Disposed

Tumil Kumar v. State of U.P. and Another

Allahabad HC26 Nov 2024A482/21118/2024

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What is this about?

A husband sought quashing of a complaint under Section 494 IPC alleging he contracted a second marriage without divorce. The court held that questions of fact and evidence cannot be adjudicated under Section 482 Cr.P.C., refused the quashing prayer but directed consideration of a discharge application with interim protection from coercive action.

What the court decided

AI extract

Tumil Kumar vs State of U.P. and Another — Dowry and Cruelty | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC:189840

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Court No. - 75

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Case :- APPLICATION U/S 482 No. - 21118 of 2024

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Applicant :- Tumil Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Devesh Kumar Shukla,Dharmesh Kumar Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Raj Beer Singh,J.

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Heard learned counsel for the applicant, learned A.G.A. for the State and perused the material brought on record.

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This application under Section - 482 Cr.P.C. has been preferred for quashing of the entire proceedings, including summoning order dated 20.05.2024, of Complaint Case No. 241 of 2024 (Smt. Shikha Sharma Vs. Tumil Kumar), under Section - 494 I.P.C., Police Station - Jewar, District - Gautam Budh Nagar, pending in the court of Civil Judge (Junior Division) / Judicial Magistrate, Jewar, District - Gautam Budh Nagar.

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It is submitted by learned counsel for applicant that the applicant is husband of opposite party no.2. She has lodged a first information report under Sections - 494, 498-A, 323, 504, 506 I.P.C. and 3/4 D.P. Act against the applicant and his family members and after investigation charge-sheet has been submitted only for offence under Section - 498-A, 323, 504, 506 and 3/4 D.P. Act. Thereafter, the opposite party no.2 has lodged the impugned complaint making allegations that applicant has performed second marriage with one Monika. There is no evidence of any 'saptpadi' to prove the alleged marriage. It was submitted that there is no evidence of alleged second marriage and thus, the impugned proceedings are liable to be quashed.

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Learned A.G.A. has opposed the application and submitted that in her statement under Section - 200 Cr.P.C., complainant has made allegations that applicant has

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performed second marriage with alleged Monika and this version is supported by the witnesses examined under Section - 202 Cr.P.C. It was submitted that at this stage only it is to be seen whether a prima facie case is made out or not.

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I have considered the rival submissions and perused the record.

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The legal position on the issue of quashing of criminal proceedings is wellsettled that the jurisdiction to quash a complaint, FIR or a charge-sheet should be exercised sparingly and only in exceptional cases. However, where the allegations made in the FIR or the complaint and material on record even if 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, the charge-sheet may be quashed in exercise of inherent powers under Section 482 of the Cr.P.C. In well celebrated judgment reported in AIR 1992 SC 605 State of Haryana and others Vs. Ch. Bhajan Lal , Supreme Court has carved out certain guidelines, wherein FIR or proceedings may be quashed but cautioned that the power to quash FIR or proceedings should be exercised sparingly and that too in the rarest of rare cases.

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In the instant matter, though in the first information report lodged by complainant/opposite party no.2, the police have concluded that no evidence was found for offence under Section - 494 I.P.C. but in the impugned complaint there are clear allegations against applicant that he has performed second marriage with alleged Monika without divorce from complainant. That version is supported by the witnesses examined under Section - 202 Cr.P.C. It is well settled that at the stage of summoning only it is to be seen whether a prima facie case is made out and there is ground to proceed further. The submissions raised by learned counsel for the applicant call for determination on questions of fact which may be adequately adjudicated upon only by the trial court and even the submissions made on points of law can also be more appropriately gone into only by the trial court. Adjudication of questions of facts and appreciation of evidence or examining the reliability and credibility of the version, does not fall within the arena of jurisdiction under Section 482 Cr.P.C.

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After considering arguments raised by learned counsel for parties and perusing the impugned complaint and the materials in support of the same, this Court does not find it to be a case which can be determined or gone into in an application under Section 482 Cr.P.C. Accordingly the prayer for quashing the impugned complaint and summoning order is hereby refused.

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However, it is directed that in case applicant moves an application for discharge within a period of three weeks from today, the same shall be considered and decided expeditiously in accordance with law. For a period of three weeks from today and in case, such an application is moved within the aforesaid period, till the disposal of such application, no coercive action shall be taken against applicant, provided applicant co-operates in early disposal of the discharge application.

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The application u/s 482 Cr.P.C. is finally disposed of in above terms.

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Order Date :- 4.12.2024 S Rawat

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Digitally signed by :- SHOBHIT RAWAT High Court of Judicature at Allahabad

Tumil Kumar v. State of U.P. and Another

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Tumil Kumar v. State of U.P. and Another

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