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Anoop Pandey And Others vs State Of U.P. And Anr. on 24 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

Reserved

Court No. – 11

Case :- U/S 482/378/407 No. – 273 of 2016

Applicant :- Anoop Pandey And Others

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

Counsel for Applicant :- Vikas Vikram Singh,Yash Bharadwaj

Counsel for Opposite Party :- Govt. Advocate,Anita,Arjun Krishan,G.S.Pandey

Hon’ble Rajeev Singh,J.

Heard learned counsel for the applicant, learned A.G.A. for the State and learned counsel appearing for respondent no. 2.

This application has been filed for quashing of the charge sheet dated 23.10.2015 as well as proceedings of Case No. 78319 of 2015 (State Vs. Anoop Pandey) arising out of Case Crime No. 150 of 2014, under Sections 498-A, Section323 and Section507 I.P.C. and Section 3/4 D.P. Act, P.S. Mahanagar, District Lucknow.

Gist of the allegation in the F.I.R. is that after marriage of the complainant with applicant no. 1, she was being victimized by her in-laws (applicants). It is further alleged that the applicants used to torture her physically and mentally. Even when complainant-respondent no. 2 had gone with her husband-applicant no. 1 to Delhi, where he works as Manager at Indira Gandhi International Airport, she was regularly assaulted by applicant no. 1. It is also alleged in the F.I.R. that when she conceived, applicant no. 1 had forcefully aborted her fetus by giving her medicine on 12.04.2012. It is further alleged in the F.I.R. that since applicant no. 1 had illicit relations with other girls, therefore, he did not want to let the respondent no. 2 give birth to a child. However when against his wishes, respondent no. 2 gave birth to a child, the applicants tried to kill her as also the child and while demanding for money, sent respondent no. 2 to her paternal home in March, 2014.

Facts, in nutshell, as stated by the learned counsel for the applicants, are that the marriage of applicant no. 1 was solemnized with respondent no. 2, who is a doctor by profession, on 10th February, 2012. After marriage, respondent no. 2 went to her home situated in Mahanagar, Lucknow and after two days, applicant no. 1 along with respondent no. 2 proceeded towards the matrimonial home at New Delhi. On 7th March, 2012, when they went to visit Landsdown in Uttarakhand, respondent no. 2 told applicant no. 1 that their marriage had been solemnized against her wishes. She had also revealed about her habit of drinking at parties with friends. On getting the knowledge of her pregnancy of six weeks while her checking at Batra Nursing Home on 10th April, 2012, applicant no. 1 was overwhelmed, but to his dismay, respondent no. 2, on her own wish and without informing the applicant no. 1, got the pregnancy aborted on 11th April, 2012. In the month of June 2012, respondent no. 2 asked for a local mobile number and the applicant no. 1 readily gave her a postpaid connection. Applicant no. 1, while paying the monthly dues of the said postpaid connection, came to know that her wife-respondent no. 2 was in regular touch with one person, and on asking about the said person, she told that the said person is her female friend.

Further submission of the learned counsel for the applicants is that after her abortion, the attitude of respondent no. 2 was changed, and, therefore, when respondent no. 2 gave birth to a male child at Bhagat Chandra Hospital, New Delhi on 23rd May, 2013, though applicant no. 1 was delighted, but at the same time, had some doubts regarding the paternity of the child. Upon inquiry, it came to the knowledge of applicant no. 1 that respondent no. 2 was in regular touch with her old friend since prior to the marriage and after the birth of the child, she messaged her old friend first and the applicant no. 1 was informed much later. On suspicion, applicant no. 1 sent the blood samples of the child to DNA Labs India, Hyderabad on 16th March, 2014, which had forwarded the same to Life Forensic Labs at Gurgaon. The results of the report, which the applicant no. 1 received, were negative, meaning thereby, applicant no. 1 is not the biological father of his child. Applicant no. 1 when confronted respondent no. 2 with the results, she denied and went to stay with her family.

Applicant no. 1, on the basis of the DNA results received from the Laboratory, filed a suit for divorce on 17th April, 2014 at Lucknow on the ground of adultery. Respondent no. 2, instead of filing her written statement in the court, instituted the F.I.R. on 9th May, 2014 on false and concocted facts against the present applicants as well as brother and sister-in-law (bhabhi) of applicant no. 1, who reside in Delhi, which was registered as Case Crime No. 150 of 2014, under Sections 498-A, Section323 and Section507 I.P.C. and Section 3/4 D.P. Act, P.S. Mahanagar, District Lucknow. It has been submitted by the learned counsel for the applicants that the investigation was conducted by the Investigating Officer in mechanical manner and has wrongly submitted the impugned charge sheet under Section 498A, Section323, Section507 I.P.C. and Section 3/4 D.P. Act on 23rd October, 2015, on which, the court below has taken cognizance.

Hence, the present application.

Submission of the learned counsel for the applicants is that only in order to create pressure on applicant no. 1 to withdraw the aforesaid divorce suit, the impugned malicious proceedings have been initiated by respondent no. 2 by means of the F.I.R. lodged on 9th May, 2014, i.e., after 20 days of the filing of the divorce suit by the applicant no. 1, and with the intention to cover up her promiscuous conduct, which was clearly established by the forensic evidence, respondent no. 2 made false accusations against applicant no. 1 (husband), his father, applicant no. 2 (mother), applicant no. 3 (brother-in-law) and sister-in-law. Moreover, respondent no. 2 and her father had filed as many as five criminal cases against the applicants.

On the other hand, Shri Ajay Singh Tomar, learned A.G.A. while opposing the argument of the learned counsel for the applicants, has submitted that the F.I.R. was lodged on the written complaint of respondent no. 2 and after collecting incriminating evidences during the investigation, Investigating Officer had submitted the charge sheet and there is no illegality in the impugned proceedings.

Learned counsel for respondent no. 2 while supporting the arguments of the learned A.G.A., has submitted that Investigating Officer had properly collected the evidences and thereafter submitted the charge sheet and there is no illegality in the same. He has further submitted that the complainant was being victimized since 2012, but she did not file any complaint only with the intention to save her marriage. He has further submitted that the DNA report, which is being relied by the applicant, is fabricated and it cannot be relied upon. Learned counsel for respondent no. 2 has vehemently submitted that applicant no. 1 was also fully aware about the fact that the DNA report, in question, is forged and, thus, he had himself moved an application in the family court for DNA test from a Government Laboratory, which was rejected by the court below vide order dated 04.12.2017 passed in Case No. 771 of 2017 (Smt. Manisha Pandey Vs. Anoop Pandey). It has also been submitted that applicant no. 1 and respondent no. 2 went under the mediation process also, but the same had also been failed. Learned counsel for the respondent no. 2 has lastly submitted that applicants have statutory right under Section 239 Cr.P.C. to move discharge application before the court below at the appropriate stage.

Learned counsel for the applicants, in rebuttal to the above argument advanced by the learned counsel for the respondent no. 2, has submitted that vide order dated 4th December, 2007, the application for conducting the DNA test from the Government Laboratory was rejected by the family court Judge, Lucknow, which was moved in the pending case filed by respondent no. 2 under Section 125 Cr.P.C. and the said order is under challenge before this Court in Criminal Case u/s 482 SectionCr.P.C. No. 6237 of 2018, in which respondent no. 2, after putting her appearance through counsel, prayed for time to file counter affidavit, but no counter affidavit has been filed as yet. Learned counsel for the applicants has further submitted that applicant no. 1 had received the DNA results from DNA Labs, India situated at Hyderabad after sending the samples on 16th March, 2014, which had forwarded the samples further to Life Forensic Labs at Gurgaon, which is approved by National Accreditation Board for Testing and Calibration Laboratories (NABL) and is established under the aegis of Central Government, and the result in the said report was negative.

Placing reliance on the decision of the Hon’ble Supreme Court in the case of Prashant Bharti Vs. State (NCT of Delhi), (2013) 9 SCC 293, learned counsel for the applicants has submitted that, in case, the medical, scientific and forensic evidence does not support the prosecution story, then there is no occasion to tract the futile trial. Further relying on the decisions of the Hon’ble Supreme Court in the cases of Dipanwita Roy Vs. Ronobroto Roy, (2015) 1 SCC 365 and Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik Anr., (2014) 2 SCC 576, learned counsel for the applicants has submitted that the DNA test report is conclusive and scientific proof.

Para 17 (relevant) of the Nandlal Wasudeo Badwaik (supra) is being reproduced as under:

“17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. The interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

Learned counsel for the applicants has also relied on the judgment of the Hon’ble Supreme Court passed in the case of Shamsher Singh Vs. State of Haryana, (2016) 15 SCC 485, in which Hon’ble Supreme Court has held that the electronic and other scientific evidence placed by the accused should be considered. Further placing reliance on the judgment of the Hon’ble Supreme Court passed in the case of Bhushan Kumar Meen Vs. State of Punjab Ors., (2011) 8 SCC 438, he has submitted that the Hon’ble Supreme Court quashed the proceedings, despite the fact that police submitted the report thrice against the accused-husband. He has also relied on the decisions of the Hon’ble Supreme Court in the cases of Anupriya Pal Vs. State of U.P., 2018 SCC Online SC 1316, Vineet Kumar Ors. Vs. State of U.P. Anr., (2017) 13 SCC 369 and Pashaura Singh Vs. State of Punjab Anr., (2010) 11 SCC 749, and submitted that the entire proceedings should be quashed if the F.I.R. is lodged mala fidely. Further in support of his submission that while exercising powers under Section 482 Cr.P.C, material relied upon by the accused must be considered, if the same are reasonably sound and undetectable, learned counsel for the applicants has placed reliance on the judgments of this Court passed in the cases of Rajiv Thapar Ors. Vs. Madan Lal Kapoor, (2013) 3 SCC 330, Pepsi Foods Ltd. Anr. Vs. Special Judicial Magistrate Ors., (1998) 5 SCC 749 and Anand Kumar Mohatta Vs. State (Govt. of NCT of Delhi), 2018 SCC Online SC 2447.

I have considered the arguments advanced by the learned counsel for the parties and gone through the pleadings as well as the written submissions.

It is undisputed that the marriage of applicant no. 1 and respondent no. 2 was solemnized on 10th February, 2012 and applicant filed a petition under Section 13 of Hindu Marriage At on 17th April, 2014 along with DNA report of the child. Thereafter, respondent no. 2 made complaint on 09.05.2014, which was registered as Case Crime No. 150 of 2014 under Section 498-A, Section323, Section313, Section342, Section507 I.P.C. and Section 3/4 D.P. Act, P.S. Mahanagar, Lucknow, in which the duration of incident is mentioned from 20th February, 2012 to 29th March, 2014. Charge sheet was filed under Section 498-A, Section323, Section507 I.P.C. and Section 3/4 D.P. Act and since the offences under Section 313 I.P.C. are based on the medical evidence, but respondent no. 2 had failed to place any medical evidence, hence, the aforesaid offences under Sections 313 and Section342 I.P.C. were deleted from the charge sheet. It is also evident from the pleadings made in paras 6, 22, 24, 26, 27 and 33 of the applicant, in which, allegations have been made on the conduct of the complainant as also that she was carrying the pregnancy of six weeks on 10th April, 2012, as per the report of the Batra Nursing Home (Annexure 6) and the result of the DNA report of the child was negative. However in the counter affidavit, respondent no. 2 has given vague reply to the aforesaid pleadings by saying that applicant no. 1 had relations with several girls and the complainant was being victimised by him since from very beginning and the applicants had also tried to convince the investigator for not filing the charge sheet, but after collecting incriminating evidence, charge sheet has been filed against the applicants and there is no illegality in the impugned proceedings.

From the counter affidavit of the respondent no. 2, it also transpires that the complainant was being victimised immediately after the marriage by demanding dowry, but admittedly, she never made any complaint though she is a prudent and educated lady being a qualified doctor by profession and possesses the degree in Homeopathic and had initiated the impugned proceedings just after the application under Section 13 of the Hindu Marriage Act was moved by applicant no. 1 for divorce along with the DNA report. Further despite having good understanding about the gravity and sensitivity of the DNA report, she never requested to the Investigating Officer for sending the DNA report to the Government Laboratory.

Further, in the statements of the witnesses recorded by the Investigating Officer, namely, Tuhin Datta, Shri Vijay Kumar Dhyani, who are neighbours of applicant no. 1 and complainant (Annexure 3 to the application), they had categorically stated that applicant no. 1 was well known to them as a good human being, but since last some days, he was living alone and his wife was not living with him. They had never heard any quarrel between the husband and wife. The statement of Dr. Beena Singh was also recorded, in which, she had stated that respondent no. 2 came alone to her on 20.06.2012 along with pregnancy report and stated that she was carrying pregnancy of one and half months and requested for abortion for which some medicines were prescribed to her.

In view of above facts, it is evident from the material available on the record that the impugned proceedings were initiated with the malicious intention only to pressurise the applicants as applicant no. 1 had filed the divorce petition along with the DNA report of the child.

It is well settled by the Hon’ble Supreme Court in the case of Rajiv Thapar (supra) that the discretion of High Court under Section 482 Cr.P.C. can be exercised to prevent the abuse of court and/or to secure the ends of justice. The High Court, in exercise of its jurisdiction under Section 482 Cr.P.C., must make a just and rightful choice and it should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. The relevant portion of the judgment is being reproduced as under:

“29. The issue being examined in the instant case is the jurisdiction of the High Court under Section 482 of the Cr.P.C., if it chooses to quash the initiation of the prosecution against an accused, at the stage of issuing process, or at the stage of committal, or even at the stage of framing of charges. These are all stages before the commencement of the actual trial. The same parameters would naturally be available for later stages as well. The power vested in the High Court under Section 482 of the Cr.P.C., at the stages referred to hereinabove, would have far reaching consequences, inasmuch as, it would negate the prosecution’s/complainant’s case without allowing the prosecution/complainant to lead evidence. Such a determination must always be rendered with caution, care and circumspection. To invoke its inherent jurisdiction under Section 482 of the Cr.P.C. the High Court has to be fully satisfied, that the material produced by the accused is such, that would lead to the conclusion, that his/their defence is based on sound, reasonable, and indubitable facts; the material produced is such, as would rule out and displace the assertions contained in the charges levelled against the accused; and the material produced is such, as would clearly reject and overrule the veracity of the allegations contained in the accusations levelled by the prosecution/complainant. It should be sufficient to rule out, reject and discard the accusations levelled by the prosecution/complainant, without the necessity of recording any evidence. For this the material relied upon by the defence should not have been refuted, or alternatively, cannot be justifiably refuted, being material of sterling and impeccable quality. The material relied upon by the accused should be such, as would persuade a reasonable person to dismiss and condemn the actual basis of the accusations as false. In such a situation, the judicial conscience of the High Court would persuade it to exercise its power under Section 482 of the Cr.P.C. to quash such criminal proceedings, for that would prevent abuse of process of the court, and secure the ends of justice.

30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:

30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false?

30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/ complainant?

30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

(Emphasised by me)

30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused.”

In view of above facts and discussions, the impugned proceedings of Case No. 78319 of 2015 (State Vs. Anoop Pandey) arising out of Case Crime No. 150 of 2014, under Sections 498-A, Section323 and Section507 I.P.C. and Section 3/4 D.P. Act, P.S. Mahanagar, District Lucknow are liable to be quashed and are hereby quashed. The application, accordingly, stands allowed.

October 24, 2019

VKS

 

 

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