Ashutosh Porwal and 4 Others Vs State of U.P. and Another

Neutral Citation No. - 2025:AHC:141200

Court No. - 76

Case :- APPLICATION U/S 528 BNSS No. - 12852 of 2025

Applicant :- Ashutosh Porwal And 4 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Jai Raj Counsel for Opposite Party :- Gaurav Tiwari, Ramesh Kumar,G.A.

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Hon'ble Vikram D. Chauhan,J.

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Heard learned counsel for the applicants, learned counsel for opposite party no.2 and learned A.G.A. for the State.

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The present application has been filed by the applicants for quashing the impugned cognizance order dated 05.09.2024, passed by Special Chief Judicial Magistrate, Agra in Case No.17645 of 2024 (State Vs. Ashutosh Porwal) as well as charge sheet dated 20.11.2023 submitted in Case Crime No.0258 of 2023, under Sections 498A, 354A, 504, 323 I.P.C. and Section 3/4 D.P. Act against applicant no.2 and under Sections 498A, 504, 323 I.P.C. and Section 3/4 D.P. Act against applicant nos. 1, 3, 4 and 5 Police Station Shahganj, District Agra, as well as entire criminal proceedings of Case No. 17645 of 2024 (State Vs. Ashutosh Porwal) pending before the court of Special Chief Judicial Magistrate, Agra.

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It is submitted by learned counsel for applicants that ends of justice would be served if the applicants are permitted to appear before the court concerned through counsel in terms of Section 228 of BNSS.

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3-A. Learned counsel for the applicants submits that applicants undertake to ensure presence of their Counsel/Pleader before the court concerned on each date fixed. It is further submitted that the applicants shall not seek any unnecessary adjournment and will participate in the trial court proceedings through the Advocate/Pleader. It is further submitted that the applicants will have no objection in the event the evidence is recorded in the presence of Advocate/Pleader of the applicants.

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The applicants are subjected to prosecution for the following offence:-

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(i) The applicants are subjected to an offence under Section 498A of IPC. The punishment provided under the aforesaid Section is for imprisonment for a term which may extend to three years.

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(ii) The applicants are also subjected to prosecution under Section 323 of IPC and the same is punishable with a term which may extend to one year.

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(iii) The applicants are also subjected to the provisions of Sections 504 IPC and the same is punishable with a term which may extend to two year.

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(iv) The applicants are also subjected to the provisions of Section 354A IPC and the same is punishable with a term which may extend to three years.

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(v) The applicants are also subjected to the provisions of Section 3 of the Dowry Prohibition Act, 1961 which shall not be less than five years.

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(vi) The applicants are also subjected to the provisions of Section 4 of the Dowry Prohibition Act, 1961 which may extend to two years.

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The present case arises out of matrimonial dispute. The applicants are husband, father-in-law, mother-in-law and married sisters-in-law. As per the prosecution case, it is alleged that there is demand of dowry by accused persons, the wife has been subjected to cruelty in respect of unlawful demand of dowry, there are allegations of assault on accused persons. Learned AGA and learned counsel for the opposite party no.2 has not placed any injury report before this Court. It is not the case of the State/prosecution/informant that the applicants have any previous criminal history or the applicants may tamper with the evidence. It has also not been suggested on behalf of opposite party that applicants would flee away from justice or that applicants have not co-operated at the time of investigation.

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Marriage is an institution which admits to persons to family life. Marriage is an institution of great social relevance. The marriage also recognises the union of the two individuals. The relationship also recognises the moral, social and legal obligations of the parties to the marriage. The Society embraces the married spouses in a way distinguished from others. The married couples are the heirs of the social order and understood principles of engagement with each other and with the society. It is a means of spiritual

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growth of individuals.

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In marriage, sometimes the individuals entering into a disharmony which results in friction in matrimonial relationship. Such a disharmony between the spouses and their family members arises out of matrimonial dispute between the parties. Such a matrimonial dispute even extend to the criminal jurisdiction. The parties to the marriage levy criminal charges against each other to scale up the matrimonial dispute between the parties. Sometimes such scaling up of the dispute between the parties is at the behest of the family members and the near ones. In the heat of the moment over trivial issues without proper deliberations the criminal complaints are lodged which are not even bona fide and are filed with oblique motive. At the time of filing of the complaint, the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations and how the marriage as institution is affected.

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The Hon'ble Supreme Court in the case of Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 has held hereunder:-

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"37. Before parting with this case, we would like to observe that a serious relook of the entire provision is warranted by the legislature. It is also a matter of common knowledge that exaggerated versions of the incident are reflected in a large number of complaints. The tendency of over implication is also reflected in a very large number of cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of suffering of ignominy. Unfortunately a large number of these complaints have not only flooded the courts but also have led to enormous social unrest affecting peace, harmony and happiness of the society. It is high time that the legislature must take into consideration the pragmatic realities and make suitable changes in the existing law. It is imperative for the legislature to take into consideration the informed public opinion and the pragmatic realities in consideration and make necessary changes in the relevant provisions of law.'

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The Supreme Court in the case of Sharif Ahmed and Another Vs. State of Uttar Pradesh and Another, 2024 INSC 363 in respect of granting exemption from personal appearance has held as under in paragraph 47:-

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"Further, the observation that there is no provision for granting exemption from personal appearance prior to obtaining bail, is not correct, as the power to grant exemption from personal appearance under the Code [Section 205 of the Code. also see Section 317 of the Code] should not be read in a restrictive manner as applicable only after the accused has been granted bail. This Court in Maneka Sanjay Gandhi and Another v. Rani Jethmalani (1979) 4 SCC 167, held that the power to grant exemption from personal appearance should be exercised liberally, when facts and circumstances require such exemption. [see also, Puneet Dalmia v. Central Bureau of Investigation, Hyderabad, (2020) 12 SCC 695]. Section 205 states that the Magistrate, exercising his discretion, may dispense with the personal attendance of the accused while issuing summons, and allow them to appear through their pleader. While provisions of the Code are considered to be exhaustive, cases arise where the Code is silent and the court has to make such order as the ends of justice require. In such cases, the criminal court must act on the principle, that every procedure which is just and fair, is understood as permissible, till it is shown to be expressly or impliedly prohibited by law."

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Considering the nature of controversy, it is directed that in case application in terms of Section 228 of BNSS is filed, the trial court to dispense with the personal attendance of the applicants and the applicants be permitted to appear through pleader/counsel subject to the following conditions:-

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(a) The applicants shall appear before the court concerned through counsel on the next date or within 15 days from today whichever is earlier.

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(b) The applicants shall on affidavit submit their permanent address as well as current address of residence before the court concerned within 15 days from today. The applicants shall also submit before the court concerned the contact number of the applicants as well as the e-mail address (if any) of the applicants.

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(c) The applicants shall also submit an affidavit before the court concerned that they would not tamper with the evidence or threaten the witnesses during the pendency of the trial.

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(d) In the event, applicants changes address of residence, they shall submit on affidavit with regard to change of address within two weeks before the court concerned.

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(e) It shall be the duty of the applicants to ensure that the pleader/counsel engaged by the applicants are present before the court concerned on the date fixed without exemption. The failure on the part of the pleader/counsel to appear before the court concerned when the matter is taken up will be construed as absence of the applicants and the court concerned, thereafter, would be at liberty to take such measures for enforcing the personal attendance/personal appearance of the applicants as may be required under law.

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(f) The applicants shall not seek any unnecessary adjournment before the court concerned. In the event, the counsel /pleader engaged by the applicants is not available, it shall be the duty of the applicants to engage another counsel and ensure that the newly engaged counsel is present before the court concerned for progress of the case.

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(g) The court concerned at any stage of the proceeding can direct the personal attendance of the applicants by order in writing and that if necessary enforce such attendance in accordance with law. It is further provided, where the court concerned issues any summon or warrant on account of the absence of the counsel for the applicants before the court concerned or in respect of any other matter, the police authorities shall be obliged under law to execute the summon or warrant and ensure the attendance of the applicants before the court concerned.

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(h) Whenever the court concerned directs personal attendance of the applicants before the court concerned, it shall be the duty of the applicants to remain present before the court concerned and to ensure that the trial court proceedings are not adjourned on account of absence of the applicants. It shall be the duty of the counsel engaged by the applicants to inform the applicants with regard to the progress of the case and, in the event, the personal attendance of the applicants is required. The non-communication by the counsel for the applicants about the progress of the case or the order of the court concerned for personal attendance of the applicants shall not be permissible as defence on behalf of the applicant.

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(i) The prosecution/police authority/complainant shall ensure that the witnesses are produced before the court concerned without delay as and when directed by the court concerned.

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(j) The court concerned shall not grant any unnecessary adjournment to any of the parties and endeavour to conclude the

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proceedings in a time bound manner.

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(k) The court concerned will be at liberty to take coercive measures in accordance with law where the applicants are found to be tampering with the evidence or delaying the trial without any justification or where it is proved that the applicants are threatening the informant or the witness.

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Subject to the aforesaid observations/directions, the present application under Section 528 BNSS stands disposed of .

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Order Date :- 19.8.2025

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D. Tamang

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Digitally signed by :- DHIRENDRA TAMANG High Court of Judicature at Allahabad

Ashutosh Porwal and 4 Others v. State of U.P. and Another

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