Court No. - 77
Case :- APPLICATION U/S 482 No. - 10435 of 2017
Applicant :- Dr. Ajit Kumar Jaiswal And 4 Others
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Arnab Banerji,Sharad Malviya
Counsel for Opposite Party :- G.A.,Vinay Kumar Mishra
Hon'ble Ram Krishna Gautam,J.
None is for the applicant whereas learned counsel for the opposite party as well as learned AGA is present.
Vide order dated 23.10.2018, it was observed that the counsel for the applicants must ensure his presence on the next date, in the first round, otherwise, the Court shall proceed and decide the matter on the basis of record, in his absence. The case shall not be adjourned, on the basis of absence of counsel or illness slip.
The applicants namely, Dr. Ajit Kumar Jaiswal, Amarnath Jaiswal, Alok Kumar Jaiswal, Smt. Priyanka Jaiswal alias Gudiya and Dr. Kartikey, by means of this application under Section 482 Cr.P.C., have invoked the inherent jurisdiction of the Court with prayer to quash the entire proceeding of Complaint Case No. 32 of 2016 (Mithlesh Gupta vs. Dr. Ajit Kumar Jaiswal and others), under Section 12 of Domestice Voilence Act, P.S. Shahpur, Gorakhpur, pending before the Additional Chief Judicial Magistrate-3, Gorakhpur.
The memo contains, applicant No. 1, is the husband of opposite party No. 2 and the applicant No. 2 is father-in-law, applicant No. 3 is brother-in-law, applicant No. 4 is sister-in-law and applicant No. 5, is brother-in-law of opposite party No. 2- complainant. Applicant No. 1, was married with opposite party No. 2, on 15.5.011, as per Hindu rituals. There had been no demand of dowry or cruelty with regard to it. But after marriage, opposite party No. 2, came to her matrimonial house and remained there for ten days. Then after left to her parental home. She resided thereat much more than the matrimonial house. Even in the death of mother of applicant No. 1 on 6.3.2012, she was with her parents at her home, she came to her matrimonial house and after 15 days, she left it for her parental house. Repeated efforts were made for getting the matter settled but of no avail.
At this stage, learned counsel for the the applicants appeared and with excuse for his absence, intervened in the argument, when order was being dictated, but this Court heard him also. He argued that no violence was ever took place and she had voluntarily left her matrimonial house, with a view, to harass. Hence, this complaint has been filed.
Learned counsel for the opposite party No. 2 as well as learned AGA has vehemently opposed the above prayer, with this contention that mediation could not be successful because of non-cooperation by applicants. Opposite party No. 2, is legally wedded wife of applicant No. 1, who is a medical officer and opposite party No. 2, is living in desertion. She was given cruelty and torture, for which this proceeding under the Protection of Women from Domestic Violence Act, 2005, has been filed and with a view to harass, this application has been filed.
Having heard learned counsels for both sides and gone through the material placed on record, it is apparent that opposite party No. 2, is wife of applicant No. 1. Admittedly, she is living at her parental house and this has been said by her owing to her desertion, whereas by applicants that she has voluntarily living at her parental house. This has been said that she was met with domestic violence, which has been denied. But all these facts are a question of fact, to be seen by trial Court and this Court in exercise of inherent power under Section 482 of Cr.P.C., is not expected to make analytical analysis of evidence and fact of the case, as the same is the question before trial court.
Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr.
LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court". In another subsequent Hamida v. Rashid, (2008) 1 SCC 474, hon'ble Apex Court propounded that "Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice". In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781, the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".
Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1, Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".
Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above. The impugned order was well based on evidence and facts collected by Magistrate in its enquiry. Hence, this proceeding merits its dismissal.
Dismissed, accordingly.
Order Date :- 18.12.2019 Kamarjahan