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Sumit Sharma And 3 Others vs State Of U.P. And 2 Other on 31 October, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 70

Case :- APPLICATION U/S 482 No. – 38283 of 2019

Applicant :- Sumit Sharma And 3 Others

Opposite Party :- State Of U.P. And 2 Other

Counsel for Applicant :- Amar Jeet Upadhyay,Rajesh Kumar Mishra

Counsel for Opposite Party :- G.A.,Pavan Kishore,Rajesh Kumar Mishra

Hon’ble Sanjay Kumar Singh,J.

Supplementary affidavit dated 23.10.2019 filed on behalf of the applicants is taken on record.

Mr. Pawan Kishore, learned Advocate has filed his vakalatanama today on behalf of opposite party Nos. 2 and 3, which is also taken on record.

Heard learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1, learned counsel for the opposite party Nos. 2 and 3 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 for quashing of the charge sheet dated 1.7.2018 filed in Criminal Case No. 630/9 of 2019 (SectionState vs. Sumit Sharma and others) arising out of Case Crime No. 791 of 2017, under Sections 323, Section498-A, Section504, Section506 IPC and 3/4 SectionDowry Prohibition Act, police station Medical College, district Meerut pending in the court of Chief Judicial Magistrate, Meerut.

Filtering out unnecessary details, basic facts of the case, in brief as per prosecution case are that opposite party No. 2, Gajendra Sharma (informant of the case) is father-in-law of applicant No. 1, Sumit Sharma. On 29.11.2017, opposite party No. 2 moved an application before the Station House Officer, police station Medical College, district Meerut for lodging an FIR against the applicants, on which FIR was lodged on 31.11.2017 for the offence under Sections 294, Section307, Section323, Section325, Section354(Ka), Section354(Kha), Section498-A, Section504, Section506, Section376, Section511 and Section3/Section4 Dowry Prohibition Act against the applicants and Sudhanshu Sharma and Renu Shama, who are brother-in-law (Nandoi) and sister-in-law (Nand) of opposite party No. 3, namely, Arti Sharma making allegation inter alia that marriage of his daughter (opposite party No. 3, Arti Sharma) was solemnized on 11.11.2016 with applicant No. 1 and in the marriage, he had spent about Rs. 25, 00,000/-, but the accused persons were not satisfied, as there was continuous demand of Innova Car. It is also submitted that on account of non fulfillment of said demand, his daughter was harassed and beaten on 22.4.2017 by the accused persons and they, in order to kill her, also tried to burn. In the FIR, it is also alleged that on 30.6.2017, Shudhanshu Shrma (Nandoi) outraged her modesty and tried to commit rape. On making complaint by opposite party No. 3, she was beaten by her husband and thereafter on 3.7.2017, Sumit Sharma (applicant No. 1) left opposite party No. 3 to her parental house. Thereafter, on 29.11.2017, applicant No. 1 along with two others came to the house of opposite party No. 2 and tried to abduct opposite party No. 3, but anyhow she saved her life. On 30.11.2017, opposite party No. 3, Smt. Arti Sharma was medically examined and seven injuries were found on her body. The victim/opposite party No. 3 in her statements recorded under Sections 161 and Section164 Cr.P.C. reiterated the versions of FIR making same allegation against the accused persons. The said FIR was challenged by the applicants before this Court in Criminal Misc. Writ Petition No. 28313 of 2017, in which vide order dated 19.12.2017 matter was referred for mediation, but Mediation and Reconciliation Centre of this Court in its report dated 2.4.2018 informed the Court that parties are not willing for mediation. Considering the report dated 2.4.2018 of the Mediation Centre, the aforesaid writ petition was disposed of vide order dated 3.5.2018 directing that petitioners shall not be arrested in the case till submission of police report under Section 173(2) Cr.P.C. subject to their cooperation in the investigation.

Learned counsel for the applicants assailing the aforesaid impugned charge sheet dated 1.7.2018 submitted that the applicants have been falsely implicated in this case. The Investigating Officer has not conducted the fair investigation. It is next submitted that marriage of applicant No. 1 with opposite party No. 3 was love marriage, therefore, there was no question for demand of dowry. In support of said submission, learned counsel for the applicants placed reliance on some chatting between applicant No. 1 and opposite party No. 3 on Facebook, appended as annexure No. 1 to the supplementary affidavit. It is next submitted that the incidents dated 22.4.2017, 30.6.2017, 3.7.2017 and 29.11.2017 as alleged by opposite party No. 2 in the FIR are false and based on concocted facts, which are not liable to be believed. It is submitted that in fact malicious prosecution has been launched against the applicants after filing divorce petition being Case No. 2943 of 2017 under Section 13(1)(1-SectionA) of Hindu Marriage Act by applicant No. 1 on 28.11.2017. It is further submitted that the allegation levelled against the Sudhanshu Sharma (Nandoi) by opposite party No. 3 is also false, because on the said date he was present at his office situated at Faridabad, where he is employed at Numero Uno Clothing Limited. The authorized signatory of the said company has given certificate dated 13.12.2017 regarding presence of Shudhanshu Sharma at the office on 30.6.2017. Learned counsel for the applicants also submitted that applicants received a threat letter dated 19.11.2017 by registered post on 22.1.2017 from unknown person, thereafter, applicant No. 1 lodged FIR dated 23.11.2017 at police station Kankarkhera, district Meerut against unknown persons. On receiving another letter through registered post on 1.12.2017, applicant No. 1 approached the Station House Officer concerned informing about the said letter. It is also alleged that Investigating Officer recorded the statements of neighbors, Uma Shanker Tiwari Mohit, Harpal and Anjani Pandey, but they have stated that no such incident took place before them. The Investigating Officer did not submit charge sheet against co-accused, Shudhanshu Sharma and Renu Sharma. It is lastly submitted that applicant No. 2 is father-in-law, who is suffering from lung disease and applicant No. 3 is mother-in-law, who is also suffering from Asthama disease. In paragraph No. 26 of the supplementary affidavit, it is mentioned that applicant No. 4 is married sister-in-law of opposite party No. 3 and living separately, therefore no offence is made out against the applicants and impugned charge sheet and further proceedings pursuant thereto are liable to be quashed by this Court.

Per contra, learned Additional Government Advocate for the State and learned counsel appearing on behalf of opposite party No. 2 and 3 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 an 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 earlier the Division Bench of this Court provided an opportunity to the parties concerned to settle their dispute by way of mediation, but Mediation Centre reported that parties are not willing for mediation. So far as applicant No. 4 is concerned, it is submitted that she is living separately and in this regard learned counsel for the applicants placed reliance on the Adhar Card of applicant No. 4, Ruby Sharma, but bare perusal of the same it is made clear that address of applicant No. 4 as mentioned in her Adhar Car is same as to the address of applicant No. 1 and specific allegation has also been levelled by opposite party Nos. 2 and 3 against the applicants. 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 powers under Section 482 Cr.P.C. cannot assume such jurisdiction and put to 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.

The Apex Court in the case of SectionMd. Allauddin Khan vs. The State of Bihar Ors; 2019 (6) SCC 107 has laid down the jurisdiction of High Court under Section 482 Cr.P.C. The observation made by the Apex Court in paragraph No.17 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 i s 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 an 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.

However, considering the fact of the case, 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 mentioned case.

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

Order Date :- 31.10.2019

Sumaira

 

 

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