An applicant sought quashing of criminal proceedings filed against him for matrimonial disputes, alleging the FIR was false and an abuse of process; the Court dismissed the application stating it is not the right stage to examine merits or defenses.
Application for quashing of the charge sheet and consequent proceedings dismissed.
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Court No. - 80
Case :- APPLICATION U/S 482 No. - 8627 of 2022
Applicant :- Kamal Srivastava Opposite Party :- State of U.P. and Another Counsel for Applicant :- Santosh Kumar Dubey,Krishna Kant Dubey
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr.Krishna Kant Dubey, the learned counsel for applicant and the learned A.G.A. for State.
Present application came up for admission on 19.04.2022 and this Court passed the following order:-
"Heard learned counsel for the applicant and learned A.G.A. for State.
It is submitted by learned counsel for the applicant that the present matter relates to a matrimonial dispute between husband and wife and there is likelihood of amicable settlement in case the matter is referred to the Mediation Centre.
It would be appropriate to the applicants to deposit a sum of Rs.40,000/- within two weeks from today with the Allahabad High Court Mediation and Conciliation Centre before referring the case to mediation centre.
After deposition of amount, the matter shall be referred to the mediation centre.
List after two weeks as fresh along with receipt of amount deposited in mediation centre."
In compliance of above order dated 19.4.2022, no report has been submitted by Mediation and Conciliation Centre, High Court, Allahabad. Aforesaid fact is also explicit from the Office report dated 6.5.2022.
Learned counsel for applicant submits that no deposit has been made by applicant in compliance of order dated 19.4.2022 passed by this Court.
Challenge in this application is to the charge sheet dated 27.5.2021 submitted in Case Crime No. 0352 of 2021, under Sections 498A, 323, 504, 506, 406, 337 IPC, P.S. Vijaynagar, District Ghaziabad as well as entire proceedings of consequential Case No. 16355 of 2021 (State Vs. Kamal
Srivastava), arising out of aforementioned case crime number, now pending in the Court of Additional Chief Judicial Magistrate, Court No. 3, Ghaziabad.
At the very outset, learned counsel for applicant contends that applicant is the husband of opposite party 2. On account of a marital discord, relationship in between applicant and opposite party 2 became strained. He, therefore, submits that a matrimonial dispute has been dragged into criminal litigation.
It is next contended by learned counsel for applicant that allegations made in the F.I.R. are false and concocted. No criminality as alleged has been committed by applicant. Investigating Officer has not conducted free and fair investigation. He has acted as an agent of the prosecution. As such the charge sheet is tainted. Referring to the material on record, learned counsel for applicant further submits that as per the material available on record, no offence is made out against applicant. On the aforesaid premise, learned counsel for applicant contends that present criminal proceedings are not only malicious, but also an abuse of the process of the Court. Consequently, same are liable to be quashed by this Court.
Per contra, the learned A.G.A. has opposed this application. Learned A.G.A. contends that after registration of above mentioned F.I.R. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. On the basis of material collected by him during course of investigation, which is substantially adverse to applicant, Investigating Officer opined to submit a charge-sheet. Consequently, charge sheet dated 27.5.2021 was submitted in above mentioned case crime number. In the charge sheet so submitted as many as 19 prosecution witnesses have been nominated. He therefore contends that it cannot be said at this stage that prosecution of applicant is false or there is no material to support the prosecution of applicant. He has relied upon paragraph 37 of judgement in State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 wherein following has been observed. For ready reference same is reproduced herein under-
" 37. For issuance of process against the accused, it has to be seen only whether there is sufficient ground for proceeding against the accused. At the stage of issuance of process, the Court is not required to weigh the evidentiary value of the materials on record. The Court must apply its mind to the allegations in the charge sheet and the evidence produced and satisfy itself that there is sufficient ground to proceed against the accused. The Court is not to examine the merits and demerits of the case and not to determine the adequacy of the evidence for holding the accused guilty. The Court is also not required
to embark upon the possible defences. Likewise, 'possible defences' need not be taken into consideration at the time of issuing process unless there is an ex- facie defence such as a legal bar or if in law the accused is not liable. [Vide Nupur Talwar v. Central Bureau of Investigation and another(2012) 11 SCC 465]"
It is then contended that charge sheet is the outcome of investigation. Since no deficiency, irregularity or illegality has been pointed out in investigation of above mentioned case crime number, the consequential charge sheet cannot be quashed.
It is lastly contended that entire material collected by Investigating Officer during course of investigation has not been brought on record. In the absence of same, this Court cannot examine veracity of allegations made in F.I.R, or the correctness of charge sheet. To buttress his submission, he has referred to the judgement of Apex Court in Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580, wherein following has been observed in the last line of paragraph 25. Same is reproduced herein under:
"The High Court has failed to notice and/or consider the material collected during the investigation"
On the cumulative strength of above, learned A.G.A. contends that no case for indulgence by this Court is made out.
When confronted with aforesaid, learned counsel for applicant could not over come the same.
Having heard learned counsel for applicants, learned A.G.A. for State and upon perusal of material on record and looking into the facts of the case, at this stage it cannot be said that no offence is made out against applicant. All the submissions made at the Bar relate to the disputed defence of the applicant, which cannot be adjudicated upon by this Court in exercise of its jurisdiction under section 482 Cr.PC. This Court in exercise of its jurisdiction under section 482 Cr.P.C. cannot appraise or appreciate evidence, as such an exercise can be undertaken only by trial court upon trial of above mentioned case. At this stage only prime facie case is to be seen in the light of law laid down by Supreme Court in R.P. Kapur v. State of Punjab, AIR 1960 SC 866, State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.)283.
In view of above, application fails and is liable to be dismissed.
It is, accordingly, dismissed.
Order Date :- 14.7.2022 HSM
Digitally signed by HARI SHANKER MISHRA Date: 2022.07.15 16:00:04 IST Reason: Location: High Court of Judicature at Allahabad
2 issues framed by the court
Whether the criminal proceedings initiated under Sections 498A and others IPC are liable to be quashed at the title stage as malicious and an abuse of process.
Whether the High Court can appraise the evidence or adjudicate upon disputed defenses in an application under Section 482 Cr.P.C.
Colour shows how this judgement treated each authority
State of Gujarat Vs. Afroz Mohammed HasanfattaReferred¶19
State of Gujarat Vs. Afroz Mohammed Hasanfatta, A.I.R. 2019 Supreme Court 2499 · Who else cites this
Nupur Talwar v. CBIReferred¶20
Nupur Talwar v. Central Bureau of Investigation and another (2012) 11 SCC 465 · Who else cites this
Kaptan Singh Vs. State of U.PReferred¶23
Kaptan Singh Vs. State of U.P and Others, 2021 SCC Online SC 580 · Who else cites this
R.P. Kapur v. State of PunjabReferred¶27
R.P. Kapur v. State of Punjab, AIR 1960 SC 866 · Who else cites this
State of Haryana v. Bhajan LalReferred¶27
State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426 · Who else cites this
State of Bihar v. P.P.SharmaReferred¶27
State of Bihar v. P.P.Sharma, 1992 SCC (Cr.) 192 · Who else cites this
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful HaqReferred¶27
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another (Para-10) 2005 SCC (Cr.) 283 · Who else cites this
1 provisions across 1 enactments
Kamal Srivastava
State of U.P.
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
