation. The entire allegation has been levelled specifically against the husband namely Sri Jeetendra.

(iii) The complaint as well as the evidence recorded under Section 244 Cr.P.C. shows that no specific allegation of demand of dowry has been made against the applicants herein rather specific allegations are only against the accused Jeetendra, who is husband.

(iv) Offence under Section 498A is not a continuing offence and, therefore, in the absence of any specific allegation of dowry against the applicants herein within the territorial jurisdiction of the court at Allahabad, the court below was having no jurisdiction to entertain the complaint and the charges are groundless. Judgment of the Hon'ble Supreme Court in the case of Manish Ratan and others vs. State of M.P. and another1 (para-12) is relied.

4. Sri Saxena, learned counsel for the opposite party No.2 submits as under:-

(i) Specific allegation of demand of dowry and torture within the jurisdiction of the concerned court below has been made in the complaint particularly in paragraphs-3, 4, 6 & 7.

(ii) Evidence recorded under Section 244 Cr.P.C. also shows commission of offence by the applicants herein.

(iii) On the basis of evidences on record, it cannot be said that the allegations are groundless so as to attract the provisions of Section 245(2) Cr.P.C.

(iv) The charges have not yet been framed. The rejection of discharge application on the facts of the present case, is wholly justified.

(v) The offence under Section 498A is a continuing offence and, therefore, the learned court below has the jurisdiction to try the case.

(vi) The judgment of Hon'ble Supreme Court in the case Arun Vyas vs. Anita Vyas2 and the Division Bench judgment of this court in the case of Prabhat Ranjan Pandey vs. State of U.P. and others3, are relied.

(vii) The court concerned has lawfully rejected the discharge application inasmuch as the court cannot look in the matter beyond the limit provided under Section 245(2) Cr.P.C.

5. Learned counsel for the opposite party No.2 has also relied upon the decision of Jharkhand High Court in the case of Ranvijay Prasad Deo vs. State of Jharkhand and another4, the judgments of this court in the case of Daya Shanker Agarwal vs. State of U.P. and others5, Yogeshwar Mishra and another vs. State of U.P. and another6, Ghanshyam Pandey and another vs. State of U.P. and another7, Prabhat Ranjan Pandey vs. State of U.P. and others8 and Smt. Pushpa Devi and Smt. Premawati etc. vs. State of U.P. and another9. On the basis of these judgments, he further submitted that acts of the applicants constituted offences under Sections 323, 504, 506, 498-A I.P.C. and Sections 3/4 Dowry Prohibition Act and the offence was a continuing offence and as such the discharge application of the applicants has been lawfully rejected by the A.C.J.M., Court No.10, Allahabad vide impugned order dated 17.01.2017 in Complaint Case No.543 of 2010 under Sections 323, 504, 506, 498-A and 3/4 D.P. Act, P.S. Meja, District Allahabad.

DISCUSSION AND FINDINGS:-

6. I have carefully considered the submissions of the learned counsel for the parties and perused the records.

7. Briefly stated, facts of the present case are that one Seema Jaiswal, sister of the opposite party No.2/ complainant (hereinafter referred to as "the victim") was married on 12.06.2006 with one Sri Jitendra Kumar son of the applicant Nos.1 and 2, and brother of the applicant Nos. 3 and 4. The applicant No.4 is the married nanad of the victim. The applicants are residents of Nazafgarh, New Delhi. The opposite party No.2 (brother of the victim) is resident of Meja, P.S. Meja, District Allahabad. He is an advocate by profession. It appears that there arose some dispute between the victim and her husband Sri Jitendra Kumar. Some allegations were also made against the applicant Nos.1 & 2 by the victim. On 19.07.2006, the victim came back to her parental house at Allahabad along with her brother and allegedly remained there till 21.04.2007. It has been alleged by the victim (P.W.-2) in her statement before the A.C.J.M. concerned that on 21.04.2007, the applicant No.1 came to her parental house for vidai to take her to matrimonial house. Subsequently, she became pregnant. On 27.06.2007, the applicant Nos.1 and 2 brought her to Doda Imagine Research Centre for USU test and the report revealed the result to be positive and consequently the applicant Nos.1 & 2 insisted her for abortion and the abortion was done forcibly on 03.07.2007 at the matrimonial house but her father was informed that she is suffering from thyroid and asthma. When her brother came to bring her, the applicants demanded Tawera Car. On 16.01.2008, her brother brought her to matrimonial house but they were not allowed to enter the house and again demand of Tawera Car was made. On 14.02.2008, her brother moved an application in Mahila Thana, Meja, Allahabad and thereupon the applicant Nos.1 and 2 and the husband were called upon to remain present on 22.02.2008 on which date a compromise was entered into between her (victim) and the husband. The S.H.O. again called upon her husband and thereupon he came on 17.05.2008 and again a compromise was signed between her and her husband. Thereafter, her husband brought her to New Delhi where both started living separately in a house at Uttam Nagar where she remained till 27.08.2010. On 25.08.2010, the applicants came and demanded for Towera Car and beaten her. She informed the incident to her brother on 26.08.2010, who came to Delhi and brought her to Allahabad by train on 28.08.2010 and presented her for medical examination on 12.09.2010. In her cross-examination, the victim stated that she was M.A. at the time of marriage. She did her B.Ed. after marriage. She was given telephone number by the S.H.O. Her husband started dwelling with her in a separate house at Uttam Nagar so as to avoid day to day quarrel in the family. She also stated in her cross-examination dated 06.11.2014 that as and when required she used to go outside her house. She also stated her knowledge about the post-office near to her house at Uttam Nagar and keeping of her mobile phone with her. She stated that communications were made by her to her brother through inland letters 'under certificate of posting' from Delhi so as to ensure that it reaches to her brother at Allahabad. In her statement or cross-examination, she has not made any specific allegation against the applicant Nos.3 & 4 which may constitute offence under Sections 323, 504, 506, 498-A and Section 3/4 D.P. Act.

8. In his statement, the opposite party No.2/ complainant who is a practising advocate, has admitted the fact of compromise on 22.02.2008 at Mahila Thana, Allahabad between the husband Jitendra and the victim and that the compromise allegedly bears signature of the applicant Nos.1 & 2, the husband Jitendra Kumar and the victim. He also supported the allegation of demand of Tawera Vehicle by the applicants from the victim. He stated that when he brought the victim from Uttam Nagar, New Delhi to Allahabad, he did not get her medically examined in any hospital either at Delhi or at Allahabad because he was afraid. Thereafter, he brought her to a hospital at Ram Nagar.

9. In her cross-examination dated 11.11.2014 also, the victim has made specific allegations only against her husband i.e. Sri Jitendra Kumar. She also admitted that the compromise was entered by sweet will of her and her husband and she never informed S.O. regarding demand of Towera Vehicle. She remained at Uttam Nagar, New Delhi with her husband in a separate house for about two years and four months. She stated that she did not present her for medical examination either in any hospital at Delhi or at Allahabad City because she remained for about two years and four months away from her parental house and, therefore, she first wanted to go to her parental house. She also stated that her husband has a four wheeler vehicle which he purchased after marriage without any aid of her father or brother or her family members. Dr. Shailendra Chandra Dwivedi who allegedly medically examined the victim, stated in his cross-examination dated 25.05.2015 that he was posted at the relevant time at Prathmik Swasthya Kendra Sirsa, Meja, Allahabad but in the injury report, he has mentioned nothing about the colour of the injuries on the basis of which the period of injury may be determined. He also stated that injuries other than injury Nos.6 & 7 may be received by felling and the injury Nos.6 & 7 may be self made.

10. From the facts and evidences including cross-examination of the complainant/ witnesses, it is evident that no specific allegations have been made against the applicant Nos.3 & 4 either by the victim or the opposite party No.2, which may constitute offences under Sections 323, 504, 506, 498-A, I.P.C. and 3/4 D.P. Act. The allegations have been made by the victim or the opposite party No.2 complainant specifically against the husband Jitendra and to some extent against the applicant Nos.1 & 2 which prima facie shows commission of offences under the aforesaid Sections of I.P.C. and D.P. Act. In the complaint dated 29.10.2010 filed by the opposite party No.2, the allegations of demand of dowry and cruelty have been levelled against the applicant Nos.1 & 2 and the husband Jitendra Kumar. In paragraphs-1 & 2 of the complaint, the complainant has made specific allegations against the husband of the victim and further alleged that he used to stay in the night for two or three days in a week with his parents and they repeatedly demanded Towera Vehicle and seldom, the applicants used to come in the residential house of the victim and her husband. These facts show that the victim was living with her husband in a house at Uttam Nagar, New Delhi separate from her in-laws.

11. In the case of Ajay Kumar Ghose vs. State of Jharkhand and another10 (Paras- 24 to 31), Hon'ble Supreme Court held as under:-

"24. Now, there is a clear difference in Sections 245(1) and 245(2) of Cr.P.C. Under Section 245(1), the Magistrate has the advantage of the evidence led by the prosecution before him under Section 244 and he has to consider whether if the evidence remains unrebutted, the conviction of the accused would be warranted. If there is no discernible incriminating material in the evidence, then the Magistrate proceeds to discharge the accused under Section 245(1) Cr.P.C.

25. The situation under Section 245(2) Cr.P.C. is, however, different. There, under sub-Section (2), the Magistrate has the power of discharging the accused at any previous stage of the case, i.e., even before such evidence is led. However, for discharging an accused under Section 245 (2) Cr.P.C., the Magistrate has to come to a finding that the charge is groundless. There is no question of any consideration of evidence at that stage, because there is none. The Magistrate can take this decision before the accused appears or is brought before the Court or the evidence is led under Section 244 Cr.P.C. The words appearing in Section 245(2) Cr.P.C. "at any previous stage of the case", clearly bring out this position.

26. It will be better to see what is that "previous stage". The previous stage would obviously be before the evidence of the prosecution under Section 244(1) Cr.P.C. is completed or any stage prior to that. Such stages would be under Section 200 Cr.P.C. to Section 204 Cr.P.C. Under Section 200, after taking cognizance, the Magistrate examines the complainant or such other witnesses, who are present. Such examinations of the complainant and his witnesses is not necessary, where the complaint has been made by a public servant in discharge of his official duties or where a Court has made the complaint or further, if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192 Cr.P.C. Under Section 201 Cr.P.C., if the Magistrate is not competent to take the cognizance of the case, he would return the complaint for presentation to the proper Court or direct the complainant to a proper Court.

27. Section 202 Cr.P.C. deals with the postponement of issue of process. Under sub-Section (1), he may direct the investigation to be made by the Police officer or by such other person, as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding. Under Section 202(1)(a) Cr.P.C., the Magistrate cannot give such a direction for such an investigation, where he finds that offence complained of is triable exclusively by the Court of sessions. Under Section 202(1)(b) Cr.P.C., no such direction can be given, where the complaint has been made by the Court.

28. Under Section 203 Cr.P.C., the Magistrate, after recording the statements on oath of the complainant and of the witnesses or the result of the inquiry or investigation ordered under Section 202 Cr.P.C., can dismiss the complaint if he finds that there is no sufficient ground for proceeding.

29. On the other hand, if the Magistrate comes to the conclusion that there is sufficient ground for proceeding, he can issue the process under Section 204 Cr.P.C. He can issue summons for the attendance of the accused and in a warrant-case, he may issue a warrant, or if he thinks fit, a summons, for securing the attendance of the accused. Sub-Sections (2), (3), (4) and (5) of Section 204 Cr.P.C. are not relevant for our purpose. It is in fact here, that the previous stage referred to under Section 245 Cr.P.C. normally comes to an end, because the next stage is only the appearance of the accused before the Magistrate in a warrant- case under Section 244 Cr.P.C.

30. Under Section 244, on the appearance of the accused, the Magistrate proceeds to hear the prosecution and take all such evidence, as may be produced in support of the prosecution. He may, at that stage, even issue summons to any of the witnesses on the application made by the prosecution. Thereafter comes the stage of Section 245(1) Cr.P.C., where the Magistrate takes up the task of considering on all the evidence taken under Section 244(1) Cr.P.C., and if he comes to the conclusion that no case against the accused has been made out, which, if unrebutted, would warrant the conviction of the accused, the Magistrate proceeds to discharge him.

31. The situation under Section 245(2) Cr.P.C., however, is different, as has already been pointed out earlier. The Magistrate thereunder, has the power to discharge the accused at any previous stage of the case. We have already shown earlier that that previous stage could be from Sections 200 to 204 Cr.P.C. and till the completion of the evidence of prosecution under Section 244 Cr.P.C. Thus, the Magistrate can discharge the accused even when the accused appears, in pursuance of the summons or a warrant and even before the evidence is led under Section 244 Cr.P.C., makes an application for discharge."

12. In the case of R.S. Nayak vs. A.R. Antulay and another11, (paras-43 & 45), Hon'ble Supreme Court held as under:-

"43. As pointed out by the Constitution Bench in the judgment to which reference has been made, the relevant sections of the Code of Criminal Procedure ('Code' for short) for the trial of a case of this type are sections 244, 245 and 246. Section 245(1) provides :

"If upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him."

While Section 246(1), on the other hand, requires :

"If when such evidence has been taken or at any previous stage of the case the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter which such Magistrate is competent to try and which in his opinion could be adequately punished by him, he shall frame in writing a charge against the accused."

The Code contemplates discharge of the accused by the Court of Sessions under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on police report are dealt with in Section 245. The three sections contain some what different provisions in regard to discharge of the accused. Under Section 227, the trial Judge is required to discharge the accused if he "considers that there is not sufficient ground for proceeding against the accused." Obligation to discharge the accused under Section 239 arises when "the Magistrate considers the charge against the accused to be groundless." The power to discharge is exercisable under Section 245(1) when "the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction..." It is a fact that Sections 227 and 239 provide for discharge being ordered before the recording of evidence and the consideration as to whether charge has to be framed or not is required to be made on the basis of the record of the case, including documents and oral hearing of the accused and the prosecution or the police report, the documents sent along with it and examination of the accused and after affording an opportunity to the two parties to be heard. The stage for discharge under Section 245, on the other hand, is reached only after the evidence referred to in Section 244 has been taken. Not-withstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of "prima facie" case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial Court is satisfied that a prima facie case is made out, charge has to be framed.

45. The use of the words "if, upon taking of the evidence referred to in Section 244" in sub- Section (1) of Section 245 is suggestive of the statutory intention that until "all such evidence as may be produced in support of the prosecution" is taken, the stage for judicial consideration as to whether charge is to be framed is not reached. Now it is a fact that several witnesses named by the prosecution still remain to be examined in the instant case but no grievance was made before us by the appellant's counsel that the trial Judge had acted wrongly in taking up the question of framing of charges prematurely. Obviously this complaint could not be made since after 57 witnesses had been examined it was the prosecution itself which invited the learned Trial Judge to take up the matter of framing of charges."

13. In the case of Sherish Handenia vs. State of M.P.12 (para-9), Hon'ble Supreme Court held as under:-

"9. It would be idle and in fact illogical to contend that law expects that on the first demand of dowry, the prosecution under Section 498-A has to be commenced. In the Indian idiom, where it is oft spoken that on her marriage a daughter ceases to be a member of her parents' family and may return to it only as a corpse, the reality is that only when it is obvious that the marriage has become unredeemably unworkable that the wife and her family would initiate proceedings under Section 498-A, IPC. Before that stage is arrived at, the bride endures the ill treatment and taunts knowing that the marriage would be undermined and jeopardized by running to the police station. We must hasten to add that a malpractice is now widely manifesting itself in that lawyers invariably advise immediate commencement of Section 498-A proceedings employing them as a weapon of harassment. Courts however, are aware and alive to this abuse of otherwise salutary statutory provision. Therefore, pleas founded on limitation have to be viewed with great circumspection. In this regard the statement of Ms. Sheetal Bhandari pertaining to conversations held by the deceased Archana in August, 2003 will indubitably be cogitated upon by the Trial Court. "

14. In the case of Chandralekha vs. State of Rajsthan13 (para-9), Hon'ble Supreme Court considered a case where the allegations were general in nature and no specific role was attributed to each of the accused and held as under:-

"9. We must, at the outset, state that the High Court's view on jurisdiction meets with our approval and we confirm the view. However, after a careful perusal of the FIR and after taking into consideration the attendant circumstances, we are of the opinion that the FIR lodged by respondent 2 insofar as it relates to appellants 1, 2 and 3 deserves to be quashed. The allegations are extremely general in nature. No specific role is attributed to each of the appellants. Respondent 2 has stated that after the marriage, she resided with her husband at Ahmedabad. It is not clear whether appellants 1, 2 and 3 were residing with them at Ahmedabad. The marriage took place on 9/7/2002 and respondent 2 left her matrimonial home on 15/2/2003 i.e. within a period of seven months. Thereafter, respondent 2 took no steps to file any complaint against the appellants. Six years after she left the house, the present FIR was lodged making extremely vague and general allegations against appellants 1, 2 and 3. It is important to remember that appellant 2 is a married sister-in-law. In our opinion, such extra ordinary delay in lodging the FIR raises grave doubt about the truthfulness of allegations made by respondent 2 against appellants 1, 2 and 3, which are, in any case, general in nature. We have no doubt that by making such reckless and vague allegations, respondent 2 has tried to rope them in this case along with her husband. We are of the confirmed opinion that continuation of the criminal proceedings against appellants 1, 2 and 3 pursuant to this FIR is an abuse of process of law. In the interest of justice, therefore, the FIR deserves to be quashed insofar as it relates to appellants 1, 2 and 3. "

15. In the case of Swapnil vs. State of M.P.14 (para-11), Hon'ble Supreme Court considered the quashing of criminal proceedings under Section 498-A and 546, I.P.C. against the husband and his relatives while his wife was living separately and quashed the criminal proceedings holding as under:-

"11. The second respondent has been living separately since April, 2011 and hence, there is no question of any beating by the appellants as alleged by her. The relationship having got strained ever since April, 2011, even application for restitution of conjugal rights having been withdrawn on 16.04.2012 as the second respondent was not interested to live together, it is difficult to believe that there is still a demand for dowry on 30.04.2012 coupled with criminal intimidation. The allegations are vague and bereft of the details as to the place and the time of the incident. We had called for the records and have gone through the same. The materials before the learned Judicial Magistrate First Class, Indore are not sufficient to form an opinion that there is ground for presuming that the appellant- accused have committed the offence under the charged Sections. The Additional Sessions Court and the High Court missed these crucial points while considering the petition filed by the appellants under Section 397 and Section 482 of the Cr.PC respectively. The veiled object behind the lame prosecution is apparently to harass the appellants. We are, hence, of the view that the impugned prosecution is wholly unfounded."

16. In the case of Preeti Gupta vs. State of Jharkhand15, (Paras-30, 32, 34, 35, 36, 37 & 38), Hon'ble Supreme Court took judicial notice of increasing pendency and filing of non-bona fide complaints with oblique motive implicating husband and of his immediate relations and consequently expressed the need to scrutinise the allegations of the complaint with great circumspection and held as under:-

"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.

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 is also a matter of serious concern.

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 the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the 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.

37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislation. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.

38. We direct the Registry to send a copy of this judgment to the Law Commission and to the Union Law Secretary, Government of India who may place it before the Hon'ble Minister for Law & Justice to take appropriate steps in the larger interest of the society. "

17. Facts of the present case as briefly noted above including own evidence of the victim and the complainant shows that there arose some dispute within few days of the marriage and consequently, the victim came back to her parents' house on 19.07.2006. She remained at her matrimonial house till 21.04.2007. Subsequently, the complainant filed an application in Mahila Thana, Meja, Allahabad on 14.02.2008 whereupon the husband of the victim and the applicant Nos.1 & 2 herein were called upon in Mahila Thana on 22.02.2008. The applicant Nos.1 & 2 who are resident of Delhi, came to Mahila Thana along with the husband of the victim where the husband of the victim entered into a compromise which was followed by another compromise between the husband and the victim on 17.05.2008. Thereafter, she came to Delhi along with her husband and started living separately in a house at Uttam Nagar, New Delhi. Both the husband and wife were living separately from the applicants. She remained in a separate house exclusively with her husband for more than two years and four months when she again returned to her parents' house along with the complainant on 27.08.2010 due to alleged occurrence of incident dated 25.08.2010 in the house at Uttam Nagar, New Delhi when demand of dowry was allegedly made and she was allegedly beaten. It has been stated by the victim herself in her cross-examination dated 06.11.2014 that the allegation of demand of dowry was not mentioned in the compromise. She herself stated that her husband started living separately so as to give an end to day-to-day quarrel in the family. The educational qualification of the victim before marriage was only M.A. She did her B.Ed. after marriage. She is an educated lady and there was no restriction on her movement from her separate house at Uttam Nagar, New Delhi. She herself has stated that she used to go outside the house as and when required. Once it is admitted to the complainant and the victim that the victim was residing in a separate house along with her husband since the year 2008 and not in the house of the applicant Nos.1 & 2, which was done to give an end to day-to-day quarrel in the family, then the allegations made in the complaint by the complainant, who is an advocate by profession, against the applicants herein without assigning any specific role to the applicant Nos.3 & 4, were with oblique motive and to harass them.

18. In view of the above discussions and also in view of the law laid down by the Hon'ble Supreme court in the judgments aforementioned, I find that the A.C.J.M., Court No.10, Allahabad has committed manifest error of law and facts to reject the discharge application of the applicant Nos.3 & 4 by the impugned order dated 17.01.2017. Consequently, the impugned order dated 17.01.2017 passed in Complaint Case No.543 of 2010 (Rama Shankar Vs. Jitendra Kumar and others) to the extent of rejection of discharge application of the applicant Nos.3 & 4 is quashed. The remaining part of the impugned order in so far it relates to the applicant Nos.1 & 2 is not interfered with at this stage, inasmuch as some specific allegations of demand of dowry has been made by the complainant in the complaint against them which are supported, to some extent, by the oral evidence of the complainant and the witnesses.

19. So far as the question of lack of jurisdiction raised by the applicant herein is concerned, I find that part of cause of action arose within the territorial jurisdiction of the court at Allahabad as evident from the allegations made in the complaint with respect to the incident dated 12.09.2010. The judgments relied by learned counsel for the opposite party No.2 in the case of Ranvijay Prasad Deo (supra), Daya Shanker Agarwal (supra), Prabhat Ranjan Pandey (supra), relate to continuity of cause of action regarding commission of offence under Section 498-A. I have already held that part of cause of action arose within the territorial jurisdiction of court at Allahabad in view of allegations regarding incident dated 12.09.2010 and as such I do not find any good reason to enter in the question of continuity of offence in the present set of facts. So far as the judgment in the case of Yogeshwar Mishra (supra), passed by this court is concerned, it is sufficient to observe that the facts of that case were different from the facts involved in the present case. Similarly, the judgment of this court in the case of Smt. Pushpa Devi and Smt. Premawati etc. (supra) is distinguishable on facts of the present case. That apart, the principles laid down in para-7 of the judgment in the said case, do not support the case of the opposite party No.2 against the applicant Nos.3 & 4.

20. In view of the above discussion, this application is partly allowed. The applicant Nos.3 & 4 are discharged and the impugned order dated 17.01.2017 in Complaint Case No.543 of 2010 (Rama Shanakar vs. Jitendra Kumar and others) is accordingly modified and is partly quashed.

Order Date :- 03.07.2017

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