Dismissed

Jitesh Kumar Gupta and 4 Ors. v. State of U.P. and Another

Allahabad HC13 Sept 2019A482/9172/2019

Case brief

AI extract

What is this about?

This judgment dismissed an application under Section 482 Cr.P.C. seeking to quash a summoning order issued against applicants accused of dowry harassment. The court held that allegations prima facie constituted an offence and the power under Section 482 cannot be exercised routinely to stifle a legitimate prosecution.

What did the court decide?

Application under Section 482 Cr.P.C. for quashing the impugned summoning order and complaint case dismissed.

Jitesh Kumar Gupta and 4 Ors. Vs State of U.P. and Another — Dowry and Cruelty | Allahabad HC (2019)

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AFR Reserved on : 15.3.2019 Delivered on :13.9.2019

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Court No. - 75

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Case :- APPLICATION U/S 482 No. - 9172 of 2019

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Applicant :- Jitesh Kumar Gupta And 4 Ors Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajendra Singh Counsel for Opposite Party :- G.A.

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Hon'ble Rajendra Kumar-IV,J.

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By means of this application under Section 482 Cr.P.C., applicants jitesh Kumar Gupta and four others approached this Court for quashing summoning order dated 14.2.2019 in Complaint Case No. 367 of 2019 (Pooja Rani vs. Jitesh Kumar and others), under Sections 498-A I.P.C. & 3/4 Dowry Prohibition Act, Police Station Shivpur, District Varanasi, pending in the Court of Additional Chief Judicial Magistrate, Court No. 6, Varanasi and entire proceedings thereof.

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Brief facts giving rise to the present application are that Smt. Pooja Rani filed a complaint under Section 156(3) Cr.P.C. on 18.6.2018 against Jitesh Kumar Gupta, Gopal Chand Gupta, Smt. Parvati Devi, Chandan Gupta and Chandrkesh Gupta stating that her marriage took place with Jitesh Kumar Gupta on 26.4.2016 as per Hindu rites and sufficient Dowry was given according to her father's capability, was given to her in laws at the time of marriage. Complaint further recites that her in-laws started demanding one car and Rs. 5,00,000/- as Dowry and harassing her by saying that Jitesh Kumar Gupta, her husband, is a Government Servant. She was illtreated and tortured by accused-applicants. On 13.4.2018, she was kicked out from her matrimonial house by husband and family

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members by snatching her entire belongings.

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Application under Section 156 (3) Cr.P.C. came to be registered as complaint case. Magistrate recorded the statement of victim-complainant under Section 200 Cr.P.C. and made an enquiry by recording statement of Deen Dayal Prasad (PW-1) and Ashok Kumar Patel (PW-2) under Section 202 Cr.P.C. and found primafacie case and sufficient ground for proceeding against accused persons, summoned them for facing trial under Sections 498-A IPC and Section 3/4 Dowry Prohibition Act, PS Shivpur, District Varanasi vide impugned order dated 14.2.2019.

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Feeling aggrieved and dissatisfied with the impugned summoning order, accused-applicants filed present application under Section 482 Cr.P.C. for quashing the summoning order as well as complaint.

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I have heard Sri S.B. Singh, Advocate holding brief of Sri Rajendra Singh, learned counsel for applicants and learned AGA for State and perused the record on file.

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It is submitted by learned counsel for applicants that no prima facie case is made out against the applicants. They have falsely been implicated for the purpose of harassment and humiliation. Magistrate has not applied its mind in passing the impugned order. There is no sufficient evidence in the case to summon the applicants for facing trial. It is submitted that complainant was not a lady of good character, she lived in her parental house at her own will just after the marriage performed. Marriage is not consummated, despite that she gave birth to a male child as a result of adultery. It is further submitted by him that applicant no. 1 Jitesh Kumar Gupta filed a divorce petition in the family court concerned agaisnt the

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complainant and just to escape from legal proceeding of that divorce petition, complainant filed the impugned complaint. Applicants prayed for quashing the impugned complaint.

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Learned AGA for State vehemently opposed the prayer for quashing the impugned order as well as complaint case and submitted that marriage of Pooja Rani and applicant no. 1 Jitesh Kumar Gupta is admitted. Applicant no. 1 stigmatized upon character of his wife and disputed the parentage of his son. Applicants tortured and ill-treated the complainant, therefore, complainant filed the complaint case in which Magistrate after making inquiry rightly summoned the accused persons for facing trial.

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I have considered the rival submissions made by the parties and perused the records.

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Before I enter into the facts of the present case it is necessary to consider the ambit and scope of jurisdiction under Section 482 Cr.P.C. vested in the High Court. Section 482 Cr.P.C. saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

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It is settled that the power under Section 482 Cr.P.C. is not to be exercised in a routine manner, but it is for limited purposes, namely, to give effect to any order under the Code, or to prevent abuse of process of any Court or otherwise to secure ends of justice.

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Time and again, Apex Court and various High Courts, have reminded when exercise of power under Section 482 Cr.P.C. would be justified, which cannot be placed in straight jacket formula, but

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one thing is very clear that it should not preempt a trial and cannot be used in a routine manner so as to cut short the entire process of trial before the Courts below. If from a bare perusal of first information report or complaint, it is evident that it does not disclose any offence at all or it is frivolous, collusive or oppressive from the face of it, the Court may exercise its inherent power under Section 482 Cr.P.C. but it should be exercised sparingly. This will not include as to whether prosecution is likely to establish its case or not, whether the evidence in question is reliable or not or whether on a reasonable appreciation of it, accusation would not be sustained, or the other circumstances, which would not justify exercise of jurisdiction under Section 482 Cr.P.C. (See : State of Haryana and others Vs. Ch. Bhajan Lal and others 1992 Supp (1) SCC 335, Popular Muthiah Vs. State represented by Inspector of Police (2006) 7 SCC 296, Hamida vs. Rashid @ Rasheed and Ors. (2008) 1 SCC 474, Dr. Monica Kumar and Anr. vs. State of U.P. and Ors. (2008) 8 SCC 781, M.N. Ojha and Ors. Vs. Alok Kumar Srivastav and Anr. (2009) 9 SCC 682, State of A.P. vs. Gourishetty Mahesh and Ors. JT 2010 (6) SC 588 and Iridium India Telecom Ltd. Vs. Motorola Incorporated and Ors. 2011 (1) SCC 74).

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In State of Haryana and others v. Bhajan Lal and others, 1992 Supp (1) SCC 335, Court has elaborately considered the scope and ambit of Section 482 Cr.P.C. Although in the above case Court was considering the power of the High Court to quash the entire criminal proceeding including the FIR, the case arose out of an FIR registered under Section 161, 165 IPC and Section 5(2) of the Prevention of Corruption Act, 1947. Court elaborately considered the scope of Section 482 Cr.P.C./ Article 226 of the Constitution of India in the context of quashing the proceedings in criminal investigation.

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After noticing various earlier pronouncements of Court, Court enumerated certain Categories of cases by way of illustration where power under Section 482 Cr.P.C. can be exercised to prevent abuse of the process of the Court or secure ends of justice. Paragraph 102 which enumerates 7 categories of cases where power can be exercised under Section 482 Cr.P.C. are extracted as follows:

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“102. 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.

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(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.

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(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.

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(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.

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(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

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without an order of a Magistrate as contemplated under Section 155(2) of the Code.

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(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.

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(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.

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(7) Where a criminal proceeding is manifestly attended with mala fide 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.”

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In Priya Vrat Singh and others vs. Shyam Ji Sahai, 2008 (8) SCC 232 , Court observed that 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 primafacie 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 proceeding at any stage.

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In Fakhruddin Ahmad v. State of Uttaranchal, reported in, (2008) 1 SCC 157 , the Court held that :

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"20. So far as the scope and ambit of the powers of the

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High Court under Section 482 of the Code is concerned, the same has been enunciated and reiterated by this Court in a catena of decisions and illustrative circumstances under which the High Court can exercise jurisdiction in quashing the proceedings have been enumerated. However, for the sake of brevity, we do not propose to make reference to the decisions on the point. It would suffice to state that though the powers possessed by the High Court under the said provision are very wide but these should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The inherent powers possessed by the High Court are to be exercised very carefully and with great caution so that a legitimate prosecution is not stifled. Nevertheless, where the High Court is convinced that 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 or where the allegations made in the F.I.R. or the 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, the powers of the High Court under the said provision should be exercised."

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In the present case marriage of applicant no. 1 Jitesh Kumar Gupta with opposite party no.2 Smt. Pooja Rani is a admitted fact and applicants could not dispute the fact of marriage. Evidently, applicant no. 1 Jitesh Kumar Gupta filed divorce petition under Section 13 of Hindu Marriage Act before Principal Judge Family Court, Varanasi against complainant Pooja Rani seeking a decree of nullity of marriage (Annexure-1) in which in paragraph no. 22, he admitted that there is no consummation of marriage. Despite that Pooja Rani gave a birth to a male child in her parental house as a result of adultery because she was living in her parental house since 11.10.2016. Thus, applicant no. 1 stigmatized character of his wife

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and parentage of his own son which itself amount to cruelty to his own wife.

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The allegation levelled against each other can be adjudicated only after the evidence and truthfulness of allegation cannot be considered in the proceeding under Section 482 Cr.P.C. before this Court and trial must go on.

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From perusal of allegations made in complaint, statement of witnesses under Sections 200 and 202 Cr.P.C., it cannot be said that no prima facie evidence or sufficient ground for proceeding is there. At the time of passing summoning order, Magistrate is only to see prima facie evidence and sufficient ground for proceeding.

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Application under Section 482 Cr.P.C. is accordingly dismissed .

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Order Date :- 13.9.2019

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Manoj

Jitesh Kumar Gupta and 4 Ors. v. State of U.P. and Another

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Jitesh Kumar Gupta and 4 Ors. v. State of U.P. and Another

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