Allahabad High Court
Divya Sagar @ Rinki vs State Of U.P. Thru. Prin. Secy. Home ... on 25 April, 2023
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 15 Case :- APPLICATION U/S 482 No. - 4030 of 2023 Applicant :- Divya Sagar @ Rinki Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Deptt. U.P. Lko. And Another Counsel for Applicant :- Mahesh Kumar Sharma,Anil Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Ajai Kumar Srivastava-I,J.
1. Heard Sri Anil Kumar Tripathi, learned counsel for the applicant, Sri Alok Saran, learned A.G.A. for the State and perused the record.
2. The instant application has been filed by the present applicant for quashing the impugned order dated 03.01.2023, passed by Judicial Magistrate, IInd, Lucknow in Criminal Case No.2981 of 2013, State vs. Dilip Yadav and others, arising out of Case Crime No.126 of 2012, under Sections 498A, 323, 504, 507, 506 I.P.C. and 3/4 Dowry Prohibition Act, Police Station Mahila Thana, District Lucknow.
3. Learned counsel for the applicant has submitted that the present innocent applicant has been falsely implicated in this case because of her prior acquaintance with co-accused, Dilip Yadav, who is the husband of opposite party no.2. The present applicant was not aware of the subsisting marriage of the co-accused, Dilip Yadav with the complainant/opposite party no.2. The co-accused, Dilip Yadav himself defrauded the applicant and had solemnized marriage with the present applicant by concealing the fact of his first marriage with the complainant/opposite party no.2 and having one son. His further submission is that initially a false first information report came to be lodged against eight accused persons including the present applicant. Upon conclusion of the investigation, charge sheet came to be submitted against the present applicant under Sections 498A, 323, 504, 507, 506 I.P.C. and 3/4 Dowry Prohibition Act, without collecting credible evidence against her.
4. Learned counsel for the applicant has also submitted that the present applicant was not relative to the other co-accused persons either through blood relation or matrimonial relation, therefore, no offence under Section 498A I.P.C. is made out against the present applicant. His further submission is that there was no evidence, whatsoever, attracting the provision under Section 507 I.P.C. against the present applicant. Despite this fact, the learned trial court vide impugned order dated 26.07.2013 mechanically took cognizance of the matter and issued process to the applicant to appear and stand trial.
5. His further submission is that an application seeking discharge came to be rejected by the learned trial court vide impugned order dated 03.01.2023 in a mechanical manner and without applying its judicial mind. The learned trial court did not take care of the fact that no ingredients, which constitute offences under Sections 498A, 323, 504, 507, 506 I.P.C. and 3/4 Dowry Prohibition Act, are made out against the present applicant. He, thus, submits that the impugned order dated 03.01.2023 is patently illegal and an abuse of process of the Court, therefore, the same is liable to be quashed.
6. Per contra, learned A.G.A. has vehemently opposed the prayer by submitting that in fact the learned trial Court has rightly passed the impugned order dated 03.01.2023, which is well discussed and reasoned. His further submission is that it is settled law that charge against an accused may be framed even on the basis of grave suspicion also. Therefore, at the stage of framing charge nothing more than that is expected from the learned trial Court.
7. In the aforesaid view of the matter, learned A.G.A. submits that there is no illegality or irregularity in the impugned order dated 03.01.2023, thus, no interference with the same is warranted in exercise of power of this Court under Section 482 Cr.P.C.
8. Having heard learned counsel for parties and upon perusal of the record, it transpires that present applicant was acquainted with co-accused, Dilip Yadav, who is the husband of opposite party no.2. Initially the first information report came to be lodged against eight accused persons including the present applicant. Upon conclusion of the investigation, charge sheet came to be submitted against the present applicant under Sections 498A, 323, 504, 507, 506 I.P.C. and 3/4 Dowry Prohibition Act. The present applicant is not related to the other co-accused persons either through blood relation or matrimonial relation.
9. Section 507 I.P.C. being germane to the controversy is quoted herein below :-
"507. Criminal intimidation by an anonymous communication.?Whoever commits the offence of criminal intimidation by an anonymous communication, or having taken precaution to conceal the name or abode of the person from whom the threat comes, shall be punished with imprisonment of either description for a term which may extend to two years, in addition to the punishment provided for the offence by the last preceding section."
10. It is necessary to mention the summary of ratio laid down by Hon'ble Supreme Court in Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 which are as under:-
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge:
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out.
(2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a Post Office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
(emphasis supplied)
11. Having regard to the law laid down by Hon'ble Supreme Court in Prafulla Kumar Samal (supra), this fact can not be disputed that even on the basis of grave suspicion charge against an accused may be framed. However, while coming to such conclusion, learned trial Court is expected to see whether the ingredient(s) to attract particular section(s) is available or not.
12. In view of the aforesaid discussion, the impugned order dated 03.01.2023 being patently illegal deserves to be set aside and the same is hereby set aside.
13 Accordingly, the instant application under Section 482 Cr.P.C. is hereby allowed.
14. It is directed that the learned trial Court shall dispose of the application claiming discharge, moved by the present applicant, afresh by means of reasoned and speaking order, expeditiously, after affording proper opportunity of hearing to all concerned and without granting any unnecessary adjournments to parties.
Order Date :- 25.4.2023 A.Dewal