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SMT. KUSUM SHARMA AND OTHERS versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Smt. Kusum Sharma And Others v. State Of U.P. And Another - APPLICATION U/s 482 No. 9478 of 2005 [2006] RD-AH 7478 (6 April 2006)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 27

Criminal Misc. Application No. 9478 of 2005

Smt. Kusum Sharma and others Vs. State of U.P. and another.

Hon'ble M. K. Mittal, J.

This application has been filed under Section 482 Cr.P.C. to quash the criminal proceedings in case No. 1044 of 2004 under Sections 498-A, 307, 452, 504, 506 IPC and Section ¾ D. P. Act, P.S. Shahganj, District Agra pending in the Court of A.C.J.M. Court no. 27, District Agra.

I have heard Sri Nasiruzzaman, learned counsel for the applicants, learned A.G.A. and perused the record.

The brief facts are that Smt. Shailja @ Sangeeta Tripathi filed F.I.R. on 18.11.2003 against her husband and the present applicants alleging that she was married with Sanjay Sharma on 12.5.1998 according to Hindu rites and dowry was given by her father in the marriage. However, it could not satisfy the accused persons and they demanded  scooter in dowry and when it could not be given, she was ill-treated, harassed and also beaten. The informant also came to know that her husband had earlier married one Smt. Rekha Rani and on account of ill-treatment and cruelty meted out to her, that marriage had ended in divorce. On 25.6.2002, she was taken and left at the house of her father as scooter was not given. It has further been alleged in the F.I.R.  that on 10.10.2002 her husband Sanjay Sharma, mother in law Smt. Kusum Sharma, maternal uncle in law Sri Santosh Sharma came to her house and at that time her husband was armed with Tamancha and they abused her and with intention to kill her, Sanjay fired at her but she narrowly escaped. Her family members came and the accused persons went away threatening her.

After investigation the charge sheet has been submitted against the applicants and Sanjay Sharma. Learned counsel for the applicants has contended that the applicants have been falsely implicated in this case and that they live separately from the husband of the informant, opposite party no. 2. He has further contended that the allegations as made in the F.I.R. are highly improbable and are vexatious. He has further contended that the allegations are mainly against the husband and that the applicant no. 1 is aged about 78 years whereas applicant no. 2 is a retired teacher.

Learned A.G.A. has contended that the allegations as made in the F.I.R. show that prima facie cognizable offence is made out and that specific allegations of demand of dowry and ill treatment have been made against all the accused persons, although the role of firing at the informant has been assigned to the husband. He has further contended that the contentions as made by the learned counsel for the applicants are factual in nature and can be seen by the Trial Court and the criminal proceedings cannot be quashed at initial stage under Section 482 Cr.P.C.

Although this Court has inherrent power under Section 482 Cr.P.C., but it has to be used sparingly as has been held in  several judicial pronouncements. In the case of R. P. Kapoor Vs. State of Punjab, AIR 1960 SC 866, it has been held that the inherent powers can be exercised to quash the proceedings (a) where it manifestly appears that there is legal bar against the institution or continuance as for example want of sanction; (b) where the allegations in the First Information Report or complaint taken at their face value and accepted in their entirety do not constitute the offence alleged; (c) where the allegations constitute an offence but there is no legal evidence adduced or the evidence adduced clearly or manifestly fails to prove the charge. In the case of State of Haryana Vs. Bhajan Lal, 1992 SCC (crl) 426, while laying down certain guidelines the Hon'ble Apex Court has also added the note of caution that the powers should be exercised sparingly and that too in the rarest of rare cases. In the case of M. Krishnan Vs. Vijay Singh and others (2001) 8 SCC 645, it has been held by the Hon'ble Apex Court that the inherent powers for quashing the proceedings at the initial stage can be exercised only where the allegations made in the complaint or the F.I.R. do not (i) prima facie disclose the commission of an offence; (ii) or the allegations are so absurd and inherently improbable that on the basis of which no prudent person can reach the just conclusion that there are sufficient grounds to proceed  against the accused; (iii) or where there is express legal bar engrafted in any provision of the Code; (iv) or where a criminal proceeding is manifestly actuated with malafide and has been  initiated maliciously with the ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge. Again in the case of State of Karnataka Vs. M. Devendrappa and another (2002) 3 SCC 89, it has been held that the powers should be exercised ex-debito-justitiae to prevent the abuse of the process of the Court. But it should not be exercised to stifle the legitimate prosecution. The High Court should not assume the role of Trial Court and embark upon an enquiry as to reliability of the evidence and sustainability of the accusation on a reasonable appreciations of such evidence. Power should be exercised sparingly with caution and circumspection. Similar view has been expressed by the Hon'ble Apex Court in the Cases of Zandu Pharmaceauticals Works Limited and others Vs. Mohd. Sharaful Haq and another (2005) 1 SCC 122, State of Andhra Pradesh Vs. Golkunda Lingaswamy and another (2004) 6 SCC 522 and State of M.P. Vs. Awadh Kishore Gupta and others, (2004) 1 SCC 691. In the recent judgements it has also been held that if the information is lodged and offence is registered the ground of malafide becomes secondary and it cannot be a basis for quashing the proceedings.

In view of above legal position, it is now well settled that the proceedings at the initial stage can be quashed when no prima facie offence is made out from the allegations taken on their face value as made in the First Information Report or the complaint or there is any legal bar or the allegations are vexatious or inherently improbable. The evidence cannot be appreciated or assessed under Section 482 Cr.P.C. as it is the work of the Trial Court and it is not proper for this Court to analyse the case of the informant in the light of all probabilities in order to determine whether the conviction would be sustainable and on such premises to arrive at a conclusion that the proceedings are to be quashed.

In the instant case, the allegations as made in the First Information Report show that the accused have ill treated and harassed the informant and demanded dowry from her. The objections as taken by the applicants including the plea of separate living are factual in nature and can be seen by the Trial Court.

Therefore,  I do not find any legal ground to interfere  and the charge sheet and the criminal proceedings cannot be quashed. Therefore, the application under Section 482 Cr.P.C. is devoid of merits and is liable to be dismissed and is hereby dismissed. However, if the applicants surrender in the Court or are produced before the Court concerned and move an application for bail, the same shall be heard and decided by the Courts concerned expeditiously and according to law.

The interim stay order dated 7.9.2005 is hereby vacated. The copy of the order be sent to the Trial Court within 7 days.

Dated: 6.4.2006

RKS/9478


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