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Smt. Sumitra vs State Of U.P. And Another on 18 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 70

Case :- APPLICATION U/S 482 No. – 26605 of 2019

Applicant :- Smt. Sumitra

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

Counsel for Applicant :- Harish Chandra

Counsel for Opposite Party :- G.A.

Hon’ble Sanjay Kumar Singh,J.

Heard learned counsel for the applicant and 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 applicant with a prayer to quash the impugned order dated 7.5.2019, whereby discharge application dated 8.2.2016 of the applicant has been rejected and order dated 16.4.2019, whereby charge under Sections498A, 494, 420 SectionIPC and 3/4 D.P. Act has been framed against the applicant (mother-in-law) as well as against the Sandeep (husband of the opposite party no.2) and proceedings of criminal case no. 6584 of 2014 (State Vs. Sandeep and others) arising out of case crime no.468 of 2013, under Sections 498A, Section494, Section420 IPC and 3/4 D.P. Act, Police Station Mahila Thana, District -Ghaziabad pending in the court of Additional Chief Judicial Magistrate, Court No.8, Ghaziabad.

It is submitted by the learned counsel for the applicant that in this case FIR was lodged on 11.12.2013 by the opposite party no.2 against the four accused persons including the applicant. The Investigating Officer after investigation submitted the charge-sheet against Sandeep, Harpal, Sumitra and Satyendra. Co-accused Harpal (father-in-law) has died and Satyendra (jeth) has been discharged. It is submitted that the basic ingredients to constitute an offence under Section 498A, Section494, Section420 IPC and 3/4 D.P. Act is not made out against the applicant, as she is mother-in-law of the opposite party no.2. Considering the prosecution case, only husband can be said to be an accused in this case and the husband of the opposite party no.2 is facing trial. It is further submitted that the concerned court below has committed legal error in framing the charge under Section 498A, Section420, Section494 IPC and 3/4 D.P. Act against the applicant, therefore, the impugned order dated 16.4.2019 is not sustainable and is liable to be quashed by this Court. It is also submitted that on the divorce petition filed by husband Sandeep (co-accused) order for dissolution of marriage was already passed on 25.7.2013.

After having heard the arguments of learned counsel for the parties, I find that in the impugned FIR, allegations has been levelled by the opposite party no.2 against Sandeep, Harpal and Smt. Sumitra for harassment and torture. Allegation has also been levelled that the second marriage of Sandeep was solemnized with another lady in collusion with his mother (applicant). On perusal of divorce order, I also find that the said divorce order was obtained ex-parte by Sandeep. So far as the impugned order dated 16.4.2019 is concerned, I find that the same has been passed in the light of well settled principles of law laid down by the Apex Court in case of Palwinder Singh Vs. Balvinder Singh; 2009 (3) SCC 850 wherein the Apex Court has held that the jurisdiction of Sessions Judge at the time of discharge is very limited. In the said judgment it has been held that charges can also be framed on the basis of strong suspicion. Marshaling and appreciation of evidence is not in the domain of the court at that point of time.

The Hon’ble Supreme Court recently on 01.05.2019 in SectionState By Karnataka Lokayukta vs M. R. Hiremath 2019 SCC online SC 734 has held as under:

“23. The High Court ought to have been cognizant of the fact that the trial court was dealing with an application for discharge under the provisions of Section 239 of the CrPC. The parameters which govern the exercise of this jurisdiction have found expression in several decisions of this Court. It is a settled principle of law that at the stage of considering an application for discharge the court must proceed on the assumption that the material which has been brought on the record by the prosecution is true and evaluate the material in order to determine whether the facts emerging from the material, taken on its face value, disclose the existence of the ingredients necessary to constitute the offence. In the State of Tamil Nadu v N Suresh Rajan10, adverting to the earlier decisions on the subject; this Court held :

“29…At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.”

After going through the dictum of the Apex Court as laid down in aforesaid judgements, this court is of the view that it is also well settled that if there is ground for presuming that the accused has committed the offence, the Court can justifiably say that prima facie case exists against the accused.

So far as the order dated 7.5.2019 is concerned, it is relevant to mention that it is well settled that charges can be altered at any stage of trial before the pronouncement of the judgment under Section 216 (1) Cr.P.C.

Considering the facts, circumstances and materials on record of this case in the light of settled law laid down by the Apex court, as mentioned above,there is no illegality or infirmity in the impugned orders, therefore no case is made out to interfere in the impugned orders. The concerned court below while passing the impugned order dated 7.5.2019 has considered all the relevant materials on record and decided the discharge application of the revisionist in accordance with law in the light of well settled principle laid down by the Apex Court .

In view of the above, the present application lacks merit and is, accordingly, dismissed.

However, it is directed that in case applicant appears before the concerned court below within 45 days from today and applies for bail, the bail application of the applicant shall be heard and disposed of expeditiously by the courts below in accordance with settled law laid down by 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 passed by Hon’ble Apex Court in (2009) 4 Supreme Court Cases, 437 Lal Kamlendra Pratap Singh Vs. State of U.P.

For the period of 45 days from today, no coercive action shall be taken against the applicant.

Order Date :- 18.7.2019

AK Pandey

 

 

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