Shanti Devi And Others vs State Of U.P. And Another
2018 Latest Caselaw 533 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED/AFR
 
Court No. - 63
 
Case :- APPLICATION U/S 482 No. - 5882 of 2006
 
Applicant :- Shanti Devi And Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Applicant :- Dharmendra Singhal
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Amar Singh Chauhan,J.

Heard Sri Dharmendra Singhal, learned counsel for the applicants and learned AGA for the State. None appeared on behalf of opposite party no. 2 despite sufficient service.

Applicants, Shanti Devi and five others, through this application under section 482 Cr.P.C. have invoked the inherent jurisdiction of the Court with a prayer to quash the proceeding of Criminal Case No. 2510 of 2005 (State vs. Shanti Devi and others), arising out of Case Crime No. 65 of 2003 under sections 498-A/304B IPC read with Section ¾ of Dowry Prohibition Act, Police Station Ghiror, District Mainpuri and further prayed to stay the aforesaid proceeding.

Brief facts which are requisite to be stated for adjudication of this application are that the First Information Report was lodged by the opposite party no. 2 with allegation that the marriage of the daughter of informant was solemnized with Pushpendra (applicant no. 3) according to Hindu customs and rituals. In the marriage, sufficient dowry was given. A number of articles, such as, Kawaski Boxer A.P. Motorcycle, T.V (black and white), Sewing Machine, Fan, Box, Almirah, Pressure Cooker, Single Bed, Hand Watch, Two Ring Fingers, One Gold Chain, Rs. 60,000/- cash and other household articles were given but the husband and in-laws were not satisfied and by raising additional demand of Colour T.V., Freeze, Washing Machine, used to torture her and threatened to marry again in case dowry was not given. The informant got information from some persons that his daughter is out of sort. On this information, the informant had gone to the house of his daughter and found that his daughter was lying as dead in the courtyard and none of the members of the family was present there. Inquest and post mortem report were got done and his signature was obtained on the inquest report. The Investigation Officer, after concluding investigation, submitted final report with the endorsement that the deceased has committed suicide. The informant filed protest petition which was allowed and final report was rejected and, after taking cognizance, summons were issued against applicants.

Feeling aggrieved, the applicants came up before this Court in this application.

It is submitted by learned counsel for the applicants that Magistrate has illegally allowed the protest petition considering the affidavit filed in its support and, after rejecting the final report, took cognizance under section 190(1)(b) Cr.P.C. against which criminal revision was filed which was also dismissed. The statement under section 161 Cr.P.C. was disowned by the Magistrate then there is no option except to proceed under Chapter XV of the Cr.P.C.. It is a case on which final report was submitted twice by two different Investigating Officers. The impugned order dated 9.11.2005 suffers from illegality and is not sustainable in the eye of law.

Per contra learned AGA contends that learned Magistrate did not place reliance on affidavit filed alongwith protest petition but after going through the case diary the cognizance was taken under section 190(1)(b) Cr.P.C. It is further contended that within one year of marriage the deceased has lost her life by suffering 100% burn injury otherwise than in normal circumstances and soon before her death she was subjected to cruelty or harassment by the husband and in-laws. Since the occurrence took place inside the house of the applicants these circumstances are definitely adverse to the applicants and applicants have failed to discharge the presumption.

The scope and ambit of power under section 482 Cr.P.C. has been examined by Hon'ble Apex Court in Union of India vs. Prakash P. Hinduja and another, AIR 2003 SC 2612 and observed as follows:

"The grounds on which power under Section 482 Cr.P.C. can be exercised to quash the criminal proceedings basically are (1) where the allegations made in the FIR or complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused (2) where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused, (3) where there is an express legal bar engrafted in any of the provisions of Code of Criminal Procedure or the concerned Act to the institution and continuance of the proceedings. But this power has to be exercised in a rare case and with great circumspection".

This Court in case of Pakhandu vs. State of Uttar Pradesh, 2001 Law Suit (All) 620 held that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:

(i) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant;

(ii) He may take cognizance under Section 190(1)(b) and issue process straightway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed; or

(iii) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(iv) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1)(a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued.

The Division Bench of this Court in Mathura Prasad and others vs. State of U.P. and another, [2007 (1) JIC 492 (all)] has held that if the Magistrate after receiving protest petition and considering the police report, if proceed to take cognizance under section 190(1)(b) of the Code and issue process, he cannot look into any material placed before him alongwith protest petition except the material collected by the police and placed before him alongwith the report. However, if he treats the protest petition as complaint and proceeds to record the statement of the complaint and the witnesses and thereafter issue process, the evidence placed before him alongwith protest petition may be relevant and may be considered by him. The reason for taking this view is where the Magistrate decides to take cognizance of a case under Section 190(1)(b) Cr.P.C. ignoring the conclusion arrived at by the investigating agency and by applying his own mind on the facts available on investigation record, he is not bound to follow the procedure laid down in sections 200 and 202 of the Code and, consequently, proviso to Section 202(2) of the Code also would have no application. In such case, a Magistrate can form his opinion only on the statement of the witnesses recorded by the police in the case diary and other material collected during investigation and it is not permissible for him at this stage to look into any material other than investigation record unless it decides to take cognizance under Section 190(a) of the Code.

In the instant case, the Magistrate has decided to take cognizance under section 190(1)(b) Cr.P.C. ignoring the conclusion arrived at by the investigation agency and by applying his own mind on the facts available in the investigation record without looking into the affidavits filed alongwith protest petition. The Magistrate is not bound to follow the procedure laid down in sections 200 and 202 of the Code and, consequently, proviso to Section 202(2) of the Code also would have no application. The cognizance order was challenged by the applicants by invoking the revisional jurisdiction which was dismissed on merit.

The Hon'ble Apex Court in the case of Krishnan and another vs. Krishnaveni and another [1997 (4) SCC 241] held that though the power of the High Court under Section 482 Cr.P.C. is very wide yet the same must be exercised sparingly and cautiously particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code.

In the instant case, the applicants no. 1 and 2 are mother-in-law and father-in-law of the deceased, applicant no. 3 is the husband, applicants no. 4 and 5 are Devar and applicant no. 6 is Nanad of the deceased. On perusal of the record, it transpires that applicant no. 6 is Nanad of the deceased and cannot be said to be beneficiary of the dowry demanded and no specific role or over act is assigned to the applicant no. 6. In absence of any specific allegation or over act no criminal liability be fastened against applicant no. 6.

The Hon'ble Apex Court in case of Geeta Mehrotra and another vs. State of U.P. and another, 2012 Law Suit (SC) 716 held 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 emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against 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 the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute 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 over-implication 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."

The Hon'ble Apex Court in case of Preeti Gupta and another Vs. State of Jharkhand and another, 2010 (3) G.L.H. 258 held that "every High Court has inherent power to act ex debito justitiae to do real and substantial justice. The inherent power should not be exercised to stifle a legitimate prosecution but Courts failing to use the power for advancement of justice can also lead to grave in justice. On the facts of the case wife filed a complaint against her husband, father-in-law, mother-in-law, unmarried brother-in-law and married sister-in-law. However, there are no specific allegations against married sister-in-law and unmarried brother-in-law in the complaint and none of the witnesses have alleged any role of both of them. Married sister-in-law and unmarried brother-in-law had never lived with the complainant and her husband. They have never visited a place where any alleged incident had taken place. The complaint is meant to harass and humiliate the husband's relatives and permitting the complainant to peruse this complaint would be an abuse of process of law."

The High Court of Uttarakhand in the case of Radhika Versus State of Uttarakhand, Laws (UTN) 2010 7 43) has held that "admittedly, Radhika sister of the Chandra Prakash was married much prior to the marriage of the deceased with Chandra Prakash. There is no evidence that Radhika is permanently residing with her parents. Mere allegation against her that whenever she visited her parental house, she would instigated her brother Chandra Prakash, mother Jeewant Devi and sister Hansa to give beatings to Shobha do not constitute any offence. There are mere allegations based on hearsay evidence. Devendra Dutt Gairola is independent person whose statement was recorded under section 161 Cr.P.C. According to him, one fine day when he was sitting on his roof, Shobha came to meet his wife. She was having several contusions on her hands, legs and mouth. According to her, her husband, mother-in-law and sister-in- law Hansa had been giving her beatings daily. She also disclosed that they were harassing and beating her for not fulfilling the demand for the scooter. However, he did not state that any thing was disclosed by Shobha against Radhika. Even her father Rewadhar Murari, brother Rajendra Murari have not alleged anything against petitioner Radhika. The allegation made by Leela Devi do not constitute any offence under Section 304-B/498-A/306 IPC against the petitioner."

From perusal of the order and materials brought on record, it cannot be said that prima facie no offence is made out against applicants no. 1 to 5. All the submissions made at the bar relate to the disputed questions of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. Only in cases where the Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, this power may be exercised to prevent the abuse of process or miscarriage of justice.

In view of what has been discussed above, the impugned order by which the cognizance was taken is justified against applicants no. 1 to 5 but is not liable to be sustained against applicant no. 6 (Nanad). Therefore, the application is partly allowed and the proceeding of Criminal Case No. 2510 of 2005, arising out of Case Crime No. 65 of 2003 under sections 498-A/304B IPC read with Section ¾ of Dowry Prohibition Act, Police Station Ghiror, District Mainpuri qua applicant no. 6 is hereby quashed and application on behalf of applicants no. 1 to 5 is rejected with the direction that trial will go on against applicants no. 1 to 5 on its own course.

No order for costs.

Interim order, if any, stands vacated.

Intimate to the court concerned.

Order Date :- 15.5.2018

Puspendra