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Ashok Yadav And 2 Others vs State Of U.P. And Another on 12 September, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 70

Case :- APPLICATION U/S 482 No. – 7687 of 2019

Applicant :- Ashok Yadav And 2 Others

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

Counsel for Applicant :- Devendra Kumar Yadav

Counsel for Opposite Party :- G.A.,M.P.S. Chauhan

Hon’ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1, Sri M.P.S. Chauhan, learned counsel for the opposite party no.2 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 dated 01.04.2017 arising out of Case Crime No. 0192 of 2015 as well as cognizance order dated 06.04.2018 and proceedings of case no. 329 of 2018, under Sections 498A, Section323, Section504, Section506 IPC and 3/4 D.P. Act, Police Station Gandhipark, District -Aligarh pending in the court of A.C.J.M. Court No.3, Aligarh.

Filtering out unnecessary details, basic fact of the case, in brief, are that applicant no.1 is father-in-law, applicant no.2 is mother-in-law and applicant no.3 is sister-in-law of the opposite party no.2 (Nitu Yadav wife of Vipin Yadav). On 17.05.2015, the opposite party no.2 lodged FIR under Sections 498A, Section323, Section504, Section506 IPC and 3/4 D.P. Act against the applicants and her husband (Vipin Yadav) registered as case crime no. 0144 of 2015 at Police Station Gandhi Park, District Aligarh with regard to occurrence dated 10.05.2015 making allegations of her harassment and torture by the accused persons on account of non-fulfilment of their demand of dowry. There was constant demand of car in dowry and victim was also pressurized for taking her share in the property of her parent. On non-fulfilment of their demand, she was kicked out from her matrimonial home on 10.05.2015. The Investigating Officer submitted final report on 18.09.2015, but on protest petition filed by the opposite party no.2, the said final report was cancelled by the Magistrate concerned and direction for further investigation was made, which resulted into charge-sheet dated 01.04.2017, on which Magistrate concerned took cognizance on 06.04.2018 and summoned the accused persons.

Learned counsel for the applicants assailing the impugned charge-sheet dated 01.04.2017 submitted that after marriage the behaviour of opposite party no.2 was not good. On 30.10.2013, she went to her maternal home (Maika), but did not return back despite repeated persuasion of the applicants, because she is in illicit relationship with her Jija. It is next submitted that co-accused (husband of the opposite party no.2) has obtained ex-parte order dated 17.03.2015, whereby Family Court, Firozabad allowed the divorce petition filed by the husband and marriage dated 30.11.2012 between Vipin Yadav and opposite party no.2 has been dissolved. It is further submitted that the final report earlier submitted in the matter has been illegally cancelled by the Magistrate concerned and cognizance order dated 06.04.2018 has been passed ignoring the material evidence and earlier final report submitted in the matter. It is also submitted that co-accused Vipin Yadav (husband of the opposite party no.2) has broken all relations with the applicants and he is not living with the applicants. Lastly, it is submitted that the applicants have been falsely implicated in this case. No offence is made out against the applicants. Under the facts and circumstances of the case, impugned charge-sheet dated 01.04.2017 against the applicants is 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.

Learned counsel for the opposite party no.2 reiterated the arguments advanced on behalf of the State. It is submitted that in fact mother of the opposite party no.2 expended 30 lacks in the marriage of opposite party no.2, but applicants and co-accused Vipin Yadav were not satisfied with the aforesaid dowry and they in continuation of demand of car also mounted pressure upon the opposite party no.2 to sell the property of her share in her maika and on refusing the same, the opposite party no.2 was beaten and kicked out on 10.05.2018 from her matrimonial home. It is also submitted that since the intention of co-accused Vipin Yadav was bad since beginning, therefore, he has obtained ex-parte order dated 17.03.2015 of divorce while on the said date the opposite party no.2 was residing in her matrimonial home. Much emphasis has been given by contending that co-accused Vipin Yadav (husband) is absconding and is not appearing before the trial court. It is also submitted that it is wrong to say that Vipin Yadav has broken all relationship with the applicants in fact he is living in joint family with the applicant. There is specific allegation of harassment and torture against all the accused persons, therefore, the present 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 the applicants has not filed the material evidence/statement under Section 161 Cr.P.C. of witnesses relying on the same charge-sheet dated 01.04.2017 submitted by the Investigating Officer. A bare perusal of FIR dated 17.05.2015, it is clear that specific allegation of demand of dowry has been made against all the accused persons. There is no material evidence on record in support of the stand taken by the applicants that opposite party no.2 is in illicit relationship with her Jija. As per the contents of the FIR, the opposite party no.2 left her matrimonial home on 10.05.2015, therefore, there is no valid reason to obtain ex-parte order dated 17.03.2015 of divorce by the co-accused Vipin Yadav behind the back of opposite party no.2. 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.

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 and learned counsel for the opposite party No. 2 do 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 45 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 45 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 :- 12.9.2019

AK Pandey

 

 

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