HIGH COURT OF JUDICATURE AT ALLAHABAD

AFR

Court No.74

Criminal Misc. Application No.6411 of 2020

(Under Section 482 of Cr.P.C.P)

Syed Nadeem Tariq………………………..Applicant

Vs.

State of U.P. and another…………Opposite parties

Hon’ble Ram Krishna Gautam, J.

This Application, under Section 482 of Code of Criminal Procedure, 1973, has been filed by the Applicant, Syed Nadeem Tariq, with a prayer for setting aside impugned order, dated 22.1.2020, passed by the Additional Sessions Judge (Offences Against Women), Rampur, in Session Trial No.106 of 2019, State vs. Nadeem Tariq, arising out of Case Crime No.49 2014, under Sections 498A, 323, 315, 504 and 506 of IPC, read with Sections 3/4 of Dowry Prohibition Act, Police Station-Ganj, District-Rampur.

Learned counsel for applicant argued that a Discharge Application was moved before the Trial court, under Section 227 of Cr.P.C., wherein, it was specifically mentioned that there is no medical report, annexed with the case diary, nor any evidence of offence, punishable, under Section 315 of IPC, was there, except statement of the Medical Officer, alleged to have been recorded, under Section 161 of Cr.P.C., which, too, was much delayed, whereas, concerned Medical Officer was not competent to make mechanical termination of pregnancy because as per the Act, related with Mechanical Termination of Pregnancy Act, 1971 (Act No.34 of 1971) and the Rules framed thereunder, mechanical termination of pregnancy is to be conducted by a Panel of two Doctors. Hence, the statement of concerned Doctor was of no concern and this fact was not considered by the Trial court, while rejecting Application, under Section 227 of Cr.P.C. The grievance is not related with other offences, i.e., offences, punishable under Sections 498A, 323, 504 and 506 of IPC, read with Sections 3/4 of Dowry Prohibition Act, except framing of charge, for offence, punishable, under Section 315 of IPC, which is an abuse of process of law. Hence, this Application, under Section 482 of Cr.P.C, with above prayer, for avoiding abuse of process of law and for securing ends of justice, has been filed before this Court.

Learned counsel, appearing for other side, while vehemently opposing this Application, has contended that there was evidence, constituting offence, punishable, under Section 315 of IPC, and this Court is not to analyse fact, in exercise of jurisdiction, under Section 482 of Cr.P.C., particularly, when offences, punishable, under other Sections of IPC and Dowry Prohibition Act, were admitted to be there for framing of charges and the grievance of applicant is confined with offence, punishable, under Section 315 of IPC only.

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

From very perusal of the order passed by a coordinate Bench of this Court, in Application U/S 482 No.39235 of 2016, Nadeem Tarik and 2 others vs. State of U.P. and another, it is apparent that the proceeding, arising out of this very case crime number, was challenged in that very Application, with a prayer for quashing of chargesheet and cognizance taking order, passed therein, and this Court, while entertaining that Application, vide order, dated 19.12.2016, has held that it cannot be said that there is no ground for proceeding or taking of cognizance. Meaning thereby, grounds were held to be present, prima facie, at that juncture, though an opportunity for moving a Discharge Application, at appropriate stage was given and, in exercise of that very option, an application was moved.

The statement of victim and other witnesses of fact are there, wherein, it has been specifically alleged that owing to injury caused by the present applicant to the victim-applicant, who was pregnant, she suffered death of her ovum, wherefor, she has to seek medical assistance for termination of fetus. This fact has been corroborated by the Medical Officer, who had conducted above surgery. Hence, at this juncture, this Court may not analyse above factual aspect because the same falls within the domain of the Trial court, concerned, but, prima facie, there is sufficient evidence for framing of charge, for offence, punishable, under Section 315 of IPC, because as per the law laid down by the Apex Court, in the case of Palwinder Singh vs. Malwinder Singh, reported in (2008) 14 Supreme Court Cases 504, for framing of charge even a strong suspicion may be sufficient ground.

Competence of Medical Officer for conducting mechanical termination of pregnancy etc. etc. are to be seen by the Trial court, but apparently, the fetus was dead, and thenafter, it was terminated, by way of getting it out by the concerned Medical Officer. It was not an mechanical termination of pregnancy, rather, it was conducted after death of fetus because of alleged injury, caused by the husband, applicant herein.

Hence, under all above facts and circumstances, there appears to be no abuse of process of law. Accordingly, in view of what has been discussed, hereinabove, this Application, under Section 482 of Cr.P.C., merits its dismissal and it stands dismissed as such. However, the Trial court, is not to be influenced by any of the finding or observations, made hereinabove, in this order, rather, it ha to make judicial making decision on the basis of evidence and materials available before it.

18.2.2020

bgs/-