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SMT. JYOTI CHOPRA versus STATE OF U.P.

High Court of Judicature at Allahabad

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Smt. Jyoti Chopra v. State Of U.P. - CRIMINAL REVISION No. 5467 of 2004 [2005] RD-AH 6287 (23 November 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

                  Reserved

Criminial Revision No.5467 of 2004

Smt. Jyoti  Chopra                           Vs                 State of U.P. and another

with

Criminal Misc. Case  No.6873 of 2005

Smt. Raj Kapoor and another            Vs.                State of U.P. and others

      and

Criminal Misc. Case No.14381 of 2004

P.A.Kapoor                                       Vs                 State of U.P. and another

*********

Hon.Shiv Shanker,J.

Criminal Revision no.5467 of 2004, Smt. Jyoti Chopra Vs. State of U.P. and another, Criminal Misc. Case no.6873 of 2005, Smt. Raj Kapoor and Sanjay Kapoor vs. State of U.P., and Criminal Misc. Case no.14381 of  2004, P.A. Kapoor vs. State of U.P. and another have been directed against the impugned order dated 8.9.2004 passed in  criminal case no.317, State vs.  Sanjay Kapoor and others, under Sections 498 A,323,504 and 506 I.P.C. and 3/4 Dowry Prohibition Act by Chief Judicial Magistrate, Gautam Budhnagar whereby the accused  Sanjay Kapoor, P.A. Kapoor, Smt. Raj Kapoor and Jyoti Chopra were summoned by the trial court for the aforesaid offence.

All the above three criminal revisions are related to only one impugned order, therefore, all the three above criminal revisions are being disposed of by a common judgement and order. Criminal Revision no.5467 of 2004 shall be the leading case.

Brief facts, arising out of the revisions, are that marriage in between Smt. Aparna Mehta Kapoor and accused Sanjay Kapoor  was solemnized according to the Hindu customs and rites on 25 July, 1993 at Samarat Hotel, Chanakya Puri, New Delhi. Rs.12 lakhs were spent by her father according to the demand of the accused persons. However, they were not satisfied. They were demanding more dowry. Therefore, she was subjected to cruelty bodily and mentally by her husband, Sanjay Kapoor, P.A.Kapoor, father-in-law, Smt. Raj Kapoor, mother-in-law and Jyoti Kapoor (Nanad). Costly ornaments as Stri Dhan and other articles were taken by the accused from her by giving inducement, which were not returned to her by the accused. She  was turned down from in law's house situated in Faridabad in August, 1993 by her husband, father-in-law and mother-in-law. Thereafter, she was living with her parent's house. Her husband was residing with her parents till December, 1993 in Faridabad. During the period of  August, 1993 to December 1993 she and her parents had tried to pacify the matter by meeting with the above accused persons but they were demanding hard cash. In the month of January 1994, she  was taken by her husband on her or her parent's request, at flat no.1526, Sector 29 NOIDA,  which was the official residence of the company. Therefore, she and her husband were residing in the said flat. She was pressurized by her husband, Sanjay Kapoor to purchase T.V. Freeze, Cooking Gas and bed etc. from her parents. Such demand was fulfilled by her parents.

On Ist August, 1995 she gave a birth to a daughter Yashashvi in the hospital but accused did not care even to see her and her daughter in the hospital. All expenditure regarding delivery were borne out by  her parents. She lived with husband from January,1994 to Feb.1999  in the rented house. Her husband had gone Mumbai in the month of Feb. 1999. He sustained injuries by fallen down in the bathroom, after getting such information she wanted to go to Mumbai but her husband and father-in-law have denied to go there. When her husband came back from Mumbai she went to meet her husband in the hospital where she was abused by the accused. Her husband was taken by his parents after getting  discharge from the hospital to Faridabad. After March 1999 her husband did not come to live with her. Several letters were written to him and she also contacted upon the telephone. However, her husband gave threatening to that she will be divorsed by him. She was living in the said house no.1135 Sector 37 NOIDA along with her daughter. She and her daughter were not maintained by her husband. Her daughter was admitted in January 2001 and December 2001 but he did not give any assistance in Feb.2000 Sanjay accused had come at her parent's house, in absence of her they tried to pacify the matter from her husband and request to live with his wife and his daughter  upon which he became anger and her parents were abused by him  on 19.11.2000 at about 10.00 A.M.. She along with her daughter and her parents reached at Faridabad to meet with her husband and her parents requested  him to settle the dispute. However, they were abused by him, her father was pushed by her husband and her father-in-law she was pushed by her husband at the wall and she was beaten with kicks and fists, her hands were caught by her father-in-law and gave warning to go out from the house immediately, her mather-in-law also standing there she was also instigating to her husband, she was also abused by her. Few months ago her husband, father-in-law and mother-in-law started threatening to her upon telephone also and they were terrorized  her to get divorse. Due to this mental and bodily cruelty she made written complaint on 25.8.05 to  Mahila Ayog, NOIDA  upon which the case against the accused Sanjay Kapoor, P.A.Kapoor, Smt Raj  Kapoor and Jyoti Kapoor was registered on 19.11.2003 at 16.45 P.M. under Sections 498 A,323,504,506 and  3/4 Dowry Prohibition Act

Investigation of this case was entrusted to S.I. Rakesh Vashistha. After completing investigation I.O. submitted final report in the court. Thereafter,  an order issuing notice, was passed by the Magistrate for the complainant of this case on the final report, whereupon a protest petition was filed by the complainant along with the affidavits of witnesses Col. M.S.Gill, Smt. Bina  Haldar and several other relevant papers. Thereafter, trial court rejected the final report and all the above four accused persons were summoned for the trial for the offence under Sections 498 A,323,504,506 I.P.C. and 3/4  Dowry Prohibition Act. Feeling aggrieved it, all the four accused persons preferred above three criminal revisions.

Heard arguments of learned counsel for both the parties and perused the whole record as alleged in the impugned order.

It is contended on behalf of the revisionist that First Information Report was lodged with  delay of three years, no sufficient reason has been given regarding it. It is further contended that final report was submitted by the Investigating Officer and  cognizance  was only to be taken on the basis of material available in the case diary. It is further contended that protest petition was to be treated as complaint case and procedure for complaint case was to be adopted by the trial court. It is further contended that cognizance was taken  and the prescribed limit under Section 468 Cr.P.C. is applicable and cognizance was time bared accordingly. Therefore, court below has committed illegality  and material irregularity in passing the impugned order.

On the other hand, it was argued that all the evidence available in the case diary was to be looked by the court and procedure of complaint case was not to be adopted by the trial court. Therefore, trial court has not adopted the procedure of complaint case. It is further argued that Magistrate has empowered to take cognizance not only on the material available in the case diary etc. On that basis, learned court below has not committed any illegality or material irregularity.          

It has been observed in Jagdish Ram vs. State of  Rajasthan and another 2004,SCC (Cri) 1294 that "recording of reasons by the Magistrate at the stage of issue  of process under Section 204 Cr.P.C., held, not required. It was further observed that proceedings at the stage of taking cognizance-plea that complaint was filed as a result of vindictiveness-held, not relevant to be considered by the Supreme Court  at this stage-accused to raise all the pleas available to him in law before the trial court at an appropriate stage." This pronouncement of Hon.Supreme Court is applicable in this case. Therefore, the case of the accused revisionist was not to be looked at the stage of cognizance. In the present case the final report was submitted by the Investigating Officer upon which the protest petition was filed on behalf of respondent/complaint, against the final report there is pronouncement of Division Bench of this Court Pakhando and others Vs. state of U.P. and another 2001(43)ACC 1096 wherein it has been observed that where the  Magistrate refuses final report the  following four courses are open to him and he may adopt  any one of them as the facts and circumstances of the case may require:-

"(1)    He may agreeing with the conclusions arrived at by the police,   accept the report and drop the proceedings. But before so doing, he shall give an opportunity of hearing to the complainant; or      

(II) He may take cognizance under Section 190(1)(b) and issue process straightaway to the accused without being bound by the conclusions of the investigating agency, where he is satisfied that upon the facts discovered or unearthed by the police, there is sufficient ground to proceed;or

(III) he may order further investigation, if he is satisfied that the investigation was made in a perfunctory manner; or

(IV) he may, without issuing process or dropping the proceedings decide to take cognizance under Section 190(1) (a) upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 2002 Cr.P.C. and thereafter decide whether complaint should be dismissed or process should be issued."

It has also been observed that Magistrate not bound to follow procedure prescribed under Sections 200 and 202 of the Code-Proviso to Section 201 (2) Cr.P.C. will have no application.

After perusal of the impugned order it appears that the trial court has considered the material available in the case diary  also the affidavits of the witnesses and other papers filed with the protest petition. After adopting the above pronouncement of the Division Bench learned court below has committed illegality  and material irregularity in considering the affidavits of the witnesses and other papers filed with the protest petition.  The trial court was bound to consider only the material available in the case diary not any other evidence on the basis of the material available in the case diary. Prima facie case was made out to proceed the case then the accused may be summoned for the trial. At this stage it is proper that matter be remanded back to the trial court to decide the fresh  order according to the law and above direction.

In  view of above discussions made, I come to the conclusion that the petitions filed under Section 482 Cr.P.C. are not maintainable and are  liable to be dismissed. However, the revision is liable to be allowed and the impugned order is liable to be set aside.

The Criminal Revision No.5467 of 2004, Smt. Jyoti Chorpa and another is allowed and the impugned order is set aside. The matter is remanded back to the court below for  afresh decision in accordance with law and the observations made in this order after giving opportunity of hearing to the affected  parities. The Criminal Misc. Case no.6873 of 2005 and Criminal Misc.Case No.14381 of 2005 are, hereby, dismissed.

No order as to costs.

Dt.            2005

Asha


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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