Court No. - 72
Case :- APPLICATION U/S 482 No. - 3686 of 2017 Applicant :- Mitesh Kumar And 4 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ravindra Nath Rai,Ashok Kumar Rai,Ghan Shyam Das Counsel for Opposite Party :- G.A.,Kapil Tyagi
Hon'ble Saumitra Dayal Singh,J.
1. Supplementary counter affidavit has been filed today. Taken on record.
2. Heard Shri Ghan Shyam Das, learned counsel for the applicants; Shri Samarth Sinha, Advocate, holding brief of Shri Kapil Tyagi, learned counsel for the opposite party no. 2 and; learned AGA for the State.
3. The present 482 Cr.P.C., application has been filed for quashing the proceedings arising out of Case No.2340 of 2013, under Sections 498-A, 323, 504, 506 I.P.C., and Section 3/4 Dowry Prohibition Act, Police Station Kasna, District Gautam Budh Nagar, pending before learned Additional Chief Judicial Magistrate, Ist, Gautam Budh Nagar.
4. Learned counsel for the applicants submits, arising from the matrimonial discord between the applicant no. 1 and opposite party no. 2, wholly vague and general allegations have been made against the applicant no. 1 (husband of the opposite party no. 2), his parents, paternal uncle and sister who was married in the year 1978. Thus, applicant nos. 2 to 5 are stated to have been falsely implicated, though, they had no role to play in the relationship between the applicant no.1 and opposite party no.2 and they had separate living from before. As to the FIR allegations, it has been submitted, they are wholly false. Neither any demand of dowry had been made by the applicants nor any assault or intimidation had been committed by them. There is neither any injury report nor any independent witness in support of the FIR allegations. Relying on the compromise that had been reached between the parties during the pendency of the criminal prosecution, it has been submitted, the applicant no.1 had also acted on such compromise and paid Rs. 7,00,000/- to the opposite party no.2, however, she changed her mind at the last moment, therefore, the said compromise could not be given effect to. Therefore, it has been prayed that the criminal prosecution is malicious and it may be quashed.
5. Learned counsel for the opposite party no. 2, on the other hand submits, the allegations made in the FIR are true and all the applicants were involved in the commission of the offence of demand of dowry, cruelty, assault and intimidation. Then, it has been submitted, the entire amount that had been paid by the applicant no.1 under the compromise, has been returned to the applicant no.1 together with interest. The compromise failed because of the fact that the applicant no.1 did not act upon the same in entirety and only wanted to use it as a pretence to avoid criminal prosecution.
6. Having heard learned counsel for the parties and having perused the complaint, it appears, there are ingredients of the offence alleged against the applicant no.1, both in the shape of the FIR allegations as also the supporting statements recorded under Section 164 Cr.P.C.
7. Insofar as applicant no.1 is concerned, the relief prayed for quashing the proceeding against him in the aforesaid case, is declined.
8. However, it is provided that if the applicant no.1 appears and surrenders before the court below within 45 days from today and applies for bail, his prayer for bail shall be considered and decided in view of the settled law laid 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 Lal Kamlendra Pratap Singh Vs. State of U.P. reported in 2009 (3) ADJ 322 (SC). For a period of 45 days from today, no coercive action shall be taken against the applicant no.1.
9. With the aforesaid observation, this application is disposed of in respect of applicant no. 1.
10. Insofar as the applicant nos. 2 to 5 are concerned, in the first place, the applicant no.4 is the paternal uncle of applicant no.1 while applicant no.5 is married sister of applicant no.1, who was married in the year 1978, well before the marriage of the applicant no.1 and opposite party no.2 which was performed in the year 2005. Keeping that fact in mind and examined in that light, it appears that while the applicant nos. 2 to 5 have their permanent residence at Bihar and the applicant no.1 at that relevant time was working at NOIDA, it is inherently improbable that such an allegation should have arisen against those applicants.
11. In view of the principle of law down by the Supreme Court in Geeta Mehrotra & Another Vs. State of Uttar Pradesh reported in (2012) 10 SCC 741 and Preeti Gupta & Another Vs. State of Jharkhand & Another reported in (2010) 7 SCC 667, the allegations made against the applicant nos. 2 to 5 are wholly vague and general and the proceeding against them in the aforesaid case is hereby quashed.
12. Accordingly, the present application is allowed in respect of applicant nos. 2 to 5.
13. With the aforesaid observations, the present application is finally disposed of.
Order Date :- 31.5.2019 Prakhar