Allahabad High Court
Ompal And 2 Others vs State Of U.P. And Another on 20 February, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 69 Case :- APPLICATION U/S 482 No. - 4680 of 2023 Applicant :- Ompal And 2 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Ashish Dwivedi Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri Ashish Dwivedi, learned counsel for the applicants and Sri B. B. Upadhyay, learned AGA for the State and perused the record.
3. The present application under Section 482 Cr.P.C. has been filed by the applicants Ompal, Natthu Lal and Indrawati with the prayer to quash the summoning order dated 03.08.2022 as well as entire proceeding of Complaint Case No. 2758 of 2021 (Lakhan Vs. Ompal and others), under Sections 498-A, 304-B of IPC and Section 3/4 of D.P. Act, Police Station Ujhani District Budaun, pending in the court of Chief Judicial Magistrate, Budaun and with a further prayer to stay the further proceedings in the said case.
4. The facts of the present case are that an application under Section 156(3) Cr.P.C. dated 28.02.2017 was filed by the opposite party No.2 Lakhan against the applicants being the husband, father-in-law and mother-in-law of his daughter Radha and against Rajendra/Devar and Dolly/Nand with the allegation that Radha was married with the applicant No.1 Ompal one and a half year ago. He had given a lot of gifts as dowry in the marriage to her husband and his family members but they were not happy with it and they used to torture and beat her daughter for dowry. His daughter whenever used to come to her parental house, used to make a complaint to her parents and other family members about it. Rs. 50,000/- and a buffalo was being demanded as additional dowry. The complainant used to console his daughter and would send her back. Around six months back, his daughter was having pregnancy of about eight months wherein her husband and his family members started assaulting her, the same was heard and seen by Raju, Nichku and many other villagers who intervened and saved her and dropped her in her maternal house. She was treated in the City Hospital, Badaun. She gave a birth to a dead child. His son-in-law and his family members did not come to see her and even get her treated. Later on, he sent his daughter Radha to her matrimonial house but on 09.01.2017, again there was a demand of a buffalo and Rs. 50,000/- by the accused persons and they started assaulting her due to which she received injuries. Then at about 1:00 PM, they left her daughter at Ujhani and went away. On asking to her, she told that due to dowry she has been assaulted by her husband and his family members. She was taken to Dr. Habib in Kasba Ujhani who found her to be serious and advised her to be taken somewhere else. On 12.01.2017 she was taken to City Hospital, Badaun. On information, applicant No.1 Ompal did not come to see her. On 13.01.2017, she was admitted in the Medical Collage, Aligarh. Information about it was given to Ompal and his family members, they were told that Radha is critical but they did not come to see her. On 21.01.2017 at about 9:30 AM, Radha died. He tried to lodge First Information Report but the same could not be registered. Post-mortem of Radha was got done by the Police. He prayed that appropriate orders be passed for lodging of a First Information Report and investigating the same. The matter was investigated and final report was submitted. Again the matter was sent for further investigation but again a final report was sent. Subsequently, the trial court ordered the matter to be registered as a complaint and the statement of the complainant under Section 200 Cr.P.C. was recorded after which, the statement of his witnesses Smt. Sushila, Raju and Naresh Pal were recorded under Section 202 Cr.P.C. as prosecution witnesses No. 1, 2 & 3 respectively. The trial court then summoned the applicants to face trial vide order dated 03.08.2022 under Section 498-A, 304B and Section 3/4 of D.P. Act.
5. Learned counsel for the applicant argued vehemently that deceased died a natural death. The diagnosis as opined by the doctor was perforation peritonitis. Even in her ultrasound report the opinion of the doctor was her suffering from peritonitis. It is argued that the deceased Radha was admitted in J. N. Medical College Hospital on 13.01.2017 at about 8.00 AM after which she was taken away on 15.01.2017 at about 5.00 PM. A certificate to the said effect was issued by the said hospital stating her as an absconder/LAMA Report. It is argued that there is nothing on record to show as to then from 15.01.2017 to 20.01.2017 where the deceased was. It is argued that the present case is not a case of dowry death as would appear from the absconder/LAMA report and the Ultrasound report. It is argued that the applicants are the husband, father-in-law and mother-in-law of the deceased and they have been falsely implicated in the present case. It is further argued that there is a contradiction in the statement of the complainant and his witnesses with regard to the items of dowry inasmuch as the prosecution has left away the demand of a buffalo as stated in the application under Section 156 (3) Cr.P.C. in the statement of the complainant and the witnesses but has retained the alleged demand of money. It is argued that the present case is a false and concocted case. The applicants have no criminal history as stated in paragraph 26 of the affidavit in support of this application under Section 482 Cr.P.C.
6. Per contra, learned State counsel opposed the prayer for quashing and argued that the applicants are named in the application under Section 156(3) Cr.P.C. Even the complainant and his witnesses have named them. It is argued that summoning order is a speaking order. It is further argued that it cannot be said that no offence is made out as there are allegation against the applicants. Insofar as the matter as argued is concerned, the applicants may have a liberty to cross-examine the witnesses and lead their defence at the appropriate stage therein.
7. After having heard learned counsel for the parties and perusing the records, it is evident that the applicants have been summoned vide order dated 03.08.2022 by the trial court after considering the matter in detail. The said order is a speaking order after reaching to the satisfaction that prima facie case is disclosed against them. With regard to the medical evidence, the absconder/LAMA report and the Ultrasound report which are only placed before the Court as annexed as Annexure-9 to the affidavit, would, at this stage, be not sufficient to reach to a conclusion that no offence has been made out and the case would not be a dowry death.
8. The Apex Court in the case of State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691 has in paragraphs 8 to 13 has held that High Court cannot appreciate evidence but can evaluate material and documents on records to the extent of its prima facie satisfaction about existence of sufficient ground for proceeding against the accused, it is not proper for High Court to act upon documents annexed to the petition under Section 482 Cr.P.C. and the annexures to the petition cannot be termed as evidence without being tested and proved. The same read as under:
"8. Exercise of power under Section 482 of the Code in a case of this nature is an exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal, possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the Court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent such abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
9. In R.P. Kapur v. State of Punjab [AIR 1960 SC 866 : 1960 Cri LJ 1239] this Court summarized some categories of cases where inherent power can and should be exercised to quash the proceedings:
(i) where it manifestly appears that there is a legal bar against the institution or continuance e.g. want of sanction;
(ii) where the allegations in the first information report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged;
(iii) where the allegations constitute an offence, but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge.
(AIR para 6)
10. In dealing with the last case, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is clearly inconsistent with the accusations made, and a case where there is legal evidence which, on appreciation, may or may not support the accusations. When exercising jurisdiction under Section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained. That is the function of the trial Judge. Judicial process, no doubt, should not be an instrument of oppression or needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . A note of caution was, however, added that the power should be exercised sparingly and that too in the rarest of the rare cases. The illustrative categories indicated by this Court are as follows : (SCC pp. 378-79, para 102) "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fides and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so, when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceedings at any stage. (See Janata Dal v. H.S. Chowdhary [(1992) 4 SCC 305 : 1993 SCC (Cri) 36 : AIR 1993 SC 892] and Raghubir Saran (Dr) v. State of Bihar [AIR 1964 SC 1 : (1964) 1 Cri LJ 1] .) It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises, arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In proceedings instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in the court which decide the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by itself be the basis for quashing the proceedings. [See Dhanalakshmi v. R. Prasanna Kumar [1990 Supp SCC 686 : 1991 SCC (Cri) 142 : AIR 1990 SC 494], State of Bihar v. P.P. Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri) 192], Rupan Deol Bajaj v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995 SCC (Cri) 1059], State of Kerala v. O.C. Kuttan [(1999) 2 SCC 651 : 1999 SCC (Cri) 304], State of U.P. v. O.P. Sharma [(1996) 7 SCC 705 : 1996 SCC (Cri) 497], Rashmi Kumar v. Mahesh Kumar Bhada [(1997) 2 SCC 397 : 1997 SCC (Cri) 415], Satvinder Kaur v. State (Govt. of NCT of Delhi) [(1999) 8 SCC 728 : 1999 SCC (Cri) 1503] and Rajesh Bajaj v. State NCT of Delhi [(1999) 3 SCC 259 : 1999 SCC (Cri) 401 : AIR 1999 SC 1216].] (emphasis supplied)
12. These aspects were also highlighted in State of Karnataka v. M. Devendrappa [(2002) 3 SCC 89 : 2002 SCC (Cri) 539] .
13. It is to be noted that the investigation was not complete and at that stage it was impermissible for the High Court to look into materials, the acceptability of which is essentially a matter for trial. While exercising jurisdiction under Section 482 of the Code, it is not permissible for the Court to act as if it was a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. In Chand Dhawan v. Jawahar Lal [(1992) 3 SCC 317 : 1992 SCC (Cri) 636] it was observed that when the materials relied upon by a party are required to be proved, no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case at hand is considered in the light of principles of law highlighted, the inevitable conclusion is that the High Court was not justified in quashing the investigation and proceedings in the connected case (Crime No. 116 of 1994) registered by the Special Police Establishment, Lokayukta, Gwalior. We set aside the impugned judgment. The State shall be at liberty to proceed in the matter further.
(emphasis supplied)"
9. In the case of U.P. Pollution Control Board Vs. Bhupendra Kumar Modi : (2009) 2 SCC 147, Fiona Shrikhande Vs. State of Maharashtra : (2013) 14 SCC 44, Sonu Gua Vs. Deepak Gupta and others : (2015) 3 SCC 424 it has been held by the Apex Court that while issuing summons to accused u/s 204 Cr.P.C. the Magistrate has only to see whether allegations made in complaint are prima facie sufficient to proceed against the accused. Magistrate need not enquire into merits or demerits of case.
10. In the cases of Bhushan Kumar Vs. State of NCT of Delhi : (2012) 2 SCC 424, Nupur Talwar Vs. CBI : (2012) 11 SCC 465, Dy. Chief Controller Vs. Roshanlal Agarwal : (2003) 4 SCC 139 and Kanti Bhadra Shah Vs. State of W.B. : (2000) 1 SCC 722 it has been held by the Apex Court that in determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of enquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. There is no legal requirement imposed on a magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order. Section 204 Cr.P.C. does not mandate the Magistrate to explicitly state the reasons for issuance of summons.
11. Further in the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. : 2021 SCC Online SC 206 the Apex Court while considering the powers under Section 482 Cr.P.C. relying upon the judgements rendered by the Apex Court in the cases of State of Haryana and Others Vs. Bhajan Lal and Others : (1992) Suppl (1) SCC 335 and Arnab Manoranjan Goswami Vs. State of Maharashtra and Others : (2021) 2 SCC 427 has held that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception. It has further been held that existence of a civil remedy and initiation of it will not in any manner be an abuse of process of the court for exercising inherent powers of the High Court under Section 482 Cr.P.C. for quashing such proceedings.
12. Thus, it is trite law that at the stage of quashing only the material of the prosecution has to be seen and the court cannot delve into the defence of the accused and then proceed to examine the matter on its merit by weighing the evidence so produced. The disputed questions of facts of the case cannot be adjudged and adjudicated at this stage while exercising powers under Section 482 Cr.P.C. and only the prima facie prosecution case has to be looked into and as it is. Evidence needs to be led to substantiate the defence of the accused.
13. Looking to the facts of the case, the prima facie allegation against the applicants and the law as stated above, no case for interference is made out. The present application under Section 482 Cr.P.C. is thus dismissed.
Order Date :- 20.02.2023 Vijay (Samit Gopal, J.)