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Ashish Kumar Panday And 4 Others vs State Of Up And Anr on 19 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

Court No. – 70

Case :- APPLICATION U/S 482 No. – 37750 of 2019

Applicant :- Ashish Kumar Panday And 4 Others

Opposite Party :- State Of Up And Anr

Counsel for Applicant :- Sunil Kumar Dubey

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1 and perused the record with the assistance of learned counsel for the parties.

This application under Section 482 Cr.P.C. has been filed by the applicants to quash the charge-sheet no. 01 of 2019 dated 04.07.2019 arising out of Case Crime No. 25 of 2019 as well as cognizance order dated 03.08.2019 and proceedings of criminal case no. 763 of 2019 (State Vs. Ashish Kumar Pandey and others), under Sections 498A, Section323, Section504, Section354, Section506 IPC and 3/4 D.P. Act, Police Station Mahila Thana, District – Aligarh pending in the court of A.C.J.M., Court No.7, Aligarh. 

Filtering out unnecessary details, basic facts of the case in brief, as per prosecution case are that opposite party no.2 Smt. Sonam Sharma wife of Ashish Kumar Pandey (applicant no.1) lodged FIR dated 30.03.2019 against Ashish Kumar Pandey, Manish Pandey, Smt. Shail Pandey, Neha Pandey and Jyoti Mishra, who are husband, brother-in-law, mother-in-law, elder sister-in-law (Jethani) and sister-in-law (Nanad) of opposite party no.2 respectively registered as case crime no. 0025 of 2019 under Sections 498A, Section323, Section504, Section377, Section376, Section506 IPC and 3/4 D.P. Act at Police Station Mahila Thana, District Aligarh making serious allegations of harassment and torture on account of non-fulfilment of demand of Rs. 40 lac in dowry as well as outraging her modesty by her brother-in-law (Jeth) in her matrimonial home. The Investigating Officer after investigation submitted charge-sheet on 4.7.2019, on which Magistrate concerned took cognizance on 3.8.2019. The aforesaid charge-sheet and cognizance are under challenge in the present application. 

It is submitted by learned counsel for the applicants that marriage of applicant no.1 was solemnized on 1.12.2016 with opposite party no.2, but after marriage, behaviour of opposite party no.2 was very strange, as she was not willing to live with her in-laws and she was continuously pressuring her husband to live in Aligarh and to join the business of her father, because she was only daughter in her family. On refusing the said proposal of opposite party no.2, she was not happy with applicants and went her Maika thereafter, she did not come back to join her husband and other family members in New Delhi. It is next submitted that on account of acrimonious relations, applicant no.1 having no option left, moved a divorce petition under Section 13(1) (ia) and 13 (1) (ib)  of SectionHindu Marriage Act on 21.12.2018 on the ground of cruelty and desertion against the opposite party no.2. Thereafter, opposite party no.2 filed complaint case no. 11 of 2019 dated 28.01.2019 under The Protection of Women from SectionDomestic Violence Act, 2005 and also moved an application dated 28.01.2019 under Section 125 Cr.P.C. against applicant no.1. It is submitted that a complaint under Section 406 IPC was also filed by opposite party no.2 against the applicants. Thereafter, opposite party no.2 lodged FIR under Sections 498A, Section323, Section504, Section377, Section376, Section511 IPC and 3/4 D.P. Act against the applicants on the false and concocted facts. The Investigating Officer without conducting fair investigation and without considering the facts and circumstances of the case submitted charge-sheet in the matter. Further submission is that allegation against the applicant no.2, namely Manish Pandey with regard to sexual harassment of opposite party no.2 is also false and baseless, because at that time he was not present at home. The allegation of demand of dowry and harassment etc. are also false. Before marriage, applicant no.1 booked a car Vitara Brezza VDI and amount was paid by his mother and friend. Lastly, it is submitted that applicants have been falsely implicated in this case. Applicant no.5 Smt. Jyoti Mishra is married sister of applicant no.1 and she is living separately and has no concern with matrimonial affair of applicant no.1, as such no offence is made out against the applicants, therefore, impugned charge-sheet, cognizance order and criminal proceedings pursuant thereto against the applicants are liable to be quashed by this Court.

Per contra, learned Additional Government Advocate for the State refuting the submissions advanced on behalf of the applicants submitted that upon perusal of F.I.R. and on the basis of the allegations made therein as well as material against the applicants, as per prosecution case, the cognizable offence against the applicants is made out. The criminal proceedings against the applicants cannot be said to be abuse of the process of the Court. Hence this application is liable to be dismissed.

After having heard the submissions of the learned counsel for the parties and perusing the entire record, I find that  as per prosecution case, opposite party no.2 was harassed and tortured by the applicants on account of non-fulfilment of demand of Rs. 40 lakhs as dowry. In the FIR, it is also alleged that she was not only harassed and tortured, but applicant no.2, namely Manish Pandey, who is brother-in-law of opposite party no.2 tried to molest her and made an effort to disrobe opposite party no.2 with a view to commit rape. On raising alarm and coming her husband, he ran away. On making complaint  against her brother-in-law she was beaten by her husband. It is also alleged that all the ornaments and other belonging of opposite party no.2 have been taken by her husband, mother-in-law and sister-in-law. There is no document (Aadhar, PAN etc.) on record of this case in order to show that applicant no.5 Smt. Jyoti Mishra is living separately. There is allegation of harassment against the applicant no.5. The plea of alibi has been taken, as a defence on behalf of applicant nos. 2 to 5, is a matter of trial. If opposite party no.2 has availed statutory remedy available to her, the same cannot be said to be abuse of the process of the Court. The grounds taken in the application reveal that many of them relate to disputed question of fact. 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 it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceedings or where allegations made in First Information Report or charge-sheet and the materials relied in support of same, on taking their face value and accepting in their entirety 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. Factual submissions and defence as raised in the application can be more appropriately gone into by the trial court at the appropriate stage. The applicants have an alternative statutory remedy of moving discharge application at the appropriate stage.

It is also well settled that at the stage of taking cognizance and summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegations cannot be even determined at the stage of summoning the accused. 

Recently the Apex Court in case of Md. Allauddin Khan Vs. The State of Bihar others 2019 (6) SCC 107 has laid down the parameters for exercising the inherent power under Section 482 Cr.P.C. by the High Court. The paragraph no. 14 of the said judgment is reproduced herein-below:-

“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 does not find that this case fall in a 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 applicants in this case, the cognizable offence is made out. At this stage it would not be appropriate to adjudge whether the case shall ultimately end in conviction or not. Only prima facie satisfaction of the Court about the existence of sufficient ground to proceed in the matter is required. 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.

The relief as sought by the applicants through the instant application is hereby refused.

At this stage, learned counsel for the applicants pray for granting some protection to the applicants to surrender and apply for bail before the concerned court below. Learned Additional Government Advocate for the State/opposite party no.1 does not oppose such prayer of the applicants.

Considering the aforesaid prayer made by learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within 30 days from today and apply for bail, the bail application of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with law keeping in view of 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 of the Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. (2009) 4 Supreme Court Cases, 437.

For the period of 30 days from today or till the date of appearance of the applicants before the concerned court below, whichever is earlier, no coercive action shall be taken against the applicants in the above case.

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

Order Date :- 19.10.2019

AK Pandey

 

 

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