Smt. Nisha And Another vs State Of U.P. And Another
2023 Latest Caselaw 2998 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 68
 

 
Case :- APPLICATION U/S 482 No. - 33504 of 2022
 

 
Applicant :- Smt. Nisha And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Suhas Subhash Mehta
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shekhar Kumar Yadav,J.

In compliance of order of this Court dated 16.01.2023, applicant no.1 Smt. Nisha and applicant no.2 Mohit are present before this Court and duly identified by their counsel whereas opposite party no. 2 was not present.

Heard learned Counsel for the applicants, learned A.G.A. for the State and perused the record.

Prosecution story is that the marriage of the daughter of opposite party no. 2 was solemnized with Jitendra Kumar s/o Bhimsen Arora, R/o LIG Flat No. 81, D Block 21 Gokuldham Society Sector 135, Noida, District Gautambudh Nagar. The opposite party no. 2 had spent about Rs. 5,00,000/- in the said marriage and the applicant's daughter went to her husband's residence after marriage but after a few days of marriage, Jitendra Kumar her husband, father- in- law Bhimsen Arora, mother- in- law Asha Arora, and the applicants who are nanda and nandoi started taunting the informant's daughter for bringing less dowry and told the informant's daughter that they are not at all satisfied with the dowry given by her father and demanded LED and Rs.2,00,000 cash from the informant?s daughter. But the father- in- law, mother- in- law, Nanad, Nandoi and her husband, abused and assaulted the daughter of the opposite party no. 2, about which the daughter of the opposite party no.2 gave information to her relatives, on which opposite party no.2 and her other family members went to her in-laws house and tried to convince her in-laws and other family members but the her husband and her in-laws stick to their demand. Being forced, the informant told him that he could not fulfil the demand of husband and in- laws immediately, but he would fulfil the demand of her in-laws regarding LED TV and also bought a new LED on the same day and told them that opposite party no. 2 would retire from the Bank in the month of June 2019, at that time he would try to fulfil the remaining demand of the his daughter's husband and her in-laws with the amount he would receive from the bank. A few months after the retirement of the opposite party no. 2, the husband of his daughter, her father-in-law, sister-in-law, Nanad and Nandoi again pressurized his daughter to fulfil their demand for additional dowry. The younger daughter has to be married, so he cannot fulfil their demand, thereafter, the husband and father-in-law of his daughter started abusing and fighting with the his daughter. Opposite party no.2 lodged an F.I.R. against her daughter's husband and her-in-laws under Sections 498-A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, Police Station- Mahila Thana, District Muzaffar Nagar.

After registering the case, the police investigated the matter and filed the charge sheet. Learned magistrate took cognizance of the offence alleged against the applicants and proceeded with the case.

It is submitted that the initiation of criminal proceedings against the applicants is contrary to law, facts and materials placed on record. As such, the same is liable to be quashed. It is submitted that the learned Magistrate has committed a grave error in taking cognizance and in issuing process against the present applicants.

It is submitted that bare perusal of the FIR does not disclose any of the offences alleged against the applicants. The allegations made in the FIR even if taken to their face value and accepted in their entirety do not constitute any offence alleged against the applicants. At the first instance perusal of the FIR makes it clear that there is omnibus and general allegations against the applicants. Even if all the allegations as alleged against the applicants are taken to be true, even then no offence could be made out against the applicants. It is further submitted that instant case clearly falls within the ambit of the decision in Bhajanlal's case.

It is submitted that the averments made against the applicants only makes casual references of the names of the applicants and the same do not itself constitute the commission of the offences alleged against the applicants.

It is submitted that the daughter of opposite party no.2 got married with the Jitendra Kumar on 12.03.2019. It is submitted that admittedly applicants are residing at RZ-173, Uttam Nagar, Indra Park, D. K. Mohan Garden S.O. West Delhi, Delhi- 110059 and they never visited the home of the husband of daughter of the complainant. Hence these circumstances reveal that the FIR has been lodged with an ill intention and with an ulterior motive to harass the applicants.

It is submitted that the perusal of the allegations made against the applicants shows the fact that the allegations are only on the form of suggestion which does not establish criminal offence to fall within the scope of Section 498-A IPC. It is submitted that the statements of the witnesses furnished along with the charge sheet does not disclose any of the offences alleged against the applicants. More particularly the statements further disclose the fact that the same have been made at the instigation and suggestion of the complainant. Hence the proceedings against the applicants are liable to be quashed. It is under these circumstances it is just and necessary to quash the proceedings against the applicants.

Reiterating the grounds urged in the petition, it is contended that applicant no. 1 ismarried and residing separately with her husband applicant no. 2 in the following address:

"RZ-173, Uttam Nagar, Indra Park, D. K. Mohan Garden S.O. West Delhi, Delhi- 110059"

and not shared the common roof with the daughter of complainant or her husband and therefore, per-se the allegations levelled against applicants are incorrect and sought for quashing of further proceedings.

Per contra, learned AGA for the State supports the arguments put forth by the learned counsel for the applicants.

Perused the materials on record meticulously, in the light of submission of learned counsel for the applicants.

In the FIR, itself the address of husband of daughter of complainant is shown as under:

"LIG Flat No. 81, D Block 21 Gokuldham Society Sector 135, Noida, District Gautambudh Nagar. "

As per the Aadhaar card issued by the Government, applicants are residing in the address supra.

Admittedly, two houses are situated altogether in different places. Admittedly, Aadhaar Card is the proof of residence and it shows the address of husband of daughter of complainant as referred to supra.

When, husband of daughter of complainant and applicants have not shared the common roof, the criminal proceedings against applicants for the offences punishable under Section 498-A, 323, 504, 506 IPC cannot be countenanced in law.

In the judgment of Kahkashan Kausar @ Sonam & Ors. vs. State of Bihar & Ors., reported in 2022 SCC Online SC 162 the Hon'ble Apex Court has been pleased to hold as follows:

"18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of Section 498-A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them."

On a bare perusal of the F.I.R., it becomes apparent that the main allegations, if any, which have been levelled therein by the complainant- respondent No.2 are against her husband. Only vague and general allegations have been levelled against the applicants with whom, the husband of daughter of complainant admittedly did not live together after the marriage for any significant point of time. Since applicants are Nanad and Nandoi of the daughter of complainant and they are married and living separately, further continuation of the criminal proceedings as against applicants cannot be continued by following the judgment of the Hon'ble Apex Court in the case of Kahkashan Kausar @ Sonam and others (supra). Accordingly, a case is made out by applicants to quash the further proceedings pending against them.

In view of above, the application deserves to be allowed and is hereby allowed. Entire proceedings of Case Crime No. 191 of 2020, under Sections 498-A, 323, 504, 506 IPC and Section 3/4 of D. P. Act, P.S. Mahila Thana, District Muzaffar Nagar are hereby quashed.

Order Date :- 30.1.2023

Krishna*