C482/69/2009 of KISHAN KUMAR @ KRISHNA and ORS Vs SMT SANTOSH @ AARTI and ANR

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

Recall Application No. 118/2012

With

Delay Condonation Application No. 206/2012

CRIMINAL MISCELLANEOUS APPLICATION No. 69/2009

(Under Section 482 of the CrPC)

Kishan Kumar @ Krishna & Ors.

Versus

…….Petitioners

Smt. Santosh @ Arti

..…Respondent/Recall Applicant Smt. Pushpa Joshi, Sr. Advocate, with Mr. Amit Kapri, Advocate, for the recall applicant/respondent. None for the applicants petitioners. Mr. Hari Om Bhakuni, Brief Holder, for the State/respondent no. 2.

27thMarch, 2012

Hon’ble Servesh Kumar Gupta, J.

In the interest of justice, delay in filing the recall application is condoned. Delay condonation application is allowed.

2. Heard learned Counsel for the recall applicant and learned Brief Holder for the State.

3. Present recall application has been moved on behalf of Smt. Santosh @ Arti seeking recall of judgment and order dated 20.7.2010, passed by this Court, whereby the instant petition was allowed and the impugned chargesheet dated 11.10.2008 and the summoning order dated 14.11.2008, passed in Criminal Case No. 2065/2008, State v. Kishan Kumar @ Krishan & Ors, under Section 498A, 506 IPC and Section 3/4 of Dowry Prohibition Act, which was pending before the ACJM, Kashipur, District

Udham Singh, were quashed with the observation that complainant (recall applicant) may make complaint regarding her grievance before the competent Court having territorial jurisdiction over the matter.

4. Facts of the case are that Smt. Santosh @ Arti lodged an FIR with police station Kashipur (which is her native place) against the members of her in-laws family, who were residing at Moradabad, for the offences under Section 498A, 506 IPC read with Section 3/4 of the Dowry Prohibition Act. After investigation, police submitted chargesheet against Kishan Kumar @ Krishna, Smt. Kamlesh and Smt. Neeru, whereupon they were summoned by the court below to stand trial for the aforesaid offences. These accused persons challenged the chargesheet and the summoning order before this Court by moving Criminal Miscellaneous Application No. 69/2009 under Section 482 CrPC. This Court, vide the judgment and order dated 20.7.2010, which is sought to be recalled, allowed the said petition on the basis of following two precedents of Hon’ble Apex Court.

(i) Y. Abraham Ajith & Ors. V. Inspector of Police, Chennai & Anr., reported in 2004 SCC (Cri) 2134, and

Bhura Ram & Ors. V. State of Rajasthan & Anr., reported in III (2008) SLT 712.Anr., reported in III (2008) SLT 712.

5. In the aforementioned two verdicts, the Hon’ble Apex Court has held that since all the incidents related to demand of dowry happened at the place where the matrimonial house of the victim was situated and no part of cause of action arose at the place where the complaint/FIR was lodged, therefore, the wife/victim could not launch the

criminal proceedings at her native place, where her father resided. In view of this legal proposition, the petition of the accused was allowed with the liberty to the complainant as stated above.

6. With the passage of time, the Hon’ble Apex Court expressed different opinion in the case of Sunita Kumari Kashyap v. State of Bihar & Another, reported in (2011) 11 SCC 301, wherein it has been held that offence under Section 498A is continuing one. Hence, the wife/victim can launch the criminal prosecution even at her native place. It is on the strength of this precedent, the complainant/wife has sought to recall the judgment and order dated 20.7.2010 passed by this Court allowing the instant petition.

7. Learned Brief Holder for the State drawn the attention of this Court towards Section 362 CrPC, which provides as under:

“362. Court not to alter judgment.—Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of case, shall alter or review the same except to correct clerical or arithmetical error.”

8. In view of the above provision of law, it is clear that this Court has now ceased with the powers to do anything now in the matter except to correct clerical or arithmetical error, if any. As such, the impugned judgment and order dated 20.7.2010 cannot be recalled or reviewed, on the ground of succeeding opinion expressed by the Hon’ble Apex Court (supra), except to the extent stated

above. The only remedy, which is available to the complainant Smt. Santosh @ Arti, is to approach the highest Court of the land and challenge the impugned judgment and order there.

9. For the reasons recorded above, the recall application is hereby dismissed.

27.3.2012 Prabodh

(Servesh Kumar Gupta, J.)