Court No. - 70
Case :- APPLICATION U/S 482 No. - 28679 of 2019
Applicant :- Brijesh Kumar And 3 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Raghuraj Singh Counsel for Opposite Party :- G.A.
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicants and learned Additional Government Advocate representing the State and perused the materials available on record.
By means of this application under section 482 of the Code of Criminal Procedure, the applicants have invoked the inherent jurisdiction of this Court for quashing of the charge sheet dated 7.6.2018 as well as entire proceedings of Criminal Case No. 790 of 2018 (State vs Brijesh Kumar and others) arising out of Case Crime No. 485 of 2017, under sections 498-A, 323 and 504 IPC and section 3/4 of Dowry Prohibition Act, Police Station Achhalda, District Auraiya pending in the court of Civil Judge, (Junior Division), Auraiya.
It has been submitted by the learned counsel for the applicants that applicants No. 1 and 2 are brothers-in-law (Jeth), applicant No. 3, sister-in-law (Jethani) and applicant No. 4 is mother-in-law (Saas) of opposite party No. 2 and they have no concern with the matrimonial affair of opposite party No. 2 and her husband Akash (co- accused). It is further submitted that the allegations levelled against the applicants in the first information report are totally false and concocted, which was lodged after due consideration and manipulation only in order to harass and humiliate the applicants. It is also contended that there are contradictions in the first information report and the statement recorded under section 161 Cr.P.C. of opposite party No. 2 (first informant). The applicants have been falsely implicated on general and vague allegations. It is next submitted that in fact opposite party No. 2 was insisting the son of applicant No. 4 (husband of opposite party No. 2) to live separately from his family members, but the said proposal of opposite party No. 2 was refused by her husband, therefore, opposite party No. 2 being annoyed, lodged the impugned first information report roping the entire family members in the present case, as such, impugned charge sheet dated 07.06.2018 and criminal proceedings pursuant thereto against the applicants are liable to be quashed. The co-accused Akash (husband of opposite party No. 2) has been granted bail by the court below on 25.01.2019 and investigation against him is still pending.
Per contra, learned Additional Government Advocate submitted that considering the material evidences and allegations against the applicants on record, as on date, as per prosecution case, the cognizable offence against the applicants is made out. Under the facts and circumstances of the present case as well as materials on record against the applicants, the criminal proceedings against the applicants cannot be said to be abuse of the process of the Court. There is no illegality in the impugned criminal proceedings and charge sheet. It is also submitted that this application is liable to be dismissed.
After having heard learned counsel for the parties and perusing the entire record, I find that in the first information report there is specific allegation of torture and harassment of opposite party No. 2 for demand of dowry against all the accused persons. There is also an allegation that co-accused Akash (husband of opposite party No. 2) in collusion with applicants again performed his second marriage without giving divorce to opposite party No. 2. The allegation has also been levelled that from the wedlock of opposite party No. 2 and co-accused Akash, a daughter, namely, Sanjh was born, who is presently aged about four years, but opposite party No. 2 along with her daughter have been ousted from her matrimonial house. From the statement of opposite party No. 2 (informant) and her mother Shyama Devi, it is apparently clear that they have supported the prosecution case. There is no material on record to establish that the applicants are living separately.
Recently on 15.04.2019, the Apex Court in the case of Md.Allauddin Khan vs. The State of Bihar & others, 2019 (6) SCC, 107 has laid down the guideline for exercising power under Section 482 Cr.P.C. by observing that "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 "Cr.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 is yet to come in this case."
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 power under Section 482 Cr.P.C. cannot assume such jurisdiction and put 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 uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same 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.
In view of above, this Court does not find that this case fall in the 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. There is no manifest error of law in the impugned criminal proceedings, charge-sheet. The impugned criminal proceeding under the facts of this case cannot be said to be 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. Hence, criminal proceeding against the applicants is not liable to be quashed. The relief as claimed by the applicants in this application is accordingly refused.
At this stage, learned counsel for the applicants submitted that in case, some protection is granted by this Court, the applicants will surrender before the concerned court below. Learned Additional Government Advocate does not dispute such prayer of the applicants.
Considering the last prayer made by the learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within forty five days from today and apply for bail, the bail applications of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with settled law law laid by 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 passed by Hon'ble Apex Court in (2009) 4 Supreme Court Cases, 437; Lal Kamlendra Pratap Singh Vs. State of U.P.
For the period of forty five days from today, no coercive action shall be taken against the applicants in the above mentioned case.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 25.7.2019 Sumaira