Court No. - 70
Case :- APPLICATION U/S 482 No. - 31284 of 2010 Applicant :- Smt. Neelam And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- G.S.Chauhan,Manish Chandra Tewari Counsel for Opposite Party :- Govt.Advocate,Jai Singh Parihar
Hon'ble Sanjay Kumar Singh,J.
Case called out in revised list.
No one is present on behalf of opposite party no.2.
Heard learned counsel for the applicants and learned A.G.A. for the State.
This application under Section 482 Cr.P.C. has been filed by the applicants who are wife, father-in-law, mother-in-law of the opposite party no. 2 (husband) with a prayer to quash the Complaint Case No. 1897 of 2010, under Sections 406, 420, 120B I.P.C. pending in the Court of Chief Judicial Magistrate Garotha, District-Jhansi and summoning order dated 19.08.2010.
It is submitted by learned counsel for the applicants that pursuant to application dated 15.05.2010, under Section 156 (3) Cr.P.C. of the opposite party no.2 a criminal proceedings was initiated against the applicants.The said application of the opposite party no.2 was treated as a complaint by the learned Magistrate. Thereafter, the statement of the complainant/opposite party no. 2 was recorded under Section 200 Cr.P.C. on 21.06.2010, statement of Smt. Prabha was recorded under Section 202 Cr.P.C. as CW1 on 03.08.2010 and statement of Kripa Ram was recorded as CW2 on 03.08.2010. Thereafter the applicants by the impugned order dated 19.08.2010 have been summoned to face trial under Sections 406, 420, 120B I.P.C. It is submitted by learned counsel for the applicants that in fact the initiation of criminal proceeding pursuant to application dated 15.05.2010 of the opposite party no. 2 is nothing but the counterblast to the F.I.R. lodged from the side of the applicants and other proceedings initiated by the applicant no.1 against opposite party no.2.
In this background of the fact, learned counsel for the applicants has placed reliance certain documents which are as follows:-
(i) It is submitted that on 14.11.2008 a case No. 2093 of 2008 was filed by the applicant no. 1 against the opposite party no. 2 and his family members under Sections 18, 20 and 22 of the Domestic Violence Act ( Act No. 43 of 2005).
(ii) On 22.11.2008, applicant no.1 has made a complaint to the Senior Superintendent of police, Jhansi, against opposite party no.2.
(iii) On 12.12.2008, the opposite party no.2 settled the dispute outside the court and executed a compromise deed in this regard giving undertaking therein that he will keep the applicant no. 1 with all dignity and respects. The said compromise deed dated 12.12.2008 appended as Annexure No. 3 to the application.
(iv) It is submitted that on account of settlement made between the applicant no. 1 and opposite party no.2, the complaint filed by the applicant no.1 was dismissed by the Judicial Magistrate, Garotha, Jhansi by order dated 18.03.2009 under Section 203 Cr.P.C.
(v) It is next submitted that opposite party no.2 and his family members again started harassment, mental and physical torture of the applicant no.1, therefore, the applicant no. 1 having no option left lodged F.I.R. on 19.04.2010 as Case Crime No. 165 of 2010, under Sections 498A, 323, 504, 506 I.P.C. and 3/4 D. P. Act at PS Taharauli, District-Jhansi alleging therein that applicant no. 1 (wife of opposite party no.2) has received multiple injury. The copy of the injury report is appended as Annexure No. 6 to the application.
(vi) In the said case Crime No. 165 of 2010, Investigating Officer after investigation has found that allegations against opposite party no.2 and his family members are correct. Hence, on finding the material evidence against them, submitted the charge sheet dated 18.05.2010 and as such the opposite party no.2 and his family members, who are charge-sheeted and facing criminal trial.
(vii) It is next submitted that the applicant no. 1 has also initiated a proceeding under Section 125 Cr.P.C. against opposite party no.2 on 15.05.2010 and on the same day of moving the application dated 15.05.2010, the impugned criminal proceeding has been initiated by the opposite party no.2 through an application under Section 156 (3) Cr.P.C. It has been contended by learned counsel for the applicants that impugned application under Section 156 (3) Cr.P.C. dated 15.05.2010 has not been supported by the affidavit, therefore, the same cannot be taken into consideration.
(viii) Learned counsel for the applicants has also placed reliance on the judgement in the case of Priyanka Srivastava and another Vs. State of U.P. and others (2015) 6 SCC 287, wherein the Apex Court has settled that every application under Section 156 (3) Cr.P.C. must be supported by an affidavit.
The observation made by the Apex Court in para 30 and 31 of the aforesaid judgment are reproduced herein below:-
"30. In our considered opinion, a stage has come in this country where Section 156(3) Cr.P.C. applications are to be supported by an affidavit duly sworn by the applicant who seeks the invocation of the jurisdiction of the Magistrate. That apart, in an appropriate case, the learned Magistrate would be well advised to verify the truth and also can verify the veracity of the allegations. This affidavit can make the applicant more responsible. We are compelled to say so as such kind of applications are being filed in a routine manner without taking any responsibility whatsoever only to harass certain persons. That apart, it becomes more disturbing and alarming when one tries to pick up people who are passing orders under a statutory provision which can be challenged under the framework of said Act or under Article 226 of the Constitution of India. But it cannot be done to take undue advantage in a criminal court as if somebody is determined to settle the scores.
31.We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."
(ix) Learned counsel for the applicants also placed reliance on the judgement of Apex Court in the case of State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426 wherein the Apex Court has recognized certain categories where this Court can exercise its power under Section 482 Cr.P.C. to quash the proceedings.
(x) It is next submitted that even accepting the prosecution case as it is, no prima facie case against the applicants are made out. Therefore, the initiation of proceeding is an abuse of process of Court and is liable to be quashed.
Per contra, learned A.G.A. for the State has submitted that since the applicant no. 1 is wife of the opposite no. 2, therefore, the allegation as levelled against the opposite party no.2 in the application dated 15.05.2010 cannot be seen from the suspected eyes. Learned A.G.A. further submitted that prima facie offence against the applicants are made out on accepting the contents of application under Section 156 (3) Cr.P.C. of the opposite party no2. Therefore, the application is liable to dismissed.
Having heard learned counsel for the parties and perusing the material evidence available on record in the light of law laiddown by the Apex Court in the case of Priyanka Srivastava and State of Haryana Vs. Bhajan Lal (supra), I find, it is a clear cut case of malicious prosecution which is not permissible under law. I also find that basis of criminal proceeding is an application under Section 156 (3) Cr.P.C. which is also not in accordance with the aforesaid law laiddown by the Apex Court. I also find that applicant no.1 who is wife of opposite party no.2, has been badly beaten by the opposite party no.2 and received multiple injuries, which are caused by hard and blunt object as mentioned in the injury report dated 09.04.2010. Under the facts and circumstances, this Court is of the opinion that in order to prevent abuse of process of Court and to secure ends of justice, it is necessary to quash the entire proceedings against the applicants because the same is malicious prosecution based on false concocted facts as well as the same is counterblast to the several proceeding initiated on behalf of applicant no.1.
In view of the above, the proceedings of complaint case No. 1897 of 2010 pending before the Judicial Magistrate, Garotha, District-Jhansi under Sections 406, 420, 120B I.P.C. and summoning order dated 19.08.2010 are hereby quashed.
The application is allowed.
Order Date :- 30.1.2019/AKT