Amar Singh @ Amar Kumar And Another vs State Of U.P. And Another
2021 Latest Caselaw 2477 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Court No. - 81
 

 
Case :- APPLICATION U/S 482 No. - 3554 of 2021
 

 
Applicant :- Amar Singh @ Amar Kumar And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Harindra Prasad
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

1. Heard Sri Harindra Prasad, learned counsel for the applicants, learned A.G.A. for the State as well as perused the entire material available on record. Learned counsel for the parties agree that the present application may be disposed of at this stage without calling for any further affidavits. 

2. This application u/s 482 Cr.P.C. has been filed seeking to quash the charge sheet dated 19.12.2019 as well as the entire proceedings of Case No. 2018 of 2020, State Vs. Amar Singh and another (arising out of Case Crime No. 0614 of 2019), under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Etmadaula, District Agra.

3. Brief facts of the case giving rise to present proceedings are that a first information report has been lodged on 10.08.2019 at 10:28 o'clock by one Rajkumar Singh against nine named accused including the present applicants alleging therein that, on 21.04.2015 marriage of his  daughter Sapna @ Lovely was solemnized with Dilip Singh Tomar according to Hindu Rites and Rituals and out of their wedlock two issues were born. At the time of marriage, one WagonR Car and an amount of Rs.11,00,000/- cash were given as a dowry by the informant. After marriage, all the accused persons used to harass and torture the daughter of the informant for additional demand of dowry of Rs. 2,00,000/-. On 9/10.08.2019, at night, daughter of the informant was killed by her husband Dilip Singh Tomar, mother-in-law Smt. Siya, brothers-in-law Amar Singh (applicant no. 1), Deshraj Singh and Mangal, sister-in-law Saroj (applicant no. 2) and other accused persons. It is on the basis of the aforesaid allegations that the informant has lodged the first information report.

4. The postmortem of the deceased was done on 10.08.2019. The cause of death, according to post-mortem report, is Asphyxia as a result of ante-mortem hanging. The Doctor has found following ante-mortem injuries on the person of the deceased:

"1. Linear Abrasion size 1x0.3 cm left side of face

2. contusion 4x3 cm around left ear

3. Abraded contusion 3x2 cm on left arm

4. Ligature mark 24x2cm 6m left (knott Mark) 2.5cm away from left ear 5 cm from chin."

5. After recording statements of 6 witnesses and collecting other documentary as well as oral evidence, in view of the provisions of Chapter-XII Cr.P.C., the Police submitted a charge-sheet dated 19.12.2019 against four named accused persons, namely, Dilip Singh Tomar, Smt. Siya, Amar Singh (applicant no. 1) and Smt. Saroj (applicant no. 2) under Sections 498-A, 304-B I.P.C. and under Section 3/4 D.P. Act. Upon submission of the aforesaid charge-sheet dated 19.12.2019, the cognizance was taken by the court concerned and the case was committed to the Court of Sessions by cognizance order dated 10.01.2020 and all the charge-sheeted accused have been summoned.

6. The applicants have been enlarged on interim bail in the aforesaid criminal case by a Coordinate Bench of this Court vide order dated 12.12.2019 passed in Criminal Misc. Bail Application No. 54085 of 2019 (Amar Kumar and another Vs. State of U.P.).

7. Learned counsel for the applicants has made the following submissions:

(I) The complainant/informant has falsely roped the entire family members of the applicants. The Investigating Officer, after investigation, has submitted the charge-sheet against the applicants and brother and mother of applicant no. 1 only and has exonerated the other accused persons, which makes the prosecution case doubtful.

(II) The applicants are living separately from their family members. The allegation for additional demand of dowry is false, concocted and engineered. It has been made only in order to falsely implicate the applicants and his entire family members. Prior to the institution of the first information report, there has been no complaint for any kind of dowry or maltreatment by the informant or her daughter (deceased) against the applicants or his family members.

(III) He has further submitted that the present criminal proceedings initiated against the applicants are not only malicious but also amount to an abuse of the process of the court of law. On the cumulative strength of the aforesaid submissions, it is submitted by learned counsel for the applicants that the proceedings of the above mentioned criminal case are liable to be quashed by this Court.

8. Per contra, Mr. Pankaj Srivastava, learned A.G.A. for the State has opposed the prayer made by the learned counsel for the applicants. He contends that a prima facie case for the alleged offence is made out against the applicants. There is consistency in the prosecution story as unfolded in the first information report and statements of the informant under Section 161 Cr.P.C. The medical examination report of the victim also corroborates the prosecution story. There are specific allegations made against the applicants and his parents qua the demand of dowry. All the submissions made by the learned counsel for the applicants are only for grant of bail to the applicants pending trial and not for quashing of the charge-sheet and the entire proceedings of the aforesaid criminal case. The correctness or otherwise of the aforesaid submissions of the learned counsel for the applicants can only be examined after framing of charge against the applicants. At this pre-trial stage, the same cannot be examined. Even otherwise, the applicant has already been enlarged on anticipatory bail by a Coordinate Bench of this Court.

9. Lastly, the learned A.G.A. states that this Court may not quash the entire criminal proceedings under Section 482 Cr.P.C. for which he has relied upon the judgment of the Supreme Court in the case of Mohd. Allauddin Khan Vs. The State of Bihar & Others reported in 2019 0 Supreme (SC) 454, wherein, it has been held that the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 Cr.P.C. because whether there are contradictions or/and inconsistencies in the statements of the witnesses is an essential issue relating to appreciation of evidence and the same can be adjudged during trial when the entire evidence is adduced by the parties. However, in the present case the said state is yet to come.

10. Learned A.G.A. has further relied upon the judgment of the Supreme Court in Rajeev Kaurav Vs. Balasahab & Others reported in 2020 0 Supreme (SC) 143, wherein, it has been held that it is no more res integra that exercise of power under Section 482 CrPC to quash a criminal proceeding is only when an allegation made in the FIR or the charge sheet constitutes the ingredients of the offence/offences alleged. Interference by the High Court under Section 482 CrPC is to prevent the abuse of process of any law or Court or otherwise to secure the ends of justice. It is settled law that the evidence produced by the accused in his defence cannot be looked into by the Court, except in very exceptional circumstances, at the initial stage of the criminal proceedings. It is trite law that the High Court cannot embark upon the appreciation of evidence while considering the petition filed under Section 482 CrPC for quashing criminal proceedings. It is clear from the law laid down by this Court that if a prima facie case is made out disclosing the ingredients of the offence alleged against the accused, the Court cannot quash a criminal proceeding.

11. In support of his contention, the learned A.G.A. further relied upon the judgments of this Court in the cases of V.K. Rai & Another Vs. State & Another passed in Application U/S 482 No. 3707 of 2004, decided on 29th April, 2019 and Sri Rudra Prakash Tiwari @ Raju Tiwari & Another Vs. State of U.P. & Another passed in Application U/S 482 No. 12608 of 2020 decided on 6th October, 2020.

12. On the cumulative strength of the aforesaid submissions, learned A.G.A. states that this Court can not exercise its inherent power under Section 482 Cr.P.C. in the present case, therefore, the present application is liable to be rejected.

13. I have considered the submissions made by the learned counsel for the parties and gone through the records of the present application.

14. This Court finds force in the contention raised by the learned A.G.A. that a prima facie case is made out against the applicants is made out. There is consistency in the prosecution story as unfolded in the first information report and statements of the informant under Section 161 Cr.P.C. The medical examination report of the victim also corroborates the prosecution story. There are specific allegations made against the applicants and his parents qua the demand of dowry.

15. This Court also finds that the applicants are not only the named but also a charge-sheeted accused. The offences against the applicants are under Sections 498-A, 304-B I.P.C. as also under Sections 3/4 D.P. Act, therefore, the presumption is available to the prosecution, as the death of the deceased was within seven years of her marriage. Consequently, the applicants are under heavy burden to explain as to why the deceased had taken extreme step of committing suicide by hanging herself. The burden to proof the innocence, which is required under Sections 106 and 113-B of the Indian Evidence Act, remains undischarged, as the applicants have not been able to explain the prosecution. It is further submitted that specific allegations of demand of dowry have been made in the first information report as well as in the statement of the first informant. Therefore, the allegations with regard to demand of dowry and the commission of cruelty upon the deceased for non-fulfilment of the alleged demand of dowry has been attributed to all the accused including the present applicants, who are direct beneficiary of the said demand of dowry. Whatever be the circumstances, it was an unnatural death, even if it is a case of suicide, it is an unnatural death within seven years of her marriage. Even in that eventuality, Section 304-B I.P.C. is attracted and this fact is not disputed.

16. This Court comes on the issue whether it is appropriate for this Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued processes against the applicants and the trial is to yet to come.

17. Their Lordships of the Supreme Court in R.P. Kapur Versus State of Punjab; AIR 1960 SC 866 has held as follows :

"6. Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under s. 561 -A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under s. 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases, it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under s. 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and' contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under s. 561-A in the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point (Vide: In Re: Shripad G. Chandavarkar AIR 1928 Bom 184, Jagat Ohandra Mozumdar v. Queen Empress ILR 26 Cal 786), Dr. Shanker Singh v. The State of Punjab 56 Pun LR 54 : (AIR 1954 Punj 193), Nripendra Bhusan Ray v. Govind Bandhu Majumdar, AIR 1924 Cal 1018 and Ramanathan Chettiyar v. K. Sivarama Subrahmanya Ayyar ILR 47 Mad 722: (AIR 1925 Mad 39)."

18. While dealing with the question of the scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by their Lordships of the Supreme Court in State of Haryana v. Bhajan Lal (1992 Supp (1) SCC 335). A note of caution was, however, added that the power should be exercised sparingly and that too in rarest of rare cases. It was held by their Lordships in State of Haryana Vs. Bhajan Lal (supra);

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers Under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelized and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

1. Where the allegations made in the First Information Report or the 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 allegations in the First Information Report and other materials, if any, accompanying the F.I.R. do not disclose a cognizable offence, justifying an investigation by police officers Under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

3. 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.

4. Where, the allegations in the F.I.R. do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated Under Section 155(2) of the Code.

5. Where the allegations made in the FIR 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.

6. Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

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."

19. In State of Bihar and another Vs. P.P. Sharma and another 1992 Supp (1) SCC 222 their Lordships of the Supreme Court held as follows :-

"22. The question of mala fide exercise of power assumes significance only when the criminal prosecution is initiated on extraneous considerations and for an unauthorized purpose. There is no material whatsoever is this case to show that on the date when the FIR was lodged by R.K. Singh he was activated by bias or had any reason to act maliciously. The dominant purpose of registering the case against the respondents was to have an investigation done into the allegations contained in the FIR and in the event of there being sufficient material in support of the allegations to present the charge sheet before the court. There is no material to show that the dominant object of registering the case was the character assassination of the respondents or to harass and humiliate them. This Court in State of Bihar v J.A.C. Saldhana and Ors., [1980] 2 SCR 16 has held that when the information is lodged at the police station and an offence is registered, the mala fides of the informant would be of secondary importance. It is the material collected during the investigation which decides the fate of the accused person. This Court in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors., J.T. 1990 (4) S.C. 650 permitted the State Government to hold investigation afresh against Ch. Bhajan Lal inspite of the fact the prosecution was lodged at the instance of Dharam Pal who was enimical towards Bhajan Lal."

20. In the case of Zandu Pharmaceuticals Works Ltd. and others Vs. Mohammad Shariful Haque and another 2005 (1) SCC 122 it has been held thus :

"8. Exercise of power under Section 482 of the Code in a case of this nature is the exception and not the rule. The Section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice.

In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto."

21. In R. P. Kapur (supra) the Supreme Court has summarized some categories of cases where inherent power can and should be exercised to quash the proceedings. It has been held there :

"(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge."

22. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.

23. Thereafter, in the case of M.N. Ojha Vs. Alok Kumar Srivastava, reported in 2009 (9) SCC 682 has made observations in paragraphs 29 and 30 regarding the exercise of power under section 482 Cr.P.C. as well as the principles governing the exercise of such jurisdiction:-

"29. It is true that the court in exercise of its jurisdiction under Section 482 of the Code of Criminal Procedure cannot go into the truth or otherwise of the allegations and appreciate the evidence if any available on record. Normally, the High Court would not intervene in the criminal proceedings at the preliminary stage/when the investigation/enquiry is pending.

30. Interference by the High Court in exercise of its jurisdiction under Section 482 of Code of Criminal Procedure can only be where a clear case for such interference is made out. Frequent and uncalled for interference even at the preliminary stage by the High Court may result in causing obstruction in progress of the inquiry in a criminal case which may not be in the public interest. But at the same time the High Court cannot refuse to exercise its jurisdiction if the interest of justice so required where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no fair-minded and informed observer can ever reach a just and proper conclusion as to the existence of sufficient grounds for proceeding. In such cases refusal to exercise the jurisdiction may equally result in injustice more particularly in cases where the Complainant sets the criminal law in motion with a view to exert pressure and harass the persons arrayed as accused in the complaint."

24. This Court in Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors. [(1998)5 SCC 749 held:

"28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence both oral and documentary in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused."

25. In view of the above, this Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion on various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either of the parties. But it shall suffice to observe that a perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima facie case against the accused at this stage and there appear to be sufficient ground for proceeding against the accused. I do not find any justification to quash the charge sheet or the proceedings against the applicants. This case does not fall in any of the categories recognized by their Lordships of the Supreme Court which may justify their quashing.

26. The prayer for quashing the impugned charge-sheet as well as the entire proceedings of Case No. 2018 of 2020, State Vs. Amar Singh and another (arising out of Case Crime No. 0614 of 2019), under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Etmadaula, District Agra are refused.

27. The present application under Section 482 Cr.P.C. is, accordingly, rejected. There shall be no order as to costs.

Order Date :- 18.2.2021

Priya