Uttarakhand High Court

Pradeep Kumar And Others ... vs State Of Uttarakhand And Others on 3 May, 2024

Author: Ravindra Maithani

Bench: Ravindra Maithani

   HIGH COURT OF UTTARAKHAND AT NAINITAL

            Writ Petition (Criminal) No. 2423 of 2022


Pradeep Kumar and others                                 ...Petitioners


                                  Versus


State of Uttarakhand and others                       ...Respondents


Present:-
              Mr. Tapan Singh, Advocate for the petitioners.
              Mr. V.S. Rawat, A.G.A. for the State.
              Mr. Parikshit Saini, Advocate for the informant.

                                     JUDGMENT

Hon'ble Ravindra Maithani, J. (Oral)

The challenge in this petition, initially was made to

an FIR No. 963 of 2022, State Vs. Pradeep Kumar and others,

under Sections 323, 342, 354, 376, 504 & 511 IPC, Police

Station Gangnahar, District Haridwar. During the pendency of

the petition, it appears that after investigation, charge sheet

was submitted. Therefore, the petitioners also challenged the

charge sheet no. 1 dated 18.08.2023 and cognizance order

dated 19.10.2023 passed in Criminal Case No. 1902 of 2023,

State Vs. Pradeep Kumar and others, under Section 323, 325,

342, 354, 504, & 354A IPC and Section 3/4 of the Dowry

Prohibition Act, 1961 ("the Act") by the court of Additional

Chief Judicial Magistrate/Additional Civil Judge (Senior

Division), Roorkee, District Haridwar ("the case") as well as the

entire proceedings of the case.

2. Heard learned counsel for the parties and perused

the record.

3. Basis of the case is an FIR dated 12.12.2022 filed

by the informant. According to it, the informant was married

to the petitioner No.1 Pradeep Kumar on 09.12.2018. After

marriage, the informant was harassed and tortured for and in

connection with the demand of a Scorpio car and Rs.35 Lakh

cash in dowry. The informant was expelled from the house on

17.09.2022. On 19.09.2022, the informant gave a report to

the police; the matter was forwarded to Mahila Help Line;

counselling was done; parties entered into a compromise on

14.11.2022; the informant again joined the company of her

husband; but again, according to the FIR, in the intervening

night of 3-4.12.2022, the informant was assaulted; she was

confined in a room where her brother-in-law Kunal Kumar

tried to rape her and made obscene gestures and molested

her; on 04.12.2022, somehow, the informant could contact

someone and thereafter, police was called. It is this FIR, in

which after investigation, charge sheet has been submitted

under Section 323, 325, 342, 354, 504, 354 A IPC and Section

3/4 of the Act. It is also impugned in the instant petition.

4. Learned counsel for the petitioners would submit

that the parties have already entered into a compromise on

17.11.2022. Whatever dispute was there between the parties

that had got absolved by virtue of a compromise. Thereafter, it

is argued that nothing had happened. Learned counsel would

argued that there is a CCTV footage which shows that no

molestation or sexual assault was done by the petitioner no. 2

Kunal Kumar. He would submit that CCTV footage shows that

no maarpeet was done with the informant. He would also

submit that a property was also transferred in the name of the

informant by her husband. No prima facie, case is made out.

5. Learned counsel for the informant would submit

that prima facie case is made out. There is an injury report

which shows dislocation of the joint. The victim and other

witnesses have supported the prosecution case.

6. Learned State counsel would submit the victim and

other witnesses have supported the prosecution case. There is

an injury report as well.

7. This is a writ petition under Article 226 of the

Constitution of India. The scope is quite wide, but also much

guided by the principles of law, as laid down by the Hon'ble

Supreme Court in number of cases.

8. In the case of State of Haryana and Others Vs.

Bhajan Lal and Others, 1992 Supp. (1) SCC 335, the Hon'ble

Supreme Court laid down the guidelines in such matters. Para

102 of the judgment, the Hon'ble Supreme Court observed as

follows:-

"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.

(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.

(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

9. What is being argued on behalf of the petitioners is

that no prima facie, case is made out. At this stage, this Court

cannot conduct a mini trial. Initially, when the FIR was

challenged, what was to be seen was as to whether the FIR

discloses any, prima facie, offence or not. Now, cognizance

order has been challenged, at this stage, nature of offence is

to be seen to the extent of its prima faciness.

10. FIR definitely discloses commission of offences. The

victim in her statement given to the Investigating Officer has

supported the version of the FIR. Her father has also

supported her case. Not only this, there are many other

witnesses, namely, Rajendra Singh, Sompal Singh, Beer