Dismissed

Virendra Kumar and 3 Others v. State of U.P. and Another

Allahabad HC20 Jan 2020A482/2690/2020

Case brief

AI extract

What is this about?

In an application under Section 482 Cr.P.C. to quash criminal proceedings arising from a matrimonial dispute alleging injury and miscarriage, the Court dismissed the application, holding that pre-trial acquittal is not permitted. The Court directed applicants to surrender within four weeks to be considered for bail under settled law.

What did the court decide?

Application dismissed; applicants directed to surrender within four weeks for bail consideration; no coercive action for four weeks.

Virendra Kumar and 3 Others Vs State of U.P. and… — Matrimonial and Divorce | Allahabad HC (2020)

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Court No. - 74

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Case :- APPLICATION U/S 482 No. - 2690 of 2020

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Applicant :- Virendra Kumar And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Chandra Prakash Pandey Counsel for Opposite Party :- G.A.

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Hon'ble Ram Krishna Gautam,J.

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Heard learned counsel for the applicants and learned A.G.A. representing the State. Perused the records.

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This application under Section 482 Cr.P.C. has been filed by applicants with prayer to quash the cognizance / summoning order dated 13.08.2019 as well as entire criminal proceedings of Case No. 1230 of 2019, arising out of Case Crime No. 162 of 2018, under Sections 498-A, 323, 504, 506, 313 I.P.C. & 3/4 D.P. Act as well as charge sheet No. 62 of 2019 (dated 21.06.2019), Police Station Diyuriya Kalan, District Pilibhit (State Vs. Virendra Kumar and others).

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Learned counsel for applicant argued that it was a matrimonial dispute, for which a case was got lodged as Complaint Case No. 1421 of 2018, for offence punishable under Sections 384, 386, 420, 313, 506 I.P.C., wherein actual facts were narrated and after this, this false accusation was got lodged, wherein impugned summoning is there. It was an abuse of process of law. Mother-in-law, brother-in-law and sister-in-law were of no concern with above occurrence. Applicants were ready for keeping their relations by way of mediation, but opposite party no. 2 Ruby Sandhya was not amenable. Hence, this application.

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Learned counsel for opposite party no. 2 opposed the aforesaid prayer with this contention that at a previous instance mediation could not be successful because of refusal of applicant side. It is a matrimonial dispute. No doubt, heinous offence of miscarriage against the knowledge and consent of victim is there and this had occurred owing to injuries sustained by her, given by applicants. Learned A.G.A. has also vehemently opposed the application.

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From the very perusal of complaint, filed by applicant, it is apparent that an offence punishable under Section 313 I.P.C. i.e. regarding miscarriage against the consent of victim has been narrated in it. It has been said that after having information of this miscarriage, applicant went at above hospital and found above miscarriage. Meaning thereby, miscarriage of victim is

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undisputed fact. Her hospitalization at above hospital, of which medical report has been filed, is also undisputed fact. Informant being wife of applicant Virendra Kumar is undisputed fact. Investigation resulted submission of charge sheet and this was on the basis of statement recorded by Investigating Officer under Section 161 Cr.P.C. during the investigation of above case crime number. Cognizance over this charge sheet has also been taken. Hence, pre-trial acquittal is not permitted as per law of apex court in Palwinder Singh Vs. Balwinder Singh and others; (2008) 14 Supreme Court Cases 504 .

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Saving of inherent power of High Court, as given under Section 482 Cr.P.C, provides that nothing in this Code shall be deemed to limit or affect the inherent powers 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. Meaning thereby this inherent power is with High Court (I) to make such order as may be necessary to give effect to any other order under this Code (II) to prevent abuse of the process of any Court (III) or otherwise to secure the ends of justice. But Apex Court in State of Andhra Pradesh v. Gaurishetty Mahesh, JT 2010 (6) SC 588: (2010) 6 SCALE 767: 2010 Cr. LJ 3844 has propounded that "While exercising jurisdiction under section 482 of the Code, the High Court would not ordinarily embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable apprehension of it accusation would not be sustained. That is the function of the trial Judge/Court" . In another subsequent Hamida v. Rashid, (2008) 1 SCC 474, hon'ble Apex Court propounded that " Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 at an interlocutory stage which after filed with some oblique motive in order to circumvent the prescribed procedure, or to delay the trial which enable to win over the witness or may disinterested in giving evidence, ultimately resulting in miscarriage of Justice" . In again another subsequent Monica Kumar v. State of Uttar Pradesh, (2008) 8 SCC 781 , the Apex Court has propounded "Inherent jurisdiction under Section 482 has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself." While interpreting this jurisdiction of High Court Apex Court in Popular Muthiah v. State, Represented by Inspector of Police, (2006) 7 SCC 296 has propounded "High Court can exercise jurisdiction suo motu in the interest of justice. It can do so while exercising other jurisdictions such as appellate or revisional jurisdiction. No formal application for invoking inherent jurisdiction is

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necessary. Inherent jurisdiction can be exercised in respect of substantive as well as procedural matters. It can as well be exercised in respect of incidental or supplemental power irrespective of nature of proceedings".

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Regarding prevention of abuse of process of Court, Apex Court in Dhanlakshmi v. R.Prasana Kumar, (1990) Cr LJ 320 (DB): AIR 1990 SC 494 has propounded "To prevent abuse of the process of the Court, High Court in exercise of its inherent powers under section 482 could quash the proceedings but there would be justification for interference only when the complaint did not disclose any offence or was frivolous vexatious or oppressive" as well as in State of Bihar v. Murad Ali Khan, (1989) Cr LJ 1005: AIR 1989 SC 1 , Apex Court propounded "In exercising jurisdiction under Section 482 High Court would not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not".

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Meaning thereby, exercise of inherent jurisdiction under Section 482 Cr.P.C. is within the limits, propounded as above.

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In view of the aforesaid facts and circumstances, the application merits its dismissal. The application is dismissed as such.

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However, in the interest of justice, it is provided that if the applicant no. 2 Sumitra Devi, applicant no. 3 Dharmendra Kumar and applicant no. 4 Munni Devi appear and surrender before the court below within four weeks from today and apply for bail, then the bail application of the applicant be considered and decided in view of the settled law laid by this Court in the case of Amrawati and another Vs. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon'ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh Vs. State of U.P.

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For a period of four weeks from today or till the disposal of the application for grant of bail whichever is earlier, no coercive action shall be taken against the applicants.

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However, in case, the applicants do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

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The trial court is not be prejudiced by finding given in this proceeding.

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Order Date :- 20.1.2020 NS

Virendra Kumar and 3 Others v. State of U.P. and Another

Case brief

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Virendra Kumar and 3 Others v. State of U.P. and Another

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