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Sunil Soni And Another vs State Of U.P. And Another on 6 February, 2020

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 74

Case :- APPLICATION U/S 482 No. – 5028 of 2020

Applicant :- Sunil Soni And Another

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

Counsel for Applicant :- Pt. S.P. Sharma

Counsel for Opposite Party :- G.A.

Hon’ble Ram Krishna Gautam,J.

This Application, under Section 482 of Code of Criminal Procedure, 1973, (Hereinafter, in short, referred to as ‘Cr.P.C.’), has been filed by the Applicants, Sunil Soni (Brother-in-law and Smt. Pooja Soni (Sister-in-law), with a prayer for setting aside impugned summoning order, dated 27.9.2019, and for quashing of entire proceeding of Case No.115 of 2019, re-registered as Case No.1158 of 2019 (State vs. Mukesh Soni and others), arising out of Case Crime No.366 of 2019, under Sections-498-A and 304-B of Indian Penal Code, 1860 (Hereinafter, in short, referred to as ‘IPC’), read with Section 3/4 of Dowry Prohibition Act, Police Station-Kotwali Jhansi, District-Jhansi, pending before the Chief Judicial Magistrate, Jhansi.

Learned counsel for applicants argued that both of the applicants were married eight years before the occurrence. They were residing at a remote place, which is at a distance of more than eighty kilometers, in Madhya Pradesh and are having no concern with the affairs of the family of the deceased and also are having no concern with regard to demand of dowry, if any, or cruelty, with regard to it or, for that matter, dowry death of the deceased. Pursuant to general allegations, levelled against them, they have been roped in this case for above offences, just to harass them, whereas, Investigating Officer has not chargesheeted them because of the fact that they were not concerned with the occurrence, but, the informant submitted an application before learned Magistrate, at the time of taking of cognizance, wherein, cognizance, for offences, punishable, under various Sections, has been taken against the applicants, too, and, thereby, process of summoning has been issued. It was under abuse of process of law, in view of law laid down by the Apex Court, in the case of Geeta Mehrotra and another vs. State of U.P. and another, (2012) 10 SCC 741. Hence, for avoiding abuse of process of law and to secure ends of justice, this Application, under Section 482 of Cr.P.C., has been filed, with above prayer.

Learned AGA, representing State of U.P., has vehemently opposed this Application.

First information report reveals that it was got lodged, upon a report of Jagdish Prasad Soni, under Sections 498A and 304B of IPC, read with Section 3/4 of Dowry Prohibition Act, against Mukesh Soni, Ashok Soni, Munna Soni, Smt. Bina Bai, Smt. Pooja Devi and Sunil Soni. Accusation, therein, was with regard to demand of dowry and cruelty, with regard to it. Marriage was performed on 18.2.2018 and since very beginning, above demand of dowry, coupled with cruelty for it, being made by all those named accused persons. It has been specifically mentioned that present applicants were also amongst them, who were not satisfied with dowry, and were demanding additional dowry, resulting in cruelty with regard to it.

Investigation proceeded, wherein, statements of informant and other witnesses were got recorded. It culminated in submission of chargesheet against Mukesh Soni, Ashok Soni, Munna Soni and Smt. Bina Bai, for offences, under Sections 498A and 304B of IPC, read with Section 3/4 of Dowry Prohibition Act, leaving behind Smt. Pooja Devi and Sunil Soni. An application, by the informant, was moved before the Magistrate that there had been evidence in the statements, recorded, under Section 161 of Cr.P.C., as of informant and other witnesses, too, wherein specific accusation of demand of a four wheeler, as additional dowry, coupled with cruelty, with regard to it, against accused persons, including, Smt. Pooja Devi and Sunil Soni, present applicants, herein, was there and even after it, the chargesheet has been filed in this case, leaving behind them (present applicants herein).

Learned Magistrate heard both sides and found that there were statements, recorded, under Section 161 of Cr.P.C., as of informant and other witnesses, who were fully intact, even then, the Investigating Officer, without any reasons, has left those two accused persons (present applicants herein), and as such, on the basis of the evidence, collected in the chargesheet, itself, those two accused persons, applicants herein, were also summoned.

Repeated propositions of law, as has been propounded by the Apex Court, is that the Court is not bound by the conclusion drawn by the Investigating Officer, while submitting chargesheet, rather, application of judicial mind, at the stage of cognizance taking, is to be made by the Court and if some other conclusion is being drawn, on he basis of evidence collected by the Investigating Officer, then, the Court may take a decision otherwise also, as above.

Meaning thereby, the opinion and finding of Investigating Officer is not binding upon the Magistrate, but, the Magistrate has to take a decision on the basis of the evidence, collected and contained in the Case Diary, prepared, during investigation. No additional document of fact is to be taken at that juncture of taking cognizance and in present case, statement of informant, Jagdish Prasad Soni and other witnesses, namely, Devendra Kumar, Smt. Bharati Devi, Ramesh Chandra and Dharmendra Kumar, were fully intact and accusation of first information report was reiterated in those statements. Hence, conclusion drawn by the Magistrate was in accordance with the evidence collected by the Investigating Officer, as contained in the Case Diary. Therefore, while passing impugned summoning order, learned Magistrate has not committed any abuse of process of law.

Section 304B of Indian Penal Code, 1860, reads as under:

“304B. Dowry death.-(1) Where death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances, within seven years of her marriage and it is shown that soon before her death, she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death.

(2) Whoever commits dowry death shall be punished with imprisonment for a term, which shall not be less than seven years, but which may extend to imprisonment for life.”

Meaning thereby, the essential ingredients for offence of dowry death and punishment therof is death of a woman caused by any burns or bodily injury or occurs otherwise than under normal circumstances. This unnatural death of deceased, within seven years of marriage, appears to have shown that soon before her death, deceased was subjected to cruelty or harassment by husband or any relative of her husband and this cruelty was in connection with any demand of dowry. This will be a “dowry death”, punishable, under sub-section (2) of Section 304B of IPC, as above.

In present case in hand, death of the deceased is within one and a half years of marriage at nuptial house, by burn and bodily injuries, coupled with accusation of demand of dowry since very beginning of marriage against husband, father, mother, brother, sister and brother-in-law is there. Present applicants are the real sister of the husband and the husband of real sister of husband. Both of them come within the the category of relative of husband. Hence, charges for those offences were made out against the applicants, too, and on the basis of evidence, collected in the Case Diary, by the Investigating Officer, cognizance was taken by the learned Magistrate, which was perfectly a valid and legal order, passed in accordance with law, and as such, there was no abuse of process of law, warranting interference of this Court, in exercise of inherent power, conferred upon it by Section 482 of Cr.P.C.

So far as law, as laid down by the Apex Court, in the case of Geeta Mehrotra and another vs. State of U.P. and another (Supra), cited by the learned counsel for the applicants is concerned, the facts of above case and the facts of present case are entirely different. In Geeta Mehrotra’s case (Supra), the unmarried sister-in-law, i.e., Nand and Jeth (Elder brother of husband and brother-in-law) were arrayed as the accused and they were of no concern with the occurrence. Hence, in such circumstances, law was laid by the Apex Court, whereas, in present case, learned Magistrate has applied its judicial mind and on the application of judicial mind, on the basis of evidences, collected by the Investigating Officer, in the Case Diary, impugned summoning order has been passed.

Remaining argument of present applicants of having no concern with the occurrence of dowry death, is a question of fact to be seen by the Trial court and this Court, in exercise of inherent power, under Section 482 of Cr.P.C., is not expected to embark upon factual matrix because it may prejudice a fair trial.

Regarding prevention of abuse of process of Court, Apex Court, in the case of Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494, has propounded “To prevent abuse of the process of the Court, High Court, in exercise of its inherent powers under section 482, could quash the proceedings, but, there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive” as well as in the case of State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded “In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not”.

Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.

In view of what has been discussed above, this Application, under Section 482 of Cr.P.C., merits dismissal and it stands dismissed accordingly. However, it is made clear that the Trial court has to make trial as per evidence to be led before it and the law of Legislation as well as precedents on the subject and not to be influenced by any observations or findings made, hereinabove, in this judgment because the same was pertaining to this proceeding only.

However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgement passed by Hon’ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

For a period of 30 days from today, no coercive action shall be taken against the applicants.

In case, if the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

Order Date :- 6.2.2020

bgs/

 

 

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