An applicant challenged an order adding alternative charges of culpable homicide and attempted murder, contending abuse of process. The High Court held the matter involves disputed facts requiring trial court adjudication and rejected the application without finding abuse of process.
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Neutral Citation No. - 2023:AHC:99615
Court No. - 68
Case :- APPLICATION U/S 482 No. - 13301 of 2023
Applicant :- Shashikala And Another Opposite Party :- State Of U.P. And Another Counsel for Applicant :- P.K. Upadhyay,Vikram Yadav Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard learned counsel for the applicant, learned AGA for the State and perused the material on record.
The present 482 Application has been filed to set aside the order dated 15.02.2023 passed by Additional Sessions Judge, Court No. 9, Varanasi in Session Trial No. 506 of 2022 (State Vs. Dinesh and others) arising out of Case Crime No. 478 of 2021, under sections 498A, 304B, 328, 302 IPC and 3/4 D.P. Act, registered with the Police Station Rohaniya, District Varanasi. Learned counsel for the applicant submits that the first information report was lodged u/s 498A, 304B IPC and Section 3/4 D.P. Act at 00:27 hours by Ashok Kumar Gupta, brother of the deceased against one Dinesh Gupta, husband of the deceased and applicant no. 2 Jittu, uncle-in-law of the deceased with the allegation that the marriage of informant's sister was solemnized with Dinesh Gupta according to Hindu rights and rituals. After few months of marriage, the aforesaid persons started mentally and physically harassing the deceased/informant's sister demanding additional dowry. The informant as well as other family members of the deceased had gone to the place of the applicants and tried to mediate the matter. In the evening on 21.10.2021, the informant received a phone call from Dinesh Gupta whereby he came to know that her sister had become unconscious and was taken to hospital for treatment where she was declared died. It was also informed by
the doctor that the deceased herself had consumed some poisonous substance or someone had given her poisonous substance. The informant suspecting something fishy lodged the first information report. In the first information report itself it has been specifically stated that the marriage was solemnized on 02.03.2020 by Jittu (uncle-in-law of the deceased). Inquest was conducted on 22.10.2021 and the post mortem was conducted on the same day wherein the cause of death could not be ascertain however, viscera was preserved. After recording statements of few witnesses charge sheet has been submitted against the applicants on 26.03.2022 as well as husband of deceased and the accused persons have been summoned on 05.04.2022 under sections 498A, 304B IPC and section 3/4 D.P. Act.
Learned counsel for the applicants submits that the applicants have been released on bail and during pendency, the learned Additional Sessions Judge has proceeded to pass order dated 15.02.2023, wherein the accused have to present themselves on 28.02.2023, for hearing on the alternative charges 328 and 302 IPC. Learned counsel for the applicant further submits that the result of viscera report where poisonous substance was found, was well within the knowledge of the court and, therefore, the court concerned could not proceed to review its earlier order of summoning the applicants under section 498A, 304B IPC and section 3/4 D.P. Act and subsequently adding the alternative charges under section 328 and 302 IPC by order dated 15.02.2023. He has specifically emphasized the fact that the concerned court does not have the power to review its own order.
He further submits that applicant nos. 1 and 2 are aunt-in-law and uncle-in-law of the deceased, who are living separately, and therefore, no offence under relevant section is made out against
them. There is no evidence to show that the deceased was given poisonous substance by the applicants, therefore, the order dated 15.02.2023 is liable to be set aside and the entire proceeding may be quashed.
Learned AGA on the other hand submits that no document has been placed to show that the applicants are living separately from the deceased and her husband. Perusal of the FIR goes to show that applicant no. 2 uncle-in-law of the deceased, was the person who is responsible for solemnizing marriage. Therefore offence under relevant section is made out. As per viscera report placed before the court concerned by the State counsel wherein poisonous substance has been found, considering which applicants have been asked to appear on 28.02.2023 to place their case for the alternative sections 328 and 302 IPC. The concerned court has not reviewed its earlier order. He further submits that all the contentions raised by the applicant's counsel relate to disputed questions of fact. On the basis of material on record after conducting of statutory investigation under Chapter XII Cr.P.C. by the investigating officer, a strong prima facie case is made out against the applicant for the commission of the alleged incident. In support of his case, learned AGA has placed reliance upon the judgments of the Apex Court in the case of Dilbag Rai Vs. State of Haryana & Others reported in AIR 2019 (SC) 693 and Central Bureau of Investigation Vs. Arvind Khanna reported in MANU/SC/1432/2019.
I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present application.
This Court finds that the submissions made by the applicants' learned counsel call for adjudication on pure questions of fact which may adequately be adjudicated upon only by the trial court and while doing so even the submissions made on points
of law can also be more appropriately gone into by the trial court in this case. The issue whether it is appropriate for this Court being the Highest Court to exercise its jurisdiction under Section 482 Cr.P.C. to quash the charge-sheet and the proceedings at the stage when the Magistrate has merely issued process against the applicants and trial is to yet to come only on the submission made by the learned counsel for the applicants that present criminal case initiated by opposite party no.2 are not only malicious but also abuse of process of law has elaborately been discussed by the Apex Court in the following judgments:-
(i) R.P. Kapur Versus State of Punjab; AIR 1960 SC 866,
(ii) State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.;1992 Supp.(1) SCC 335,
(iii) State of Bihar & Anr. Versus P.P. Sharma & Anr.; 1992 Supp (1) SCC 222,
(iv) Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.; 2005
(1) SCC 122,
(v) M. N. Ojha Vs. Alok Kumar Srivastava; 2009 (9) SCC 682,
(vi) Mohd. Allauddin Khan Vs. The State of Bihar & Others; 2019 0 Supreme (SC) 454,
(vii) Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.; 2020 0 Supreme (SC) 45,
(viii) Rajeev Kaurav Vs. Balasahab & Others; 2020 0 Supreme (SC) 143 and lastly
(ix) M/s Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra; 2021 SCC Online SC 315.
On the basis of discussions made herein above, this Court finds that the concerned court has not reviewed its earlier order and there is no illegality or infirmity in the order dated 15.02.2023. Therefore, the prayer for setting aside the order dated 15.02.2023 as well as the entire proceedings of the aforesaid case are refused, as I do not see any abuse of the court's process at this pre-trial stage.
In view of the aforesaid, the application is, accordingly, rejected.
Order Date :- 9.5.2023 Arti
Digitally signed by :- ARTI SHARMA High Court of Judicature at Allahabad
3 issues framed by the court
Whether the High Court can exercise jurisdiction under Section 482 Cr.P.C. to quash proceedings initiated under S. 482 against applicants for charges 328 and 302 IPC during pendency of trial.
Whether the trial court's order adding alternative charges constitutes abuse of process of law warranting quashing at the pre-trial stage.
Whether the applicants are liable under sections alleging domestic violence and dowry death given the nature of allegations and viscera report.
Colour shows how this judgement treated each authority
Dilbag Rai Vs. State of Haryana & OthersRelied on¶12
AIR 2019 (SC) 693 · Who else cites this
Central Bureau of Investigation Vs. Arvind KhannaRelied on¶12
MANU/SC/1432/2019
R.P. Kapur Versus State of PunjabReferred¶15
AIR 1960 SC 866 · Who else cites this
State of Haryana & Ors. Versus Ch. Bhajan Lal & Ors.Referred¶15
1992 Supp.(1) SCC 335 · Who else cites this
State of Bihar & Anr. Versus P.P. Sharma & Anr.Referred¶15
1992 Supp (1) SCC 222 · Who else cites this
Zandu Pharmaceuticals Works Ltd. & Ors. Versus Mohammad Shariful Haque & Anr.Referred¶15
2005 (1) SCC 122 · Who else cites this
M. N. Ojha Vs. Alok Kumar SrivastavaReferred¶15
2009 (9) SCC 682 · Who else cites this
Mohd. Allauddin Khan Vs. The State of Bihar & OthersReferred¶15
2019 0 Supreme (SC) 454
Nallapareddy Sridhar Reddy Vs. The State of Andhra Pradesh & Ors.Referred¶15
2020 0 Supreme (SC) 45
Rajeev Kaurav Vs. Balasahab & OthersReferred¶15
2020 0 Supreme (SC) 143
M/s Neeharika Infrastructure Pvt. Ltd. vs. State of MaharashtraReferred¶15
2021 SCC Online SC 315 · Who else cites this
3 provisions across 3 enactments
Shashikala And Another
Manju Rani Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
