Allahabad High Court
Vivek Kumar Goyal And Another vs State Of U.P. And Another on 23 February, 2021
Bench: Manju Rani Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 81
Case :- APPLICATION U/S 482 No. - 17860 of 2020
Applicant :- Vivek Kumar Goyal And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pratik J. Nagar,Mohd. Zaid
Counsel for Opposite Party :- G.A.,Vishesh Kumar Gupta
Connected with
Case :- APPLICATION U/S 482 No. - 17864 of 2020
Applicant :- Gupt Prakash Gupta And Another
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pratik J. Nagar,Mohd. Zaid
Counsel for Opposite Party :- G.A.,Vishesh Kumar Gupta
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Sri Mohd. Zaid, learned counsel for the applicants, learned A.G.A. for the State of U.P. as well as Sri Vishesh Kumar Gupta, learned counsel for the opposite party no. 2 and perused the material placed on record.
This application under Section 482 Cr.P.C. has been filed for quashing/setting aside the cognizance order dated 27.01.2020 and the impugned charge sheet dated 01.01.2020, arising out of Case Crime No. 0960 of 2019, under Sections 498-A, 323 and 506 of the Indian Penal Code, read with Section 3 and 4 of the Dowry Prohibition Act, Police Station Majhaula, District Moradabad, pending in the Court of learned Chief Judicial Magistrate, Moradabad.
The applicants no. 1 and 2 are the brother-in-law (nandoi) and sister-in-law (nanad) of opposite party no. 2 respectively in application under Section 482 Cr.P.C. No. 17860 of 2020 and the applicant nos. 1 and 2 are the father-in-law and mother-in-law of opposite party no. 2 respectively in application under Section 482 Cr.P.C. No. 17864 of 2021.
Brief facts of the case are that marriage of Ekta Gupta, opposite party no. 2 was solemnized with the applicant Prashant Gupta on 01.11.2017 according to Hindu Ritual and Rites. The father of the opposite party no. 2 has spent sufficient money as per his capacity in the marriage of her daughter. After passage of some time, dispute arose between the husband and wife and the husband alongwith his family members physically and mentally tortured and harassed the opposite party no. 2 for additional demand of dowry. Therefore, the present FIR was lodged on 08.11.2019 against the husband Prashant Gupta, Smt. Urmila Gupta, mother-in-law, Sri Gupt Prakash Gupta, father-in-law, Smt. Sonakshi Goyal, sister-in-law and Vivek Goya, brother-in-law (nandoi) of opposite party no. 2 respectively.
It has been submitted by the learned counsel for the applicants that there are general or omnibus allegations against the applicants. However, counsel for the applicants has restricted his argument to the fact that after cognizance order being passed on 27.01.2020, non-bailable-warrants were issued on the very first day.
On 20.01.2021 following order was passed :
"Supplementary affidavit has been filed on behalf of the applicants in Court today, which is taken on record.
This application under Section 482 Cr.P.C. has been filed for setting aside the cognizance order dated 27.01.2020 and the impugned charge sheet dated 01.01.2020 and for quashing the entire proceedings of the Case No. 1534 of 2020, arising out of Case Crime No. 0960 of 2019, under Sections 498A, 323 and 506 IPC and Section 3/4 D.P. Act, Police Station- Majhaula, District- Moradabad, pending in the Court of Chief Judicial Magistrate, Moradabad.
It has been submitted by learned counsel for the applicants that on the first date i.e. 27.01.2020, applicants were summoned and on the very next date without recording any prima facie satisfaction that the notices were served upon the applicants, non-bailable warrants were issued, which is abuse of process of law.
Learned counsel for the applicants has relied upon the judgment passed in the case of Raghuvansh Dewanchand Bhasin Vs. State of Maharashtra reported in 2011 AIR SCW 5347, wherein, in para 10 it has been stated that before issuing non-bailable warrants, the Courts should strike a balance between societal interests and personal liberty and exercise its discretion cautiously.
Learned A.G.A. does not dispute the correctness of the submissions made by the learned counsel for the applicants and he has no objection if the summoning/cognizance order is set aside.
After considering the submissions made by the learned counsel for the parties and going through the records of the present application, this Court finds that the cognizance/summoning order dated 27.01.2020 has been passed by the Chief Judicial Magistrate, District Moradabad without application of mind.
This Court, therefore, directs the District Judge, Moradabad to send his report by the next date after calling for comments of the concerned Magistrate as to why such an order has been passed in the casual manner by the concerned court.
Let this matter be put up on 5th February, 2021 as fresh.
The Registrar General is directed to communicate this order to the District Judge, Moradabad within 48 hours for necessary compliance.
Till the next date of listing, no coercive action shall be taken against the applicants. "
Since the compliance report of the order dated 20.01.2021 is awaited, therefore, on 05.02.2021 reminder was sent to the District Judge, Moradabad for compliance of the order dated 20.01.2021.
Today, the report of the Chief Judicial Magistrate, Moradabad has been placed before this Court alongwith the compliance report dated 29.01.2021 as well as comments of the Chief Judicial Magistrate, Moradabad dated 08.02.2021. From the perusal of the compliance report which has been placed before this Court, it transpires that Presiding Officer admitted his fault and tendered apology ensuring that in future, this fault will not be repeated.
Learned counsel for the applicants further submitted that the matter has not been argued on merits on account of some technicalities of issuing non-bailable-warrants against the applicants on the very first day and the matter may be remanded back to the Court below to pass appropriate order within the stipulated period.
In view of the above, the order dated 27.01.2020 is set-aside. This application is disposed of at this stage with the directions that the Court concerned to pass a fresh summoning order after perusing the records placed before him within a period of 15 days from today.
With the aforesaid directions, the present application under Section 482 Cr.P.C. is disposed of.
Order Date :- 23.2.2021
Monika
