Dismissed

Seepika Jaiswal v. State of U.P. and Another

Allahabad HC29 Mar 2022A482/18112/2021

Case brief

AI extract

What is this about?

Application under Section 482 Cr.P.C. seeking quashing of order rejecting further investigation and direction to police to investigate domestic offences against the applicant. The Court held that in a dispute between husband and wife, the applicant lacks power to move such an application.

What did the court decide?

Application under Section 482 Cr.P.C. dismissed; original order rejecting further investigation stands upheld.

Seepika Jaiswal Vs State of U.P. and Another — Domestic Violence | Allahabad HC (2022)

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Court No. - 88

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Case :- APPLICATION U/S 482 No. - 18112 of 2021

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Applicant :- Seepika Jaiswal Opposite Party :- State of U.P. and Another Counsel for Applicant :- Nipun Singh,Vivek Chaubey Counsel for Opposite Party :- G.A.

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Hon'ble Mohd. Aslam,J.

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Heard learned counsel for the applicant as well as learned A.G.A. for the State.

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The instant application under Section 482 Cr.P.C. is moved with the prayer to quash the impugned order dated 01.09.2021 passed by the court of learned Chief Judicial MagistrateGorakhpur in Case Crime No.1054 of 2020 under Sections 498A, 504 IPC and Section 3/4 Dowry Prohibition Act-1961, Police Station-Ramgarhtal, District-Gorakhpur. By means of this application, the applicant also seeks a direction to the court of learned Chief Judicial Magistrate-Gorakhpur to direct the concerned police authorities to further investigate the matter.

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The prosecution case, in brief, is that the marriage of applicantinformant was solemnized on 25.01.2019 as per hindu rites and rituals with the opposite party no.2-Dr. Gulshan Gupta. The applicant-informant moved application under Section 156(3) Cr.P.C. alleging therein that after marriage, when she reached her in-laws' house, they started mentally and physically torturing her and demanded an Audi Car and Rs.50 Lakh in cash as dowry. She also alleged in the FIR that her husband committed unnatural offence with her against her will. The FIR was registered by the order of Magistrate dated 12.02.2020 in Case Crime No.1054 of 2020. It is pertinent to note that she was treated in the District Women Hospital-Prayagraj on 26.02.2019. It is apparent from the prescription dated 26.02.2019 that there was complaint of pain and swelling in perianal region and pain in defecation and on examination the following injuries were found:-

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"- Multiple small cuts & fresh abrasions on nape of neck, behind left shoulder & back near left angle of scapula

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-Swelling & inflammation of external anal sphincter and abrasion at 6 'o' clock & 9 'o' clock tear with acute painful fissure

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-abrasion on paltete on left side & ulceration on right side of oropharynx ."

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The police after conducting investigation submitted the chargesheet against Dr. Gulshan Gupta under Sections 498-A, 504 IPC and 3/4 Dowry Prohibition Act-1961.

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Feeling aggrieved by the aforesaid charge-sheet, the applicantinformant moved an application under Section 173(8) Cr.P.C. for further investigation. Learned Chief Judicial MagistrateGorakhpur rejected the application vide impugned order dated 01.09.2021 by observing that the charge-sheet has been filed against the accused Dr. Gulshan Gupta in Case Crime No.1054 of 2020 under Sections 498-A, 504 IPC and Section 3/4 D.P. Act on 15.07.2021 and after perusal of the police papers, the accused-Dr. Gulshan Gupta was summoned. It was also observed therein that it is the officer-in-charge of the police station who can do further investigation under Section 173 (8) Cr.P.C.

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Learned counsel for the applicant submitted that learned lower court has wrongly rejected the application for further investigation in an arbitrary manner. It is further submitted that specific allegations of unnatural offence and demand of dowry was made against the accused, therefore, the order of learned lower court is liable to be set aside. In support of his submission, learned counsel for the applicant placed reliance upon the judgment of Hon'ble Apex Court in Vinubhai Haribhai Malaviya & Ors. v. State of Gujarat & Anr. AIR 2019 SC 5233.

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Learned A.G.A. opposed the application and stated that the application of the applicant-informant for further investigation has rightly been rejected by the learned lower court. It is further submitted that it is the officer-in-charge of the police station who can do further investigation in the matter under Section 173(8) Cr.P.C.

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I have gone through the file.

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The facts and circumstances of the case in Vinubhai Haribhai Malaviya & Ors. (supra) are different from the facts and circumstances of the present case.

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In this case, there is a dispute between husband and wife and the applicant has got no power to move application before the court for further investigation.

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Moreover, Section 375 IPC has been substituted by Act No.13 of 2013 which defines the 'rape' as follows:" 375. Rape. - A man is said to commit "rape" if he-

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(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or

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(b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or

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(c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or

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(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person,

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under the circumstances falling under any of the following seven descriptions:-

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First.- Against her will.

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Secondly.- Without her consent.

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Thirdly.- With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt.

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Fourthly.-With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married.

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Fifthly.-With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

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Sixthly.- With or without her consent, when she is under eighteen years of age.

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Seventhly.-When she is unable to communicate consent."

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In view of the above, the application under Section 482 Cr.P.C. lacks merit and is, accordingly, dismissed .

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Order Date :- 29.3.2022 Jyotsana

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Digitally signed by JYOTSANA SINGH Date: 2022.04.07 16:58:31 IST Reason: Location: High Court of Judicature at Allahabad

Seepika Jaiswal v. State of U.P. and Another

Case brief

What is this about?

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Seepika Jaiswal v. State of U.P. and Another

Case brief

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