Court No. - 75
Case :- APPLICATION U/S 482 No. - 5 of 2018 Applicant :- Danish And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Mukhtar Alam Counsel for Opposite Party :- G.A.,Ishwar Chandra Tyagi,Sunil Vashisth
Hon'ble Rajiv Gupta,J.
Heard learned counsel for the applicants, learned AGA for the State as well as Shri Anmol Kumar Dubey, Advocate holding brief of Shri Ishwar Chandra Tyagi, learned counsel for the Opposite Party No.2 and perused the record.
This application under Section 482 CrPC has been filed by the applicants with the prayer to quash the Charge-Sheet No. 560 of 2016 dated 20.12.2016 and cognizance order dated 26.07.2018 as well as entire criminal proceedings of Criminal Case No. 878 of 2017 (State Vs. Danish and others), arising out of Case Crime No. 297 of 2016, under Sections 498-A, 323, 325, 504, 506 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Deoband, District Saharanpur.
This Court vide its order dated 05.01.2018 has referred the matter to the Mediation Centre in order to enable the parties to reach an amicable settlement, however, Mediation Centre vide its report dated 27.04.2018 has reported that the parties could not reach to an amicable settlement and as such, mediation has failed.
As per the allegations made in the FIR, it is alleged that the daughter of Opposite Party No. 2 was married to applicant no.1 on 23.08.2015, however, after the said marriage, the applicants started demanding additional dowry and for non-fulfillment of demand of additional dowry, the applicants used to torture, maltreat and assault the daughter of Opposite Party No.2 and she was also turned out of her matrimonial home. On account of assault made by the applicants, victim has suffered injuries on her person and has been medically examined.
Learned counsel for the applicants has stated that daughter of Opposite Party No.2 has already remarried one Jaivardhan without any decree of divorce. He has next submitted that applicant nos. 2 and 3 have already been granted bail.
Learned counsel for the applicants has next submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, no offence is disclosed against the applicants and the present prosecution has been instituted with a malafide intention for the purposes of harassment. He has pointed out certain documents and statements in support of his contention.
Per contra, learned AGA has submitted that from the perusal of the allegations made in the FIR and the material collected during the course of investigation, prima facie offence is clearly made out against the applicants and as such, impugned cognizance order as well as entire criminal proceedings cannot be quashed.
Moreover, all the submissions made at the bar relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 CrPC. At this stage, only prima facie case is to be seen in the light of the law laid down by the Hon'ble Apex Court in the cases of R.P. Kapur Vs. State of Punjab, AIR 1960 SC 866, State of Haryana Vs. Bhajan Lal, 1992 SCC (Cri.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC (Cri.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another, (Para-10) 2005 SCC (Cri.) 283. The disputed defence of the accused cannot be considered at this stage.
Moreover, applicant nos. 2 and 3 have already been granted bail and they have got a right of discharge under Section 239 or 227/228 CrPC as the case may be through a proper application for the said purpose and they are free to take all the submissions in the said discharge application before the Trial Court.
The prayer for quashing the impugned cognizance order as well as entire criminal proceedings is therefore refused.
However, it is directed that if the applicant no.1 appears/surrenders before the court below within 30 days from today and applies for bail, his prayer for bail shall be considered and decided in view of settled law laid down by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC).
For a period of 30 days from today or till the applicant no.1 surrenders and applies for bail, whichever is earlier, no coercive action shall be taken against him. However, in case, the applicant no.1 does not appear before the court below within the aforesaid period, coercive action shall be taken against him.
With the aforesaid observations, this application under Section 482 CrPC is finally disposed of.
Order Date :- 27.11.2019 Nadim