Allahabad High Court
Smt. Vandana & Others vs State Of U.P. & Another on 15 October, 2019
Author: Karunesh Singh Pawar
Bench: Karunesh Singh Pawar
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 Case :- U/S 482/378/407 No. - 3692 of 2019 Applicant :- Smt. Vandana & Others Opposite Party :- State Of U.P. & Another Counsel for Applicant :- Pranshu Agrawal,Raghvendra Pandey Counsel for Opposite Party :- Govt. Advocate Hon'ble Karunesh Singh Pawar,J.
Heard learned counsel for the petitioner and learned AGA for the State.
Under challenge is the entire proceedings of Complaint Case No.5878 of 2017 (Mewalal vs. Vandana and others) under Section 302 IPC., Police Station Khairabad, District Sitapur pending before the Court of Chief Judicial Magistrate, Sitapur as well as summoning order dated 17.1.2019 whereby the petitioners have been summoned to face trial under Section 302 IPC passed by Chief Judicial Magistrate, Sitapur.
Learned counsel for the petitioner submits that petitioners have been falsely implicated in this case on the basis of FIR lodged by opposite party no.2. Copy of the FIR is annexed as annexure 2 to the petition registered as Case Crime no. 35 of 2014, Police Station Khairabad, District Sitapur, under section 302 IPC.
It has been argued that initially the Investigating Officer filed a Final report dated 19.05.2015 stating that death of the deceased was suicidal and no evidence was found indicating anything contrary to it. Copy of the said final report is Annexure 4 to the petition.
The opposite party no. 2 filed protest petition against the final report, which was rejected and further investigation was ordered again Final report dated 27.7.2016 bearing 40 of 2016 was filed which is annexed as Annexure 5 to the petition. Thereafter, opposite party no.2 filed protest petition dated 18.2.2017 against final report dated 27.07.2016 alleging that the deponent is the informant of the instant case and father of the deceased. It was further stated that the informant had married deceased's son to the accused on 09.03.2003 under Hindu rites and rituals without any dowry. The petitioner no. 1 after marriage started pressurizing the deceased for living separately and started quarelling with the deceased, when he refused the same she also started giving life threats to the deceased and started living with her friends without consent of deceased and family members.
The Court below rejected the final report dated 27.7.2016 and accepted protest petition and the same was treated to be registered as complaint Case no.5878 of 2017. Thereafter, statement under sections 200 and 202 Cr.P.C. were recorded and the petitioners were summoned vide summoning order dated 17.1.2019 under section 302 IPC, which is under challenge.
Learned counsel for the petitioners submitted that petitioners are innocent and have not committed any offence. The impugned summoning order has been passed without application of mind and in a casual and routine manner. The learned Magistrate has failed to consider the evidence collected during investigation and the medical evidence on record. He further submitted that Ammonium Phosphide has been found in Toxicology report which depicts that it cannot be forcefully administered to anyone in this regard he has placed relied on the judgment of the Delhi High Court in the case of Nitish Yadav vs. The State in Criminal Appeal No.331 of 1997. Para 20 of the said judgment is quoted as under :
"20. Most cases of aluminium phosphide poisoning are either suicidal or accidental and rarely homicidal (see: "Acute aluminium phosphide poisoning. An update; A. Wahab et al; Hong Kong Journal of Emergency medicine 2008; 15:152-155). Aluminium phosphide is available in the form of 3 gm tablet or 0.6 gm pellets and also in sachets. The tablets, pellets or powder generally contain about 56% of Aluminium Phosphide (as the active ingredient) and 44% of aluminium Carbonate (as the inactive ingredient). The aluminium carbonate component is added to prevent self-ignition of phosphine which is released when aluminium Phosphide comes in contact with moisture or water. Phosphide is a colourless, odourless gas. But because the commercially available form of Aluminium Phosphide contains added inactive ingredients and impurities, when phosphide is released there is a distinct and strong smell of garlic or fish. Because of this distinct odour it would not be possible to pass off aluminium phosphide as some normal medicine. It can only be administered to an unwilling person through force."
It is contended by learned counsel for the petitioner that death of the deceased was suicidal which is corroborated by the fact that he had the argument with opposite party no.2 on the same day. It has further been submitted that there is no other injury on the person of the opposite party no.2 from which it can be safely inferred that the deceased has consumed Aluminium phosphide on her own will and it is a case of suicide hence, summoning order is liable to be quashed.
Learned AGA has opposed the prayer for bail and has submitted that as per the allegation in the complaint/protest petition and the evidence available before the court below, it is apparent that offence under section 302 IPC against the petitioner is made out and prima facie, petitioner had in a planned manner administered the poison in order to kill her so that petitioner no.1 can get job. It has also been submitted by learned AGA that at the stage of summoning only, prima facie material has to be looked into by the Magistrate and the learned Magistrate after examining the complainant under Section 200 Cr.P.C. and witnesses under section 202 Cr.P.C. and finding a prima facie case has rightly summoned the accused persons.
Considering the arguments advanced by learned counsel for the parties, it appears from perusal of the protest petition, as well as statement of the complainant recorded under section 200 Cr.P.C. prima facie, case is made out against the accused persons. The statement under section 202 Cr.P.C. supports the complaint so far as the argument of learned counsel for the petitioners that Aluminium Phosphide cannot be administered forcibly. The judgment of Nitish Yadav (Supra) does not rules out the possibility of homicidal administration of aluminium phosphide to the deceased. At the stage of summoning, the Magistrate could not have gone to the deeper appreciation of evidence and appears to have rightly taken cognizance and also considering the fact that while exercising powers under section 482 Cr.P.C. this court while invoking inherent powers has to exercise it sparingly and with caution and only in respect of rarest of rare cases, as held by Hon'ble Supreme Court in the case of State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426.
This Court has also taken note of the law laid down by the Hon'ble Apex Court in Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 where it has held that Court must be careful to see when its decision in exercise of its power is based on sound principles and inherent power should not be exercised to stifle a legitimate prosecution.
In Hamida v. Rashid, (2008) 1 SCC 474, the law has reiterated again and it has been held that inherent powers conferred with the High Courts under Section 482 Cr.P.C., has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or where miscarriage of justice is done.
Considering the law laid down by the Hon'ble Supreme Court, this Court is of the view that the present case is not the rarest of rare case to invoke inherent jurisdiction under section 482 Cr.P.C. and therefore, the petition fails and is, accordingly, dismissed.
Order Date :- 16.5.2019 P.s.