Court No. - 70
Case :- APPLICATION U/S 482 No. - 33659 of 2019 Applicant :- Vipin Kumar Mishra And 8 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Krishna Murari Tripathi,Brijesh Kumar Mishra Counsel for Opposite Party :- G.A.,Dharam Deo Chauhan
Hon'ble Sanjay Kumar Singh,J.
Heard Mr. Rakesh Pandey, learned Senior Advocate assisted by Mr. Krishna Murari Tripathi and Mr. B.K. Mishra, learned counsel for the applicants, learned Additional Government Advocate for the State- opposite party No. 1, Mr. Dharam Deo Chauhan, learned counsel for opposite party No. 2 and perused the record with the assistance of the learned counsel for the parties.
This application under Section 482 Cr.P.C. has been filed by the applicants for quashing the charge- sheet dated 12.06.2019 as well as the entire proceedings of Case No. 4717 of 2019 (State vs Krishna Nand and others) arising out of Case Crime No. 103 of 2019, under section 3 of Dowry Prohibition Act, police station Kotwali Mau, district Mau pending in the court of learned Chief Judicial Magistrate, Mau.
Filtering out unnecessary details, the basic facts of this case, in brief, are that applicant Nos. 1 and 2 are the proposed father-in-law and mother-in-law, applicant Nos. 3 and 4 are the proposed sister-in- law, applicant Nos. 5 is proposed brother-in-law, applicant Nos. 6 and 7 are the proposed uncle-in- law (Chachiya Sasur), applicant No. 8 is proposed uncle-in-law (Fufa Sasur) and applicant No. 9 is proposed aunt-in-law (Fufia Saas) of opposite party No. 2. On 09.03.2019, opposite party No. 3/victim lodged first information report under sections 376, 504, 506 IPC and section 3/4 of Dowry Prohibition Act against the applicants and co-accused Krishna Nand Mishra alias Pankaj, the proposed husband, alleging therein that her marriage was settled with co-accused Krishna Nand Mishra alias Pankaj,( son of applicant No. 1), which was fixed to be solemnized on 12.03.2019. For fixing marriage, in the month of March, 2016, applicant Nos. 1 and 2, namely Vipin Kumar Mishra and Smt. Savitri Devi and co-accused Krishna Nand Mishra alias Pankaj themselves had come to the work place of father of opposite party No. 2 and it was agreed that there would be no obstacle of dowry in their marriage. After this proposal, it was told to them by father of opposite party No. 2/victim to give one week's time to him to think about the said proposal. After one week, when applicant No. 1 telephoned the victim, she gave her consent for marriage. In the meantime, co-accused Krishna Nand Mishra alias Pankaj after telephoning the father of the victim asked for Rs. 50,000/- (rupees fifty thousand) as he wanted to open a Coaching Centre and promised that said amount would be returned within six months. By thinking that marriage was about to be solemnized, the said amount of Rs. 50,000/- was transferred in the bank account of applicant No. 5 Neeraj Mishra (son of applicant No. 1), about which, the applicants were also apprised. It is further alleged that an amount of Rs. 51,000/- was also given to the applicant No.
1 in Bariksha Ceremony. In the meantime, engagement ceremony was also conducted on 12.06.2017 and thereafter accused-persons continued to assure opposite party No. 2 and her family members that marriage would be solemnized very soon and date of marriage was also fixed as 10.12.2017. In the meantime, co- accused Krishna Nand Mishra alias Pankaj started coming to the house of victim vice-versa. Thereafter, applicant No. 1 again changed the dates of Tilak ceremony and marriage and further dates were fixed as 09.03.2019 and 12.03.2019. The marriage cards were also distributed. During this period, co-accused Krishna Nand Mishra alias Pankaj started having physical relationship with opposite party No. 2/victim without her consent forcibly and said her that she did not worry as marriage was about to take place. On the said assurance, co-accused Krishna Nand Mishra alias Pankaj also extracted an amount of Rs. 3,00,000/- (rupees three lac) of salary of victim taking her in his confidence under the promise of marriage. Ultimately, the marriage was refused by the accused-persons. Thereafter, the first information report was lodged by opposite party No. 2 against the accused persons.
The said first information report dated 09.03.2019 was challenged by the accused-persons by filing Criminal Misc. Writ Petition No. 7501 of 2019 (Krishna Nand Mishra alias Pankaj and 9 others vs State of U.P. and 2 others), in which prayer for quashing the first information report was refused, but interim protection of stay of arrest was granted to the accused-persons till submission of police report under section 173(2) Cr.P.C. by this Court vide order dated 28.03.2019.
The Investigating Officer after investigation submitted charge sheet in this case under sections 376, 504, 506 IPC and section 3 of Dowry Prohibition act against the co-accused Krishna Nand Mishra alias Pankaj and under section 3 of Dowry Prohibition Act against rests of the accused persons, who are applicants in this application, on which the Magistrate concerned took cognizance on 02.07.2019. None of the accused persons appeared before the concerned court below. Therefore on 12.09.2019 bailable warrant has been issued against the accused-persons and further non-bailable warrant has been issued against the applicants on 20.09.2019. The copies of the aforesaid orders dated 12.09.2019 and 20.09.2019 have been brought on record by the applicants by means of supplementary affidavit dated 25.09.2019.
Assailing the impugned charge sheet and criminal proceedings pursuant thereto, it is submitted by Mr. Rakesh Pandey, learned Senior Advocate that main accused in this case is Krishna Nand Mishra alias Pankaj, against whom serious charges of committing rape etc. have been levelled by the victim/opposite party No.2 as per the prosecution case.
Co-accused Krishna Nand Mishra alias Pankaj preferred separate application under section 482 Cr.P.C. No. 34223 of 2019 before this Court for quashing of summoning order dated 02.07.2019 and entire proceedings of aforesaid Case No. 4717 of 2019, which has been dismissed by the co- ordinate Bench of this Court vide order dated 19.09.2019.
It is further submitted that applicant No. 3 and 4, namely, Sweta Mishra and Swati Mishra are unmarried girls. There is no specific allegation against them. Learned counsel has also submitted that false and frivolous allegations have been levelled against the applicants in order to create pressure upon the co-accused Krishna Nand Mishra alias Pankaj for marriage and all family members have been roped by casual inclusion of their names without any iota of evidence against them. It is also submitted that there was no demand of dowry from the side of the applicants. Since, the victim was having a relationship with her friend and she left her house and ran away with her friend on 26.02.2019, therefore, applicants have refused for marriage.
Per contra, learned Additional Government Advocate and learned counsel appearing on behalf of opposite party No. 2 refuting the aforesaid submissions advanced on behalf of applicants submitted that the act and conduct of co-accused Krishna Nand Mishra alias Pankaj is an offence against the society and the applicants are not entitled for any sympathetical consideration not merely because they are the family members of co-accused Krishna Nand Mishra alias Pankaj, but all accused persons have actively participated in commission of said offence in collusion with co- accused Krishna Nand Mishra alias Pankaj in extracting money from the victim/opposite party No. 2. It has also been submitted that whole life of the victim has been spoiled by the accused- persons in order to settle their score. Lastly, it is submitted that since, the prayer of the applicants for quashing of the FIR has already been refused by the Division Bench of this Court vide order dated 28.03.2019 and application under section 482 Cr.P.C. preferred by the co-accused Krishna Nand Mishra alias Pankaj has also been dismissed by co-ordinate Bench of this Court vide order dated 19.09.2019, therefore present application is also liable to be dismissed as cognizable offence is made out against the applicants.
After having heard the arguments of learned counsel for the parties, this Court finds that there are specific allegations against applicant Nos. 1, Vipin Kumar Mishra, applicant No. 2, Smt. Savitri Devi and applicant No. 5 Neeraj Mishra in the entire episode. It is admitted fact that an amount of Rs. 50,000/- had been transferred by the father of the victim in the account of applicant No. 5 Neeraj Mishra. On 25.09.2019 during the course of argument, it was submitted that applicant No. 5 is ready to return the said amount. On 26.09.2019 a draft of Rs. 50,000/- was produced on behalf of the applicant, but father of the victim has refused to accept the same by contending that on payment of Rs. 50,000/-, slander on the character of the victim cannot be wiped out. The present case in hand is not a simple case of refusal of marriage, but on the pretext of marriage, victim was forced to have sexual/physical relation prior to her marriage, which destroys the entire psychology of victim and pushes her into deep emotional crises. Such an act of aggression aimed at degrading and humiliating victim. It also finds that in para-5 of the application vague allegation has been levelled against the victim without any specific detail and material on record, therefore, relief as sought in the present application, so far as applicant Nos. 1, 2 and 5 are concerned, is hereby refused.
So far as applicant Nos. 1, 2 and 5, namely, Vipin Kumar Mishra, Smt. Savitri Devi and Neeraj Mishra are concerned, this application u/s 482 Cr.P.C. is disposed of with a direction that in case, they appear before the concerned court below within 30 days from today and apply for bail, the bail application of applicant Nos. 1, 2 and 5 shall be heard and disposed of expeditiously by the courts below in accordance with law laid down by 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 of the Apex Court in the case of Lal Kamlendra Pratap Singh Vs. State of U.P., (2009) 4 Supreme Court Cases, 437.
So far as applicant Nos. 3, 4, 6, 7, 8 and 9, namely, Sweta Mishra, Swati Mishra, Guddu Mishra, Brijesh Kumar Mishra, Jai Prakash Mishra, Smt. Mithilesh Mishra are concerned, the following order is being passed:
"Opposite parties may file counter affidavits within three weeks. Rejoinder affidavit, if any, may be filed by the aforesaid applicants within one week thereafter.
List this case after expiry of four weeks before the appropriate Bench.
Till the next date of listing, no coercive action shall be taken against applicant Nos. 3, 4, 6, 7, 8 and 9 namely, Sweta Mishra, Swati Mishra, Guddu Mishra, Brijesh Kumar Mishra, Jai Prakash Mishra, Smt. Mithilesh Mishra in the above mentioned case".
Order Date :- 26.9.2019 Sazia