IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Crl. Misc. Application No.1443 of 2013
(U/s 482 SectionCr.P.C.)
Ashish Nagpal another
State through D.M. others
Dated: May 14, 2019
Mr. Devesh Upreti, Advocate, for the petitioners.
Mr. R.P. Nautiyal, Sr. Advocate assisted by Mr. Tejas Aggarwal, Advocate for the
Hon’ble R.C. Khulbe, J.
The petitioners have invoked the provisions of
Section 482 of the Code of Criminal Procedure, 1973
(hereinafter to be referred to as ‘the SectionCr.P.C.’) for quashing
the charge-sheet no.139/2013 u/s 452, 352 and 506
SectionIPC, submitted before the Addl. CJM, Kashipur (U.S.
Nagar) on the basis of FIR No.144/2013, along with the
cognizance order dated 11.11.2013, on the basis of which
Criminal Case No.4007 of 2013, SectionState v. Ashish Nagpal
another, was registered before the said Court.
2. In brief, on 22.4.2013, the respondent no.3
(Smt. Neetu) filed an application u/s 156(3) SectionCr.P.C.
against the applicants and others, with the allegations
that her marriage was solemnized on 27.11.2010 with
the petitioner no.1 Ashish Nagpal. After the marriage,
the petitioners and other accused started to demand
dowry. On 7.4.2013 at about 9 AM, when she was living
with her father at Village Barhaini, the present
petitioners Ashish Nagpal and Anil Madaan along with
Gaurav Nagpal, Sapna Nagpal, Sakshi Thakkar, Vishal
Thakkar, with 2-3 other persons, trespassed her house
and began to snatch her son Arnav. On raising the hue
and cry, Umrao Singh, Deepak and other people of
village, came and could save the respondent no.3. While
leaving, the accused also extended the threat to kill her
on some other day.
3. On this application u/s 156(3) SectionCr.P.C., learned
Judicial Magistrate, Kashipur ordered for registration of
FIR on 10.6.2013. The FIR was, accordingly, registered
at P.S. Kashipur on 17.6.2013.
4. After investigation, a charge-sheet was
submitted by the I.O. only against the present petitioners
under Sections 452, Section352 and Section506 IPC, on which, learned
Additional Chief Judicial Magistrate, Kashipur took the
cognizance on 11.11.2013. Feeling aggrieved, this
petition has been filed by the petitioners.
5. Heard learned Counsel for the parties and
perused the documents available in the file.
6. From the record, it is clear that Mr. Ramesh
Chandra, father of respondent no.3, initially filed an FIR
against Ashish Nagpal, Ved Prakash, Sapna Nagpal,
Rishu, Vishal Thakkar, Shreya Madaan and Anil Madaan
on 9.6.2012 at 15:10 hours at P.S. Bazpur. During
investigation, a compromise took place between the
parties on the basis of which the I.O. submitted a final
report in the matter on 22.7.2012. Thereafter, Mr.
Ramesh Chandra filed an application on 1.9.2012 before
the J.M. Kashipur with the prayer that since the
compromise has arrived at the parties, the final report
may be accepted accordingly. On the basis of that
application, learned Judicial Magistrate accepted the
final report on the same day i.e. on 1.9.2012.
7. The facts reveal that as per the compromise,
the petitioner Ashish Nagpal had given 2 acres of land
besides Rs.15.00 lakh to his wife (respondent no.3).
Thereafter, the petitioner Ashish Nagpal filed the Divorce
Petition No.107 of 2013 u/s 13 of the SectionHindu Marriage Act
before the Principal Judge, Family Court, Udham Singh
Nagar on 16.3.2013. After receiving the summons,
respondent no.3 filed the application u/s 156(3) SectionCr.P.C.
on 22.4.2013 before the court below for lodging the FIR
against the persons accused therein.
8. After filing the application u/s 156(3) SectionCr.P.C.,
the respondent no.3 herself produced before the Women
Helpline on 22.5.2013. She stated that on 7.4.2013, her
husband and other persons came at her parental house
and tried to snatch her son. After the alarm was raised,
they ran away.
9. From a perusal of the statement of respondent
no.3, it is clear that she did not disclose the time of
incident nor did she mention the name of Anil Madaan in
her statement. Even she did not depose that the accused
trespassed her house or threatened to kill her. Although,
in the application u/s 156(3) SectionCr.P.C., the time is
mentioned but in the statement given before the Women
Helpline, she did not disclose the name of Anil Madaan
(petitioner no.2). Hence, there is no allegation made by
her that both the petitioners trespassed her parents’
house and extended the threat to kill her. From the
record, it is also clear that after filing the divorce petition
by the petitioner Ashish Nagpal, the respondent no.3 filed
this application u/s 156(3) SectionCr.P.C. as a counterblast.
Moreover, on a perusal of the charge-sheet dated
19.8.2013, it does appear that the charge-sheet was filed
u/s 452, 352 and 506 SectionIPC against both the petitioners
and cognizance was taken on 11.11.2013. It also
appears that the said cognizance order was passed on
the charge-sheet in a casual manner. Before taking the
cognizance, learned Addl. CJM, Kashipur did not apply
his judicial mind. There is no prima facie evidence
available in file to show that the accused had trespassed
into the house of respondent no.3 or they had assaulted
10. The Hon’ble Apex Court in ‘SectionSonu Gupta v.
Deepak Gupta others’ reported in (2015) 3 SCC 424 has
held that at the stage of cognizance and summoning, the
Magistrate is required to apply his judicial mind, or, in
other words, to find out whether prima facie case has
been made out for summoning the accused persons.
11. In the case in hand, learned Addl. CJM,
Kashipur took the cognizance against the petitioners on
the charge-sheet itself. It has not passed a separate
order before taking cognizance. The order is stereotyped
and the same has been passed in a mechanical manner.
The Magistrate concerned even did not peruse the
evidence produced before it during investigation.
Moreover, it does not show whether any prima facie case
is made out against the petitioners. On a perusal of the
order, I am of the view that learned Magistrate did not
apply its mind judiciously, and no prima facie evidence is
available on record against the petitioners.
12. In view of the aforesaid facts and
circumstances of the case, the present application filed
u/s 482 SectionCr.P.C. is allowed. The impugned chargesheet
no.139/2013 u/s 452, 352 and 506 SectionIPC as well as the
entire proceedings of Crl. Case No.4007/13 along with
the summoning order, pending before the Court of Addl.
CJM, Kashipur, District Udham Singh Nagar, are hereby
13. Pending application, if any, stands disposed of.
(R.C. Khulbe, J.)