Partly allowed

Dr. Sumit Agrawal and 4 Others v. State of U.P. and 3 Others

Allahabad HC31 May 2018CRLP/8368/2017

Case brief

AI extract

What is this about?

This Court quashed the FIR against petitioner nos. 4 and 5 as allegations were frivolous, vexatious, and lacked prima facie evidence, noting medical reports contradicted the claim of strangulation. The petition against petitioner no. 1 was dismissed.

What did the court decide?

The impugned FIR is quashed to the extent it impinges PETITIONER NOS. 4 and 5. Investigation against PETITIONER NOS. 2 and 3 continues without arrest.

Dr. Sumit Agrawal and 4 Others Vs State of U.P. and 3… — Dowry and Cruelty | Allahabad HC (2018)

Reserved A.F.R.

Court No. - 4

Case :- CRIMINAL MISC. WRIT PETITION No. - 8368 of 2017

¶5

Petitioner :- Dr. Sumit Agrawal And 4 Others Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Tarun Agrawal Counsel for Respondent :- G.A.,Deepak Dubey,Ram Prakash Dwivedi

¶6

Hon'ble Bala Krishna Narayana,J. Hon'ble Rajiv Gupta,J.

¶7

Heard Sri Tarun Agrawal, learned counsel for the petitioners, learned A.G.A. for the State and Sri Deepak Dubey, learned counsel for the respondent no. 4.

¶8

This writ petition has been filed by the petitioners with a prayer to issue a writ, order or direction in the nature of certiorari quashing the impugned F.I.R. dated 24.02.2017 lodged by respondent no. 4 and registered as Case Crime No. 28/2017 at P.S.- Mahila Thana, u/s 498-A, 323, 504, 377, 506, 307 I.P.C. read with Section ¾ Dowry Prohibition Act, 1961. A further prayer has been made by the petitioners to issue a writ, order or direction in the nature of mandamus commanding the respondents not to arrest the petitioners in pursuance of the impugned F.I.R.

¶9

Pleadings between the parties have been exchanged. With the consent of the learned counsel for the parties, this writ petition is being disposed of finally at the admission stage.

¶10

The facts of the case as emerging from the allegations made in the F.I.R. and the pleadings of the parties are that the respondent no. 4 Dr. (Smt.) Surabhi gave a written report at P.S.- Mahila Thana, District- Agra on 24.02.2017 at about 21.45 hours stating therein that marriage between her and Dr. Sumit Agrawal, son of petitioner no. 3, Dr. Murari Lal Agrawal, resident of Ghantaghar Hathras, presently residing in Khandari, P.S.Hariparvat, Agra, was solemnized on 22.02.2016 in which her father had spent about Rs. 1,20,00,000/- which included a sum of Rs. 40,00,000/- in

¶11

¶12

cash and ornaments of gold and silver worth Rs. 50,00,000/- were given by her father to the petitioners as dowry and Rs. 30,00,000/- spent on purchase of valuable clothes, appliances and articles of domestic use and reception etc. However, her husband petitioner no. 1, Dr. Sumit Agrawal, mother-in-law petitioner no. 2, Smt. Rupa Agrawal, father-in-law petitioner no. 3, Dr. Murari Agrawal and sister-in-law (nanad) petitioner no. 4, Dr. (Smt.) Surabhi were not satisfied with the dowry given to them at the time of marriage and hence, they started demanding Rs. 50,00,000/- in cash and a flat in Delhi as additional dowry from the respondent no. 4 and when she expressed her inability to fulfill their demands of dowry, they started torturing and maltreating her and abusing her father saying that he had promised to pay a sum of Rs. 1,50,00,000/- in cash as dowry but he had paid to them only Rs. 40,00,000/- on account of which the honour of their family had been adversely affected. They also threatened that until their demands of additional dowry of Rs. 50,00,000/- and one flat were fulfilled, they would not allow her to stay in her matrimonial home. Her husband in a state of intoxication used to beat her and force her to have unnatural sex with him. On 26.02.2016, her husband petitioner no. 1, Dr. Sumit Agrawal took her to Maldives where after showing her obscene video films, he insisted on having sexual intercourse with her in the same manner as depicted in the obscene video films and when she protested, she was beaten by him with fists and kicks who announced that until his demands for additional dowry were fulfilled, she would be subjected by him to the same treatment. The respondent no. 4 with the intention of saving the honour of her family and her marital life, kept tolerating everything. After returning from Maldives on 29.02.2016, her husband had kept her in a room in AIIMS guest house in New Delhi where her sister-in-law (nanad) petitioner no. 4, Dr. (Smt.) Surabhi came with her husband petitioner no. 5, Dr. Bhavuk Garg and incited her husband and then both of them started torturing her for non-fulfillment of their demands for additional dowry. Since petitioner no. 4, Dr. (Smt.) Surabhi was repeatedly asking her to come to her house in Delhi, she went to the house of petitioner no. 4 on 15.04.2016 along with her father and after her father went away to attend a conference in Delhi, leaving her behind with her husband petitioner no. 1, Dr. Sumit Agrawal and petitioner no. 5, Dr. Bhavuk Garg who started torturing her in different ways on account of non-fulfillment of demands of additional dowry and the petitioner no. 4 pushed her in a room and locked

¶13

¶14

it from outside and shouted that she would see that how the respondent no. 4 could lead a peaceful marital life. The room was not opened by her despite her imploring repeatedly which compelled her to inform her father about her predicament by her cellphone on which her father rescued her from the clutches of the petitioners and took her to Agra. On 24.02.2017, all the petitioners and two other persons assembled in the house of Sri Kamal Kant Agrawal situate in Ajanta Colony, Dhaulpur House in order to settle the matter amicably but suddenly petitioner no. 3, Dr. Murari Lal Agrawal suggested to her father that they should hold talks in his house on which she, her father and the petitioners came to the house of the respondent no. 4 situate in Kothi Meena Bazaar and when her father left for the market for buying sweets for his guests, respondent no. 4 asked the petitioners as to why they were destroying her marital life and assured them that all their demands would be fulfilled by her parents gradually on which her husband petitioner no. 1, Dr. Sumit Agrawal said that she was not providing her marital bliss as per his desire on which she replied that she was not an animal but a human being on which her mother-in-law petitioner no. 2, Smt. Rupa Agrawal caught hold of her hair and her sisterin-law (nanad) petitioner no. 4, Dr. (Smt.) Surabhi gagged her, her fatherin-law petitioner no. 3, Dr. Murari Lal Agrawal exhorted the other petitioners present there to finish her off on which petitioner no. 4, Dr. (Smt.) Surabhi put a stole around her neck and tried to strangulate her while her brother-in-law (nandoi) petitioner no. 5, Dr. Bhavuk Garg slapped her and her father-in-law petitioner no. 3, Dr. Murari Agrawal dealt a blow on her head with a stick which was lying nearby. At that very moment, her mother came with tea and on noticing the situation, she screamed. On account of the matter being a family affair, nobody intervened or inteceded although, a huge crowd had gathered outside her house. The petitioners left her house threatening to see her later. The respondent no. 4 claimed to have received serious injuries in the aforesaid occurrence.

¶15

On the basis of the written report, Case Crime No. 28 of 2017 u/s 498-A, 323, 504, 377, 506, 307 I.P.C. read with Section ¾ Dowry Prohibition Act, 1961 was registered against all the petitioners at P.S.Mahila Thana. The respondent no. 4 claims that her injuries were examined by Dr. Prabhat Singh, Medical Officer, District Hospital, Agra on 25.02.2017 at about 12.30 p.m. who also prepared her injury report, copy

¶16

¶17

whereof has been brought on record as Annexure No. 2 to the writ petition. Her injury report indicates following injuries on her person :-

¶18

(1) A traumatic swelling size 4.5 x 1.5 cm on it. Side head 0.5 cm for face. KUO Advice X-ray and CT scan.

¶19

(2) A reddish contusion size 33 cm x 2.5 cm all ant. are back expert 3 cm back of neck left side 9 cm from chin mid line 0.5 cm from rt. Ear and 5.5 cm from left ear. Difficulty in swelling. KUO Adv X-ray, KUO in ENT Surgeon.

¶20

(3) A reddish contusion 4 x 1 cm over lt. Arm.

¶21

(4) A reddish contusion 5 x 2 cm lt. Side chest.

¶22

(5) A reddish contusion 9 x 3 cm lt. Side waist.

¶23

(6) C/O pain over lt. Ear with injury. KUO refer to ENT surgeon. Difficulty in hearing.

¶24

(7) A reddish contusion 3 x 1.5 cm are left side back of chest.

¶25

The injury report of respondent no. 4 reflects that she was not taken to the District Hospital, Agra by any police constable but her mother Dr. Alka Singh had accompanied her without the copy of the F.I.R. and it was in her presence that her injuries were examined. Although the respondent no. 4 was advised to undergo certain advanced examination like CT scan, X-ray but she, for the reasons best known to her, chose not to undergo any advanced medical examinations.

¶26

Suspecting that the injury report of respondent no. 4 was fabricated, the petitioner no. 1, Dr. Sumit Agrawal filed an application on 07.03.2018 before the District Magistrate, Agra requesting him to refer the case to a duly constituted Medical Board. The District Magistrate, Agra thereafter directed the Principal, S.N. Medical College, Agra to setup a Medical Board to examine the injuries of the respondent no. 4. Acting upon the aforesaid letter dated 07.03.2018 filed by the petitioner no. 1, Dr. Sumit Agrawal, the District Magistrate, Agra further wrote a letter to the Department of Forensic Medicine and Toxicology, S.N. Medical College, Agra on 09.03.2018 seeking opinion of the Forensic Expert. The Professor and Head of Department of Forensic Medicine, S.N. Medical College, Agra submitted his opinion to the District Magistrate, Agra, copy whereof has been brought on record as Annexure No. S.A.2 to the supplementary affidavit filed by the petitioners in this writ petition. In the opinion of the Forensic Expert, there was no clear evidence of strangulation and there

¶27

¶28

was a gap in the ligature mark which was noted by the doctor who had examined the injuries of the respondent no. 4 and prepared her injury report. He further opined that although the respondent no. 4 at the time of her medical examination had complained of difficulty in swallowing but in case her complaint was genuine then it should have been accompanied with difficulty in breathing also about which she had not made any complaint. Moreover the dimension of the injuries noted by the doctor in the primary medical examination report of the respondent no. 4 were different, indicating use of not one but several blunt weapons. Since, the Investigating Officer of the case was also of the opinion that the respondent no. 4 should be examined by a Medical Board in order to ascertain the authenticity of her injuries, he also wrote a letter on 05.03.2017 in this regard to the Principal, S.N. Medical College for duly constituting a Medical Board, copy whereof has been brought on record as Annexure No. 3 to the writ petition. The Medical Board was duly constituted and the respondent no. 4 was summoned to appear before the Medical Board on 10.03.2017 on which date the respondent no. 4 did not appear before the board whereupon 18.03.2017 was the next date fixed. Due intimation whereof was given to the respondent no. 4. Eventually the respondent no. 4 was examined by the Medical Board on 18.03.2017. The opinion of the Medical Board has been brought on record as Annexure No. 5 to the writ petition. An enquiry was also initiated by District Magistrate against Dr. Prabhat Singh for allegedly preparing a false medical report.

¶29

In the background of the aforesaid facts, learned counsel for the petitioners submitted that the impugned F.I.R. has been lodged by the respondent no. 4 roping in the entire family of her husband petitioner no. 1, Dr. Sumit Agrawal including his parents, mother-in-law petitioner no. 2, Smt. Rupa Agrawal, father-in-law petitioner no. 3, Dr. Murari Agrawal, sister-in-law (nanad) petitioner no. 4, Dr. (Smt.) Surabhi and brother-in-law (nandoi) petitioner no. 5, Dr. Bhavuk Garg containing absolutely false and concocted allegations regarding commission of offences by the petitioners u/s 498-A, 323, 504, 377, 506, 307 I.P.C. read with Section ¾ Dowry Prohibition Act, 1961 with the ulterior intention of harassing the petitioners although there is no iota of any evidence on record even prima facie supporting the F.I.R. allegations. A perusal of the report of the Medical Board reflects that the Medical Board found no evidence suggestive of any

¶30

¶31

injuries mentioned in the primary medical examination report dated 25.02.2017. Examination of neck did not suggest any old or new injury, no injury was found in or around oral cavity and the rectal examination did not indicate any old injury inside or around the anus. The memo of the Medical Board opined that after the examination, the injuries mentioned in the primary medical examination report could not be confirmed on re-medical examination on 18.03.2017 at 11.30 a.m. He next submitted that it being proved from the report of the Medical Board and the opinion of the Forensic Expert that the injury report of the respondent no. 4 prepared by Dr. Prabhat Singh of District Hospita, Agra on 25.02.2017, copy whereof has been brought on record as Annexure No. 2 to the writ petition, is a forged and fabricated document, the allegations regarding commission of offences by the petitioners u/s 323 and 307 I.P.C. stand prima facie proved to be palpably false. He next submitted that even if it is assumed for the sake of arguments that a sum of Rs. 50,00,000/- in cash and a flat in New Delhi was being demanded by the petitioner no.1 from the respondent no. 4 and her parents, petitioner nos. 4 and 5, Dr. (Smt.) Surabhi and Dr. Bhavuk Garg, sister and brother-in-law of petitioner no. 1, Dr. Sumit Agrawal by no stretch of imagination can be said to be the beneficiaries of the additional dowry allegedly demanded by the petitioner no. 1 especially in view of the fact that petitioner no. 1, Dr. Sumit Agrawal even as per the F.I.R. allegations, is living separately from the other petitioners with his wife in Agra. However, the correct fact is that presently he is employed as Senior Resident in Lady Hardinge Medical College, New Delhi and he is not living in Agra while petitioner no. 3, Dr. Murari Agrawal who is himself a qualified doctor and runs and owns a clinic in District Hathras, resides there with his wife petitioner no. 2, Smt. Rupa Agrawal and likewise petitioner no. 5, Dr. Bhavuk Garg who is an orthopedic surgeon currently working as an Associate Professor in All India Institute of Medical Sciences, New Delhi and petitioner no. 4, Dr. (Smt.) Surabhi who is also a highly qualified radiologist. He also submitted the injury report of the respondent no. 4 having been found by the Forensic Expert and the Medical Board to be a fabricated document, the uncontroverted allegations made in the F.I.R. do not constitute a cognizable offence qua the petitioner nos. 2 to 5 and hence, no investigation against the petitioner nos. 2 to 5 can be permitted without the order of Magistrate as contemplated u/s 155(2) Cr.P.C. He next submitted that the allegations made in the

¶32

¶33

impugned F.I.R. are so absurd and inherently improbable that on the basis whereof no prudent man can ever reach a just conclusion that there is sufficient ground for proceeding against the petitioners. He lastly submitted that in any view of the matter, the implication of petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg in the present case is with the sole malafide intention of harassing them and it being apparent on the basis of the reports of the Forensic Expert and the Medical Board that the allegations made by the respondent no. 4 in the impugned F.I.R. against the petitioner no. 4, Dr. (Smt.) Surabhi that she tried to strangulate her are palpably false and the impugned F.I.R., which is a bundle of lies and a product of malice, at least qua the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg, is liable to be quashed.

¶34

Per contra Sri Deepak Dubey, learned counsel for the respondent no. 4. submitted that upon perusal of the impugned F.I.R. and the allegations made therein, it cannot be said that no cognizable offence against the petitioners is made out and hence, no enquiry as to the reliability or genuineness or otherwise of the allegations made in the impugned F.I.R. is warranted at this stage. He next submitted that specific allegations of demand of Rs. 50,00,000/- in cash and a flat in New Delhi from the respondent no. 4 and her father by the petitioners and her being tortured and maltreated in her matrimonial home by them on account of non-fulfillment of alleged demands of additional dowry and an attempt on her life being made by petitioner no. 1, Dr. Sumit Agrawal and petitioner no. 4, Dr. (Smt.) Surabhi in the house of the respondent no. 4 herself by trying to strangulate her during which she was allegedly slapped by petitioner no. 5, Dr. Bhavuk Garg which was preceded by demand of dowry made by petitioner no. 3, Dr. Murari Agrawal from the respondent no. 4 and the respondent no. 4 being gagged by petitioner no. 4, Dr. (Smt.) Surabhi and thereafter her being dealt a blow on her head with a stick by her father-in-law petitioner no. 3, Dr. Murari Lal Agrawal and specific allegations of her sexual harassment by her husband petitioner no. 1, Dr. Sumit Agrawal who insisted on having unnatural sexual intercourse with her, have been made by the respondent no. 4 in the F.I.R. He further submitted that the report of the Medical Board dated 18.03.2017 which was prepared on the basis of primary medical examination report of the

¶35

¶36

respondent no. 4 after 20 days of the incident cannot be made the basis for holding her injuries to be false and fabricated as the marks of the injuries which were inflicted by the petitioners on respondent no. 4 were bound to disappear after lapse of such a long time especially in view of the fact that the injuries were properly treated. He lastly submitted that this writ petition lacks merit and is liable to be dismissed.

¶37

In support of his aforesaid contentions, learned counsel for the petitioners had invited our attention to Chapter 12 of Modi's Medical Jurisprudence and Toxicology titled “Injuries by Mechanical Violence”.

¶38

Learned A.G.A. appearing for the State also adopted the submissions made by learned counsel for the respondent no. 4.

¶39

In rejoinder, Sri Tarun Agrawal, learned counsel for the petitioners submitted that the respondent no. 4 deliberately avoided appearing before the Medical Board on the first date which was fixed for her re-medical examination well within 20 days of the occurrence so that the factum of her injury report being fabricated may not be exposed and she deliberately appeared before the Medical Board after 20 days of the occurrence.

¶40

We have heard the learned counsel for the parties present and perused the material brought on record as well as the law reports cited by the learned counsel for the parties in support of their respective contentions.

¶41

The facts of the case which are not in dispute inter alia are that the petitioner no. 1 is a highly qualified doctor by profession who had obtained his MBBS degree from Maulana Azad Medical College, New Delhi and had thereafter completed his M.D. (Radiology) from Era Medical College, Lucknow. Currently and at the time of the incident also, he was working as a Senior Resident in Lady Hardinge Medical College, New Delhi. The petitioner no. 2, Smt. Rupa Agrawal, is a housewife married to petitioner no. 3, Dr. Murari Lal Agrawal who is a highly reputed and qualified doctor, owns and runs a clinic at District- Hathras. The petitioner no. 4, Dr. (Smt.) Surabhi who is a qualified radiologist, is married to petitioner no. 5, Dr. Bhavuk Garg, who is a highly qualified orthopedic surgeon currently working as an Associate Professor in All India Institute of Medical Sciences, New Delhi and has also obtained his M.S. (Ortho) from AIIMS, New Delhi. The marriage between the petitioner no. 1, Dr. Sumit Agrawal

¶42

¶43

and the respondent no. 4, Smt. Shubhanjali Sen was solemnized on 22.02.2016. The averments regarding the aforesaid facts have been made by the petitioners in paragraphs 5 to 9 of the writ petition which have not been denied by the respondent no. 4 in her counter affidavit. The reply to the contents of paragraphs 5 to 9 of the writ petition has been given by the respondent no. 4 in paragraph 4 of her counter affidavit in which she has stated that the contents of the paragraphs 3 to 8 of the writ petition are factual in nature and hence do not call for any reply from the answering deponent.

¶44

The chronology of this case indicates that the marriage between the petitioner no. 1, Dr. Sumit Agrawal and the respondent no. 4, Smt. Shubhanjali Sen as already stated hereinabove, was solemnized on 22.02.2016 in Agra. As per the allegations made in the F.I.R. On 26.02.2016, the respondent no. 4 had left with her husband petitioner no. 1, Dr. Sumit Agrawal for Maldives. It is alleged in the F.I.R. that in Maldives, the petitioner no. 1, Dr. Sumit Agrawal compelled the respondent no. 4 to watch obscene video films and then coerced her to have sexual intercourse in the same manner as depicted in the obscene video films and when she objected, she was beaten by him with kicks and fists. On 29.02.2016, the petitioner no. 1, Dr. Sumit Agrawal and respondent no. 4 returned from Maldives and stayed in a guest house of AIIMS, New Delhi where it is alleged that the petitioner no. 4, Dr. (Smt.) Surabhi came and incited petitioner no. 1, Dr. Sumit Agrawal whereafter both of them had tortured her for non-fulfillment of alleged demands for dowry. The next incident took place in the house of petitioner no. 4, Dr. (Smt.) Surabhi on 15.04.2016 in which it is alleged by the respondent no. 4 that the petitioner no. 1, Dr. Sumit Agrawal, petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg had tortured her in different ways and then petitioner no. 4 had locked her in a room and threatened to destroy her marital life and had refused to open the door ignoring the implorations of the respondent no. 4 and eventually her father whom she had called by her cellphone, had come to the house of petitioner no. 4, Dr. (Smt.) Surabhi and rescued her. The F.I.R. then refers to the last incident which had allegedly taken place on 24.02.2017. In the said episode which had taken place in the house of the respondent no. 4 situate in Kothi Meena Bazaar at about 7 p.m., accusations were hurled at her by the

¶45

¶46

petitioners regarding non-fulfillment of demands of dowry in the absence of her father who had gone to the market which was followed by petitioner no. 2, Smt. Rupa Agrawal catching respondent no. 4 by her hair and pushing her on the ground and threatening to gag her forever when she had requested the petitioner no. 2 not to destroy her marital life and assured that their demands would be fulfilled gradually, the petitioner no. 4, Dr. (Smt.) Surabhi gagged her so that she may not scream, her fatherin-law petitioner no. 3, Dr. Murari Lal Agrawal exhorted the other petitioners present there to kill her on which her husband petitioner no. 1, Dr. Sumit Agrawal and sister-in-law petitioner no. 4, Dr. (Smt.) Surabhi tied a rope around her neck and tried to strangulate her while her brother-inlaw petitioner no. 5, Dr. Bhavuk Agrawal slapped her and her father-in-law petitioner no. 3, Dr. Murari Lal Agrawal dealt her a blow with a stick which was lying nearby. While all this was going on, her mother made an entry with a tray of tea in her hands. On noticing her, she screamed loudly but no one intervened although a huge crowd had gathered outside the house on account of the aforesaid dispute. On seeing the huge crowd, the petitioners left her house threatening her with dire consequences.

¶47

One striking feature of this case which stands out is that the last incident is alleged to have taken place in the house of the respondent no. 4 herself and admittedly when her mother was present in the house. Although the record shows that the respondent no. 4 had received injuries at the hands of the petitioners in the incident which had taken place on 24.02.2017 but the report of the Forensic Expert and the Medical Board belies the authenticity of her injury report at least at this stage and in view of the above, a very strong suspicion arises with regard to the truthfulness of the incident which the respondent no. 4 alleges to have taken place in their house on 24.02.2017 in which an attempt on her life was allegedly made by the petitioners with petitioner no. 1, Dr. Sumit Agrawal and petitioner no. 4, Dr. (Smt.) Surabhi taking a leading role by trying to strangulate her. In any view of the matter, we find that the implication of the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg by the respondent no. 4 as accused in this case does not appear to be bonafide.

¶48

The allegations made in the F.I.R. indicate that although a prima facie case against the petitioner no. 1, Dr. Sumit Agrawal, petitioner no. 2,

¶49

¶50

Smt. Rupa Agrawal and petitioner no. 3, Dr. Murari Agrawal may or may not be constituted but it surely appears to be a case where allegations against the married sister and her husband, petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg appear to be frivolous and vexatious as they cannot by any stretch of imagination be said to be the beneficiaries of additional demand of dowry made by the petitioner no. 1, Dr. Sumit Agrawal and we do not find any reason how they can be implicated in the mutual bickering between the respondent no. 4 and her husband petitioner no. 1, Dr. Sumit Agrawal including his parents, petitioner no. 2, Smt. Rupa Agrawal and petitioner no. 3, Dr. Murari Lal Agrawal being themselves highly qualified medicos and well placed in life, both financially and socially.

¶51

Reference may be made to the decision of Hon'ble Apex Court in the case of State of Haryana Vs.Bhajan Lal and others reported in 1991 (28) ACC 111 (SC) where after considering its earlier decision on the issue rendered in the cases of R. P. Kapoor Vs. State of Punjab, reported in AIR 1960 SC 866 , S. N. Sharma Vs. Bipen Kumar Tiwari, reported in 1970 (7) ACC 210 (SC), Prabhu Dayal Deorah Vs. District Magistrate, Kamrup, reported in (1974) 1 SCC 103, Nandini Satpathu Vs. P.L. Dani reported in (1978) 2 SCC 424 and State of West Bengal Vs. Swapan Kumar Guha, reported in (1982) 1 SCC 561, the Apex Court approved the view taken by the Privy Council in Khwaja Nazir Ahmad's case (supra). In paragraph 102 of the reports, it has been observed as under :

¶52

"In the backdrop of the interpretation of the various relevant provisions of the code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.

¶53

(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

¶54

¶55

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.

¶56

(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.

¶57

(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 concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge."

¶58

The above list, as noted, is illustrative and not exhaustive.”

¶59

Having tested the factual matrix of this case in the light of the principle propounded by the Apex Court, we find that qua the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg, the instant case falls under the third category of cases listed by the Apex Court in paragraph 101 of the case of Bhajan Lal (supra). As we have already observed that the petitioner nos. 4 and 5 cannot be said to be the beneficiaries of the dowry allegedly demanded by the petitioner no. 1, Dr. Sumit Agrawal from the respondent no. 4 and her parents, the allegations framed against the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg and as set forth in the F.I.R. that the petitioner no. 4, Dr. (Smt.) Surabhi had gagged and then tried to strangulate the respondent no. 4 along with the petitioner no. 1, Dr. Sumit Agrawal in the house of the respondent no. 4 itself and the petitioner no. 5, Dr. Bhavuk Garg having slapped her, stands belied from the opinion of the Medical Board which upon medical re-examination of the respondent no. 4 found no such marks of the injuries which were allegedly found by the doctor on her medical examination done by him on 25.02.2017 and those noted by

¶60

¶61

him in her injury report. The submission made by learned counsel for the respondent no. 4 that since the respondent no. 4 was medically reexamined after more than 20 days of the incident, it was quite natural for all traces of the injuries received by her in the incident to have disappeared in view of Chapter 12 of Modi's Medical Jurisprudence and Toxicology which opines that a bruise disappears after 14^th or 15^th day of its infliction when the skin regains its normal appearance, is without any merit for the reason that in case respondent no. 4 had appeared before the Medical Board on 10.03.2017 which was the first date fixed by the Medical Board for her medical re-examination which was within 15 days of the alleged infliction of the injuries on her then the marks of those alleged injuries would certainly have been noted by the members of the Medical Board on her medical re-examination but she deliberately avoided appearing before the Medical Board on 10.03.2017 so that she could come up with a feasible explanation for the non-presence of any marks of injuries on her person which she claims to have been received by her in the occurrence which had taken place on 24.02.2017. Prima facie, it appears to us that if she had actually received any injury on 24.02.2017 in her house at the hands of the petitioners, she would certainly have appeared before the Medical Board on 10.03.2017 for her medical reexamination.

¶62

The authenticity of the incident which had allegedly taken place on 24.02.2017 in the house of the respondent no. 4 herself, itself being under the cloud, the only allegations left against the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg are of general nature that they had demanded additional dowry from the respondent no. 4 along with other petitioners and on non-fulfillment of alleged demands of additional dowry, they tortured her in different ways and petitioner no. 4, Dr. (Smt.) Surabhi had further locked her in a room in her house in connection with unfulfilled demands of dowry. We have already held hereinabove that petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg cannot by any stretch of imagination be said to be the beneficiaries of dowry allegedly demanded by petitioner no. 1, Dr. Sumit Agrawal and hence, the allegations of demands for dowry and torture of respondent no. 4 for non-fulfillment of alleged demands of dowry by the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg also along with

¶63

¶64

the other petitioners, in our opinion, have been made by the respondent no. 4 in the impugned F.I.R. with the solitary object of giving a colour of involvement of entire family of petitioner no. 1, Dr. Sumit Agrawal in maltreating and torturing her on account of non-fulfillment of alleged demands of additional dowry and which appear to us to be highly improbable. The F.I.R. in this case not only reflects an exaggerated version of the incident but also over-implication. The sister-in-law petitioner no. 4, Dr. (Smt.) Surabhi and brother-in-law petitioner no. 5, Dr. Bhavuk Garg of the respondent no. 4 against whom there is no evidence of living with the petitioner no. 1, Dr. Sumit Agrawal and the respondent no. 4, is a glaring example of over-implication. The medical evidence on record also does not atleast at this stage disclose the commission of offences u/s 323, 504, 307 I.P.C. qua the petitioner nos. 2 to 5.

¶65

Thus, in view of the foregoing discussion, we hold that as far as the indictment of petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg in the present case at the behest of the respondent no. 4 is concerned, we find that the same has been done with the solitary object of harassing them and ensuring that each and every member of her husband's family is implicated, arrested and sent to jail and qua the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg, the impugned F.I.R. is liable to be quashed.

¶66

We accordingly dispose of this writ petition with the following directions :-

¶67

1. The impugned F.I.R. qua the petitioner no. 4, Dr. (Smt.) Surabhi and petitioner no. 5, Dr. Bhavuk Garg, is hereby quashed.

¶68

1. The investigation of the aforesaid case qua the petitioner no. 2, Smt. Rupa Agrawal and the petitioner no. 3, Dr. Murari Lal Agrawal shall go on but they shall not be arrested till the submission of police report u/s 173 (2) Cr.P.C. subject to their extending full cooperation during investigation.

¶69

1. Qua the petitioner no. 1, Dr. Sumit Agrawal, this writ petition stands dismissed. However, considering the nature of the allegations made in the F.I.R. and submissions made by learned counsel for the petitioners, it is directed that in case he appears before the court concerned within thirty days from today and applies for bail, the

¶70

¶71

same shall be heard and disposed of expeditiously by the courts below in view of the settled law laid by the Seven Judges' decision of this Court in the case of Amrawati and another Vs. State of U.P. reported in 2005 Cr.L.J. 755 as well as judgment passed by Hon'ble Apex Court in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

¶72

Order Date :- 31.05.2018 KS

Dr. Sumit Agrawal and 4 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Dr. Sumit Agrawal and 4 Others v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Birbal Vs State of U.P.

Rahul and Anr. Vs State of U.P.

Sonu Vs State of U.P.

Vinmati Vs State of U.P.

Manik Chandra Vs State of U.P.

Duliya @ Duniya Devi Vs State of U.P. and 5 Others