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V.V. Shree Khande And Others vs State Of U.P. And Another on 14 March, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Reserved

Court No. – 17

Case :- APPLICATION U/S 482 No. – 4314 of 2005

Applicant :- V.V. Shree Khande And Others

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

Counsel for Applicant :- Rajvi Gupta,Dileep Kumar

Counsel for Opposite Party :- Govt. Advocate,N K Srivastava,P K Srivastava

CONNECTED WITH

Case :APPLICATION U/S 482 No. – 6652 of 2005

Applicant :- Smt. Padma Sharma And Others

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

Counsel for Applicant :- Rajiv Gupta,Dileep Kumar

Counsel for Opposite Party :- Govt. Advocate,N.K. Sharma,Pankaj Kumar Srivastava

Hon’ble Suresh Kumar Gupta,J.

1. Both these applications under Section 482 Cr.P.C are based on same set of fact so both these applications decided by common order.

2. This application has been filed under Section 482 Cr.P.C with the request to quash the impugned order dated 7.4.2005 passed by the Additional Sessions Judge, Court No.13, Meerut in Criminal Revision No.468/04 Rajeev Sharma others v. Smt. Manmohini Sharma, and order dated 23.8.2004 passed by the learned Chief Judicial Magistrate, Meerut rejecting the final report and taking cognizance against the applicants and others by issuing process for facing trial under Sections 498-A, 323, 504, 506, 307 IPC and Section of the Dowry Prohibition Act.

3. Brief facts of the Application No.4314 of 2005 is that the applicant nos.1 to 3 are the senior citizens aged about 72 years, 78 years and 75 years, respectively. All are residing at their native place at Pune, New Delhi and Lucknow, respectively. Due to advance age they are facing various deceases and almost confined to their houses. Applicant no.4 is residing with her husband at Noida and she is actively connected with WHO and discharging her duties as program officer. All the four applicants are peace loving and law abiding citizens.

4. Brief fact of the Application No.6652 of 2005 is that one Padma Sharma, the sister of applicant nos.1 to 3 was married to Dr. K.S. Sharma who had been residing at Shashtri Nagar, Meerut, after his retirement from the post of Professor, Smt. Padma Sharma has been residing at her husband’s self owned house along with her two sons namely Sanjiv Sharma and Rajiv Sharma. Sanjeev Sharma is a bachelor and he has been discharging his duties as government servant in District Meerut. His younger son master Rajiv Sharma after completing his studies joined at MVM Institution as an Administrative Officer and also discharging his duties on the said post and he is posted at Sitapur since August 2000.

5. Common fact on the both applications are that on the basis of matrimonial advertisement published in Hindustan Times dated 27.5.2001, marriage of Rajeev Sharma with Manmohini Sharma was solemnized on 30.6.2001 in accordance with the Hindu religion and Customs in District Meerut. After the marriage there was strained relations between the husband and wife as Smt. Manmohini Sharma started misbehaving with her mother in law and her conduct and behavior has become intolerable. Since, Manmohini Sharma’s father Sri Jag Charan Sharma was a Police Inspector and residing at some distance from the house of Padma Sharma he also started interference in the peaceful matrimonial life of his daughter. He and his daughter had also threatened the family members of Padma Sharma for dire consequences and also threatened to implicate them in false cases of demand of dowry, maltreatment and harassment. After misbehabviour and misconduct of Manmohini Sharma and her father Jag Charan Sharma a complaint letter was addressed to DIG Police, Lucknow and Senior Superintendent of Meerut. On the insistence of Jag Charan Sharma and Manmohini Sharma, Rajiv Sharma had taken a separate accommodation in the house of one Jai Narayan Sharma and started living in the said accommodation, however, Manmohini Sharma had refused to shift in the said accommodation. There was strained relationships between the husband and the wife and Smt. Manmohini Sharma has refused to reconcile the matter. Since Rajeev Sharma was living separately and in spite of notice, his wife did not turn up to live with him at his separate rental accommodation and for securing a suitable job he shifted to Modi Nagar. Meanwhile, Manmohini Sharma arrived at the house of Smt. Padma Sharma and started living there. She had refused to live with her husband and started demanding the transfer of the house in her name so that she may fully secured at her in-law’s place. In the month of May 2002 Rajiv Sharma was also physically assaulted by Manmohini Sharma. Due to such circumstances Rajiv Sharma filed a divorce petition on account of her cruel treatment under Section 13 of the Hindu Marriage Act in Family Court on 21.10.2002. On receiving the notice, Smt. Manmohini Sharma in the form of fabricated will of Krishna Swaroop Sharma, the owner of the house expressing his will to transfer his house in favor of his prospective daughter-in-law (would be wife of Rajiv Sharma). On the basis of said fabricated and forged will she tried to grave his house. Krishna Swaroop Sharma after getting the knowledge about the fabricated will of Krishna Sharma, a complaint was registered in the form of application under Section 156 (3) Cr.P.C before the Chief Judicial Magistrate, Meerut on 20.1.2003.

6. Learned Chief Judicial Magistrate, Meerut treated this application u/s 156(3) Cr.P.C. as complaint case inquiry in respect of which is pending before the court of Magistrate. On 22.1.2003 an application was registered at the office of DIG Police in which it is alleged that an assault was made on Smt. Manmohini Sharma and her father Jag Charan Sharma by resorting to the firing at the house of Smt. Padma Sharma on 20.1.2003 at about 8:15 p.m. It is also alleged that in said incident, a stray pellet injury on the hip was received from the firing made by one Kehar Singh and associate of Sanjeev Sharma. The other shots fired by Sanjeev Sharma aiming towards her, however, did not hit her. On the said averment case crime no.10 of 2003 under Sections 498A, 323, 504, 506, 307 I.P.C and of the Dowry Prohibition Act was registered against the applicants along with Rajeev Sharma, Sanjeev Sharma and Kehar Singh. During the course of investigation, injury report was produced which reveals that there is stray pellet superficial injuries on back at the right shoulder. Injury report reveals that medico legal was made under the direction of of Minister of State of Government of U.P. Investigating Officer had interrogated S.I Rajeev Gupta who had denied the factum of the said incident and also visited of Smt. Manmohini Sharma in an injured condition at the police station and also examined the independent witnesses Natiram, Gulzar and Zabbar who had specifically denied the factum of the alleged incident of firing. On the basis of investigation, after interrogated all the concerned persons the I.O. Was of the view that the F.I.R has been lodged on perse-false allegations and the said story has been concocted only to grab the property belonging to Smt. Padma Sharma.

7. After receiving the final report, learned Magistrate issued notices to Smt. Manmohini Sharma, the first informant, who appeared in the court and filed the protest petition on 8th December, 2004 along with medical reports, copy of injury report, treatment of radiology and electro therapy (X-ray report) and other prescription of the treatment. The learned Magistrate had considered the aforesaid extraneous materials which are not the part of the police report/case diary while issuing the process against the applicants and other persons for facing the trial.

8. The impugned order is therefore based upon the extraneous materials filed along with the protest petition, so, the learned counsel for the applicants contended that cognizance cannot be treated under Section 190(1) (b) Cr.P.C. It is also contended that it is well settled principle of law that the court of Magistrate cannot jumble up the two procedures while passing the order taking the cognizance and issuing the process if the protest petition is separated by such material which are not the part of the police report/case diary then the procedure provide under Chapter-XV of Cr.P.C is to be adopted and after holding the enquiry under Section 202 Cr.P.C. It is also contended by learned counsel for the applicants that the Magistrate to take cognizance under Section 190(1) (b) Cr.P.C if the protest petition is filed along with the other materials which are not the part of the police report therefore the order of taking cognizance cannot be treated an order passed under Section 190(1) (b) Cr.P.C. Since no inquiry as contemplated under Section 202 Cr.P.C is conducted therefore the cognizance cannot be taken and the order issuing process becomes illegal and liable to be set aside.

9. Being aggrieved with this summoning order dated 23.8.2004 u/s 190(1) (6) passed against the applicant u/s 498A, 323, 504, 506, 307, 3/4 D.P. Act, the applicants preferred revision before the court of Sessions Judge. Revision was dismissed, vide order dated 7.4.2005. Learned Magistrate court and revisional court committed gross illegality in dismissing the revision on erroneous considerations. Learned counsel for the applicant contended that the courts below are patently illegal and cannot be sustainable in the eyes of law, so, the entire proceedings against the applicants are liable to be quashed.

10. Counter affidavit with stay vacation application filed by o.p. no.2 on 5.7.2005 in which the o.p. no.2 clearly denied the averments made by the applicants in their affidavit. It is further stated that applicants are party to aforesaid offence and they are the instrumental encouraging the ill-behaviour and cruelty towards o.p. no.2 Manmohini Sharma. No ground has been made out by applicants for invoking the inherent jurisdiction u/s 482 Cr.P.c. and the present applicant is deserve to dismissed.

11. I have heard the learned counsel for the applicants and learned AGA and perused the record.

12. After submission of final report in criminal case following four courses are open to the Magistrate and he may adopt any one of them as the facts and circumstances of the case may require. (i) to accept final report (ii) to take cognizance of the offence against a person although a final report has been filed by the police in the event sufficient material exist in the C.D. itself, (iii) in the event protest petition filed to treat the same as a complaint petition and prima facie case is made out, to issue precess to the accused (iv) to direct re-investigate the matter.

13. Now, the question arises in this case whether the Magistrate direct to take cognizance under Section 190(1) (b) Cr.P.C. and issue process to the accused without conclusion of the investigating agency in this case.

14. On perusing the summoning order, it is crystal clear that learned Magistrate on the basis of evidence collected by investigating officer and perusing the statement u/s 161 Cr.P.C. of the victim and victim’s father and another witness Smt. Vijai Laxmi and the neighbour of the victim Sita Ram Gupta and Premwati seven affidavit of the witness, injury report and X-ray report is also enclosed in C.D. on perusing the above statement and material on recorddirectly summoned the applicant u/s 498-A, 323, 504, 506, 307 IPC and 3/4 D.P. Act. The basis of summoning of the accused is the material collected by the I.O. during investigation. Learned Magistrate does not take extraneous consideration or any extraneous material. Learned Magistrate summoned the accused only on the material collected during the investigation. In this case, Magistrate is rightly summoned the accused under Section 190(1) (b) Cr.P.C. and in this case Magistrate are not bound to follow the procedure laid down for complaint case.

15. Learned counsel for the applicants relied upon in the case of Pakhandu and others vs. State of U.P. and another passed in Cri. Misc. Application No.3264 of 2000, paras 15 and 16 of the above case are being quoted below :-

“(15) From the aforesaid decisions, it is thus clear that where the Magistrate receives final report the following four courses are open to him and he may adopt any one of them as the facts and circumstances of the case may require:-(I) He may agreeing with the conclusions arrived at by the police, accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or (II) He may take cognizance under Section 190(1) (b) and issue process straightway to the accused without being bound by the sufficient ground to proceed; or (III) He may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or (IV) He may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1) (a) upon the origin complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr. P.C. and thereafter decided whether complaint should be dismissed or process should be issued.”

16. Where the Magistrate decides to take cognizance of the case under Section 190 (1)(b) of the Code ignoring the conclusions arrived at by the investigating agency and applying his mind independently to the facts emerging from the investigation records, in such a situation the Magistrate is not bound to follow the procedure laid down in Section 200 and 202 of the Code, and consequently the proviso to Section 202(2) Cr. P.C. will have no application. It would however be relevant to mention that for forming such as independent opinion the Magistrate can act only upon the statements of witnesses recorded by the police in the diary and other material collected during investigation. It is not permissible for him at that stage to make use of any material other than investigation records, unless he decides to take cognizance under Section 190(1)(a) of the code and calls upon the complainant to examine himself and the witnesses present, if any, under Section 200.”

16. It was held by this Court in the case of Mahendra Pal Sharma vs. State of U.P. reported in 2002 (45) ACC 1127. Para 12 of the above case is being quoted below :-

“(12) The learned Magistrate on receiving final report submitted in the case issued notice to the opposite party No.4, the complainant of the case in view of decision of the Apex Court in Abhinandan Jha v. Dinesh Mishra 1967 (4) ACC 306 SC, through no such specific provision is contained in the Cr.P.C. The question as to what is the position when the Magistrate is dealing with the report submitted by the police under Section 173 Cr.P.C. has been answered by the Apex Court in the case of Abhinandan Jha v. Disnesh Mishra (supra) and it was held that the Magistrate on receiving of such report may accept the final report and close the proceedings. But there may be instances when the Magistrate may take a view on consideration of the final report; that the opinion formed by the police is not based on full and complete investigation in which case, the Magistrate will have ample jurisdiction to give directions to the police under Section 156 (3) Cr.P.C. i.e. if the Magistrate feels after considering the final report that the investigation is unsatisfactory or incomplete or that there is scope for further investigation, it will be open to the Magistrate to decline to accept the final report and direct police to make further investigation under Section 156 (3) Cr.P.C. The police after such further investigation may submit a charge-sheet or against submit a final report, depending upon the further investigation made by them. If ultimately, the Magistrate forms opinion that the facts set out in the final report constitute an offence, under Section 190 (1) (b) Cr.P.C. notwithstanding the contrary opinion of the police expressed in the final report. It was further held in the said case that it is open to the Magistrate to treat the respective protest petitions as complaint and take further proceedings according to law.”

17. The above view of Apex Court was against reiterated in the case of Rupan Deol Bajaj (Mrs.) and another Kanwar Pal Singh Gilland another 1995 ACC 786 (SC) and held as below:-

“In Abhinanadan Jha v. Dinesh Mishra (supra) the question arose whether a section 173 (1) Cr.P.C. had been submitted to the effect that no case had been made out against the accused, could direct the police to file a charge-sheet on hi disagreeing with that report. In answering the question this Court first observed that the use of the words “may take cognizance of any offence” in sub section (1) section 190 Cr.P.C. imports the exercise of “judicial discretion” and the Magistrate who receives the report under section 173 Cr.P.C. will have to consider the said report and judicially take a decision whether or not to take cognizance of the offence. The Court then held, in answering the question posed before it, that the Magistrate had no jurisdiction to direct the police to submit a charge-sheet but it was open to the Magistrate to agree or disagree with the police report, if he agreed with the report that there was no case made out for issuing process to the accused he might accept the report and close the proceedings. If he came to the conclusion that further investigation was necessary he might make an order to that effect under section 156 (3). It was further held that it ultimately the Magistrate was of the opinion that the facts set out in the police report constituted on offence he could take cognizance thereof notwithstanding contrary opinion of the police expressed in the report.”

18. Thus, it is settled view that the Magistrate on receipt of final report is not debarred from taking cognizance under section 190 (1) (b) of Cr.P.C. and he has not to adopt procedure of complaint case. Therefore, the contention of the learned counsel for the applicants that on receipt of final report, the Magistrate can only take cognizance after adopting procedure of complaint case under section 190 (1) (a) Cr.P.C. is not correct.

19. In this case, there is no irregularity or illegality committed by the Magistrate to follow the procedure under Section 190(1) (b) Cr.P.C. order in impugned magistrate pass summoning of the accused without taking any extraneous material so the order passed by the court below under Section 190(1) (b) Cr.P.C. is on the basis of evidence collected by the I.O. Final report was submitted by Investigating Officer only on considering evidence of defence witnesses. Investigating Officer completely overlooked the evidence of victim and statement of their witnesses. Session court also rejected the revision of the applicants on the said principle of law, so in this case, proceeding is perfectly legal and application u/s 482 Cr.P.C. is liable to be rejected, therefore, the Application u/s 482 No.6652 of 2005 is hereby rejected.

20. In so far as in regard to the Application u/s 482 No.4314 of 2005, applicant nos. 1 to 3 are the near relative but they are not the family members of the opposite party no.2 and they are the native of Pune, New Delhi and Lucknow, respectively. Applicant nos. 1 to 3 are the senior citizen. Applicant no.4 residing in Noida with her husband and working in Noida as Programme Officer in World Health Organization. There is no occasion to the applicants to torture or cruelty toward opposite party no.2. Opposite party no.2 are the next beneficiary in respect of demand of dowry. Learned counsel for the applicants further relied upon the judgements of Apex Court Geeta Mehrotra and another vs. State of U.P. Criminal Appeal No.1674 of 2012 Indian Penal Code, Section 498A ? Criminal case arising one of matrimonial disputes ? A fact borne out of experience cannot be overlooked that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial disputes ? it however, may not be misunderstood so as to infer that even if there are allegation of overt act indicating the complicity of the members of the family named in the FIR in a given case, cognizance would be unjustified.

21. In the light of the aforesaid aforesaid judgements, the Application u/s 482 No.4314 of 2005 is hereby allowed and the proceeding against the applicants are hereby quashed as per the principle laid down by the Hon’ble Apex Court in the case of Geeta Mehrotra and another vs. State of U.P. (supra).

22. Registry is directed to inform the trial court to proceed with the cases in accordance with law.

Order Date :- 14.3.2019

m.a.

 

 

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