Husnatara vs State Of U.P. And Another
2021 Latest Caselaw 1057 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 80
 

 
Case :- APPLICATION U/S 482 No. - 1160 of 2021
 

 
Applicant :- Husnatara
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Pavan Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.

1. This application under Section 482 Cr.P.C. has been filed for quashing the impugned order dated 21.10.2020 passed by Court of Session Judge, Maharajganj in Criminal Revision No. 20 of 2020 (Husntara Vs. State of U.P. and another) as well as impugned order dated 17.01.2020 passed by Court of Chief Judicial Magistrate, Maharajganj in Complaint Case No. 3498 of 2019 (Husntara Vs. Ahsan @ Soni), whereby complaint filed by applicant has been dismissed under Section 203 Cr.P.C.

2. Heard learned counsel for applicant and learned AGA for State.

3. It has been argued by learned counsel for applicant that applicant has filed an application under Section 156(3) Cr.P.C., which was registered as a complaint case and thereafter, applicant was examined under Section 200 Cr.P.C. and two witnesses were examined under Section 202 Cr.P.C. It was stated that there were clear allegations of rape against respondent no.2 but despite that the complaint of applicant was dismissed by the Court of C.J.M., Maharajganj impugned order dated 17.01.2020 in an arbitrary manner. The said order dated 17.01.2020 was challenged by applicant before Session Court by filing criminal revision but the revision has also been dismissed on unsustainable grounds vide impugned order dated 21.10.2020. Learned counsel submitted that applicant has clearly alleged that while her husband was abroad, the respondent no.2, who is brother-in-law (Jeth) of applicant, has committed rape upon her. Parents of respondent no.2 were not willing to depose against their son and thus, the applicant has got examined her mother and sister under Section 202 Cr.P.C. Learned counsel submitted that the observations of lower revisional Court that the family members of respondent no.2 were not examined or that the applicant was not medically examined, are not sustainable and the revision was dismissed without considering the matter in correct perspective. Learned counsel submitted that a person can only be medically examined on the basis of chitthi majroobi sent by police. Learned counsel submitted that there were serious allegations of rape against respondent no.2 and thus, both the impugned orders are liable to be set aside.

4. Learned AGA has submitted that the applicant has also made allegation that after her marriage she was being harassed on account of dowry and the family members of her husband used to demand of Rs.5,00,000/- as dowry. It was stated that the allegation of rape by applicant against her own brother-in-law (Jeth) is not probable and reliable.

5. At this stage it would be expedient to go through the provisions as enunciated under Sections 203 and 204 Cr.P.C. which reads as follows :-

Section 203 Cr.P.C.

"Dismissal of complaint- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing,"

Section 204 Cr.P.C.

"204.Issue of process. (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or

(b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction."

6. Thus, it is clear that as per the procedure prescribed for proceedings with regard to the complaint case after recording the statements of the complainant and witnesses and the result of the inquiry or investigation (if any) under section 202 Cr.P.C., if the Magistrate is of the opinion that there is no sufficient ground for proceeding exists and he may dismiss the complaint. It is well settled that if a bare perusal of a complaint or the evidence led in support of it show that essential ingredients of the offence alleged are absent or that the dispute is only a civil nature or that there are such patent absurdities in evidence produced that it would be a waste of time to proceed further the complaint could be properly dismissed under Section 203, Criminal Procedure Code.

7. In S.N. Palanitkar v. State of Bihar and another, AIR 2001 SC 12960 while examining the scope of section 203 of Code of Criminal Procedure Code, the Hon'ble Apex Court in paragraphs 15,16 and 17 has held as under :

"15. In case of a complaint under Section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and the witnesses, if any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction.

16. This Court in Nirmaljit Singh Hoon v. The State of West Bengal and others, (1993)(3)SCC 753), in para 22, referring to scheme of Sections 200-203 of Cr.P.C. has explained that "The section does not say that a regular trial of adjudging truth or otherwise of the person complained against should take place at that stage, for, such a person can be called upon to answer the accusation made against him only when a process has been issued and he is on trial. Section 203 consists of two parts. The first part lays down the materials which the Magistrate must consider, and the second part says that if after considering those materials there is in his judgment not sufficient ground for proceeding, he may dismiss the complaint. In Chandra Deo Singh v. Prakash Chandra Bose (1964 (1)SCR 639) where dismissal of a complaint by the Magistrate at the stage of Section 2092 inquiry was set aside, this Court laid down that the test was whether there was sufficient ground for proceeding and not whether there was sufficient ground for conviction, and observed (p.653) that where there was prima facie evidence, even though the person charged of an offence in the complaint might have a defence, the matter had to be left to be decided by the appropriate forum at the appropriate stage and issue a process could not be refused. Unless, therefore, the Magistrate finds that the evidence led before him is self-contradictory, or intrinsically untrustworthy, process cannot be refused if that evidence makes out a prima facie case."

17. In Smt. Nagawwa v. Veeranna Shivalingappa Kongalgi (1976(3) SCC 736) this Court dealing with the scope of inquiry under Section 202 has stated that it is extremely limited only to the ascertainment of the truth or falsehood of the allegations made in the complaint (a) on the materials placed by the complainant before the Court (b) for the limited purpose of finding out whether a prima facie case for issue of process has been made out; (C) for deciding the question purely from the point of view of the complainant without at all adverting to any defence that the accused may have. It is also indicated by way of illustration in which cases an order of the Magistrate issuing process can be quashed on such case being "where the allegations made in the complaint or the statements of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused."

8. In the instant matter, it is apparent from the perusal of complaint that the matter appears of matrimonial dispute as the applicant herself has alleged that she was being harassed on account of dowry. In view of attending facts and circumstances of the matter, it appears that the allegation of rape against brother-in-law has been made by blowing the matter out of proportion. Learned C.J.M. as well as learned lower revisional Court have considered entire facts in correct perspective. Learned revisional Court has dismissed the revision by a detailed and reasoned order. This Court does not find any material illegality or perversity in the impugned order so as to require any interference by this Court in exercise of powers under Section 482 Cr.P.C.

9. The application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.

Order Date :- 19.1.2021

Mohit