Allahabad High Court
Waseem Akram And 2 Other vs State Of U.P. And Another on 18 July, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 80 Case :- APPLICATION U/S 482 No. - 4383 of 2022 Applicant :- Waseem Akram And 2 Other Opposite Party :- State of U.P. and Another Counsel for Applicant :- Kaushal Kumar Pandey,Anand Ji Mishra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Kaushal Kumar Pandey, the learned counsel for applicants and the learned A.G.A. for State.
2. Instant application under Section 482 Cr.P.C. has been filed challenging charge sheet dated 18.07.2021 submitted in Case Crime No. 0047 of 2021 under Sections 498A, 323, 504, 506 I.P.C., Sections 3/4 D.P. Act and Sections 3/4 Muslim Marriage Act, Police Station-Mahila Thana, District-Meerut, Cognizance Taking Order/Summoning Order 02.09.2021 passing by Civil Judge (Junior Divison)/F.T.C. (Offence against Women), Meerut in consequential Case No. 15859 of 2021 (State Vs. Waseem Akram and others) under Sections 498A, 323, 504, 506 I.P.C., Sections 3/4 D.P. Act and Sections 3/4 Muslim Marriage Act, Police Station-Mahila Thana, District-Meerut, the supplementary charge-sheet dated 09.11.2021 submitted in aforementioned case crime number, the cognizance taking order dated 23.12.2021 passed by court below upon submission of aforesaid supplementary charge-sheet as well as the entire proceedings of above mentioned case now pending in the Court of Civil Judge (Junior Divison)/F.T.C. (Offence against Women), Meerut.
3. Perused the record.
4. Record shows that first informant/opposite party-2 lodged an F.I.R. dated 27.04.2021, which was registered as Case Crime No. 0047 of 2021 under Sections 498A, 323, 504, 506 I.P.C., Sections 3/4 D.P. Act and Sections 3/4 Muslim Marriage Act, Police Station-Mahila Thana, District-Meerut. In the aforesaid F.I.R. eight persons, namely, Waseem (husband), Shabnam (mother-in-law), Abdul Wahid (father-in-law), Lubna, Ujma, Arshee, Naushee (Nanads) and Suaib (Nandoi) of the first informant/opposite party-2, have been nominated as named accused.
5. Gravamen of the allegations made in the F.I.R. is to the effect that marriage of first informant/opposite party-2 was solemnized with Applicant-1 Waseem Akram on 29.05.2021 in accordance with Muslim Rites and Custom. However, named accused were dis-satisfied with the amount of goods and dowry brought by first informant/opposite party-2 at the time of her marriage. Thereafter, additional demand of dowry to the tune of Rs.5 Lakhs was raised by named accused. As additional demand of dowry was not fulfilled, named accused are alleged to have been committed cruelty upon first informant/opposite party-2.
6. After registration of the aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII Cr.P.C. He examined first informant/opposite party-2 and other witnesses under Section 161 Cr.P.C. On the basis of statements of witnesses so examined and other material collected by Investigating Officer during course of investigation, Investigating Officer opined to submit charge-sheet. He accordingly submitted the charge sheet dated 18.07.2021 whereby three of the named accused namely Shabnam (mother-in-law), Abdul Wahid (father-in-law) have been charge-sheeted under Sections 498A, 323, 504, 506 I.P.C. and Section 3/4 D.P. Act. Rest of the named accused have been exculpated.
7. After submission of aforementioned charge-sheet, cognizance was taken upon same and simultaneously applicants, who are charge-sheeted accused were summoned vide Cognizance Taking Order/Summoning Order 02.09.2021 passing by Civil Judge (Junior Divison)/F.T.C. (Offence against Women), Meerut in consequential Case No. 15859 of 2021 (State Vs. Waseem Akram and others) under Sections 498A, 323, 504, 506 I.P.C., Sections 3/4 D.P. Act and Sections 3/4 Muslim Marriage Act, Police Station-Mahila Thana, District-Meerut.
8. During pendency of aforementioned criminal case, Investigating Officer submitted a supplementary charge-sheet dated 09.11.2021 whereby named accused Waseem Akram i.e. applicant-1 has been charge-sheeted under Sections 3/4 Muslim Marriage Act.
9. After submission of aforementioned supplementary charge-sheet, cognizance was taken upon same vide Cognizance Taking Order 23.12.2021 passing by Civil Judge (Junior Davison)/F.T.C. (Offence against Women), Meerut in consequential Case No. 15859 of 2021 (State Vs. Waseem Akram and others).
10. Thus, feeling aggrieved by aforesaid , applicants, who are charge-sheeted accused, have now approached this Court by means of present application under Section 482 Cr.P.C.
11. Learned counsel for applicants submits that applicants are innocent. They have been falsely implicated in afore-mentioned case crime number. Allegations made in the F.I.R. are false and concocted. As such, applicants are being falsely prosecuted in afore-mentioned case crime number. It is next contended that applicant-1 is the husband, applicant-2 is the father-in-law whereas applicant-3 is the mother-in-law of first informant /opposite party-2. It is thus urged that a purely matrimonial dispute has been dragged into criminal litigation.
12. Learned counsel for applicants has then invited the attention of Court to annexure-2 to the affidavit. On basis thereof, he submits that applicant-1, Waseem Akram, who is the husband of first informant/opposite party-2, has already initiated a suit for restitution of conjugal rights as provided under Section 281 of Muslim Marriage Act. Aforesaid suit was instituted vide application dated 02.04.2021. The F.I.R. giving rise to present criminal proceedings was lodged on 27.04.2021 i.e. subsequent to above. He therefore, submits that present criminal proceedings have been engineered as a counter blast to the aforesaid civil/matrimonial proceedings already initiated by applicant-1.
13. Referring to above noted document, learned counsel for applicants contends that first informant/opposite party-2 is living separately since 03.08.2021. However, in the F.I.R. dated 27.04.2021, no date of occurrence has been mentioned in the relevant column of the F.I.R.
14. On the aforesaid premise, learned counsel for applicants has again reiterated his submission that present criminal proceedings have been engineered as a counter blast to the civil proceedings (restitution of conjugal rights) instituted by applicant-1, who is the husband of first informant/opposite party-2.
15. Learned counsel for applicants has further submitted that during pendency of aforementioned criminal case, Police has submitted supplementary charge-sheet dated 09.11.2021. However, there is nothing on record to show as to on what basis, the aforesaid supplementary charge-sheet was submitted in aforementioned case crime number. According to learned counsel for applicants, the supplementary charge-sheet could have been submitted only after further investigation of concerned case crime number but after obtaining the leave of the court. However, there is nothing on record to establish that leave of court was obtained to further investigate the matter. He therefore submits that supplementary charge-sheet submitted by Police is patently illegal. On the aforesaid factual and legal premise, learned counsel for applicants contends that present criminal proceedings are not only illegal but also an abuse of the process of Court. Consequently, same are liable to be quashed by this Court.
16. Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that after registration of above mentioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He examined the first informant/opposite party-2 and other witnesses in terms of Section 161 Cr.P.C. Witnesses so examined have supported the prosecution story as unfolded in F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that same is substantially adverse to only some of the accused. He further discovered that complicity of only three of the named accused namely Washeem Akram (husband) Shabnam (mother-in-law), Abdul Wahid (father-in-law) is established in the crime in question. Investigating Officer thus opined to submit a charge-sheet against aforesaid accused. Consequently, he submitted the charge sheet dated 14.03.2021 in above mentioned case crime number wherein only three of the named accused have been charge-sheeted under Sections 498A, 323, 504, 506 I.P.C. and Sections 3/4 Dowry Prohibition Act. Investigating Officer further concluded that no offence under Sections 377, 313, 354, 376, 511 and 307 I.P.C. and 3/4 Muslim Marriage Act is made out nor the complicity of other named accused is established in the crime in question. In the charge sheet so submitted as many as 5 prosecution witnesses have been nominated. He therefore contends that it cannot be said at this stage that prosecution of applicant is false or there is no material to support the prosecution of applicants. He has relied upon paragraph 37 of judgement in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 wherein following has been observed. For ready reference same is reproduced herein under:
"37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
17. It is then contended that charge sheet is the outcome of investigation. Since no deficiency, irregularity or illegality has been pointed out in investigation of above mentioned case crime number, the consequential charge sheet cannot be quashed.
18. It is lastly contended that entire material collected by Investigating Officer during course of investigation has not been brought on record. In the absence of same, this Court cannot examine the veracity of allegations made in F.I.R, or the correctness of charge sheet. To buttress his submission, he has referred to the judgement of Apex Court in Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580, wherein following has been observed in the last line of paragraph 25. Same is reproduced herein under:
"The High Court has failed to notice and/or consider the material collected during the investigation"
19. Learned A.G.A. further submits that no material has been brought on record to show as to how the supplementary charge-sheet came to be submitted by Police in aforementioned case crime number. In the absence of material appended alongwith application under Section 482 Cr.P.C. the submission urged by learned counsel for applicants that supplementary charge-sheet was submitted upon further investigation without obtaining leave of the court is wholly misconceived. Learned A.GA. submits that it is now well established that a plea of fact if not evidenced by document, is liable to be ignored by this Court. On the cumulative strength of above, learned A.G.A. contends that no case for indulgence by this Court is made out. The present application is therefore, liable to be dismissed.
20. When confronted with aforesaid, learned counsel for applicant could not over come the same.
21. Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court upon trial of above mentioned case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
22. In view of above, application fails and is liable to be dismissed.
23. It is accordingly dismissed.
Order Date :- 18.7.2022 YK