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Amit Gupta vs State Of U.P. And Another on 1 August, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 70

Case :- APPLICATION U/S 482 No. – 26542 of 2019

Applicant :- Amit Gupta

Opposite Party :- State Of U.P. And Another

Counsel for Applicant :- Niklank Kumar Jain

Counsel for Opposite Party :- G.A.,Shashi Kant Pandey

Hon’ble Sanjay Kumar Singh,J.

Heard Shri Niklank Jain, learned counsel for the applicant and the learned A.G.A. for the State and Shri Shashi Kant Dubey, learned counsel for the opposite party no.2 and perused the record of the case.

Pursuant to the order of this Court dated 9.7.2019, applicant, Amit Gupta (husband) and opposite party No. 2, Smt. Priyanka Gupta (wife) are present in person before this Court. Both the parties were directed to appear before this Court on the statement made by the learned counsel for the parties that the parties concerned are willing to make settlement, but having a due deliberation with the applicant as well as opposite party No. 2, there is no chance of compromise/settlement of the matrimonial dispute between them as on date.

In view of above, this Court has no option except to proceed with the case on merits.

By means of this application under Sectionsections 482 of the Code of Criminal Procedure, the applicant has invoked the inherent jurisdiction of this Court for quashing the charge sheet No. 15 of 2019 dated 2.2.2019 as well as further proceedings of Criminal Case No. 855 of 2019 (SectionState vs. Amit Gupta) arising out of Case Crime No. 767 of 2017, under Sections 498-A, Section323 and Section506 IPC, police station Chandausi, district Sambhal pending in the court of Chief Judicial Magistrate, Chandausi, Sambhal.

As per prosecution case, opposite party No. 2 lodged FIR dated 2.11.2017 registered as Case Crime No. 0767 of 2017, under Sections 498-A, Section377, Section323, Section506 IPC against her husband (applicant) making several allegations of harassment, torture and committing intercourse against the order of nature, etc. It is also alleged that applicant had taken loan from several persons, but he is not in a position to return the loan amount on account of loss in his business, therefore, applicant was forcing her to make sexual relation with those persons. The Investigating Officer after investigation submitted charge sheet for the offence under Sections 498-A, Section323, Section506 IPC.

It is submitted by learned counsel for the applicant that the marriage of applicant was solemnized with opposite party No. 2 on 7.5.2009 and from their wedlock two children were born, who are presently aged about nine years and five years. It is further submitted that the applicant has falsely been implicated in this case. There is no medical examination report. The allegations made by the opposite party No. 2 are false and concocted. It is also submitted that opposite party No. 2 was not kicked out of the house of the applicant, but she herself left her matrimonial house. The Investigating Officer has not conducted the fair investigation. There are contradictions in the version of opposite party No. 2 in her statement under Section 164 Cr.P.C.. The Investigating Officer has not submitted charge sheet under Section 377 IPC. No offence under Sections 498-A, Section323, Section506 IPC is made out against the applicant and the present application is liable to be quashed.

Per contra, learned Additional Government Advocate submitted that considering the material evidences and allegations against the applicant on record, as on date, as per prosecution case, the cognizable offence against the applicant is made out. Under the facts and circumstances of the present case as well as materials on record against the applicant, the criminal proceedings against the applicant cannot be said to be abuse of the process of the Court. There is no illegality in the impugned criminal proceedings and charge sheet. It is also submitted that this application is liable to be dismissed.

After having heard learned counsel for the parties and perusing the entire record, I find that the allegations levelled by opposite party No. 2 in the FIR on taking their face value, cognizable offence is made out. Admittedly, pursuant to order dated 2.4.2018 passed in Criminal Misc. Writ Petition No. 3011 of 2018 matter was referred to Mediation Centre, but mediation proceedings between the parties failed.

Recently on 15.04.2019, the Apex Court in the case of SectionMd. Allauddin Khan vs. The State of Bihar others, 2019 (6) SCC, 107 has laid down the guideline for exercising power under Section 482 Cr.P.C. by observing that “In our view, the High Court had no jurisdiction to appreciate the evidence of the proceedings under Section 482 of the Code of Criminal Procedure, 1973 (for short “SectionCr.P.C.”) because whether there are contradictions or /and inconsistencies in the statements of the witnesses is essentially an issue relating to appreciation of evidence and the same can be gone into by the Judicial Magistrate during trial when the entire evidence is adduced by the parties. That stage is yet to come in this case.”

This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner, but it has to be used sparingly, only in such an appropriate cases, where uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.

In view of above, this Court does not find that this case fall in the categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. There is no manifest error of law in the impugned criminal proceedings, charge-sheet. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicant is not liable to be quashed. The relief as claimed by the applicant in this application is accordingly refused.

At this stage, learned counsel for the applicant submitted that in case, some protection is granted by this Court, the applicant will surrender before the concerned court below.

Learned Additional Government Advocate does not dispute such prayer of the applicant.

Considering the last prayer made by the learned counsel for the applicant, it is directed that in case applicant appears before the concerned court below within sixty days from today and applies for bail, the bail application of the applicant shall be heard and disposed of expeditiously by the courts below in accordance with settled law law laid by the Seven Judges’ decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Criminal Law Journal 755 as well as judgement passed by Hon’ble Apex Court in Lal Kamlendra Pratap Singh Vs. State of U.P. (2009) 4 Supreme Court Cases, 437;

For the period of sixty days from today, no coercive action shall be taken against the applicant in the above mentioned case.

With the above observations, this application under Section 482 Cr.P.C. is disposed of.

Order Date :- 1.8.2019

Sumaira

 

 

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