C482/830/2008 of RAMESH CHANDRA SRIVASTAVA and ORS Vs STATE OF UTTARAKHAND and ANR.

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL-Criminal Misc. Application (C482) No. 830 of 2008

Ramesh Chandra Srivastava & others …………. Applicants

versus

State of Uttarakhand and another …………. Respondents

Mr. M.K. Goyal, Advocate for the applicants. Mr. S.K. Chaudhary, Addl. Govt. Advocate for the respondent State.

Hon’ble U.C. Dhyani, J. (oral)

The applicants, by means of present application / petition under Section 482 of Cr.P.C., seek to quash the summoning order dated 20.11.2008 as well as chargesheet (Annexure No. 7) filed by the police in case crime no. 6308 of 2007 under Section 498A, 323, 504, 506 of IPC and under Section ¾ of the Dowry Prohibition Act in the court of Chief Judicial Magistrate, Udham Singh Nagar in criminal case no. 3205 of 2008, State vs Preetam Lal and others. prayer has also been made to quash the entire proceedings arising out of the impugned chargesheet in criminal case no. 3205 of 2008, State vs Preetam Lal and others, pending before the court of Chief Judicial Magistrate, Udham Singh Nagar.

2) An FIR was lodged at the instance of respondent no. 2 against nine accused persons, including the applicants, on 28.12.2007 in police station Rudrapur, as regards offences punishable under Sections 498A, 323, 506 of IPC and under Section ¾ of the Dowry Prohibition Act. After the investigation, chargesheet was submitted against eight accused persons (applicants). Cognizance on the said

chargesheet was taken by the learned Magistrate. Accused-applicants were summoned to face the trial for the selfsame offences. Aggrieved against the said order, present application under Section 482 of Cr.P.C. was preferred.

3) The FIR was lodged after taking recourse to Section 156(3) of Cr.P.C. In the FIR, it was stated, inter alia, that respondent no. 2 was married to applicant no. 3 Preetam Lal Srivastava on 06.02.2007. Applicant no. 3 was the resident of Jaunpur (U.P.). Respondent no. 2 had no father. Her mother took the responsibility of her marriage. Articles were also gifted in the marriage. sum of Rs. 1,00,000/- was demanded by the applicants, which the mother of respondent no. 2 could not fulfill. Respondent no. 2 was assaulted. On 25.02.2007, when respondent no. 2 was coming to her parental home, the applicants asked her to bring Rs. 1,00,000/-. When respondent no. 2 returned to her matrimonial home, the applicants beat her on 09.05.2007 and 11.05.2007. Respondent no. 2 was harassed for non-fulfillment of demand of dowry. She was provided medical aid in District Hospital, Sonbhadra. Respondent no. 2 also alleged continuous torture by the applicants, as her mother and members of her parental home could not fulfill the demand of dowry.

4) Hon’ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction

under Section 482 of Cr.P.C. Those principles can be summarised as follows:

1. Though there are no limits of the powers of the Court under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. under Section 482 CrPC but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 CrPC should be exercised very sparingly and with circumspection and that too in the rarest of rare cases.

2. The court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basis ingredients of criminal offence are not satisfied then the court may interfere. uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such conclusion and where the basis ingredients of criminal offence are not satisfied then the court may interfere.

3. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence.

4. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge.

5. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loath to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers.

6. Where there is an express legal bar enacted in any provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such bar is intended to provide specific protection to an accused. provisions of CrPC or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such bar is intended to provide specific protection to an accused.

7. The court has duty to balance the freedom of person and the right of the complainant or prosecution to investigate and prosecute the offender. person and the right of the complainant or prosecution to investigate and prosecute the offender.

8. The process of the court cannot be permitted to be used for an oblique or ultimate / ulterior purpose. used for an oblique or ultimate / ulterior purpose.

9. Where allegations give rise to civil claim and also amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained. It may be purely civil wrong or purely criminal offence or civil wrong as also criminal offence constituting both on the same set of facts. But if the records disclose commission of criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because civil wrong has also been committed. The power cannot be invoked to stifle or scuttle legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss complaint or quash such proceedings in exercise of its inherent or original jurisdiction. amount to an offence, merely because civil claim is maintainable, does not mean that criminal complaint cannot be maintained. It may be purely civil wrong or purely criminal offence or civil wrong as also criminal offence constituting both on the same set of facts. But if the records disclose commission of criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because civil wrong has also been committed. The power cannot be invoked to stifle or scuttle legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss complaint or quash such proceedings in exercise of its inherent or original jurisdiction.

10. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence. from the record and documents annexed therewith to predominantly give rise and constitute civil wrong with no element of criminality and do not satisfy the basic ingredients of criminal offence, the court may be justified in quashing the charge. Even in such cases, the court would not embark upon the critical analysis of he evidence.

11. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in conviction; the court is concerned primarily with the allegations taken as whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in conviction; the court is concerned primarily with the allegations taken as whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice.

12. It is neither necessary nor is the court called upon to hold full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is case of acquittal or conviction. hold full-fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is case of acquittal or conviction.

13. In exercise of its jurisdiction under Section 228 and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution. and/or under Section 482, the court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The court has to consider the record and documents annexed with by the prosecution.

14. Quashing of charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not continuous prosecution. Where the offence is even broadly satisfied, the court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The court is not

expected to marshal the records with view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie.

15. Where the charge-sheet, report under Section 173(2) CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame charge. CrPC, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame charge.

16. Coupled with any or all of the above, where the court finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists.finds that it would amount to abuse of process of CrPC or that the interest of justice favours, otherwise it may quash the charge. The power is to be exercised ex debito justitiae i.e. to do real and substantial justice for administration of which alone, the courts exists.

5) Hon’ble Apex Court has also cautioned the High Courts in dealing with matrimonial disputes in the ruling of Preeti Gupta and another vs State of Jharkhand and another, (2010) 7 SCC 667. Hon’ble Apex Court observed that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of the complainant are required to be scrutinized with great care and circumspection.

6) Although there are allegations, in the FIR, against all the applicants, but it appears that they, being the immediate relations of the husband, have been unnecessarily implicated. Applicant no. 1 is father-in-law, applicant no. 2 is mother-in-law, applicant no. 4 is brother-in-law, applicant no. 5 too is brother-in-law, applicant no. 6 is sister-in-law and applicant no. 7 is married sister-in-law of respondent no. 2. Applicant no. 8 is husband of applicant no. 7. Applicant no. 3 is husband of respondent no. 2. Undoubtedly, applicant no. 3 and respondent no. 2 were residing separately. The other applicants were residing in different households of their own. Is it possible that when she reached to her matrimonial home on 25.02.2007, all the applicants were assembled at one place and assaulted respondent no. 2? Is it possible that all the applicants reassembled together on 09.05.2007, and again on 11.05.2007, and assaulted respondent no. 2? Is it possible that all the applicants, assembled together at one place, harassed respondent no. 2 on account of non-fulfillment of demand of dowry? Is it possible that the applicants came together after travelling 800 kms? It is the allegation against the applicants that all of them came together from Jaunpur (U.P.) and Chandoli (U.P.) to the matrimonial home of respondent no. 2 at Udham Singh Nagar and demanded dowry. Is such statement believable? It is an admitted fact that the father of respondent no. 2 was not in this world, when her marriage with applicant no. 3 took place. Where the applicants (other than applicant no. 3), who were the relatives of applicant no. 3, accepted dowry in such proportion as was alleged in the FIR?

7) To meet above situation, the Hon’ble Apex Court as cautioned the High Courts to scrutinize the complaint with great care and circumspection. Court proceedings ought not to be permitted to degenerate into weapon of harassment or persecution. The ends of justice are higher than the ends of mere law though justice must be administered according to the laws enacted by the Legislature. Although the offences complained of against the applicants (other than applicant no. 3), if taken on their face value, appear to be there, but the allegations made in the FIR are so absurd and inherently improbable, on the basis of which, no prudent person can ever reach just conclusion that there is sufficient ground for proceeding against the applicants, other than applicant no. 3. In such situation, the Court is required to step in to quash the proceedings in exercise of its jurisdiction under Section 482 of Cr.P.C. Although 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 down in the section itself, but the instant case appears to be one such case in which the proceedings against the applicants (other than applicant no. 3) should be quashed.8) The application / petition under Section 482 of Cr.P.C. is partly allowed. The summoning order dated 20.11.2008 as well as chargesheet (Annexure No. 7) filed by the police in case crime no. 6308 of 2007 under Section 498A, 323, 504, 506 of IPC and under Section ¾ of the Dowry Prohibition Act in the court of Chief Judicial

Magistrate, Udham Singh Nagar in criminal case no. 3205 of 2008, State vs Preetam Lal and others as also the entire proceedings arising out of the impugned chargesheet in criminal case no. 3205 of 2008, State vs Preetam Lal and others, pending before the court of Chief Judicial Magistrate, Udham Singh Nagar are hereby quashed so far as the same relate to applicants no. 1, 2 and 4 to 8. Application under Section 482 of Cr.P.C. moved on behalf of applicant no. 3 is dismissed.

(U.C. Dhyani, J.)

Dt. May 22, 2013. Negi