Court No. - 68
Case :- APPLICATION U/S 482 No. - 6855 of 2019 Applicant :- Santosh Kumar And 2 Ors Opposite Party :- State Of U.P. And Anr Counsel for Applicant :- Dinesh Kumar Verma Counsel for Opposite Party :- G.A.
Hon'ble Bachchoo Lal,J.
Heard learned counsel for the applicants, learned A.G.A. for the State and perused the record.
The present application under Section 482 Cr.P.C. has been filed for quashing the summoning order dated 28.5.2018 passed by the learned Chief Judicial Magistrate, Etawah in complaint Case no. 364 of 2013, under Sections 498A,304-B IPC and 3/4 D.P. Act, P.S. Usrahar, District Etawah pending in the court of Chief Judicial Magistrate, Etawah.
Learned counsel for the applicants submits that initially Smt. Chhannu Devi mother of the deceased has lodged an FIR under sections 498A, 304-B, 506 IPC and 3/4 D.P. Act against the applicants and one other and in that case the final report was submitted by the investigating officer, thereafter Ram Ratan Jatav uncle of the deceased showing himself the father of the deceased has lodged an FIR against the applicants and two others and in that case the final report was also submitted by the investigating officer, thereafter the opposite party no. 2 has filed a protest petition and on the basis of the statements of the complainant and witnesses recorded under sections 200 and 202 Cr.P.C. the applicants have been summoned to face the trial. In fact no offence is made out against the applicants. The deceased died due to tuberculosis disease. The opposite party no. 2 was also witness in inquest but at the time of the inquest of the deceased he has not made any complaint against the applicants and at the time of postmortem of the deceased the viscera was preserved and there is no viscera report on the record. In fact there was no dispute of demand of dowry. The opposite party no. 2 is not father of the deceased and he has wrongly shown himself to the father of the deceased. The impugned summoning order dated 28.5.2018 is not in accordance with law. The present prosecution has been instituted only for the purpose of harassment.
On the other hand learned A.G.A argued that in complaint it has mentioned that the marriage of the deceased was solemnized with Kanhaiya applicant no. 2 in the year 2010 and deceased died within one and half years of her marriage. At the time of the postmortem the cause of death of the deceased could not be ascertained therefore, the viscera was preserved. There is no material on record to show that the deceased died due to tuberculosis disease. In complaint as well as in the statement recorded under section 200 Cr.P.C the complainant/opposite party no. 2 has made allegation of demand of dowry against the applicants and he has stated that the deceased was harassed and tortured due to non fulfilment of demand of dowry. In the statement of opposite party no. 2 it has come that the dead body of the deceased was found in the house of the applicants and at the time of the alleged incident the husband and father in-law of the deceased were not present there. The FIR of the alleged incident was lodged by Smt. Chhannu Devi. In fact she has solemnized her second marriage with one Suresh prior to the alleged incident. Learned Magistrate has passed the impugned summoning order after considering the entire evidence available on record and finding a prima-facie case has summoned the applicants to face the trial under sections 498A, 304-B IPC and 3/4 D.P. Act. There is no illegality or infirmity in the impugned summoning order dated 28.5.2018 and there is no ground to quash the same.
A perusal of the record shows that initially the FIR of the alleged incident was lodged by one Smt. Chhannu Devi on 21.5.2011. In first information report Smt. Chhannu Devi has levelled the allegation of demand of dowry against the applicants and it has also been mentioned that the applicants have committed the murder of the deceased. In this case the investigating officer has submitted final report, thereafter, the FIR was lodged by opposite party no. 2 Ram Ratan on 1.7.2012 against the applicants and others in which the allegation of demand of dowry was also made against the applicants. It is not disputed that the deceased died within one and half years from her marriage. At the time of postmortem the cause of death of the deceased could not be ascertained therefore, viscera was preserved. There is no viscera report on record. The investigating officer in the FIR lodged by the opposite party no. 2 has submitted final report thereafter, the opposite party no. 2 has moved a protest petition which was treated as complaint and on the basis of statements of the complainant and witnesses recorded under sections 200 and 202 Cr.P.C the applicants have been summoned to face the trial. The witnesses in their statements recorded under section 200 and 202 Cr.P.C. have made allegation of harassment and torture of the deceased against the applicants for non fulfilment of demand of dowry. Learned Magistrate has passed the impugned summoning order after considering the entire evidence available on record and finding a prima-facie case has summoned the applicants to face the trial under sections 498A, 304-B IPC and 3/4 D.P. Act. The Magistrate dealing with the complaint at this stage has to see only prima facie case and it cannot be said that no prima-facie case is made out against the applicants.
Considering the facts and circumstances of the case, I do not find any ground to quash the summoning order dated 28.5.2018 of the aforementioned case. Therefore, the prayer for quashing the same is hereby refused.
However, it is directed that if the applicants appear and surrender before the court below within 30 days from today and apply for bail, their prayer for bail shall be considered and decided expeditiously in accordance with law.
With the aforesaid directions, this application is finally disposed of.
Order Date :- 26.2.2019 A.