Court No. - 27
Case :- APPLICATION U/S 482 No. - 1546 of 2019 Applicant :- Akash Balmiki Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ram Raj Pandey Counsel for Opposite Party :- G.A.
Hon'ble Saral Srivastava,J.
Heard learned counsel for the applicant and learned A.G.A. for the State.
By means of the present 482 Cr.P.C. application, applicant has challenged the order dated 6.12.2018 passed the Additional District & Sessions Judge/F.T.C. Court No.2, Baghpat in Session Trial No. 434 of 2018 (State Vs. Akash Balmiki) arising out of Case Crime No. 259 of 2018, under Section 306 I.P.C., P.S. Khekra, District Baghpat whereby, the applicant/accused has been summoned under Section 304-B of I.P.C.
It appears that marriage of Smt. Priyanka, daughter of respondent no.2, was solemnized with one Sumit on 28.02.2017. Respondent no.2 lodged the F.I.R. under Sections 498-A, 304-B of I.P.C. & 3/4 of Dowry Prohibition Act on the allegation that family members of husband of Smt. Priyanka demanded dowry and when their alleged demand of dowry was not met, Priyanka was killed. In the F.I.R. the applicant, who is neighbour of the husband of Smt. Priyanka, was also implicated with the allegation that applicant has given life threat to Smt. Priyanka several times and as the demand of dowry could not met, the daughter of O.P. No.2 was killed by hanging.
It appears that thereafter, O.P. No.2 submitted an application before the Superintendent of Police, Baghpat on 30.04.2018 stating therein that inadvertently and being perplexed on account of death of his daughter, he had lodged F.I.R. under Sections 498-A, 304-B of I.P.C. & 3/4 of Dowry Prohibition Act but the in-laws of deceased Priyanka never demanded any dowry and Smt. Priyanka committed suicide as she used to harass by the applicant/accused. Thereafter, all the named accused in the F.I.R. except the applicant/accused were exonerated and police submitted charge sheet under Section 306 of I.P.C. against the applicant/accused. It is further stated that applicant has been enlarged on bail in offence under Section 306 I.P.C. by this Court vide order dated 23.07.2018. Thereafter, O.P. No.2 Bheem Singh appeared as PW-1 in the criminal trial and in his statement he has again reiterated the same story which he has narrated in the F.I.R. It appears that thereafter, an application was submitted by the prosecution before the court below for framing charge against the applicant under Section 304-B I.P.C. The said application was allowed by the Additional District Judge/F.T.C. Court No.2, Baghpat whereby, he has summoned the applicant/accused under Section 304-B I.P.C.
Challenging the aforesaid order, learned counsel for the applicant/accused has contended that admittedly, applicant is a neighbour of the husband of the daughter of O.P. No.2 and on the admitted case between the parties that applicant is not relative of the husband of the daughter of O.P. No.2, therefore, no case under Section 304-B of I.P.C. is made out against the applicant/accused.
Submission is that the court below without appreciating correctly Section 304-B of I.P.C., has summoned the applicant/accused under the aforesaid section by the order impugned in the application.
Per contra, learned A.G.A. for the State submits that no useful purpose would be served by keeping the present application pending and, therefore, in the interest of justice, the matter may be remanded to the court below for deciding afresh application of the prosecution dated 06.12.2018.
I have considered the rival submissions of the parties and perused the record.
As per the version in F.I.R. and also from the contents of the application filed by the O.P. No.2 before the Superintendent of Police, applicant/accused is neighbour of husband of the deceased Priyanka and he does not fall under the category of relative of the husband of the deceased Priyanka. There is nothing on record to indicate that applicant is relative of the husband of deceased Priyanka. The court below while summoning the applicant/accused under Section 304-B I.P.C. has failed to consider this relevant aspect of the matter, which is one of the ingredients of Section 304-B I.P.C.
Thus, in view of the above, the order dated 6.12.2018 passed the Additional District & Sessions Judge/F.T.C. Court No.2, Baghpat in Session Trial No. 434 of 2018 in summoning the applicant/accused under Section 304-B I.P.C. is not sustainable and is set aside, and the matter is remanded back to the court below with a direction to decide the application of the prosecution afresh.
With the aforesaid observations, the application is
disposed of.
Order Date :- 21.1.2019 Sattyarth