Allahabad High Court
Shani @ Sani Kumar And 4 Others vs State Of U.P. And Another on 10 August, 2022
Author: Mohd. Aslam
Bench: Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Judgment Reserved On: 07.04.2022 Judgment Delivered On: 10.08.2022 Court No. - 72 Case :- APPLICATION U/S 482 No. - 3246 of 2019 Applicant :- Shani @ Sani Kumar And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jai Prakash Prasad Counsel for Opposite Party :- G.A.,Rajiv Tiwari,S.P.S. Chauhan,Sukhendra Singh Hon'ble Mohd. Aslam,J.
1. Heard Sri Jai Prakash Prasad, learned counsel for applicants, Sri Sukhendra Singh, learner counsel for opposite party no.2 as well as Sri S.N. Mishra, learned A.G.A. appearing on behalf of State of U.P. and and perused the record.
2. The instant application under Section 482 Cr.P.C. has been moved seeking quashing of entire criminal proceedings of Case No.1044 of 2018 (State vs. Shani and Others), arising out of Case Crime No. 02 of 2018, under Sections 498-A, 323, 504, 506 I.P.C and Section 3/4 of Dowry Prohibition Act, Police Station- Mahila Thana, District- Aligarh as well as charge-sheet no. 22 of 2018 dated 18.06.2018 and cognizance order dated 04.08.2018, pending in the court of learned Additional Chief Judicial Magistrate, Court No.8, Aligarh.
3. Brief facts necessary for disposal of this application are that opposite party no.2, Preeti daughter of Ranveer Singh lodged the first information report against the applicants on 09.01.2018 at 13:13 hrs. on the basis of written complaint alleging therein that her marriage with applicant, Shani took place on 05.02.2017 according to Hindu rites and rituals. In the marriage, her father had spent about a sum of Rs.11 lakhs. Her husband was working in a private company and was getting about Rs.20,000/- as salary. After sometime of marriage, her husband started demanding Rs.2 lakhs for construction of his house which was refused by her on account of which her husband started assaulting and maltreating her on persuasion of her in-laws. On 25.04.2017, her husband came home in drunken condition and started abusing her vulgarly and forcibly took off her shalwar and lacerated her vagina mercilessly, then she cried in pain and hearing the cry the applicant nos. 2 to 5 started laughing saying that she deserves it. Due to excess bleeding she became unconscious and on 26.04.2017 she was admitted in Safdarjung Hospital, New Delhi due to her bad condition. Her husband had also threatened her. On 15.10.2017 her husband left her at Aligarh. When she came at her parental house, she told the entire incident to her parents and close relatives who tried to convince her husband and other in-laws but resulted in vain. The applicant no.1 had admitted the victim/complainant in Safdarjung Hospital, Delhi for treatment on 26.04.2017 after causing injury in her private part by both hands (the photocopy of the treatment prescription dated 26.04.2017 has been annexed as Annexure No.2 to the affidavit). The relevant portion of the treatment prescription is quoted as follows:-
Preeti wife of Sani resident of Nai Basti N.D. 26/04/2017 8.01A.M. Nullipara female with post coital tear L/E 0.5x0.5cm tear with continuous bleeding. On Admission-----P/A/Soft Procedure - repair in I/V Sedition Perop-Haemostatic Suture Advised-Amlox 500mg O-O-O 5 Days
-Tab Brufen sos
-T. Fs/Bl/Oc/Ps 1od
-T. Chipmoral Fort O-O-O 4hours Tdsx14 Days
-Perineal Care O-O-O COD. Satisfactory Vital Stable
4. Investigating Officer recorded the statement of opposite party no. 2 under Section 161 Cr.P.C. (typed copy of the statement has been annexed as annexure no.3), wherein she stated that the members of her in-laws' family were not satisfied with the dowry given in the marriage and were demanding Rs. 2 lakh as additional dowry and on account of non-fullfilment of demand of additional dowry, her husband (applicant no.1), mother-in-law (applicant no.2), father-in-law (applicant no.3), sister-in-law, unmarried Nanad (applicant no.4) and brother-in-law, Devar (applicant no.5) started beating and maltreating her. The opposite party no.2 was medically examined on 15.02.2018 at Pt. Deen Dayal Upadhyay Hospital, Aligarh. On internal examination, no fresh injury was seen. On external examination no fresh injury of recent use of force was found. Two smear slides were prepared and sent for pathological examination in which no spermatozoa was seen and supplementary injury report was prepared in which doctor opined that on the basis of pathological, medical and physical examination, there was no sign of recent use of force, however, final opinion was reserved depending on FSL report. The above reports were copied by investigating officer in the case diary (the typed and photocopy of the case diary is annexed as annexure no.4 to the affidavit). Investigating officer also recorded statement of Ranveer Singh, father of the informant, Smt. Pushpa Devi, mother of the informant, the copy of the statements is annexed as annexure no.6. The statement under Section 164 Cr.P.C. of the informant/victim was recorded by Additional Chief Judicial Magistrate-VIII, Aligarh, copy of which has been annexed as annexure no.7 to the affidavit. In the statement under Section 164 Cr.P.C., she stated that her marriage with Shani, resident of New Delhi was solemnized on 05.02.2017. After marriage, she was living happily at her matrimonial home, but on 25.04.2017 her husband in drunken condition lacerated her private part mercilessly, thereafter, her husband, mother-in-law, Nanad and Devar got her admitted in Safdarjung Hospital, New Delhi on 26.04.2017. She further stated that accused persons were not keeping her properly and used to beat her on account of demand of Rs. 2 lakhs as dowry. On 15.10.2017 her husband took her at Aligarh and left her at the bus stand. Investigating Officer also recorded the statement of Dr. Vijaya Jutesi, Medical Officer, Safdarjung Hospital, Delhi and Dr. Alveera Shah, Medical Officer, Deen Dayal Upadhyay Hospital, Aligarh, copies of the same have been annexed as annexure nos. 8 & 9. After investigation, it was found that offence under Section 376 I.P.C. is not made out and the charge-sheet was submitted against the accused-applicants under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act.
5. It has been submitted by learned counsel for the applicants that in this case mother, father, brother and unmarried sister of husband (applicant no.1) of opposite party no.2 have been falsely implicated in this case. The general allegations have been levelled against the accused, therefore, no case is made out against the applicants in view of the law laid down by Hon'ble Apex Court in Geeta Mehrotra & Anr. vs. State of UP & Anr., reported in AIR 2013 Supreme Court 181, Mirza Iqbal @ Golu & Anr. vs. The State of Uttar Pradesh, 2021 0 Supreme(SC)795, and the law laid down by this Court in Pankaj Jaiswal vs. State of U.P. & Another, 2021 0 Supreme(All) 491. It is further submitted that according to prosecution version, the cause of action arose from 05.02.2017 to 15.10.2017 at the residence of applicants, i.e., House No. 63/331, Nai Basti, Village Jamiya Nagar, South Delhi but opposite party no.2 lodged the first information report at Police Station- Mahila Thana, District- Aligarh. According to Sections 177 and 178 Cr.P.C., every offence shall ordinarily be enquired into and tried by a Court within whose local jurisdiction it was committed and when it is uncertain in which of several local areas an offence was committed, or where an offence is committed partly in one local area and partly in another, or where an offence is a continuing one, and continues to be committed in more local areas than one, or where it consists of several acts done in different local areas, it may be enquired into or tried by a court having jurisdiction over any of such local areas. In this case, the offence is alleged to have been committed in Delhi, therefore, the court at Aligarh has no territorial jurisdiction to take cognizance of the offence on the basis of charge-sheet. It is further submitted that according to prosecution case, applicant no.1 assaulted the opposite party no.2 for non-fulfilment of demand dowry of Rs. 2 lakhs on the goading of his family members, but she did not get herself medically examined by any doctor nor any medico-legal injury report has been filed which establishes that she was assaulted by applicant no.1 on the direction of his family members. Neither any demand of dowry was made by the applicants nor she was tortured in any manner. In fact, the opposite party no.2 had gone to her parental house on her own free will and volition and was continuously residing with her parents since 11.10.2017, thereafter, she has lodged the first information report on the basis of false, fabricated and concocted story with ulterior motive to harass the applicant no.1 (husband) and his family members to pressurise her husband to live with her separately on rental house. It is further submitted that opposite party no.2 sustained injury in her private part during coitus and the treating doctor in her statement has stated that the injury in question on the private part of opposite party no.2 cannot be caused by hand as alleged by the prosecution. The applicant no.1 is ready to keep opposite party no.2 and he has filed a suit for restitution of conjugal rights in the court of Principle Judge Family Court (South-East), Saket Court, New Delhi. It is further submitted that applicant no.3 is a tailor and running a shop on rent of Rs.5000/- per month village of Okhla Jamiya Nagar, New Delhi and applicant no.1 is helping him in tailoring work. The aforesaid criminal proceedings have been initiated by opposing party no.2 against the applicants in abuse of process of law and the same is liable to be set-aside.
6. Per contra, learned A.G.A. as well as learned counsel for opposite party no.2 have submitted that perusal of first information report, statements under Section 161 and 164 Cr.P.C. of opposite party no.2, statements under Section 161 Cr.P.C. of her parents, namely, Ranveer Singh, Smt. Pushpa Devi and the material available on record, prima facie, discloses the commission of cognizable offence punishable under Sections 498-A, 323, 504, 506 I.P.C. and Section 3/4 of Dowry Prohibition Act, therefore, in view of the law laid down by Hon'ble Apex Court in State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors., 1992 AIR 604, 1990 SCR Supl. (3) 259 and M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors, 2020 SCC Online SC 850, the application under Section 482 Cr.P.C. is not maintainable. It is further submitted that so far as the genuineness of the prosecution case is concerned, it cannot be adjudicated in the proceedings under Section 482 Cr.P.C. and it can only be adjudicated by trial court after recording the evidence. In exercise of power conferred under jurisdiction 482 Cr.P.C., the High Court cannot appreciate the pros and cons of the evidence in view of law laid down by Hon'ble Apex Court in R.P. Kapur Vs. State of Punjab, A.I.R. 1960 (SC) 866. It is further submitted that although the occurrence has taken place at New Delhi but the part of act of cruelty was taken place at Aligarh, because due to injury in her private parts, her private part was not in good condition as it was earlier on account of which applicant no.1 cut-off his relation with her, and thereafter, on 15.10.2017 in continuance of cruelty her husband left her at Aligarh bus stand and threatened her that she is not suitable for him and when she reached at her parental house, she narrated the entire incidents to her parents. The part of the cruelty punishable under Section 498-A was committed by the accused-applicants at New Delhi and the part of the cruelty i.e. "the act of threatening her that she is not suitable for him" was committed at Aligarh, therefore, the court at Aligarh has jurisdiction to take cognizance of occurrence and police at Aligarh is empowered to lodged first information report and to investigate the matter. The marriage of opposite party no.2 with the applicant no.1 has taken place on 05.02.2017 at Damodar Guest House, Aligarh and just after marriage she had gone to her matrimonial house. It is also submitted that the injury in vagina may be sustained in the early weeks of coitus and it will not happen after passage of about more than two months. There was 0.5 cm x 0.5 cm tear in the vagina of opposite party no.2 and on 26.04.2017 she was admitted to Safdarjung Hospital, Delhi at that time the injury was found bleeding continuously. From the perusal of treatment prescription of Safdarjung Hospital, it transpires that the doctor has repaired tears by stitching under I/V sedition and medicines were prescribed. Although, Dr. Vijaya Jutesi in her statement has stated that the injury in question may occur during sexual intercourse and it could not be caused by hand, but the victim in her statement stated that the accused-applicant no.1 had torned her vagina by hands. It is further submitted that it can only be decided after recording the evidence of doctor at the time of trial, because at that stage the prosecution may suggest the manner in which the alleged injury was caused by applicant no.1. In the first information report, opposite party no.2 has also alleged that her husband, mother-in-law, father-in-law, unmarried Nanad and Devar were taking all the household work by her day and night and were not treating her with honour. She has further stated that the demand of dowry was made by the accused-applicants to construct the house and on account of its non-fulfillment her husband and other in-laws were beating and maltreating her. It is next submitted that specific allegations have been levelled against all the accused-applicants and the facts and circumstances of this case is different than that of the case relied on by learned counsel for the applicants in Geeta Mehrotra & Anr. vs. State of UP & Anr., reported in AIR 2013 Supreme Court 181, Mirza Iqbal @ Golu & Anr. vs. The State of Uttar Pradesh, 2021 0 Supreme(SC)795, and the law laid down by this Court in Pankaj Jaiswal vs. State of U.P. & Another, 2021 0 Supreme(All) 491, and therefore, the above cited case law is not applicable in the case in hand. The instant application under Section 482 Cr.P.C. is devoid of merits and is liable to be dismissed.
7. I have given thoughtful consideration to the contentions raised by learned counsel of the parties as well as learned A.G.A. for the State and gone through the file.
8. The informant in the first information report stated that her marriage had taken place at Aligarh with applicant no.1 Shani on 05.02.2017 and her father had given dowry according to his capacity. After marriage, she had gone to her matrimonial house at Nai Basti Okhla, Jamiya Nagar, New Delhi. She had further alleged that her husband, mother-in-law, father-in-law, Nanad and Devar were taking all household work from her day and night and were not giving her respect. After sometimes of marriage her husband started demanding Rs.2 lakhs for construction of house and on refusal to meet out the demand, her husband on persuasion of his family members started assaulting and maltreating her. She had further alleged that her husband had torn her private part in the night on 25.04.2017 at that time her husband was drunken. On 26.04.2017, she was admitted in Safdarjung Hospital, New Delhi by her husband and in-laws in critical condition, where she was threatened not to tell anything to anyone otherwise they would give poison to her, due to this reason she kept mum. She further alleged that her private part was not getting normal due to which her husband refused to have a relationship with her like husband and wife and on 15.10.2017 her husband left her at Aligarh bus stand saying that now she is not suitable for him. Thereafter, her relatives had tried to persuade the accused persons, but it resulted in vain. In the statement under Section 161 Cr.P.C., she stated that all accused-applicants were demanding Rs. 2 lakhs as dowry for construction of house and on refusal they assaulted her and on 25.04.2017 her husband came house after consuming liquor and started abusing her in obscene words and torn her private part ruthlessly by his both hands, and thereafter, they got her admitted in Safdarjung Hospital, New Delhi on 26.04.2017. In the statement under Section 164 Cr.P.C., she corroborated the version of her statement recorded under Section 161 Cr.P.C. From the perusal of medical prescription, it is very much clear that the victim/informant sustained injury in her private part on 25.04.2017 and continued to bleed till the time of admission in the hospital in the next morning where the tear was repaired by stitching under I/V seditions, and thereafter, she was discharged from the hospital. It has also been alleged that when the victim sustained injury in her private part, the family members of her in-laws were making fun of her saying that she only deserves it.
9. So far as the submission of learned counsel for applicants regarding applicability of the law laid down by Hon'ble Apex Court in Geeta Mehrotra & Anr. vs. State of UP & Anr. (supra) is concerned, in that ruling it was held that in the first information report allegation against Geeta Mehrotra and Ramji Mehrotra, who are unmarried sister elder brother of husband of the complainant, was found absent and mere casual reference to their names in the first information report was found insufficient to take cognizance against unmarried sister and elder brother of husband of the complainant. In the case in hand, the victim/complainant had alleged in her statements under 161 & 164 Cr.P.C. that all the accused-applicants were not treating her well and were demanding Rs. 2 lakhs as additional dowry and used to harass and torture her and even after she sustained injury in her private part, her husband after treatment told her that now she is not suitable for him and left her at Aligarh bus stand. In above circumstances, prima facie, it cannot be said that there was no active involvement of accused-applicants including father-in-law, mother-in-law, Nanad and Dever in the present case. It is also pertinent to mention that when the victim/complainant sustained injury in her private part, the accused-applicants were making fun of her saying that she deserves only it. The Hon'ble Apex Court in Geeta Mehrotra & Anr. vs. State of UP & Anr. (supra) had relied on the law laid down in Ramaesh vs State of Tamil Nadu, reported in (2005) SCC (Crl.) 735 at 738, where the sister of husband of the complainant, who was living at a different place, was named in the first information report. In that circumstances, Hon'ble Apex Court held that sister of husband of the complainant was roped in on the basis of bald allegation which was not sufficient to take cognizance against her and the cognizance order against sister of husband of the complainant, who was living at a different place, was quashed. So far as the applicability of the case law of Hon'ble Apex Court in Kahkashan Kausar @ Sonam vs The State Of Bihar 2022 0 Supreme (SC) 117 is concerned, in that case it was held that if the allegations made against the in-laws (appellants) are general and omnibus allegations, they are liable to be quashed and also held that in absence of any specific role attributed to accused persons, it would be unjust if appellants are forced to go through tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial and a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged. In this case, specific allegations were made against the accused persons that all applicants were demanding Rs. 2 lakhs as additional dowry for construction of joint house; they were treating the victim/complainant like a mad and were taking all the household work by her day and night; and were not respecting her and harassing her and also persuading her husband to beat her and even when she sustained injury in her private part they were making fun of her. In above circumstances, the law laid down by Hon'ble Apex Court in Kahkashan Kausar @ Sonam vs The State Of Bihar (supra) is not applicable in this case because the facts and circumstances of this case are different and specific allegations were made against all the accused-applicants. So far as the law laid down by Hon'ble Apex Court in Mirza Iqbal @ Golu & Anr. vs. The State of Uttar Pradesh (supra) is concerned, the 1st Appellant therein, was brother-in-law of the deceased was working as a Cashier in ICICI Bank, Khalilabad. On the date of incident i.e. on 24.07.2018, he was on duty and was residing at Khalilabad in view of his employment in ICICI Bank and his mother 2nd Appellant Shamima Bano alias Sammi was also living with him at Khalilabad. In that case, the occurrence had taken place at Gorakhpur, in above circumstances, the proceeding against brother-in-law and mother-in-law of the complainant-respondent was quashed. The facts and circumstances of this case are different from that of aforesaid case, therefore, the law laid down in Mirza Iqbal @ Golu & Anr. vs. The State of Uttar Pradesh (supra) is not applicable in this case.
10. In this case, the order of cognizance was passed on the order-sheet and not on the printed proforma, therefore, there is no illegality in passing the impugned order.
11. So far as the submission of the counsel of applicants regarding lodging of false and concocted first information report is concerned, it can be adjudicated after recording the evidence by trial court. At the stage of proceeding under Section 482 Cr.P.C., the Court is to see whether perusal of uncontroverted evidence recorded by Investigating Officer during investigation discloses any cognizable offence or not. At this stage, Court cannot marshal the evidence and adjudicate on the reliability of the evidence. The court has to only see whether the prima facie case of commission of cognizable offence is made out or not in the light of law laid down by Hon'ble Apex Court in "R.P. Kapur Vs. State of Punjab, A.I.R. 1960 (SC) 866, State of Haryana & Ors. vs. Ch. Bhajan Lal & Ors., 1992 AIR 604, 1990 SCR Supl. (3) 259 and M/s Neeharika Infrastructure Pvt. Ltd. v. State of Maharashtra & Ors, 2020 SCC Online SC 850". In above circumstances, the impugned order of taking cognizance of offence on the basis of charge-sheet, impugned charge-sheet and the proceedings of lower court are not liable to be quashed and the instant application under Section 482 Cr.P.C. is moved with mala fide intention to delay the proceedings of the lower court.
12. The instant application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed.
Order Date :- 10.8.2022 Vikas [Mohd. Aslam, J.]