Court No. - 70
Case :- APPLICATION U/S 482 No. - 5883 of 2010 Applicant :- Mukesh Jatav And Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Santosh Shukla Counsel for Opposite Party :- Govt. Advocate
Hon'ble Sanjay Kumar Singh,J.
Heard Sri Santosh Shukla, learned counsel for the applicants and learned Additional Government Advocate on behalf of the State and perused the record.
This application under section 482 Cr.P.C. has been filed by the applicants (who are husband, brother-in-law, father-in-law and mother-in-law of the opposite party no.2) with a prayer to quash the chargesheet dated 11.08.2009 as well as cognizance order dated 07.09.2009 and all other proceeding of Case No.699 of 2009 (State of U.P. vs. Mukesh & others), under sections 498- A, 323, 506 I.P.C., pending in the court of Civil Judge (Junior Division), Shikohabad, District Firozabad.
As per the prosecution case, the applicant no.1 was harassing and torturing the opposite party no.2 to bring money from her parents and on refusal from the side of the opposite party no.2, he used to beat her badly. It is further alleged that on 27.07.2009, the applicants kept her in a room and poured kerosene oil in order to burn her but on the information given to the police by the brother of the opposite party no.2, she saved her life. FIR in this regard has been lodged by the opposite party no.2 on 03.08.2009 in respect of alleged incident dated 27.07.2009 as Case Crime No.142 of 2009 under sections 323, 498A, 506 I.P.C. and 3/4 Dowry Prohibition Act, Police Station Khairgarh, District Firozabad. The investigation officer after investigation has submitted chargesheet dated 11.08.2009 against the applicants, on which the learned magistrate took cognizance on 07.09.2009.
Aggrieved by the impugned chargesheet and cognizance order dated 07.09.2009, the applicants preferred this application.
Learned counsel for the applicants submitted that in the year 2007 opposite party no.2 had filed a case No.222 of 2007 under section 13 of the Hindu Marriage Act on 3.10.2007 which was ex-parte allowed /decreed by order dated 05.08.2008 by Civil Judge (Senior Division) Firozabad and as such marriage between the applicant no.1 and opposite party no.2 was dissolved on 05.08.2008. It is next submitted in the divorce decree dated 05.08.2008 the stand of the opposite party no.2 has been mentioned that she has already been kicked out on 15.08.2006 from her matrimonial house. It is next submitted that it is admitted case of the opposite party no.2 (wife) that since 15.08.2006 she was living separately and she was not living in her matrimonial house but in the impugned FIR, the date of incident has been shown as 27.07.2009 which is apparently false on the face of the record itself as the opposite party no.2 was not living since 15.08.2006 in her matrimonial house.
On the strength of the aforesaid facts it is submitted by the learned counsel for the applicants that no offence is made out against the applicants. The allegations against the applicants are false based on concocted facts, therefore, criminal proceedings pursuant to the impugned charge-sheet dated 12.08.2009 is liable to be quashed.
Per contra, learned AGA has submitted that considering the uncontroverted allegations levelled in the impugned FIR against the applicants by the opposite party no.2, prima-facie offence is made out against the applicants, therefore, the application is liable to be dismissed.
After having heard the learned counsel for the parties and perusing the material available on record, I find that in the impugned judgement and order dated 05.08.2008 passed under section 13 of the Hindu Marriage Act appended as Annexure 6 to the application, it is mentioned that the opposite party no.2 has been thrown out by the applicants from her matrimonial house on 15.08.2006 but the learned counsel for the applicants is not in a position to tell the court that whether ex-parte judgment and order dated 05.08.2008 is a part of case diary or not.
Considering the material evidence on record, I feel that the applicants have a remedy to move discharge application before the court concerned at appropriate stage. It is settled law that this court in exercise of power under section 482 Cr.P.C. cannot decide the disputed question of facts at the pre-trial stage. Appreciation of evidence is a function of trial court, therefore, process of trial cannot be put to an end.
In view of above, relief claimed by the applicants is refused. However, it is directed that in case the applicants move discharge application before the court concerned at the appropriate stage, the same shall be heard and decided taking into consideration of the order dated 05.08.2008 passed by Civil Judge (Senior Division) Firozabad.
With these observations, the application is disposed of.
Order Date :- 30.1.2019 SKD