Chitra @ Bebi vs State Of U.P. And Another
2021 Latest Caselaw 8080 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No. - 1 							      RESERVED
 
										   A.F.R.
 
Case :- APPLICATION U/S 482 No. - 316 of 2020
 

 
Applicant :- Chitra @ Bebi
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Atul Kumar,Deepak Dubey,M J Akhtar
 
Counsel for Opposite Party :- G.A.,Amit Daga
 

 
Hon'ble J.J. Munir,J.

The impugned proceedings arise from Case Crime No. 224 of 2019, under Sections 395, 323, 307, 304, 506, 147, 149 of the Indian Penal Code, 18601, Police Station - Meerapur, District - Muzaffarnagar. This crime was registered in immediate succession to Case Crime No. 223 of 2019, under Sections 306, 506 IPC, lodged at the same police station by a brother of the informant, that is to say, Rahul Kumar Sharma. It is virtually a second chapter, if the prosecution case is accepted as one worth trial, to Case Crime No. 223 of 2019.

2. The proceedings arising out of Case Crime No. 223 of 2019 were challenged before this Court, through an application under Section 482 of the Code of Criminal Procedure, 19732, being Application under Section 482 No. - 737 of 2020, decided by a judgment and order of date.

3. The facts giving rise to the last mentioned crime have been detailed in my judgment and order of date rendered in Application under Section 482 No. 737 of 2020. For felicity of reference, the facts relating to Case Crime No. 223 of 2019, as detailed in Application under Section 482 of the Code last mentioned, may be extracted :

This prosecution commenced on a First Information Report3 lodged by the deceased's brother, Rahul Kumar Sharma, on 28.07.2019, about the suicidal death of his brother on 25th of July, 2019. The FIR nominates the deceased's in laws, numbering seven, including his wife Smt. Menka alias Monty, his mother-in-law Smt. Kusum Lata, his three sisters-in-law, to wit, Indu Sharma, Chhaya Sharma and Romika Sharma, besides his brother-in-law Rajat Sharma. Another person nominated is one Rajendra Chaudhary, said to be an uncle of sorts to the deceased's in-laws. The applicant is not named in the FIR. The substance of the information, read to the police, says that the named in-laws of the deceased were frequently troubling him and he was in distress. Rajendra Chaudhary had repeatedly threatened the deceased to death and demanded money of him. The deceased had shared the last mentioned fact with the informant, but his in-laws would not give up on their wayward conduct and Rajendra Chaudhary and the other in-laws would repeatedly demand money of the deceased. It is reported that distressed over this issue, on 25.07.2019, at 12 O' Clock, the deceased jumped off the bridge built over the Ganga Garage and into the river, committing suicide. It is also said that he had left home, riding the informant's motorcycle, which was found, and a suicide note in the deceased handwriting was found at the informant's Dharm Kanta, wherein he had claimed his wife and in-laws' harassment as the cause driving him to commit suicide. It is said in the closing lines of the FIR that the deceased did commit suicide because of the harassment that his wife and in-laws inflicted on him.

4. Close on heels of the FIR lodged by deceased Mohit Sharma's brother about a case of abetment to suicide against the former's in-laws, the other brother of the late Mohit Sharma, Sudhir Kumar Sharma, lodged an FIR, giving rise to this crime, also against Mohit's in-laws, numbering seven, and two unknown offenders. The applicant, like the other FIR relating to abetment to suicide, is not named as one of the accused. The FIR opens the prosecution narrative, linking it to the crime, when Mohit Sharma's family had gone to the Ganga Barrage to cremate his mortal remains. It says that on 29.07.2019, when the informant of the present case and other members of the deceased's family were away to the cremation ground, at about half past twelve, apparently in the afternoon, the deceased's brother-in-law, Rajat Sharma, son of late Brij Bhushan Sharma, mother-in-law Kusum Lata, widow of late Brij Bhushan Sharma, sisters-in-law Indu Sharma, Romila Sharma and Chhaya Sharma, all daughters of late Brij Bhushan Sharma, and Romila's husband, Amit Sharma, son of Ishwar Swarup, besides Rajendra Singh Chaudhary, son of Hari Singh, together with two unknown men, arrived on board three cars (a Spark bearing Registration No. UP 12 W 1011, a Grand Sports bearing Registration No. UP 12 AK 4545 and an another car) at the informant's house. Menaka, the wife of the informant's deceased brother, was also accompanying the visitors. The incoming party assaulted the informant's sister Indu, his niece Swarna Sharma, together with other members of his family. Upon the informant's sister Indu protesting the assault, the accused are claimed to have strangulated her, with an intention to do her to death. It is further said that the assailants relieved the womenfolk of their ornaments (the description whereof is : 1-4 gold bracelets, 2-3 gold rings, 3-1 silver rakhi, 4-3 pairs of bichchwa, 5-1 gold dolna, 6-2 pairs of gold tops) besides other valuables, all of which they looted. It is further said that the raiding party took away Mohit Sharma's i-10 car, bearing Registration No. UP 12 AH 8305, the keys whereof were with Mohit's wife Menaka. It is also said that the accused kidnapped Abhiraj alias Manan Sharma, the late Mohit Sharma's three-year old son. Towards the tail end of the FIR, it is alleged that while making good their escape, the accused threatened the victims with death. There is almost a postscript mention of the fact that the accused while escaping, when attempted to be restrained by one Prabhat Sharma, son of Jai Bhagwan Sharma and Shailendra Sharma, son of Jagdish Lal Sharma, they threatened these two also with death, and drove away in their cars.

5. The Police investigated the matter and filed a charge-sheet dated 15.11.2019, on the basis whereof, the Magistrate has taken cognizance on 21.11.2019, giving rise to the impugned proceedings.

6. Heard Mr. V.M. Zaidi, learned Senior Counsel assisted by Mr. Imran Khan, learned Counsel for the appellant, Mr. Amit Daga, learned Counsel appearing on behalf of opposite party no. 2 and Mr. Deepak Mishra, learned A.G.A. appearing on behalf of the State.

7. It is urged by Mr. Zaidi, the learned Senior Advocate appearing for the applicant, that the impugned prosecution is a patent abuse of process of law, designed to achieve more than one extraneous purpose. It has been brought to overawe the deceased Mohit Sharma's wife Menaka and her family members, with an oppressive barrage of criminal prosecution, so that the deceased's wife gives up all that she is entitled to under the law, by virtue of being Mohit's widow. It is urged that the foremost purpose is to coerce Smt. Menaka to forgo all her rights that she inherits under the law by virtue of being Mohit's widow, and to coerce her into giving up custody of her minor son. It is emphasized by Mr. Zaidi that this prosecution to its best, is one based on incredible allegations. It is particularly pointed out by the learned Senior Counsel that so far as the applicant is concerned, her name does not find mention in the FIR. If it were an occurrence with a grain of truth to it, or the applicant indeed involved in the battery, attributed to the various in-laws of Mohit Sharma, there is no reason why the applicant's name would not figure in the FIR, where no one else has been spared. Learned Senior Counsel submits that it is not a case where the identity of the offender may be in doubt. After all, the accused, including the applicant and the informant, are related by marriage, and very familiar with one another.

8. The omission of the applicant's name in the FIR without a whisper, according to the learned Senior Counsel, ex-facie excludes her culpability. It is emphasized by the learned Senior Counsel that the applicant's name has been introduced on the basis of design and afterthought mala fide, about a month after the case was registered. It is also emphasized that whatever has figured in the statement of witnesses, the applicant has not been credited with any specific role, except general allegations of being part of the unlawful assembly comprising the widow and the in-laws of the late Mohit Sharma. It is also argued that the Investigating Officer in the case has not at all been fair and forthright; rather he has done a biased and one-sided investigation, where the impugned charge-sheet would be a nullity. It is said by way of emphasis that the impugned proceedings are a patent abuse of process of Court, besides being ex-facie mala fide. There is no material collected worth trial; and whatever material is there, in the circumstances, discloses no more than an incredible story, which no reasonable person can be expected to believe.

9. A counter affidavit each has been put in put in on behalf of State as well as opposite party no. 2. The learned A.G.A. appearing for the State and Mr. Amit Daga, learned Counsel appearing for the complainant, have spoken in one voice to say that a triable case is disclosed against the applicant. They have referred to the fact that there are three independent witnesses, who have supported the prosecution in their statements under Section 161 of the Code, besides the recovery of two gold bracelets from the possession of co-accused Rajat Sharma and Rajendra Chaudhary, who are said to have been apprehended while travelling in their car, bearing Registration No. UP 12 AK 4545. It is also urged that two amongst the victims of the assault, that is to say, Indu Sharma and Swarna Sharma have sustained injuries, that are evident from the medico-legal reports that are part of the police papers. In the submission of learned Counsel appearing for opposite parties, therefore, it is a case where it cannot be urged that there is no material to proceed against the accused, or one where the investigation is so palpably unfair that a trial ought not be permitted.

10. This Court has considered the rival submissions and perused the material on record. If one were to look into the sequence of events, the prosecution against the applicant appears to be indeed both mala fide and incredible. The FIR giving rise to the impugned proceedings has been lodged close on heels of the earlier FIR, reporting a case of abetment to suicide against the applicant and the other co-accused, where the informant's other brother had reported them to the Police. It was a case where the man who took his life was the applicant's brother-in-law - her sister's husband, in consequence of what is made out to be a prolonged, oppressive and torturesome treatment by the deceased's wife and in-laws, including the applicant. Here, the informant alleges that on the deceased's family returning home from the cremation ground, the applicant, along with the deceased's wife, her sisters, brothers and mother came over to the deceased's home, assaulted the entire family and robbed them.

11. The incident appears to be relatable to a time when the bereaved family would expect visitors come over to offer their condolences. Assuming that the background of the deceased Mohit Sharma's demise may not have led his in-laws to visit the family and condole the mutual loss, but to believe a bereaved family being raided by the deceased's wife, mother-in-law, sisters-in-law and brothers-in-law, only to be beaten up and looted by them, appears to be fantastic and incredible. The manner of commission of the crime smacks of a patently mala fide by implication by the informant. The informant and his family appear to be badly aggrieved on account of the suicidal death of their brother, alleging an abetement led by his wife and in-laws. They did report the wife and the Police for that abetment and in connection with that crime, the applicant too is facing trial.

12. The present prosecution, however, appears to be one that is fuelled by vengeance. The deceased's family have taken resort to abuse of process of court, to settle scores. The tangible evidence referred to by the complainant-opposite party and the State is about recovery of two bracelets, said to be robbed in the assault from one or the other women of the deceased's family. These are said to have been recovered from co-accused Rajendra Chaudhary, and not from the applicant. At the time of this recovery, those two co-accused were riding their car and not the car claimed to be looted from the deceased family. Quite apart, movables like jewellery and a car, that are said to have been looted, are invariably property held jointly by the husband and wife, that is kept parked at the husband's place, or the parties' matrimonial home. Jewellery is invariably part of the wife's stree dhan. There could be a situation where the wife took away her jewellery back to her parents' place after her estranged husband's death, or likewise, took along the car that the couple were using, but the passage of this property from the deceased's family to his wife, even if it be true for a fact, would not remotely be referable to robbery.

13. This Court cannot ignore the fact that the present crime is one of assault and robbery, where the offending party were all in-laws of the informant's deceased brother. It is hard to believe, considering the relationship between parties, that the applicant would not be named in a crime of this nature, in the FIR. It would be impossible to miss naming her in the FIR, even if there were an iota of truth to the prosecution. The introduction of the applicant's name at a later stage through statements under Section 161 of the Code, in the clear opinion of this Court, is a red-marker that predicates a mala fide implication for the applicant. The injuries that have been sustained by two of the family members of the deceased have already been found to be simple in nature. No doubt, one or the other injury sustained by Indu Sharma and Swarna Sharma are sited around the neck, but both the injuries are simple in nature, where, for various reasons already indicated, it is difficult to connect these to acts of the applicant.

14. So far as the charge under Section 364 IPC is concerned, that part of the prosecution is based on the allegation about the minor son of deceased Mohit and the applicant's sister, Menaka being kidnapped by the deceased's in-laws, including the minor's mother. It would, indeed, appear to be very incredible that the applicant, the other co-accused along with the minor's mother would kidnap the latter's son from her deceased husband's family. The minor is said to be staying all along with the mother, that is to say, the applicant's sister. In any case, the applicant's involvement in the entire episode appears no more than a device to add to the sting of a mala fide prosecution. To this Court's understanding, there is indeed no tangible material, on an overall view of the matter, that may warrant the applicant to be tried.

15. The Supreme Court in Sanjay Kumar Rai v. State of Uttar Pradesh & Another4 has laid down guiding principles, recounting earlier authority about the legitimate use of power of discharge by the trial court, and the scope of the High Courts' power, while revising an order refusing discharge under Section 397 of the Code. Their Lordships, while discouraging compartmentalization of the High Courts' power under Section 397 and its power to scrutinize an order refusing discharge, if it is a case of patent abuse of process of law, held :

16. The correct position of law as laid down in Madhu Limaye(supra), thus, is that orders framing charges or refusing discharge are neither interlocutory nor final in nature and are therefore not affected by the bar of Section 397 (2) of CrPC. That apart, this Court in the above-cited cases has unequivocally acknowledged that the High Court is imbued with inherent jurisdiction to prevent abuse of process or to secure ends of justice having regard to the facts and circumstance of individual cases. As a caveat it may be stated that the High Court, while exercising its afore-stated jurisdiction ought to be circumspect. The discretion vested in the High Court is to be invoked carefully and judiciously for effective and timely administration of criminal justice system. This Court, nonetheless, does not recommend a complete hands off approach. Albeit, there should be interference, may be, in exceptional cases, failing which there is likelihood of serious prejudice to the rights of a citizen. For example, when the contents of a complaint or the other purported material on record is a brazen attempt to persecute an innocent person, it becomes imperative upon the Court to prevent the abuse of process of law.

(emphasis by Court)

16. The guidance of their Lordships of the Supreme Court unequivocally endorses the principle that an absurd and incredible prosecution, that is virtually persecution of an innocent person, ought to be undone by the High Court in whatever proceedings, a patent abuse of process of comes to its notice. Here, as said above, this Court has no manner of doubt that the impugned prosecution giving rise to these proceedings against the applicant, is a patent abuse of process of court, founded on incredible allegations.

17. In the result, this application succeeds and is allowed. The proceedings of Case No. 1983/9 of 2019 (arsing out of Case Crime No. 224 of 2019), under Sections 395, 323, 307, 364, 506, 147, 149 IPC, Police Station - Meerapur, District - Muzaffarnagar, pending before the Additional Chief Judicial Magistrate, Court No. 3, are hereby quashed, as against the applicant.

18. Let this order be communicated to the Magistrate concerned through the learned Sessions Judge, Muzaffarnagar by the Registrar (Compliance).

Order Date :- July the 16th, 2021

I. Batabyal