Allahabad High Court
Abdul Kadir Alias Nanhe And Others vs State Of U.P.And Another on 22 October, 2019
Author: Raj Beer Singh
Bench: Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 83 Case :- APPLICATION U/S 482 No. - 7375 of 2009 Applicant :- Abdul Kadir Alias Nanhe And Others Opposite Party :- State Of U.P.And Another Counsel for Applicant :- S.D.S. Jadaun,Ravi Sahu,Vinay Kumar Counsel for Opposite Party :- Govt. Advocate,Anand Mohan Pandey Hon'ble Raj Beer Singh,J.
Heard Sri Amit Gupta, Advocate holding brief of Sri Ravi Sahu, learned counsel for the applicants, learned A.G.A. for the State and perused material on record.
None has appeared on behalf of the opposite party no.2.
This application u/s 482 Cr.P.C. has been filed with the prayer to quash the summoning order dated 01.12.2008 passed by the learned Special Chief Judicial Magistrate, Kanpur Nagar in Complaint Case No. 1671 of 2008, under Sections 323, 504, 506, 498A and 3/4 of D.P. Act, P.S. Babupura, District Kanpur Nagar.
Learned counsel for the applicants has stated that he is pressing the present application only in respect of applicant no.4 Riyaj Alam brother-in-law (jeth), applicant no.5 Tahsin Fatima @ Gudiya (nand) and applicant no. 6 Tasnim Fatima @ Chhoti (nand) of opposite party no.2, as by order dated 06.04.2009, the application in respect of applicant nos. 1, 2 and 3 has already been dismissed by this Court. Regarding applicant nos. 4, 5 and 6 it was submitted by the learned counsel that there are no specific allegations of dowry demand against these applicants and that they have been falsely implicated in this case merely to create pressure on the family of husband of opposite party no.2. Even by the fulfillment of alleged demand of dowry, applicant nos. 4, 5 and 6 were not going to be benefited. Learned counsel stated that no case against applicant nos. 4, 5 and 6 is made out and thus, their summoning is not in accordance with law.
Per contra, learned A.G.A. has submitted that from the perusal of the material on record, it cannot be said that no cognizable offence is made out. It was submitted that there is no illegality or perversity in the impugned order.
Perusal of record shows that the opposite party no.2 Nikahat Jahan has filed an application under Section 156(3) Cr.P.C. inter alia alleging that she was married with applicant no.3 Nihal Alam on 07.11.2007 but after marriage she was harassed by her husband and his family members including applicant, for dowry and that on 31.03.2008 signature of her father were obtained by way of fraud to forge Talaknama. It appears that application of opposite party no.2 under Section 156(3) Cr.P.C. was registered as a complaint case and the opposite party no.2/complainant was examined under Section 200 Cr.P.C. and two witnesses were examined under Section 202 Cr.P.C. The applicants and co-accused persons were summoned for offences under Sections 323, 504, 506, 498-A & 3/4 of D.P. Act by impugned order dated 1.12.2008.
Perusal of record further shows that regarding application filed under Section 156(3) Cr.P.C. Police have filed a report wherein it was mentioned that the accused persons have returned all Istridhan and other articles of opposite party no.2 and parties have divorced to each other and even a compromise deed was prepared between them.
It is well settled that High Court has inherent powers to do real and substantial justice, to prevent the abuse of process of Court and to secure ends of justice. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plentitude of the power requires great caution in its exercise. The Court has to 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 but the Court's failing to use the power for advancement of justice can also lead to grave injustice.
In the case of Inder Mohan Goswami vs. State of Uttaranchal 2007 (12) SCC (1) the Apex Court held as under:
"24. Inherent powers under Section 482 Cr.P.C. through wide have to be exercised sparingly, carefully and with great caution and only when such exercise is justified by the tests specifically laid down in this section itself. Authority of the court exists for the advancement of justice. If any abuse of the process leading to injustice is brought to the notice of the court, then the court would be justified in preventing injustice by invoking inherent powers in absence of specific provisions in the statute."
In the case of Preeti Gupta and Anr. vs. State of Jharkhand and another, Criminal Appeal No. 1512 of 2010. It was observed by the Hon'ble Apex Court that it is a matter of common experience that most of the complaints under Section 498-A of IPC are filed in the heat of moment over trivial issues without proper deliberations. A number of such complaints are found not bona fide and are filed with oblique motive. In the said case Hon'ble Apex Court further held as under:
" The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautions in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have no entirely different complexion. The allegations of the complainant are required to be scrutinized with great care and circumspection.
Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful."
When facts and circumstances of the instant case are considered in the background of legal consequences as discussed above, then it would be unfair to compel the applicant nos. 4, 5 and 6 to undergo rigmorng of criminal trial. It is apparent from record that there are no specific allegation of dowry demand or harassment against the applicant nos. 4, 5 and 6. Even otherwise being brother-in-law and sister-in-law of opposite party no.2, they were not going to be benefited by fulfillment of alleged demand. It cannot be ignored that in such type of matrimonial dispute a tendency is growing in some complainants that they dragged entire family members of the husband to criminal proceedings just to create pressure. Considering all aspect of the case, no prima case is made out against the applicant nos. 4, 5 and 6 and thus, so far as the impugned summoning order relates to the summoning of applicant nos. 4, 5 and 6, the same is not in accordance with law. Accordingly the impugned order, so far as relates to applicant nos. 4, 5 and 6 is set aside. However, in respect of rest of the accused persons, trial Court may proceed further in accordance with law.
Application of applicant nos. 4, 5 and 6, namely, Riyaj Alam, Tahsin @ Gudiya and Tasnim Fatima @ Chhoti is allowed in above terms.
Order Date :- 22.10.2019 A. Tripathi