Allahabad High Court
Smt. Suman vs State Of U.P. Thru. Prin. Secy. ... on 1 November, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- APPLICATION U/S 482 No. - 7332 of 2022
Applicant :- Smt. Suman
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
Counsel for Applicant :- Rajendra Prasad Mishra,Aditya Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri R.P. Mishra, learned counsel for the applicant as well as learned AGA for the State.
The instant application has been moved by the applicant- Smt. Suman under Section 482 C.P.C. requesting to quash the charge sheet and all the proceedings of the criminal Case No.32631/2022 State Vs. Birbal and others, arising out of Crime No. 388/2021, under Sections 498-A, 304-B IPC and 3/4 D.P. Act, relating to Police Station Kotwali Dehat, District Gonda as well as cognizance taken by the Magistrate.
Shri R.P. Mishra, learned counsel for the applicant while drawing the attention of this Court towards the first information report and the statement of the prosecution witnesses submits that the provision of Section 304-B IPC could not be attracted against the applicant as she is not a ?relative? of the husband of the deceased and the Investigating Officer has committed manifest illegality in submitting the charge sheet against the applicant as well as the trial court has not considered this aspect of the matter and had taken the cognizance of the offence in a mechanical way and issued process against the applicant also and thus all the proceedings pending before the court below, so far as the applicant is concerned, are abuse of process of law and are liable to be quashed.
Learned AGA on the other hand submits that it is not the stage where minute scrutiny of the facts could be made and the disputed question of facts are required to be decided in the trial and the applicant being the maternal aunt of the husband of the deceased comes within the definition of relative as provided under Section 304-B IPC.
Having heard learned counsel for the parties and having perused the record, it is evident that the first information report of this case was lodged by Triveni Prasad, father of the deceased, on 21.10.2021 at 21.37 hours at Police Station Kotwali Dehat, District Gonda against the husband of the deceased Birbal, brother-in-law- Malkhan, father-in-law Puran Mal and maternal aunt ?Mami? Smt. Suman (applicant) stating therein that the deceased since her marriage was being subjected to cruelty by the above mentioned accused persons in lieu of demand of motorcycle, fridge and a cooler and on 16.10.2021 at 4.00 A.M. the deceased was done to death by the accused persons and they after getting her admitted at Nursing Home fled away. In the postmortem report of the deceased her death is shown to have been caused due to asphyxia as a result of ante mortem hanging.
In the statement of the informant recorded under Section 161 Cr.P.C. specific allegations have been levelled against the accused persons including the instant applicant- Smt. Suman pertaining to committing cruelty with the deceased on account of demand of dowry and also that the husband of the deceased was having illicit relations with his real maternal aunt (applicant). Specific allegations have also been levelled with regard to the fact that the deceased had been done to death by strangulation by all the accused persons including the applicant. Similar statement has been given by the mother of the deceased Smt. Kamla Devi. Thus the statement of these two witnesses appears to be sufficient to lebel the applicant as the ?real maternal aunt? of the husband of the deceased and the same prima facie comes within the definition of ?relative? as provided under Section 304-B IPC, as at this stage only a prima facie case is required to be seen.
Shri R.P. Mishra, learned counsel for the applicant has relied on a judgment of the Hon?ble Supreme Court of date 2nd July, 2014 passed in Criminal Appeal No. 1278/2014 State of Punjab Vs. Gurmit Singh, arising of of Special Leave Petition (Crl.) No. 1696 of 2006. The facts of the case relied on by learned counsel for the applicant are distinguishable from the facts of the instant case. In the case relied on by the applicant allegation was levelled that one Gurmit Singh is also responsible for the death of the deceased and in that scenario the Hon?ble Supreme Court was pleased to opine that dictionary meaning of a relative is one who is related by blood or marriage and as the accused therein namely, Gurmit Singh was not at all related to the husband of the deceased, summoning of accused under Section 319 Cr.P.C. was not approved by the Hon?ble Supreme Court, while in the instant case the applicant herein is stated to be the real maternal aunt of the husband of the deceased. Therefore the law relied on by learned counsel for the applicant is of no help to him
Learned counsel for the applicant has also relied on Smt. Ranjana Gopalrao Thorat V. The State of Maharashtra 2007 Cri L.J. 3866 and judgment of the Hon?ble Supreme Court passed in U. Suvetha vs. State reported in (2009)6 Supreme Court Cases 757. Both these reports are also not of any help to the applicant as in both the cases a person with whom the husband of the deceased was having illicit relations was arrayed as an accused and in that scenario it was held that a person who is not otherwise related to the husband of the deceased by blood or by relation or by marriage could not be arrayed as an accused and a mistress or concubine could not be termed as a relative of the husband, however, it was further opined that each case is to be decided on its own facts and circumstances.
In the considered opinion of this Court, learned counsel for the applicant could also not take any help from these reports, as if a relative of the husband of the deceased is having illicit relationship with the husband the same would not make her a ?concubine? or ?mistress? and she would be included in the definition of relative as defined undeer Section 304-B IPC.
It is to be recalled that the disputed questions of fact could not be the subject matter of this Court specially under the jurisdiction conferred under Section 482 of Cr.P.C. and these facts are required to be decided by the trial court in the trial. In this regard law laid down by the Hon?ble Supreme Court in the cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC (Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq, another (Para-10) 2005 SCC (Cr.) 283, Parabatbhai Ahir & Ors. Vs. State of Gujarat AIR 2017 SC 4843 and lastly State of Gujrat Vs Afroz Mohammed Hasanfatta reported in MANU/SC/0139/2019 may be considered.
Thus having regard to all the facts and circumstances of the case as well as the law discussed herein before, I do not find any merit in the submissions made by leaned counsel for the applicant, the application moved by the applicant appears to be devoid of merit and is dismissed as such.
Order Date :- 1.11.2022
Muk
