Court No. - 70
Case :- APPLICATION U/S 482 No. - 28259 of 2019 Applicant :- Shyam Pal And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Janardan Yadav Counsel for Opposite Party :- G.A.,Ashok Kumar Yadav
Hon'ble Sanjay Kumar Singh,J.
An affidavit dated 26.7.2019 filed on behalf of the opposite party no.2 is taken on record.
Heard Sri Janardan Yadav, learned counsel for the applicants, learned Additional Government Advocate for the State/opposite party no.1 and Ashok Kumar Yadav, learned counsel appearing on behalf of the opposite party no.2 and perused the record with the assistance of learned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants with a prayer to quash proceedings of Criminal Case No. 395 of 2019 (State Vs. Shyam Pal and others) arising out of case crime no.475 of 2018, under Sections 506 IPC and Section 3/4 D.P. Act, Police Station Mahila Thana, District Allahabad pending in the Court of A.C.J.M., Court No.17, Allahabad.
Learned counsel for the applicants submitted that:-
(i) As per prosecution case, in brief, on 14.10.2018, the opposite party no.2 lodged FIR registered as Case Crime No. 475 of 2018, under Sections 406, 506 IPC and 3/4 D.P. Act against the applicants at Police Station Mahila Thana, District Allahabad making a false and frivolous allegations that marriage of his daughter Vinu was settled on 11.7.2018 with applicant no.1 and ring ceremony was performed on 15.7.2018 and thereafter marriage was fixed for 29.2.2019. In the ring ceremony, the opposite party no.2 has given cash, jewellery and cloth etc. and as such expended total Rs. 1,33,000/-, but thereafter the applicants started demanding Rs. 10 lakh and one swift dezire car in dowry. On non- fulfilment of the said demand of dowry, the applicants refused for marriage and also grabbed the aforesaid amount, articles, ornaments etc. given by the opposite party no.2 for settlement of marriage of his daughter.
(ii) In fact, on account of love affair of daughter of opposite party no.2 with her colleague, she herself was not inclined to solemnize her marriage with the applicant, but her father has settled her marriage against her wish.
(iii) In the settlement of aforesaid marriage, Sher Bahadur Pal was the mediator. It is submitted that during investigation, the applicants have returned the entire articles, Rs. 77,000/- etc. to the mediator Sher Bahadur Pal, who has returned the said articles and cash amount to Baij Nath (cousin brother of opposite party no.2) and Baij Nath on the direction of the opposite party no.2 handover the entire articles to Raju Pal (brother of the informant).
(iv) It is also submitted that after returning the entire articles and cash amount by the applicants, the Investigating Officer has submitted the charge-sheet against the applicants only under Section 506 and 3/4 D.P. Act.
(v) In paragraph no. 9 of the application, it is mentioned that after returning the cash amount and articles to the opposite party no.2, a demand of Rs. 1 lac has been made from the applicant no.1 and on refusal of the same, the impugned FIR has been lodged, therefore, the impugned criminal proceedings against the applicants is liable to be quashed.
Per contra, learned Additional Government Advocate for the State submitted that considering the material evidences and allegations against the applicants on record, as on date, as per prosecution case, the cognizable offence against the applicants is made out. Under the facts and circumstances of the present case as well as materials on record against the applicants, the criminal proceedings against the applicants cannot be said to be abuse of the process of the Court, therefore, the application is liable to be dismissed.
Learned counsel for the opposite party no.2 reiterating the arguments advanced on behalf of the State submitted that the cognizable offence is fully made out against the applicant. He further submitted that in the affidavit dated 26.7.2019 of the opposite party no.2, it is mentioned that the opposite party no.2 never authorized anyone to receive any amount and articles. The applicants have not returned the single penny and articles neither to the opposite party no.2 nor his brother, therefore, impugned criminal proceedings against the applicants is not liable to be quashed and application is liable to be dismissed.
After having heard the learned counsel for the parties and perusing the entire record, I find that the stand taken by the applicants is that on 5.1.2019 brother of opposite party no.2 has received entire amount and article from Baij Nath. Further stand has been taken in paragraph no.9 of the application that after returning the cash amount and articles by the applicants, the opposite party no.2 started demanding of Rs. 1 lac and on refusal of the same from the side of applicants, the FIR has been lodged by the opposite party no.2. This fact is apparently incorrect on the face of record itself, because the FIR in this case was already lodged on 14.10.2018. There is no admission of the opposite party no.2 (informant) or his brother Raju Pal or victim Vinu Pal that they have received the money and articles given to the applicants in the settlement of the aforesaid marriage. This Court is of the view that it is well settled that the appreciation of evidence is a function of the trial court. This Court in exercise of power under Section 482 Cr.P.C. cannot assume such jurisdiction and put an end to the process of trial provided under the law. It is also settled by the Apex Court in catena of judgments that the power under Section 482 Cr.P.C. at pre-trial stage should not be used in a routine manner but it has to be used sparingly, only in such a appropriate cases, where uncontroverted allegations made in FIR or charge-sheet and the evidence relied in support of same do not disclose the commission of any offence against the accused. The disputed questions of facts and defence of the accused cannot be taken into consideration at this pre-trial stage.
It is also well settled that at the stage of summoning the accused, the court below is not required to go into the merit and demerit of the case. Genuineness or otherwise of the allegation cannot be even determined at the stage of summoning the accused.
In view of above, this Court does not find that this case fall in a categories as recognized by the Apex Court for quashing the criminal proceeding of the trial court at pre-trial stage. Considering the facts, circumstances and nature of allegations against the applicant in this case, the cognizable offence is made out. There is no manifest error of law in the impugned criminal proceedings. The impugned criminal proceeding under the facts of this case cannot be said to be abuse of the process of the Court. There is no good ground to invoke inherent power under Section 482 Cr.P.C. by this Court. Hence, criminal proceeding against the applicants is not liable to be quashed. The relief as claimed by the applicants in this application is accordingly refused.
At this stage, learned counsel for the applicants submitted that in case some protection is granted by this Court, the applicants will surrender before the concerned court below. The learned Additional Government Advocate for the State does not dispute such prayer of the applicants.
Considering the last prayer made by the learned counsel for the applicants, it is directed that in case applicants appear before the concerned court below within 45 days from today and apply for bail, the bail application of the applicants shall be heard and disposed of expeditiously by the courts below in accordance with settled law law laid down by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Criminal Law Journal 755 as well as judgement passed by Hon'ble Apex Court in (2009) 4 Supreme Court Cases, 437 Lal Kamlendra Pratap Singh Vs. State of U.P.
For the period of 45 days from today, no coercive action shall be taken against the applicants.
With the above observations, this application under Section 482 Cr.P.C. is disposed of.
Order Date :- 30.7.2019 AK Pandey