Court No. - 44
Case :- APPLICATION U/S 482 No. - 13328 of 2018 Applicant :- Gaurav Nagpal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Yadvendra Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Yadvendra Singh, learned counsel for the applicant, and the learned A.G.A. for the State.
This application under Section 482 Cr.P.c. has been filed challenging the summoning order dated 26.7.2017, passed by the Additional Chief Judicial Magistrate-IV, Saharanpur in Complaint Case No. 721 of 2017 (Gauri Nagpal Vs. Gaurav Nagpal and another) under Sections 498A, 323 Dowry Prohibition act, Police Station Sadar Bazar, District Saharanpur as well as the entire proceedings of the aforesaid complaint case.
This application has been filed after an expiry of more than eight months from the date of passing of the summoning order dated 26.7.2017. Therefore, prima facie, this applicaiton is barred by laches.
Learned counsel for the applicant invited the attention of the Court to the averments made in paragraph 3 of the supplementary affidavit. On the basis thereof, he submits that there is no deliberate negligence or laches in filing the application and the laches in filing the application is sufficiently explained.
Accordingly, the laches in filing the present application are ignored.
The marriage of the applicant was solemnized with the opposite party No. 2 on 24.10.1999, and out of the aforesaid wedlock, two children were born. The applicant is the husband, whereas the opposite party no. 2 is the wife and therefore, the dispute between the parties is a matrimonial dispute and in case the matter is referred for mediation, the parties may get the opportunity to amicably settle their dispute. The Apex Court in the case of Rajesh Sharma and Others Vs. State of U.P. and another, reported in 2017 AIR (SC) 3869, wherein certain directions have been issued. Paragraph 19 of the judgement which contains the direction so issued, is reproduced hereunder:-
"19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
(i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
(ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
(iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
(iv) If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
(v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
(vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
(vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible physical injuries or death."
In view of the aforesaid, no useful purpose would be served by keeping the proceedings of the aforesaid case pending before this Court. The Court below is directed to refer the parties to the committee constituted for mediation at district concerned, within a period of 15 days from the date of receipt of the certified copy of this order.
The mediation centre shall submit its report within one month from the date of receipt of the case before the learned Magistrate.
For a period of two months from today or till the submission of the report by the mediation centre, no coercive action shall be taken against the applicants. If bail application is filed by the applicants, the same shall be decided according to the direction contained in Rajesh Sharma's case (supra).
It is however provided that in case the mediation fails, the applicants shall be at liberty to file a fresh application under Section 482 Cr.P.C.
With the aforesaid observations, this application under Section 482 Cr.P.C., stands disposed of.
Order Date :- 27.4.2018 Arshad