C482/595/2009 of SMT. BALA AND ORS Vs STATE AND ANR

IN THE HIGH COURT OF UTTARAKHAND ATNAINITAL

Criminal Misc. Application No. 595 of 2009 (Under Section 482 Cr.P.C.)

Smt. Bala and others

…………..Applicants

versus

State of Uttarakhand and another ………...Respondents

Mr. Deepak Sharma, Advocate, present for the applicants. Mr. P.S.Soun, learned AGA, with Ms. Shivali Joshi, Brief Holder for the State of Uttarakhand / respondent no. 1.

U.C. Dhyani, J. (Oral)

The applicants, by means of present application moved under Section 482 Cr.P.C., seek to quash the charge-sheet (annexure-5) dated 26.11.2008 submitted against the applicants, summoning order dated 01.04.2009 and the entire proceedings of Criminal Case No. 1758 of 2009, State vs. Vijay and others, pending in the Court of Chief Judicial Magistrate, Haridwar.

2. Respondent no. 2 filed first information report against six accused persons including the applicants on 16.03.2008 in PS concerned for the offences punishable under Section 498-A IPC and Section ¾ of the Dowry Prohibition Act. After the investigation, charge-sheet was submitted against the applicants in respect of the selfsame offences.

Cognizance on the same was taken by the learned Magistrate. Aggrieved against the same, present application under Section 482 Cr.P.C. was moved by the applicants.

3. Learned counsel for the applicants submitted that applicant no. 1 is mother-in-law, applicant no. 2 is brother-in-law and applicant no. 3 is sister-in-law of respondent no. 2, who was married to Vijay Kumar (non-applicant). It is further submitted that the applicants are falsely implicated in the case, the allegations made against them are general and sweeping in nature, no specific allegation of demand of dowry or assault is made against the applicants and they are living separately, as is evident from the extract of family register filed along with the petition.

4. It is alleged against the accused persons that they demanded Rs. 1 lac and motorcycle in dowry, assaulted respondent no. 2 and ousted her from her matrimonial home. After the investigation, I.O. did not find any case against Sukhbir and Mamtesh but found case against the present applicants in relation to offences punishable under Section 498-A IPC and Section ¾ of the Dowry Prohibition Act.

5. bare reading of the first information report suggested allegations of cognizable offences against the applicants, which allegations were substantiated during the course of investigation, and that is why, the I.O. submitted the charge-sheet against them.

6.The Hon’ble Supreme Court, in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330, has held that:

“28.The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make just and rightful choice. This is not stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.”7. It is also the settled law that the factual controversy need not be gone into by this Court in exercise of it’s inherent jurisdiction. Inherent jurisdiction under Section 482 of Cr. P.C. has to be exercised sparingly, carefully and with caution and

only when such exercise is justified by the tests specifically laid in the Section itself. The facts of the instant case are unable to pass that test.

8. As consequence thereof, application under Section 482 Cr.P.C. is liable to be dismissed and is, accordingly, dismissed.

9. Learned counsel for the applicants drew attention of this Court towards the ruling of Preeti Gupta and another vs. State of Jharkhand and another, (2010) 7 SCC 667, in which Hon’ble Apex Court has observed that the tendency of implicating the husband and all his immediate relatives in matrimonial cases is not uncommon.

10. Considering the nature of allegations levelled against the applicants and their relationship with the respondent no. 2, it is provided that if the applicants surrender before learned Magistrate and seek bail, their bail application (s) shall be considered sympathetically and decided on the same day.

(U.C. Dhyani, J.)

Dated: September 02, 2013Kaushal