Uttarakhand High Court
C482/916/2023 on 18 May, 2023
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C482 No.916 of 2023
Hon'ble Sharad Kumar Sharma, J.
Mr. Mehboob Rahi, Advocate, for the
applicants.
Mr. Tumul Nainwal, Brief Holder, for the
State of Uttarakhand.
The present applicants are father-in-law and
mother-in-law of the complainant/respondent No.2,
who registered a complaint under Section 156 (3) of
the Cr.P.C., as against the present applicants,
including her son, who is the husband of the
complainant, Mr. Nitin Kumar, for their alleged act
of commission of an offence of making an attempt
of strangulation of the complainant.
On a complaint proceeding, being registered,
the Court considered the material before it, and has
passed a summoning order dated 9th February,
2023, and has given a cogent reason therein, as to in
what manner the applicants could be said to be
involved in the commission of the offences, for
which, they have been summoned, i.e. for the
offence under Sections 323, 504, 506 and 498-A of
the IPC and Section ¾ of the Dowry Prohibition
Act.
I do not see any logical reason as to why the
husband of complainant is not before this Court as
against his prosecution in pursuance to the
complaint proceedings. Though this Court is
refraining to record any finding at this stage, but
looking to the complaint, and the summoning order,
there is a specific set of allegation levelled against
the present applicants pertaining to the demand
made for the bullet motorcycle and certain cash
amount, which had been referred therein, and which
even stood established by the statement recorded by
the witnesses, who were examined by the Court of
Judicial Magistrate while passing the summoning
order dated 09.02.2023.
Apparently, the offence as per the
summoning order, has been tested by the Court of
Judicial Magistrate prior to issuance of summons as
against the present applicants by the order dated 9th
February, 2023.
The learned counsel for the applicants has
referred to a judgment as rendered in Criminal
Appeal No. 195 of 2022, Kahkashan Kausar @
Sonam and others Vs. State of Bihar and others,
whereby, the Hon'ble Apex Court in its judgment
as rendered therein, has laid down a general
principle, that it has become a common tendency
that the provisions contained under Section 498-A
of the IPC, though is not unconstitutional, it is
being invariably misutilized by the complainant,
and hence, a precaution has to be taken before
taking cognizance to those offences, and
particularly, when it relates to an offence to be read
along with Section 323 of the IPC.
The aforesaid observation made by the
Hon'ble Apex Court in its judgment as rendered on
8th February, 2022, the said principle cannot be
widely applied in each and every case pertaining to
the generality of application of the provisions
contained under Sections 498-A and 323 of the IPC,
which was the subject matter of consideration
before the Hon'ble Apex Court.
The observation made pertaining to the
misutilization of the provisions as made in the said
judgement was in the context of the factual
backdrop of the said case, which cannot be said to
be a ratio which has to be invariably applied
without considering the facts of each and every case
with regard to the commission of the offence.
In the instant case, if the complaint, and the
specific allegation levelled by the complainant /
respondent No.2, which stood established by the
summoning order as rendered by the Court of
Judicial Magistrate, the specific allegation of
demand of dowry pertaining to exercise of atrocity
as against the complainant is said to have been
prima facie found to be established.
The applicants are admittedly on bail. In that
eventuality, merely on that pretext, and on the
ground taken by the applicants, the proceedings of
Complaint Case No. 233 of 2022, Preeti Vs. Nitin
and others, cannot be quashed by exercising the
powers under Section 482 of the Cr.P.C.,
particularly when, the factum of indulgence of the
present applicants with regard to the commission of
the offence is yet a fact to be established by the
Trial Court.
For the aforesaid reasons, and particularly
also in the light of the principle laid down by the
Hon'ble Apex Court, that the High Court should
rarely interfere in the matter for quashing the
proceedings, which entail an appreciation of
evidence. As such, the C482 Application is declined
to be entertained. The same would, accordingly,
stand dismissed.
(Sharad Kumar Sharma, J.)
Dated 18.05.2023
Shiv
