Quashed

Seema Kushwaha and 3 Others v. State of U.P. and Another

Allahabad HC2 Mar 2023CRLR/422/2023

Case brief

AI extract

What is this about?

Criminal Revision challenging rejection of a discharge application. The High Court held that Lower Court erred in summoning accused without a mandatory inquiry under Section 201(1) Cr.P.C. due to lack of territorial jurisdiction. Proceedings were also quashed as being maliciously instituted to wreck vengeance by concealing close familial relationship and prior litigation facts.

What did the court decide?

Impugned order of Additional Chief Judicial Magistrate rejecting discharge application and entire complaint proceedings under sections 452, 504, 392 IPC were quashed.

Seema Kushwaha and 3 Others Vs State of U.P. and… — Criminal Trial and Appeal | Allahabad HC (2023)

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Court No. - 66

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Case :- CRIMINAL REVISION No. - 422 of 2023

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Revisionist :- Seema Kushwaha And 3 Others Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Prakash Chandra Srivastava,Arvind Singh Sengar,Sushil Kumar Pal

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Counsel for Opposite Party :- G.A.,Rajesh Kumar Dubey,Rajiv Lochan Shukla

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Hon'ble Rajeev Misra,J.

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Hear Mr. P.C. Srivastava, the learned counsel for revisionists, the learned A.G.A. for State and Mr. Rajesh Kumar Dubey, the learned counsel representing first informant/opposite party-2.

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This criminal revision has been filed challenging the order dated 11.2.2022, passed by Additional Chief Judicial Magistrate, Court No. 19, Deoria, in Complaint Case No. 2602 of 2019 (Brijraj Singh Vs. Seema Kushwaha and Others), under sections 452, 504, 392 IPC, Police StationKotwali, District Deoria, whereby the discharge application filed by revisionists in terms of Section 245 (2) Cr.P.C. has been rejected.

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Record shows that complainant Brijraj Singh (father of opposite party-2) filed a complaint dated 20.6.2019, which was registered as Complaint Case No. 2602 of 2019 (Brijraj Singh Vs. Seema Kushwaha and Others), under sections 452, 504, 392 IPC, Police Station- Kotwali, District Deoria. After filing of aforesaid complaint, the complainant was examined by court below under section 200 Cr.P.C. followed by his witnesses under section 202 Cr.P.C. On the basis of above, Court below recorded it's prima-facie satisfaction regarding the allegations made in the complaint and accordingly summoned the revisionists and others (accused) by means of summoning order dated 7.3.2019.

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Feeling aggrieved by the summoning order dated 7.3.2019 passed by Civil Judge (S.D.)/F.T.C. First/A.C.J.M., Court No.-1, Deoria in aforementioned complaint case, revisionists approached this Court by means of Criminal Misc. Application U/S 482 Cr.P.C. No. 22157 of 2021 (Seema Kushwaha and three others Vs. State of U.P. and Others). Aforesaid application was disposed of finally, vide order dated 14.2.2022.

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For ready reference, the same is extracted herein under:

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"Heard learned counsel for the parties, learned A.G.A. and perused the record.

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Present applicants have invoked the inherent jurisdiction of this Court by moving an application under Section 482 Cr.P.C. with the prayer to set aside the entire proceeding of Case No. 172 of 2019 arising out of Case No. 2602 of 2019 pending before the Civil Judge (S.D.)/F.T.C. First/A.C.J.M., Court No. 1, Deoria, under Section 452, 504, 392 I.P.C., Police Station- Kotwali, District- Deoria.

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Record reveals that summoning order dated 07.03.2020 has been passed by the Civil Judge (S.D.)/F.T.C. First/A.C.J.M., Court No. 1, Deoria calling upon the accused/present applicant under Section 452, 504, 392 I.P.C. on complaint dated 20.06.2019, under Section 156(3) of Cr.P.C.

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As per the complaint all the accused persons barged into house of the complainant on 26.05.2019 at about 7.00 p.m. on the gun point and have taken away the jewelry and other belongings worth of Rs. 5 lacs as well as cash amounting to Rs.50,000/-. Learned court, after considering the statement under Section 200 Cr.P.C. made by complainant and statement of two witnesses, namely, Ramakant Maurya and Rajeshwar Singh under Section 202 Cr.P.C. has found fit case to issue the summoning order.

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Learned counsel for the applicants submits that falls prosecution has been made by the complainant against the present applicants, who are residents of Kanpur and were not present at the date of occurrence as mentioned in the complaint. He has tried to point out some discrepancy between the statement of complainant and the averment made in application under Section 156(3) Cr.P.C. to the effect that in complaint marriage between the son of the complainant and applicant no. 1 has been shown to be solemnized 9 years back, whereas in his statement complainant has tried to show that deliberations were going on between the parties qua marriage of the applicant no. 1 with the son of the complainant. Second discrepancy has been pointed out with respect to the amount allegedly stolen from the possession of the complainant. In the complaint he has mentioned cash amount of Rs. 5 lacks, whereas in statement under Section 200 complainant has stated that sum of Rs. 50,000/- has been looted. It is further submitted that complaint has been moved to exert undue pressure upon the present applicants so that they may withdraw the matrimonial case and other criminal cases which where filed on their behalf against the complainant and his son.

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Per contra, learned counsel for the opposite party no. 2 contended that there is no discrepancy between the statement under Section 200 and 202 Cr.P.C. and in the averment as made in the application under Section 156(3). Amount of Rs. 5 lacs has been shown as the valuation of the entire goods/belongings which where taken away by the present applicants and the cash amount was only Rs. 50,000/-, which is

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clearly mentioned in the application as well as in his statement under Section 200 Cr.P.C. It is further contended that the applicants, on the date of incident, came at the house of the complainant intending to pressurize him and his family members so that they may come to compromise in other litigations which are going on between the parties. It is further contended that at this juncture innocence of the present applicants and their involvement in commission of crime cannot be ascertained. It is a matter of trial before the competent court after examining the evidence available on record.

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Perusal of record reveals that the applicants are trying to raise disputed question of fact qua involvement of the present applicants in commission of crime, as mentioned in the complaint under Section 156(3) Cr.P.C. Perusal of complaint reveals that Rs. 5 lac has been mentioned as a valuation of the entire belongings including jewelry etc. In the same complaint cash amount of Rs. 50,000/- has been mentioned separately, which has been allegedly looted from the possession of the complainant.

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Prima facie it appears that in the statement made under Section 200 Cr.P.C. and 202 Cr.P.C. corroborates the averment made in the complaint qua incident in question. Authenticity of the occurrence, as mentioned in the first information report, is subject matter of trial which cannot be adjudicated upon by this Court under Section 482 Cr.P.C.

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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 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 casc 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 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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24. The question which is raised for consideration is that in what circumstances and categories of cases, a criminal proceeding may be quashed either in exercise of the extraordinary powers of the High Court under Article 226 of the Constitution, or in the exercise of the inherent powers of the High Court under Section 482 CrPC. This has often been hotly debuted before this Court and various High Courts. Though in a MR series of decisions, this question has been answered on

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several occasions by this Court, yet the same still comes up for consideration and is seriously debated.

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25. In this backdrop, the scope and ambit of the inherent jurisdiction of the High Court under Section 482 CrPC has been examined in the judgment of this 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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26. This Court has clarified the broad contours and parameters in laying down the guidelines which have to be kept in mind by the High Courts while exercising inherent powers under Section 482 CrPC. The aforesaid principles laid down by this Court are illustrative and not exhaustive. Nevertheless, it throws light on the circumstances and the situation which is to be kept in mind when the High Court exercises its inherent powers under Section 482 CrPC.

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27. It has been further elucidated recently by this 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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28. It is thus settled that the exercise of inherent power of the High Court is an extraordinary power which has to be exercised with great care and circumspection before embarking to scrutinise the complaint/ FIR/charge-sheet in deciding whether the case is the rarest of rare case, to scuttle the prosecution at its inception."

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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. In paragraph 23 of the judgment it has been held as follows:-

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"23. In view of the above and for the reasons stated above, our final conclusions on the principal/core issue, whether the High Court would be justified in passing an interim order of stay of investigation and/or "no coercive steps to be adopted", during the pendency of the quashing petition under Section 482 Cr.P.C and/or under Article 226 of the Constitution of India and in what circumstances and whether the High Court would be justified in passing the order of not to arrest the accused or "no coercive steps to be adopted" during the investigation or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of/not entertaining/not quashing the criminal proceedings/complaint/FIR in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India, our final conclusions are as under:

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i) Police has the statutory right and duty under the relevant provisions of the Code of Criminal Procedure contained in Chapter XIV of the Code to investigate into a

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cognizable offence;

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ii) Courts would not thwart any investigation into the cognizable offences;

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iii) It is only in cases where no cognizable offence or offence of any kind is disclosed in the first information report that the Court will not permit an investigation to go on;

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iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the 'rarest of rare cases (not to be confused with the formation in the context of death penalty).

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v) While examining an FIR/complaint, quashing of which is sought, the court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint;

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vi) Criminal proceedings ought not to be scuttled at the initial stage;

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vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule;

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viii) Ordinarily, the courts are barred from usurping the jurisdiction of the police, since the two organs of the State operate

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in two specific spheres of activities and one ought not to tread over the other sphere;

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ix) The functions of the judiciary and the police are complementary, not overlapping;

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x) Save in exceptional cases where non-interference would result in miscarriage of justice, the Court and the judicial process should not interfere at the stage of investigation of offences;

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xi) Extraordinary and inherent powers of the Court do not confer an arbitrary jurisdiction on the Court to act according to its whims or caprice;

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xii) The first information report is not an encyclopaedia which must disclose all facts and details relating to the offence reported. Therefore, when the investigation by the police is in progress, the court should not go into the merits of the allegations in the FIR. Police must be permitted to complete the investigation. It would be premature to pronounce the conclusion based on hazy facts that the complaint/FIR does not deserve to be investigated or that it amounts to abuse of process of law. After investigation, if the investigating officer finds that there is no substance in the application made by the complainant, the investigating officer may file an appropriate report/summary before the learned Magistrate which may be considered by the learned Magistrate in accordance with the known procedure;

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xiii) The power under Section 482 Cr.P.C. is very wide, but conferment of wide power requires the court to be more cautious. It casts an onerous and more diligent duty on the court;

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xiv) However, at the same time, the court, if it thinks fit, regard being had to the parameters of quashing and the self-restraint imposed by law, more particularly the parameters laid down by this Court in the cases of R.P. Kapur (supra) and Bhajan Lal (supra), has the jurisdiction to quash the FIR/complaint;

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xv) When a prayer for quashing the FIR is made by the alleged accused and the court when it exercises the power under Section 482 Cr.P.C., only has to consider whether the allegations in the FIR disclose commission of a cognizable offence or not. The court is not required to consider on merits whether or not the merits of the allegations make out a cognizable offence and the court has to permit the investigating agency/police to investigate the allegations in the FIR;

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xvi) The aforesaid parameters would be applicable and/or the aforesaid aspects are required to be considered by the High Court while passing an interim order in a quashing petition in exercise of powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. However, an interim order of stay of investigation during the pendency of the quashing petition can be passed with circumspection. Such an interim order should not require to be passed routinely, casually and/or mechanically. Normally, when the investigation is in progress and the facts are hazy and the entire evidence/material is not before the High Court, the High Court should restrain itself from passing the interim order of not to arrest or "no coercive steps to be adopted" and the accused should be relegated to apply for anticipatory bail under Section 438 Cr.P.C. before the competent court. The High Court shall not and as such is not justified in passing the order of not to arrest and/or "no coercive steps" either during the investigation or till the investigation is completed and/or till the final report/chargesheet is filed under Section 173 Cr.P.C., while dismissing/disposing of the quashing petition under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India. xvii) Even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation, after considering the broad parameters while exercising the powers under Section 482 Cr.P.C. and/or under Article 226 of the Constitution of India referred to hereinabove, the High Court has to give brief reasons why such an interim order is warranted and/or is required to be passed so that it can demonstrate the application of mind by the Court and the higher forum can consider what was weighed with the High Court while passing such an interim order.

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xviii) Whenever an interim order is passed by the High Court of "no coercive steps to be adopted" within the aforesaid parameters, the High Court must clarify what does it mean by "no coercive steps to be adopted" as the term "no coercive steps to

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be adopted" can be said to be too vague and/or broad which can be misunderstood and/or misapplied."

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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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After hearing learned counsel for the parties and perusing the averments made in the present application, prayer for quashing the same is refused as made in instant application.

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However, it is provided that in case applicants move an appropriate application for discharge along with a certified copy of this order before the concerned Court below, the same shall be considered and decided by the Court below as expeditiously as possible in accordance with law, without being prejudiced by the order passed by this Court.

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If the concerned Court feels persuaded to have the view that accused ought not to have been summoned and charge is groundless it shall not abstain from discharging the accused only on the ground that the material available at the time of summoning was the same which is available on record at the time of hearing the discharge application. On the other hand, if the Court below holds the view that the accused has been rightly summoned and the material brought on record does not indicate the charges to be groundless it shall make an order to that effect and proceed further in the matter, in accordance with law and shall also be free to adopt such measures to procure the attendance of the accused as the law permits.

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With the aforesaid conspectus, this application is disposed of. "

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In compliance of above order dated 14.2.20233 passed by this Court, revisionists approached Court below and filed a discharge application dated 10.3.2022 in terms of Section 245 (2) Cr.P.C. The said discharge application came to be rejected by Court below by means of order dated 2.11.2022.

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Perusal of order dated 02.11.2022 passed by court below will go to show that the discharge application filed by revisionists was rejected on

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the grounds that the evidence which was available at the time of summoning of accused remains unchanged at the time of filing of the discharge application by revisionists. No new or additional evidence has come forward from the side of the revisionists. The grounds raised for discharge of revisionists in aforementioned complaint case relates to their disputed defence which cannot be examined at this stage.

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Thus feeling aggrieved by the above order dated 2.11.2022, revisionists have now approached this Court by means of present criminal revision.

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At the very outset, the learned counsel for revisionists submits that revisionist 1 and complainant-opposite party 2 (who has now stepped in by way of representation on account of the death of original complainant) are married to each other. Their marriage was solemnized on 10.12.2009. As such, they are husband and wife. From the aforesaid wedlock, two daughters namely Awantika and Anshika were born. Both are practicing advocates in this Court. He, therefore, submits that it would be in the fitness of things if they could compromise. The minor daughters of the couple who have been deprived of parental love and affection will get a new lease of life. A broken family shall stand united and become a happy family.

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However, the complainant-opposite party 2 (husband of revisionist-1) who is present in Court in Court dress has straight away denied the suggestion made by the learned counsel for revisionists.

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Accordingly, the Court proceeds to decide the present revision on merits.

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Mr. P.C. Srivastava, the learned counsel for revisionists submits that from the perusal of complaint filed by complainant/opposite party-2, it is apparent that the prospective accused arraigned in the complaint i.e. revisionists herein, are shown to be the residents of District Kanpur Nagar, whereas the complaint was filed in the Court of Chief Judicial Magistrate, Deoria. Consequently, the prospective accused are residents of a place which is beyond the territorial jurisdiction of Court concerned. In view of above, Court below was under a legal obligation to hold an enquiry in terms of Section 202 (1) Cr.P.C. as well as the law laid down

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by Apex Court in National Bank of Oman vs. Barakara Abdul Aziz reported in (2013) 2 SCC 488 before summoning the accused (revisionists) . However, without following the said procedure, the summoning order dated 07.03.2020 was passed. This Court on the earlier occasion while dealing with the veracity of the said summoning order, did not deal with the aforesaid aspect of the matter and some how the same escaped the attention of this Court. Court below while considering the discharge application filed by revisionists has also failed to consider the aforesaid aspect of the matter. Consequently, the net result of the same is that the effect of the same has not been dealt with in the previous stage of the proceedings nor by the court below while deciding the discharge application filed by revisionists. Had the said enquiry been undertaken, the decision would have been otherwise.

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It is then contended by the learned counsel for revisionists that the marriage of revisionist-1 was solemnized with opposite party-2, Rajeshwar Singh, in accordance with Hindu Rites and Customs on 10.12.2009 who has now stepped in place of original complainant by way of representation on account of the death of original complainant i.e. father-in-law of revisionist-1 and father of opposite party 2. From the aforesaid wedlock, two daughters namely, Awantika and Anshika were born. It is thus contended that when in the light of aforesaid facts, the allegations made in the complaint are examined, it is evident that the said complaint giving rise to present criminal proceedings was filed by father of opposite party-2/father-in-law of revisionist-1 on 20.6.2019, alleging therein that his own daughter-in-law and her family members have committed the alleged crime. The factum regarding the birth of two daughters, the acquaintance with the family members of revisionist 1 on account of above, has been very clearly concealed in the complaint filed by opposite party-2. Moreover, on account of despair and destitution faced by revisionist-1 due to the ignorance of opposite party 2 and other in-laws revisionist-1 initiated criminal proceedings against opposite party 2 (husband) and other in-laws. However, the details of the same have also been cleverly concealed in the complaint. The same are however detailed herein under:-

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Complaint Case No. 30202 of 2018 (Smt. Seema Kushwaha Vs.

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Rajeshwar Singh and Others) under Sections 323, 498-A and 504 I.P.C. and Sections 3/4 of D.P. Act, Police Station Bajaria, District Kanpur Nagar.

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Complaint Case No. 4958 of 2019 (Smt. Seema Kushwaha Vs. Rajeshwar Singh & Ors.), under Section 406 I.P.C., Police Station Bajaria, District Kanpur Nagar.

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The proceedings of aforementioned complaint cases have been challenged before this Court by means of following Applications U/s 482 Cr.P.C.

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Criminal Misc. Application U/s 482 Cr.P.C. No. 40379 of 2019 (Rajeshwar Singh Vs. State of U.P. and Others) has been filed against summoning order dated 08.05.2019 and the entire proceedings of aforementioned complaint case.

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Criminal Misc. Application U/s 482 Cr.P.C. No. 30904 of 2022 (Rajeshwar Singh and Others Vs. State of U.P. and Another) has been filed against summoning order dated 19.08.2021 and the entire proceedings of aforementioned complaint case.

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The fact that marriage of revisionist-1 was solemnized with revisionist-2 which resulted in the birth of two daughters as noted above, the acquaintance with the family members of revisionist-1 on account of above is an undisputed fact, inasmuch as, it is admitted to both the parties but the same has been concealed in the complaint. Apart from above, the factum with regard to the pendency of Complaint Case No. 30202 of 2018, which is also an admitted fact, has been cleverly concealed in the complaint filed by father of opposite party 2. Learned counsel for revisionists submits that present criminal proceedings have been engineered as a counter blast to the criminal proceedings initiated by revisionist-1. As such, present criminal proceedings have been launched only to wreck vengeance. In support of above, reliance is placed upon the judgment of the Supreme Court in M/s Eicher Tractor Vs. Harihar Singh (2008) 16 SCC 763. It is thus contended by the learned counsel for revisionists that present criminal proceedings are not only malicious but also an abuse of the process of Court. Consequently, same are liable to be quashed by this Court. This Court while deciding the veracity of an order

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passed on discharge application can look into such facts which go to establish that the impugned proceedings, if allowed to continue, would occasion a failure of justice and can quash the same.

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With reference to above, the learned counsel for revisionists has invited the attention of the Court to paragraph 31 of the judgment of Supreme Court in Priyanka Srivastava and another Vs. State of U.P. and another, reported in AIR 2015 SC 1758. For ready reference, the same is extracted hereinunder:-

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"31. We have already indicated that there has to be prior applications under Section 154(1) and 154(3) while filing a petition under Section 156(3). Both the aspects should be clearly spelt out in the application and necessary documents to that effect shall be filed. The warrant for giving a direction that an the application under Section 156(3) be supported by an affidavit so that the person making the application should be conscious and also endeavour to see that no false affidavit is made. It is because once an affidavit is found to be false, he will be liable for prosecution in accordance with law. This will deter him to casually invoke the authority of the Magistrate under Section 156(3). That apart, we have already stated that the veracity of the same can also be verified by the learned Magistrate, regard being had to the nature of allegations of the case. We are compelled to say so as a number of cases pertaining to fiscal sphere, matrimonial dispute/family disputes, commercial offences, medical negligence cases, corruption cases and the cases where there is abnormal delay/laches in initiating criminal prosecution, as are illustrated in Lalita Kumari are being filed. That apart, the learned Magistrate would also be aware of the delay in lodging of the FIR."

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On the above premise, the learned counsel for revisionists submits that court below ought to have undertaken the requisite exercise in the light of above as it was specifically mentioned in the complaint that the marriage of the son of the complainant has been solemnized with revisionist 1. However, without undertaking the necessary exercise as required by reason of aforementioned judgemment, court below has summoned the revisionists. Resultanlty, the revisionists have been dragged into criminal litigation which is otherwise manifestly illegal.

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Learned counsel for revisionists submits when the case in hand is examined in the light of aforesaid facts which are admitted and can be considered for deciding the innocence of the revisionists as well as the legality of the proceedings giving rise to present application, as they fall in the realm of impeccable evidence, it is explicitly clear that present criminal proceedings have been engineered as a counter blast to the matrimonial dispute pending between revisionist- 1 and opposite party 2. He has then invited the attention of the Court to the judgment of the Apex Court in Rajiv Thapar and Ors. Vs. Madan Lal Kapoor reported in 2013 (3) SCC 330. Reference is made to paragraph 30 to 30.5 of the report which reads as under:-

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30. Based on the factors canvassed in the foregoing paragraphs, we would delineate the following steps to determine the veracity of a prayer for quashing, raised by an accused by invoking the power vested in the High Court under Section 482 of the Cr.P.C.:-

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30.1. Step one, whether the material relied upon by the accused is sound, reasonable, and indubitable, i.e., the material is of sterling and impeccable quality?

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30.2. Step two, whether the material relied upon by the accused, would rule out the assertions contained in the charges levelled against the accused, i.e., the material is sufficient to reject and overrule the factual assertions contained in the complaint, i.e., the material is such, as would persuade a reasonable person to dismiss and condemn the factual basis of the accusations as false.

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30.3. Step three, whether the material relied upon by the accused, has not been refuted by the prosecution/complainant; and/or the material is such, that it cannot be justifiably refuted by the prosecution/complainant?

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30.4. Step four, whether proceeding with the trial would result in an abuse of process of the court, and would not serve the ends of justice?

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30.5. If the answer to all the steps is in the affirmative, judicial conscience of the High Court should persuade it to quash such criminal proceedings, in exercise of power vested in it under Section 482 of the Cr.P.C. Such exercise of power, besides doing justice to the accused, would save precious court time, which would otherwise be wasted in holding such a trial (as well as, proceedings arising therefrom) specially when, it is clear that the same would not conclude in the conviction of the accused."

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On the cumulative strength of above, Mr. P.C. Srivastava, the learned counsel for revisionists submits that when the test laid down by Apex Court in aforementioned judgment is applied to the facts of the present case i.e. the marriage of revisionist 1 with opposite party 2, the

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birth of two daughters, the initiation of criminal proceedings by revisionist 1 against opposite party 2 and the acquaintance with the family members of revisionist 1 on account of above are either admitted or born out from the record. As such, they fall in the category of impeccable evidence. When the impugned proceedings/summoning order are examined in the light of above and after applying the test laid down by Apex Court in Rajeev Thapar (Supra), the impugned proceedings pending before Court below are not only malicious but also an abuse of the process of Court. The same have been engineered as a counter blast to the criminal proceedings initiated by revisionist 1 only to overcome the rigorous of the same. The same have thus been initiated to wreck vengeance which is not permissible in view of the law laid down by Apex Court in M/s Eicher Tractor Vs. Harihar Singh (2008) 16 SCC 763.

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It is lastly contended by the learned counsel for revisionists that on the conspectus of facts as noted herein above, the proceedings of the complaint case are wholly false and malicious. The same are an abuse of the process of Court. As such, the same cannot be sustained. Consequently, they are liable to be quashed by this Court to present the failure of justice even though the scope of the Application U/s 482 Cr.P.C. is confined to the veracity of the order passed on the discharge application.

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Per contra, Mr. Rajesh Kumar Dubey, the learned counsel for complainant/opposite party-2 has opposed the present application. He submits that once the veracity or otherwise of the summoning order has already been upheld by this Court by means of order dated 14.2.2022, this Court cannot go behind the same and examine the veracity of same. According to the learned counsel for complainant/opposite party-2, the illegality, if any, in the summoning order now cannot be examined by this court. With regard to the second issue which has emerged in this case i.e. the concealment of fact regarding the birth of two children from the wedlock of revisionist 1 with opposite party 2, acquaintance with the family members of revisionist 1, on account of marriage of revisionist 1 with opposite party 2, the pendency of criminal cases initiated against opposite party 2 and others in the complaint, the learned counsel for complainant submits that the question of discharge has to be considered

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on the basis of material already on record and not on the basis of new evidence which may be relied upon by accused in this application at the time of considering the veracity of the order passed on the discharge application. On the aforesaid premise, he submits that no illegality can be attached to the order impugned. As such, present application is liable to be dismissed.

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Learned A.G.A. has adopted the arguments raised by the learned counsel representing opposite party-2.

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Having heard Mr. P.C. Srivastava, the learned counsel for revisionists, the learned A.G.A. for State, Mr. Rajesh Kumar Dubey, the learned counsel for first informant/opposite party-2 and upon perusal of record, this Court finds that following defects crept in the proceedings which are enumerated herein under:

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From the perusal of complaint filed by original complainant, it is apparent that the prospective accused arraigned in the complaint are shown to be residents of District- Kanpur, whereas the complaint was filed in the Court of Chief Judicial Magistrate, Deoria. As such the prospective accused are shown to be the residents of a place which is beyond the territorial jurisdiction of Chief Judicial Magistrate, Deoria. Hence by virtue of the provisions contained in Section 201(1) Cr.P.C. and the law laid down by Apex Court in National bank of Oman (Supra) an enquiry ought to have been undertaken by concerned Magistrate before proceeding to summon the revisionists. This having not been done, a procedural illegality which goes to the roof of the matter has crept in the summoning order.

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It is an undisputed fact that marriage of revisionist-1 was solemnized with complainant/opposite party-2 on 10.12.2009 and from the said wedlock, two daughters namely Awantika and Anshika were born. The relationship between revisionist 1 and opposite party 2 become constrained on account of marital discord. As such, revisionist 1 was ignored by opposite party 2. Resultantly, revisionist 1 initiated criminal proceedings against opposite party 2 and others, which have been detailed above. The said facts have been clearly concealed in the complaint dated 20.6.2019 filed by father of opposite party 2. The present

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criminal proceedings then appear to have been engineered as a counter blast to the criminal proceedings initiated by revisionist-1. The same have been initiated to wreck vengeance. As such, same cannot be sustained by virtue of law laid down in M/s Eicher Tractor (Supra) .

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Had the directions issued by the Apex Court in paragraph 31 of the judgment in Priyanka Srivastava (Supra) been complied with by concerned Magistrate, the summoning order itself would not have been passed. The effect of the same is that revisionists have been dragged into criminal litigation which are otherwise not maintainable.

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The concerned Magistrate, though is denuded of his power to consider additional material which may be filed by accused but by virtue of the judgement of Supreme Court in Rajiv Thapar (Supra) this Court in exercise of jurisdiction under Section 482 Cr.P.C., can take note of such additional material which falls in the category of impeccable piece of evidence to decide the veracity of the proceedings impugned.

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When the facts i.e. criminal proceedings having been initiated by father-in-law against daughter-in-law and against the family members of daughter-in-law, the revisionist-1 and opposite party 2 i.e. son of original complainant are married to each other, they are husband and wife, out of the said wedlock two daughters have been born, both are practicing advocates in this Court and criminal proceedings having been initiated by revisionist 1 against opposite party 2 and others on account of ignorance of opposite party 2 in not maintaining revisionist 1 and her minor daughters are taken into consideration prima facie the allegations made in the complaint are wholly improbable and cannot be accepted even by a man of ordinary prudence. As such, when the same are examined in the light of the observations made in paragraph 31 of the judgment in Priyanka Srivastava (Supra) and paragraphs 30 to 30.5 of the judgment in Rajeev Thapar (Supra) the Court finds that no explanation has come forward from opposite party 2 regarding the above. Moreover when a parallel is drawn in between the statement of the complainant recorded under section 200 Cr.P.C. and the complaint astonishingly, this Court finds that there is no co-relation in between the allegations made in the complaint and the statement of complainant under Section 200 Cr. P. C. As such, court below summoned the revisionists without recording a

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prima-facie satisfaction. The fact that the impugned proceedings have been engineered only after criminal prosecution of opposite party 2 and other in-laws was launched by the revisionist-1, and the factum regarding the same having been concealed in the complaint, the ratio laid down by Apex Court in M/s Eicher Tractor (Supra) is also clearly attracted. In view of above, this Court has no hesitation to conclude that impugned proceedings which cannot be sustained being malicious and false. Though the scope of the present application is confined to the veracity of the order passed by court below on the discharge application filed by revisionists but the same cannot curtail the power of this Court to prevent an abuse of the process of Court nor can it restrict this Court from passing appropriate order in the ends of justice or present miscarriage of justice in appropriate cases.

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Resultantly for the facts and reasons recorded herein above, the present application succeeds and is liable to be allowed.

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It is accordingly allowed.

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Impugned order dated 11.2.2022 passed by Additional Chief Judicial Magistrate, Court No. 19, Deoria in Complaint Case No. 2602 of 2019 (Brijraj Singh Vs. Seema Kushwaha and Others), under sections 452, 504, 392 IPC, Police Station- Kotwali, District Deoria as well entire proceedings of above mentioned complaint case, now pending in the Court of Additionoal Chief Judicial Magistrate, Court No- 19, Deori, are, hereby, quashed.

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Cost made easy.

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Order Date :- 2.3.2023 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Seema Kushwaha and 3 Others v. State of U.P. and Another

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