Disposed

Shriram Saroj and Another v. State of U.P. and Another

Allahabad HC22 Aug 2023A482/20137/2023

Case brief

AI extract

What is this about?

The High Court refused to quash criminal proceedings under Sections 498A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, finding prima facie complicity of the applicants. It held that in a police case, a cognizance order on a proforma is not illegal. The application was disposed of with a direction for expeditious bail consideration.

What did the court decide?

The effect and operation of the non-bailable warrant dated 2.8.2023 stayed for four weeks or till decision on bail, whichever is earlier.

Shriram Saroj and Another Vs State of U.P. and Another — Dowry and Cruelty | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:168268

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Court No. - 90

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Case :- APPLICATION U/S 482 No. - 20137 of 2023

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Applicant :- Shriram Saroj And Another Opposite Party :- State of U.P. and Another Counsel for Applicant :- Pankaj Kumar Asthana,Pradeep Kumar Srivastava Counsel for Opposite Party :- G.A.,Pavan Kumar Maurya,Sandeep Kumar Pandey

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Hon'ble Dinesh Pathak,J.

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Supplementary affidavit filed today is taken on record.

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Heard learned counsel for the applicants, learned counsel for the opposite party No. 2, learned AGA and perused the record.

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The present applicants have invoked the inherent power of this Court under Section 482 CrPC beseeching the quashing of cognizance/summoning order dated 7.7.2020, charge sheet No. A68/ of 2021 dated 12.2.2020 as well as consequential criminal proceeding of Criminal Case No. 2196 of 2020 (State Vs. Shriram Saroj & another) arising out of the Case Crime No. 50 of 2019, under Sections 498A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act, 1961, Police Station Mahila Thana Deoria, District Deoria pending in the court of FTC-II, Deoria.

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This is a second application under Sections 482 CrPC filed on behalf of the present applicants, the first application under Section 482 No. 17962 of 2022 was decided by order dated 14.7.2022 with a direction that the applicants shall be at liberty to move a fresh application under Section 482 CrPC after outcome of the mediation.

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Opposite Party No.2, mother-in-law of the applicant No. 1, has lodged an FIR, being Case Crime No. 59 of 2019 dated 18.2.2019, levelling allegation against the applicant No. 1 (husband) and his family members of torture and cruelty for demand of dowry with an averment that marriage of her daughter was solemnized on 24.4.2018 according to Hindu rituals with applicant No. 1. At later stage, all the family

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members have started harassing her daughter for demand of dowry. On 30.4.2018, the family members have kicked her daughter out and despite best efforts, the accused are not ready to align with her. On 15.7.2014, she came to her in-laws house owing to the death of the father-in-law but all the family members have tortured her for demand of dowry. After due investigation, the Investigating Officer has submitted charge sheet against husband and mother-in-law.

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Learned counsel for the applicants submits that false and malicious prosecution has been instituted against the entire family of the husband including him as well making allegation of torture and cruelty for the demand of dowry. It is further submitted that omnibus allegations have been made against all the family members without assigning any specific role to particular family members. It is further submitted that due to trivial issue, the wife of the applicant No. 1 (husband) became annoyed and left her in-laws house and despite the best efforts being made by the applicants, she is not ready to return. It is further submitted that on account of interference of the family members of the wife, she is not ready to live with her motherin-law (applicant No. 2), who is residing alone inasmuch as the applicant No. 1 is living outside at the placing of his posting. Learned counsel for the applicants has drawn attention of this Court towards the order dated 6.6.2023 passed by this Court in Application U/S No. 482 No. - 15639 of 2023 (Smt. Puja Ravat Vs. State of UP and another) wherein the co-ordinate Bench of this Court has issued a direction for expeditious disposal of the trial within six months. Learned counsel for the applicants has further submitted that the learned trial court has passed the summoning order in a typed proforma without applying its mind and without considering the material on record. It is next submitted that no offence against applicants is disclosed and present prosecution has been instituted with a malafide intention for the purposes of harassment.

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Per contra, learned counsel for Opposite Party No. 2 and AGA have vehemently opposed the submissions as raised by the learned counsel for the applicants and contended that the Investigating Officer has rightly submitted charge sheet after due investigation and, keeping in view the damning material available on record, he has arraigned the present applicants in the charge sheet. It is further submitted that from the perusal of

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record, prima facie, the complicity of the present applicants in the commission of alleged crime cannot be ruled out and the innocence of the present applicants, at this juncture, cannot be inferred which can more appropriately be adjudicated upon by the court concerned after appraisal of evidence on record. It is next contended that no legal ground is made out to warrant indulgence of this Court in exercise of inherent jurisdiction under Section 482 CrPC to quash the entire criminal proceeding, therefore, the instant application is liable to be dismissed being misconceived and devoid of merits.

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Having considered the rival submissions advanced by the learned counsel for the parties and perusal of record, it is manifested that in an FIR as many as five family members including the husband have been inculpated for the commission of cognizable offence, however, the investigating officer, after due investigation, has submitted charge sheet only arraigning the applicant No. 1 (husband) and applicant No. 2 (mother-inlaw). Remaining accused as many as three in number have not been arraigned in the charge sheet. On the face of record, prima facie, the complicity of the present applicants in the commission of alleged crime cannot be ruled out. The averment as made in the FIR and the attending circumstances requires scrutiny which can more appropriately be conducted by the learned trial court. At this juncture, the innocence of the present applicants cannot be inferred.

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So far as the passing of the cognizance order on the printed proforma is concerned, I am of the view that the instant matter is arising out of police case, therefore, it is distinguishable from the complaint case. In the police case, the learned court is benefited with the investigation conducted by the Investigating Officer and the material filed along with the police report. In the matter of Om Prakash and Another Vs. State of UP and another in Application U/S No. 3041 of 2022 reported in 2022 (8) ILR (ALLD) 222 cited by the learned AGA, the co-ordinate Bench of this Court, after considering the decision of Hon'ble Supreme Court in the matter of State of Gujarat Vs. Afroz Mohammad Hasanfatta reported in (2019) 20 SCC 539 and Pradeep S. Wodeyar Vs. The State of Karnataka reported in 2021 SCC OnLine SC 1140 , expounded that in the matter arising out of police case issuing an order of cognizance on the

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printed proforma does not warrant any indulgence of this Court. It is further observed by the co-ordinate Bench that such cognizance order cannot be treated to be illegal. The relevant paragraph Nos. 13, 14, 15, 16 and 17 of the order passed in the case of Om Prakash and another (supra) is quoted hereinbelow:

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"13. The next argument advanced by learned counsel for the applicants is that cognizance order was passed by the court below on printed proforma in cryptic manner, which reflects non-application of judicial mind.

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14. The present case is a State case, in which, after investigation chargesheet has been submitted and court below took cognizance on the basis of police report.

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15. The Apex Court in case of State of Gujarat Vs. Afroz Mohammad Hasanfatta (2019) 20 SCC 539 observed as:-

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"23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Code of Criminal Procedure and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge- sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) Code of Criminal Procedure, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process.

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In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the Accused. Such an order of issuing summons to the Accused is based upon satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the Accused. In a case based upon the police report, at the stage of issuing the summons to the Accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the chargesheet and for not taking it on file."

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16. Recently, three judge Bench of the Apex Court in the case of Pradeep S. Wodeyar Vs. The State of Karnataka 2021 SCC OnLine SC 1140 after considering the matter in detail observed in paragraph no. 75 as:-

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"75. The Special Judge, it must be noted, took cognizance on the basis of a report submitted under Section 173 Code of Criminal Procedure and not on the basis of a private complaint. Therefore, the case is squarely covered by the decision in Afroz Mohammed Hasanfatta (supra). The Special Judge took note of the FIR, the witness statements, and connected documents before taking cognizance of the offence. In this backdrop, it would be far-fetched to fault the order of the Special Judge on the ground that it does not adduce detailed reasons for taking cognizance or that it does not indicate that an application of mind. In the facts of this case, therefore, the order taking cognizance is not erroneous."

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17. Further, the Apex Court in para 85 (viii) summarised as:-

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"85 (viii) Since cognizance was taken by the Special Judge based on a police report and not a private complaint, it is not obligatory for the Special Judge to issue a fully reasoned order if it otherwise appears that the Special Judge has applied his mind to the material;"

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The co-ordinate bench of this Court, vide order dated 6.6.2023, has already issued a direction for expeditious disposal of the trial.

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Learned counsel for the applicants submits that the order was passed in the month of June, 2023, however, three months have already elapsed and till date, the trial has not commenced inasmuch as the accused could not appear and the charges were not framed.

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Considering the facts and circumstances of the present case I am of the view that the order dated 6.6.2023 will come into force after commencement of the trial, which will be initiated after framing of charges.

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Record reveals that learned counsel for the applicants has raised disputed question of fact qua involvement of present applicants in the incident in question.

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In exercise of inherent power under Section 482 Cr.P.C., this Court is not expected to analyze the factual evidence which is to be placed before the trial court. The power conferred under Section 482 Cr.P.C. is very specific and wide to secure the ends of justice or to prevent the abuse of the process of any Court or to make such orders as may be necessary to give effect to any order under this Code. No provision of this Code is deemed to limit or effect such inherent power of the High Court.

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It has been held by the Apex Court in the cases of R.P. Kapur Vs. State of Punjab : AIR 1960 SC 866; State of Haryana and Ors. Vs. Bhajan Lal and Others : 1992 Supp (1) SCC 335; Trisuns Chemical Industry Vs. Rajesh

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Agarwal and Ors. : (1999) 8 SCC 686 3; M. Krishnan Vs. Vijay Singh & Anr. : (2001) 8 SCC 645; Joseph Salvaraj A. Vs. State of Gujarat and Ors. : (2011) 7 SCC 59; Arun Bhandari Vs. State of Uttar Pradesh and Ors. : (2013) 2 SCC 801; Anand Kumar Mohatta and Anr. Vs. State (NCT of Delhi), Department of Home and Anr. : (2019) 11 SCC 706 that exercise of inherent power of the High Court under Section 482 of the Code of Criminal Procedure is an exceptional one. Great care should be taken by the High Court before embarking to scrutinise the complaint/FIR/charge-sheet in deciding whether the rarest of the rare case is made out to scuttle the prosecution in its inception.

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In the case of Gian Singh vs. State of Punjab, (2012) 10 SCC 303, Hon'ble Supreme Court has made the following observation in Paragraph 61 which is quoted herein below :-

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"61. The position that emerges from the above discussion can be summarised thus: the power of the High Court in quashing a criminal proceeding or an FIR or a complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code. Inherent power is of wide plentitude with no statutory limitation but it has to be exercised in accord with the guideline en-grafted in such power viz.: (i) to secure the ends of justice, or (ii) to prevent abuse of the process of any court."

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In Criminal Appeal No. 675 of 2019 arising out of SLP (Crl.) No. 1151 of 2018, Mohd. Allauddin Khan v. State of Bihar and others, 2019 (6) SCC 107, the Apex Court has held that the High Court had no jurisdiction to appreciate the evidences of the proceedings under Section 482 Cr.P.C. because where there are contradictions or the inconsistencies in the statements of the witnesses, is essentially an issue relating to appreciation of evidences and the same can be gone into by the Judicial Magistrate during trial, when the entire evidence is adduced by the parties. The same view has also been reiterated in judgment dated 31.07.2019 passed by Apex Court in Criminal Appeal No.1082 of 2019, arising out of SLP (Crl.) No.10762 of 2018, Chilakamarthi Venkateswarlu and Another v. State of Andhra Pradesh and Another.

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In the case of Priti Saraf & anr. Vs. State of NCT of Delhi & anr. Criminal Appeal No(s). 296 of 2021 (Arising out of SLP(Crl.) No(s). 6364 of 2019] (judgment dated March 10, 2021) : 2021 SCC Online SC 206 the Apex Court while

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considering the powers under Section 482 Cr.P.C. has held as follows:

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" 23. It being a settled principle of law that to exercise powers under Section 482 CrPC, the complaint in its entirely shall have to be examined on the basis of the allegation made in the complaint/ FIR/charge-sheet and the High Court at that stage was not under an obligation to go into the matter or examine its correctness. Whatever appears on the face of the complaint/FIR/charge-sheet shall be taken into consideration without any critical examination of the same. The offence ought to appear ex facie on the complaint/FIR/charge-sheet and other documentary evidence, if any, on record.

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The scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in detail by Hon'ble Apex Court in State of Haryana and Others Vs. Bhajan Lal and Others, (1992 Suppl (1) SCC 335) . The relevant para is mentioned hereunder:-

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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 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 bur engrafted in any of the provisions of the Code on 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 10 private and personal grudge."

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It has been further elucidated recently by Hon'ble Apex Court in Arnab Manoranjan Goswami Vs. State of Maharashtra and Others, 2020 SCC Online SC 964 where jurisdiction of the High Court under Article 226 of the Constitution of India and Section 482 CrPC has been analysed at great length.

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Further, in the case of M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others reported in AIR 2021 SC 1918, Full Bench of the Apex Court while considering the powers of quashing under Section 482 of the Criminal Procedure Code and/or Article 226 of the Constitution of India has illustrated the circumstances under which quashing of a criminal case can be done and/or interim order can be granted.

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Therefore, the disputed defence of the accused cannot be considered at this stage. In absence of any of the grounds recognized by the Supreme Court which might justify the quashing of complaint or the impugned proceedings, the prayer for quashing the same is not sustainable in the eyes of law. I do not see any abuse of the court's process either. The summoning court has been vested with sufficient powers to discharge the accused even before the stage to frame the charges comes, if for reasons to be recorded it considers the charge to be groundless. Moreover, the applicants have got a right of discharge under Section 239 or 227/228 Cr.P.C., as the case may be, through a proper application for the said purpose and he is free to take all the submissions in the said discharge application before the Trial Court.

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Having considered the rival submissions advance by learned counsel for the applicants and learned AGA and the material

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available on record, in the light of dictum of Hon'ble Apex Court as discussed above, no ground made out to consider the merits of the instant case. As such, prayer of quashing as made in instant application is hereby refused.

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Before parting, learned counsel for the applicants submits that in all sections, as mentioned in the FIR, maximum punishment is seven years or less than 7 years, therefore, the bail application if filed by the present applicants may be considered in the light of the dictum of Hon'ble Supreme Court in the case of Satender Kumar Antil Vs. Central Bureau of Investigation and another reported in (2021) 10 Supreme Court Cases 773. In the cited case, Hon'ble Supreme Court has given certain guidelines for deciding the bail applications by categorising the offences.

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Considering the entire facts and circumstances of the case and the dictum of Hon'ble Supreme Court, I think it appropriate that in case, the present applicants appear/surrender before the concerned court below and move bail application within two weeks, the same shall be considered and decided in accordance with law within a period of two weeks thereafter, considering the judgment of Hon'ble Supreme Court.

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For a period of four weeks or till the decision on the bail application, whichever is earlier, the effect and operation of the non-bailable warrant dated 2.8.2023 shall remain stayed.

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With this observation, the application stands disposed of.

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Order Date :- 22.8.2023 vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Shriram Saroj and Another v. State of U.P. and Another

Case brief

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Shriram Saroj and Another v. State of U.P. and Another

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