Virendra Kumar Kushwaha And 3 ... vs State Of U.P And Another
2023 Latest Caselaw 24896 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:178289
 
AFR
 
Reserved On:- 21.8.2023
 
Delivered On:- 14.9.2023
 
Court No. - 90
 

 
Case :- APPLICATION U/S 482 No. - 10036 of 2022
 
Applicant :- Virendra Kumar Kushwaha And 3 Others
 
Opposite Party :- State Of U.P And Another
 
Counsel for Applicant :- Raj Kumar Kesari
 
Counsel for Opposite Party :- G.A.,Prashant Drivedi
 

 
Hon'ble Dinesh Pathak,J.

1. Heard Sri Raj Kumar Kesari, learned counsel for the applicants, Sri Prashant Dwivedi, learned counsel for the opposite party no.2 as well as learned AGA for the State and perused the record on board.

2. The applicants have invoked the inherent jurisdiction of this Court to quash the impugned summoning order dated 14.9.2021 passed by the Civil Judge (Jr. Division), Kaushambi in Complaint Case No. 368 of 2021 (Ritu Kumari Vs. Virendra & Ors.) under Sections- 498-A, 323 IPC and Section 3/4 of Dowry Prohibition Act (in brevity D.P. Act) Police Station- Karari, District- Kaushambi.

3. Facts culled out from the avertments as made in the instant application supported by an affidavit are that the respondent no.2 (wife of the applicant no.1) has moved a complaint dated 24.3.2021 against her husband, mother-in-law, father-in-law and two sisters-in-law levelling allegation of torture and cruelty for demand of dowry with an averment that the marriage of the complainant was solemnized on 9.3.2019 with applicant no.1 in accordance with the hindu rites and rituals; that as per their capacity, family members of the complainant have given dowry and sent her with her-in-laws; that when she reached at matrimonial home she has been harassed for demand of four wheeler; that when she reached her maternal home, she narrated her ordeals qua the demand of four wheeler and Rs. 1 lakh cash, however, her family members have sent her back to the in-laws house by giving assurance that problem will be shorted out in some days; that family members of the complainant came at the residence of her in-laws and shown their inability to fulfill the demand of four wheeler and Rs. 1 lakh; that she has been beaten up many times and sent to her maternal house; that she has been subjected to torture and cruel behavior of her in-laws, however, in the meantime, she gave birth to a boy child on 28.9.2020; that for demand of dowry, she has been kicked out on 16.01.2021 by her in-laws from the house; that husband of the complainant has stated that the child is not born from his loin, therefore, he will not keep the complainant with him and he will solemnized second marriage; that the complainant has already moved a representation/application to the Police Station concerned and the Superintendent of Police, Kaushambi, however, till date no action has been taken, therefore, accused/respondents may be summoned and punished.

4. Learned Magistrate, after going through the contents of the complaint and the statement of the complainant under Section 200 Cr.P.C. and the statement of witnesses i.e. P.W.-1 and P.W.-2 under Section 202 Cr.P.C. has issued processed against the present applicants viz. husband, father-in-law, mother-in-law and one sister-in-law, exculpating Rubi Kushwaha (another sister-in-law), under Sections 498-A, 323 IPC and Section 3/4 of D.P. Act vide its order impugned dated 14.9.2021.

5. Assailing the summoning order under challenge, learned counsel for the applicants (accused) has submitted that false and malicious prosecution has been made against the present applicants without any incriminating material on record and all the family members of the husband has illegally been roped in the criminal proceedings based on the general allegations and no specific instance has been given by the complainant attributing the accused concerned for making out a case of cognizable offence. It is further submitted that Priya Kushwaha (applicant no.4) has illegally been implicated being a sister-in-law who is residing in Noida and doing private job of Nurse, therefore, no case is made out against her. However, another sister-in-law namely Rubi Kushwaha, who was arrayed as an accused no. 5 in the complaint, has rightly been exempted from summoning. It is further submitted that no cognizable offence is made out against the present applicants. In support of his submissions learned counsel for the applicants has placed reliance on the cases of Geeta Mehrotra Vs. State of U.P., (2012)10 SCC 471 and the Case of Kahkashan Kausar @ Sonam Vs. State of Bihar, (2022) 6 SCC 599.

6. Learned counsel for the respondent no.2 has vehemently opposed the submissions as raised by learned counsel for the applicants and contended that on the face of record, prima facie, the complicity of the present applicants in the commission of cognizable offence as narrated in the complaint cannot be ruled out. Clear cut allegation of torture and cruelty for demand of dowry has been levelled against all the accused-applicants who harassed the complainant during the period while she was residing in her matrimonial house. Learned counsel for the respondent no.2 has emphasized questionable conducted of the husband (applicant no.1) who has tortured and harassed the complainant by desoning her child on the pretext that child was not born from his loin. The husband has through out threatened the complainant to desert her and solemnize second. It is further contended that decision of Hon'ble Supreme Court as relied upon by the learned counsel for the applicants are distinguishable and are not fully applicable in the facts and circumstances of the present case. It is further contended that innocence of the present applicants as is being tried to put forward before this Court by the learned counsel for the applicants is a matter of trial and same cannot be inferred at this juncture in exercise of inherent jurisdiction under Section 482 Cr.P.C. It is next contended that the instant application is liable to be dismissed being misconceived and devoid of merits.

7. Having considered the rival submissions advanced by learned counsel for the parties and perusal of the record, it is manifested that there is admitted relationship between the applicant no.1 and respondent no.2 (complainant) being husband and wife. Showing her plights suffered after the marriage at the in-laws house, respondent no.2 has filed a complaint levelling allegation of torture and cruelty for demand of dowry against all the family members of her husband. Perusal of the complaint reveals that general allegations have been made against the husband, mother-in-law, father-in-law and two sisters-in-law by referring their names in a very casual manner. They have been blamed for harassing the complainant for demand of four wheeler and Rs. 1 lakh cash in the nature of dowry. It is apposite to mention that in the complaint both sisters-in-law, namely Priya Kushawaha and Rubi Kushwaha have been inculpated as accused nos.4 and 5. However, while issuing process, Rubi Kushwaha has been exculpated on the ground that she is married and her name has not been taken by the complainant in her statement made under Section 200 Cr.P.C. Learned court below has observed that complainant has taken the names of her husband, mother-in-law, father-in-law and one of the sister-in-law, namely Priya Kushwaha, except the name of another sister-in-law namely Rubi Kushwaha, with an allegation that they all harassed her for demand of dowry.

8. Shukrulal (P.W.-1), father of the complainant, has also levelled general allegation of cruelty and torture for demand of dowry with an averment that his daughter has through out being harassed by her in-laws for demand of four wheeler and Rs. 1 lakh cash. She along with her baby in her lapse has been thrown out from in-laws house. Shivbabu (P.W.-2), brother-in-law of the father of the complainant, has supported the case of the complaint and he has levelled similar allegation as well. Learned Civil Judge (Jr. Division), vide order impugned dated 14.9.2021, has issued process against the present applicants under Sections- 498-A, 323 IPC and Section 3/4 of D.P. Act, after considering the statements recorded under Sections 200 Cr.P.C and 202 Cr.P.C.

9. Considering misuse of provisions relating to the matrimonial discord and significant increasement of the matrimonial litigation, Hon'ble Supreme Court at several occasions has tried to restrict the law relating to the matrimonial dispute on the ground of omnibus allegations against in-laws. In the matter of Rajesh Sharma and Others Vs. State of U.P. and Another, (2018) 10 SCC 472, Hon'ble Supreme Court has expressed his concerned qua misuse of provisions as enunciated under Section 498-A IPC with an observation that Section 498-A IPC was inserted in the statute with the laudable object of punishing cruelty at the hands of husband or his relatives against a wife particularly when such cruelty had potential to result in suicide or murder of a woman as mentioned in the statement of Objects and Reasons of the Act 46 of 1983. The expression 'cruelty' in Section 498-A IPC covers conduct which may drive the woman to commit suicide or cause grave injury (mental or physical) or danger to life or harassment with a view to coerce her to meet unlawful demand. It is a matter of serious concern that large number of cases continue to be filed under already referred to some of the statistics from the Crime Records Bureau. Hon'ble Apex Court further observed that this Court had earlier noticed the fact that most of such complaints are filed in the heat of the moment over trivial issues. Many of such complaints are not bona fide. At the time of filing of the complaint, implications and consequences are not visualized. At times such complaints lead to uncalled for harassment not only to the accused but also to the complainant. Uncalled for arrest may ruin the chances of settlement.

10. The Hon'ble Supreme Court in the matter of Preeti Gupta and Another vs. State of Jharkhand and Another, (2010) 7 SCC 667 has tried to highlight the tendency in the present scenario to implicate the husband and all his immediate relatives in matrimonial litigation, therefore, it is expected that while dealing such matters, learned members of the Bar must discharged their duties to the best of their ability to ensure that social fabric, peace and tranquility of the society remains intact. It has been observed that it is matter of common experience that most of the complaints under Section 498-A IPC are filed on 'spur of the moment' over the matrimonial bickering.

11. Considering the several judgments of its Court in the matter of Khakashan Kausar (supra), Hon'ble Supreme Court has shown his concerned over misuse of the provisions enunciated under Section 498-A IPC as well. The relevant paragraph nos. 18 and 19 of the aforesaid judgment is quoted herein below:

"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.

19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. .......................".

12. In the matter Geeta Mehrotra (supra), as relied upon by the learned counsel for the applicants, brother-in-law and sister-in-law of the complainant has approached before Hon'ble Supreme Court on the ground that they have been illegally inculpated in the alleged offence on the basis of bald allegations and their names have been surfaced casually without attributing any incident. While deciding the matter, Hon'ble Supreme Court has considered the case of Ramesh Vs. State of Tamil Nadu reported in (2005) SCC (Crl.) 735 in para no. 15 to 17 of it's judgment, wherein Hon'ble Supreme Court has held that bald allegation made against the sister-in-law by the complainant appeared to suggest anxiety of the informant to rope in as many as of the husband's relatives as possible. It has also been observed that neither FIR nor charge-sheet furnished legal basis for the Magistrate to take cognizance of the offences alleged against the applicants. Hon'ble Supreme Court has quashed the proceedings against the married sister-in-law who undisputedly not living with the family of the complainant's husband.

13. The Hon'ble Supreme Court while deciding the case of Geeta Mehrotra (Supra) has quashed the entire criminal proceeding initiated against the brother-in-law and sister-in-law on the ground that casual omnibus allegations have been made against the relatives of the husband. The relevant paragraph Nos. 19,20,23 and 24 is quoted here-under:

"19. Coming to the facts of this case, when the contents of the FIR is perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names who have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.

20. It would be relevant at this stage to take note of an apt observation of this Court recorded in the matter of G.V. Rao vs. L.H.V. Prasad & Ors. reported in (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:

"there has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate the disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts." The view taken by the judges in this matter was that the courts would not encourage such disputes.

23. ................, yet in the instant matter the factual position remains that the complaint as it stands lacks ingredients constituting the offence under Section 498-A and Section 3/4 Dowry Prohibition Act against the appellants who are sister and brother of the complainant's husband and their involvement in the whole incident appears only by way of a casual inclusion of their names. Hence, it cannot be overlooked that it would be total abuse of the process of law if we were to remand the matter to the High Court to consider whether there were still any material to hold that the trial should proceed against them in spite of absence of prima facie material constituting the offence alleged against them.

24. However, we deem it appropriate to add by way of caution that we may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified but what we wish to emphasize by highlighting is that, if the FIR as it stands does not disclose specific allegation against accused more so against the co-accused specially in a matter arising out of matrimonial bickering, it would be clear abuse of the legal and judicial process to mechanically send the named accused in the FIR to undergo the trial unless of course the FIR discloses specific allegations which would persuade the court to take cognisance of the offence alleged against the relatives of the main accused who are prima facie not found to have indulged in physical and mental torture of the complainant-wife. It is the well settled principle laid down in cases too numerous to mention, that if the FIR did not disclose the commission of an offence, the court would be justified in quashing the proceedings preventing the abuse of the process of law. Simultaneously, the courts are expected to adopt a cautious approach in matters of quashing specially in cases of matrimonial dispute whether the FIR in fact discloses commission of an offence by the relatives of the principal accused or the FIR prima facie discloses a case of over-implication by involving the entire family of the accused at the instance of the complainant, who is out to settle her scores arising out of the teething problem or skirmish of domestic bickering while settling down in her new matrimonial surrounding.

14. Considering the ratio decided by the Hon'ble Supreme Court, as discussed above, in the given circumstances, I am of the considered view that learned Magistrate has hurriedly issued the process against all the family members of the husband without properly scrutinizing the gravity of omnibus allegations and without recording his satisfaction qua occurrence of cognizable offence against all of them particularly sister of the husband (applicant No.4).

15. Perusal of the complaint evince the omnibus allegations made against all the applicants herein by referring their names in a casual manner with an allegation of demanding four wheeler and Rs.1 lakh cash in the nature of dowry. However, in her statement recorded under Section 200 Cr.P.C., she has simply stated that she has been harassed for demand of dowry. No specific allegation has been made for demand of four wheeler and case amounting Rs.1 lakh. She has made specific allegation against her husband that he has threatened the complainant to solemnize second marriage. P.W.-1 and P.W.-2 in their statements under Section 202 Cr.P.C. have supported the case of the complainant wherein complainant has allegdly been harassed for demand of four wheeler and cash amounting Rs. 1 lakh. Both the witnesses have made general allegation against all family members of the husband (applicants herein) including Rubi Kushwaha (another sister-in-law) taking their names casually without citing any particular instance attributing to their overt act in furtherance of the general allegations made against them. Rubi Kushwaha has been exempted in the summoning order on the ground that her name has not specifically been taken by the complainant in her statement under Section 200 Cr.P.C.

16. Applicant no.4 (sister of husband) is doing her job being Nurse in Noida and hardly resides with her family members including respondent no.2. In paragraph no.12 of the affidavit filed in support of the instant application, it has clearly been mentioned that applicant no.4 (Priya Kushwaha), who is sister-in-law of the complainant, is a Nurse by profession and she was continuously discharging her duties at J.P. Hospital, Noida since 14.09.2020. In support of this averments, relevant documents relating to presence of the applicant no.4 at her work place being a Nurse have been filed, obtained from J.P. Hospital. Respondent no.2 has made a evasive denial in paragraph no.8 of the counter affidavit with simple averments of 'not admitted'. Unmarried status of applicant no.4 and her professional carrier being a Nurse has not been denied in the counter affidavit. Copy of the nursing certificate dated 14.12.2018 and copy of the attendance report showing presence of the applicant no.4 in the hospital have collectively being filed as annexure no.5 to the affidavit filed in support of the instant application. Registration certificate dated 14.12.2018 of diploma in General Nursing and Midwifery, reveals that she had conducted three years training course since September, 2015 to September, 2018. The official concerned of the J.P. Hospital has issued a certificate dated 5.4.2022 to the effect that she was continuously working in the hospital since September 14, 2020. In paragraph no.8 of the complaint dated 24.3.2021 allegation has been levelled against all the family members including the applicant no.4 that on 16.1.2021, they had thrashed the respondent no.2 and kicked her out from the matrimonial house. Photostat copy of the attendance report (Page Nos. 50 and 51 of the paper book) reveals that on the alleged incident dated 16.1.2021 she was present at her work place i.e. J.P. Hospital, Noida. In light of the certificate dated April 5, 2022 issued by the authority concerned by the J.P. Hospital and the attendance report, the complicity of the applicant No.4 in the commission of crime allegedly took place on 16.1.2022 appears to be improbale. Even otherwise, it would be difficult to believe for a prudent person that a professional lady working in a hospital was involved in harassing the respondent no.2 for demand of four wheeler and cash amounting Rs. 1 lakh in nature of dowry. Applicant no. 4 has been inculpated in a general way along with other family members.

17. Complaint filed by respondent no.2 and the statements made under Section 200 Cr.P.C. and 202 Cr.P.C., prima facie, reveals that name of the applicant no.4 has casually been referred along with other co-accused in a matter arising out of matrimonial bickering sans citing any specific instance attributing to her. Complaint, prima facie, discloses a case of over implication by involving the entire family of the husband at the instance of the complainant. Forcing the applicant no.4 (sister-in-law) mechanically to face trial would not be befitting in the eyes of law and would amount a clear abuse of legal and judicial process inasmuch in the complaint as it stands, in my opinion, no cognizable offence is made out against applicant no.4 under Sections- 498-A, 323 IPC and Section 3/4 of D.P. Act. She has been named casually based on omnibus allegations without showing her active involvement in the matter to make out a case of cognizable offence under the sections, in which process has been issued by the court competent against her.

18. In this conspectus, as above, I am of the considered opinion, that justifiable ground is made to allow the instant application in part in exercise of inherent power under Section 482 Cr.P.C. to prevent the abuse of process of court and to secure the ends of justice, so far as it relates to the applicant no.4 (sister-in-law).

19. Accordingly, instant application is partly allowed and impugned summoning order dated 14.9.2021 is hereby quashed, in part, so far as it relates to the applicant no.4 Priya Kushwaha (sister-in-law).

20. So far as remaining applicants are concerned, they will face trial in pursuance of the order impugned dated 14.9.2021.

21. It is made clear that any observations made by the Court, while deciding the instant application in the order of the date, shall not affect the merits of the case which will be decided on its own merits against the remaining applicants.

Order Date :- 15.9.2023

Akbar