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Jasleen Tiwari vs State Of U.P. And Another on 21 February, 2024

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Allahabad High Court

Jasleen Tiwari vs State Of U.P. And Another on 21 February, 2024

HIGH COURT OF JUDICATURE AT ALLAHABAD

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Neutral Citation No. – 2024:AHC:31253

Court No. – 91

Case :- APPLICATION U/S 482 No. – 43654 of 2023

Applicant :- Jasleen Tiwari

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Sushil Shukla,Aditya Prakash Singh

Counsel for Opposite Party :- G.A.

Hon’ble Mayank Kumar Jain,J.

1. Heard learned counsel for the applicant, learned A.G.A. for the State .

2. The present 482 Cr.P.C. application has been filed praying for setting aside the summoning order dated 04.01.2023 and to quash the entire impugned criminal proceedings of Criminal Complaint Case No. 50 of 2023 (Smt Chahat Tiwari Vs. Hemant Tiwari and others), under Section 12 of the Protection of Women from Domestic Vilence Act, 2005, Police Station-Swaroop Nagar, District-Kanpour Nagar pending currently in the court of Learned F.T.C/Civil Judge (JD), Kanpur Nagar.

3. It is submitted that compliant under Section 12 of the Protection of Women from Domestic Vilence Act was filed by the opposite party no. 2 against her husband and other persons including the applicant. The applicant is sister-in-law (jethani) of opposite party no. 2. The only allegation made in the complaint against the applicant that her husband used to attend late night parties with the applicant and the applicant is also habitual of consuming liquor. It is submitted that apart from this, no allegation is made against the applicant in the entire complaint. It is also submitted that earlier an F.I.R under Section under Sections 498A, 307, 376, 377, 313, 323, 504, 506 of I.P.C and 3/4 of Dowry Prohibition Act was filed by opposite party no. 2 but after investigation final report came to be filed. The applicant did no. file any protest petition.

4. Learned counsel for the applicant relied upon the judgment of the Apex Court in Shyamlal Devda and Others Vs. Parimala, (202) 3 Supreme Court Cases 14. In this case Apex Court held that:

“8. x……x…….x…….x………x;

9. There are no specific allegations as to how other relatives of Appellant 14 have caused the acts of domestic violence. It is also not known as to how other relatives who are residents of Gujarat and Rajasthan can be held responsible for award of monetary relief to the respondent. The High Court was not right in saying that there was prima-facie case against the other Appellants 3 to 13. Since there are no specific allegations against Appellants 3 to 13, the criminal case of domestic violence against them cannot be continued and is liable to be quashed.”

5. In the given case the only allegation against the applicant that she is the sister-in-law(jethani) of opposite party no. 2 and she accompanied the husband of opposite party no. 2 to attend parties in late night. The applicant is also habitual of drinking liquor.

6. Inspite of the service of notice upon opposite party no. 2, none came forward to attend the proceedings.

7. Per contra, learned A.G.A opposed the prayer made by the applicant and submitted that the applicant is also summoned to face the trial.

8. The Hon’ble Supreme Court in Mohammad Wajid and Anr. Vs. State of U.P. and others, 2023 SCC online SC 951 observed that:

“30. At this stage, we would like to observe something important. Whenever an accused comes before the Court invoking either the inherent powers under Section 482 of the Code of Criminal Procedure (CrPC) or extraordinary jurisdiction under Article 226 of the Constitution to get the FIR or the criminal proceedings quashed essentially on the ground that such proceedings are manifestly frivolous or vexatious or instituted with the ulterior motive for wreaking vengeance, then in such circumstances the Court owes a duty to look into the FIR with care and a little more closely. We say so because once the complainant decides to proceed against the accused with an ulterior motive for wreaking personal vengeance, etc., then he would ensure that the FIR/complaint is very well drafted with all the necessary pleadings. The complainant would ensure that the averments made in the FIR/complaint are such that they disclose the necessary ingredients to constitute the alleged offence. Therefore, it will not be just enough for the Court to look into the averments made in the FIR/complaint alone for the purpose of ascertaining whether the necessary ingredients to constitute the alleged offence are disclosed or not. In frivolous or vexatious proceedings, the Court owes a duty to look into many other attending circumstances emerging from the record of the case over and above the averments and, if need be, with due care and circumspection try to read in between the lines. The Court while exercising its jurisdiction under Section 482 of the CrPC or Article 226 of the Constitution need not restrict itself only to the stage of a case but is empowered to take into account the overall circumstances leading to the initiation/registration of the case as well as the materials collected in the course of investigation. Take for instance the case on hand. Multiple FIRs have been registered over a period of time. It is in the background of such circumstances the registration of multiple FIRs assumes importance, thereby attracting the issue of wreaking vengeance out of private or personal grudge as alleged.

31. In State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522, a two-Judge Bench of this Court elaborated on the types of materials the High Court can assess to quash an FIR. The Court drew a fine distinction between consideration of materials that were tendered as evidence and appreciation of such evidence. Only such material that manifestly fails to prove the accusation in the FIR can be considered for quashing an FIR. The Court held:-

“5. …Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of the process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or ontinuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

6. In R.P. Kapur v. State of Punjab, AIR 1960 SC 866 : 1960 Cri LJ 1239, this Court summarised some categories of cases where inherent power can and should be exercised to quash the proceedings: (AIRp.869,para6)

(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;

(ii) where the allegations in the first information report or complaint taken at its face value and accepted in their entirety do not constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.

7. In dealing with the last category, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death.”

9. In view of above, since no specific allegation is made against the applicant except to the extent that she was a habitual of drinking liquor and she used to accompany with the husband of the opposite party no. 2 in late night parties. Therefore, the application deserves to be allowed.

10. Accordingly, the present application u/s 482 is allowed.

11. The summoning order dated 04.01.2023 passed by Additional Chief Metropolitan Magistrate, Kanpur Nagar in Criminal Complaint Case no. 50 of 2023 (Smt. Chahat Tiwari Vs. Hemant Tiwari and others) under Section 12 of the Protection of Women from Domestic Vilence Act, 2005 are set aside and also the entire proceedings of the aforesaid Criminal Complaint Case are hereby quashed against the applicant.

12. Interim order, granted earlier if any, shall stands vacated.

Order Date :- 21.2.2024

PS

 

 

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