Allahabad High Court
Nitin Waswani vs State Of U.P. And Anr on 8 July, 2019
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 70
Case :- APPLICATION U/S 482 No. - 25670 of 2019
Applicant :- Nitin Waswani
Opposite Party :- State Of U.P. And Anr
Counsel for Applicant :- Rama Shankar Mishra
Counsel for Opposite Party :- G.A.,Sikandar Khan,S1292
Hon'ble Sanjay Kumar Singh,J.
Sri Sikandar Khan, Advocate has filed his Vakalatnama on behalf of the opposite party no.2 is taken on record.
Heard learned counsel for the applicant, learned Additional Government Advocate for the State/opposite party no.1 and Sri Sikandar Khan, learned counsel for the opposite party no.2 and perused the record with the assistance of learned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the impugned order dated 25.5.2019, whereby discharge application dated 2.5.2019 of the applicant has been rejected by Additional Sessions Judge, Court No.1, Bulandshahar in Session Trial No.435 of 2018 (State Vs. Nitin Waswani) arising out of case crime no.485 of 2016, under Sections 498A, 323, 504, 506, 307 IPC and 3/4 D.P. Act, Police Station Salempur, District Bulandshahar.
It is submitted by the learned counsel for the applicant that the marriage of the applicant with the daughter of the opposite party no.2 was solemnized on 22.11.2015. On account of matrimonial dispute, the opposite party no.2 (mother-in-law of the applicant) lodged FIR against the applicant and two unknown persons on the false and concocted facts making false allegation of demand of dowry etc because before the alleged incident matrimonial case between the parties concerned were already going on in Delhi. It is submitted that victim/daughter of opposite party no.2 has already filed complaint under Section 12 of Domestic Violence Act against the applicant before the Principal Judge, Family Court Patiyala House New Delhi. The Maintenance Petition has also been filed by the victim against the applicant before the Family Court, South, New Delhi, therefore, criminal proceedings arising out of impugned FIR dated 6.5.2016 in District Bulandshahar is not maintainable. Lastly, it is submitted that since the applicant has been falsely implicated in this case and Investigating Officer has not conducted the fair investigation, therefore, the trial court has committed legal error in rejecting the discharge application of the applicant. It is also submitted that divorce of the applicant with his wife has been taken place on 19.2.2019. Lastly, it is submitted that no prima facie offence against the applicant under Sections 498A, 323, 504, 506, 307 IPC and 3/4 D.P. Act is made out, therefore, the impugned order dated 25.5.2019 is liable to be quashed by this Court.
Per contra, learned Additional Government Advocate for the State/opposite party no.1 as well as learned counsel for the opposite party no.2 submitted that there is no illegality in the impugned order dated 25.5.2019. It is next submitted that it is settled law that at the stage of discharge, the court below is required to see whether on uncontroverted allegations made in the prosecution case and the evidence relied in support of same discloses the commission of any offence against the accused or not. The disputed questions of facts and defence of the accused cannot be taken into consideration at the pre-trial stage. Considering the allegations and material evidence on record, the prima facie offence against the accused/applicant is made out, therefore, the application is liable to be dismissed.
I have gone through the entire record including the impugned order.
Having regard to the facts and circumstances of the case and considering the submissions advanced by the learned counsel for the parties, I find that the grounds taken by the applicnt are matter of evidence. The High Court has no jurisdiction to appreciate the evidence of proceedings under section 482 Cr.P.C. because same is essentially an issue relating to appreciation of evidence during trial that stage has to come in this case. In the FIR serious allegations have been levelled against the applicant that he tried to commit murder of his wife (daughter of opposite party no.2). The specific allegation has been levelled that the applicant tried to set ablaze the victim by pouring kerosine oil on her body and to kill her by pressing her neck. In this case incident took place on 5.12.2016 while divorce decree has been passed much after on 19.2.2019.
The Hon'ble Supreme Court recently on 01.05.2019 in State By Karnataka Lokayukta vs M. R. Hiremath 2019 SCC online SC 734 has held as under:
"23. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held :
"29?At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage."
In view of above, no case is made out to interfere with the impugned order. There is no illegality or infirmity in the impugned order. This Court does not find that this case falls in a categories as recognized by the Apex Court for quashing the criminal proceedings of the trial court at the pre-trial stage. Considering the facts and circumstances and nature of allegation against the applicant in this case, cognizable offence is made out against the applicant. The court concerned while passing the impugned order has considered the relevant materials on record and decided the discharge application of the applicant in the light of well settled principle of law.
The applicnt has a remedy under the law to raise all such plea in his defence before the concerned court below at appropriate stage. Hence, the prayer made in the application is refused.
The application lacks merit and is, accordingly, dismissed.
Order Date :- 8.7.2019
SKD/AKP
