Ashok Kumar and Others vs State of U.P. and Another

Naheed Ara Moonis, J.—The instant 482 Code of Criminal Procedure. petition has been filed by the applicants(husband and in-laws of the opposite party No. 2) with a prayer for quashing of the order dated 29.6.2007, whereby the cognizance has been taken in pursuance of the charge sheet submitted against the applicants on 27.5.2007 in criminal case No. 1428 of 2007, State v. Ashok Kumar Chadhary and Ors., under Sections 498-A, 323, 504, 506 Indian Penal Code and Section 3/4 Dowry Prohibition Act, Police Station Naubasta, District Kanpur Nagar, pending in the court of learned Additional Chief Metropolitan Magistrate Ist, Kanpur Nagar, initiated by the opposite party No. 2 who is the wife of the applicant No. 1, while the connected petition has been filed by the opposite party No. 2, Smt. Neelisha Sankhwar and Ors. with a prayer to quash the proceedings of Complaint Case No. 3383 of 2007, Ashok Kumar v. Smt. Neelisha Sankhwar and Ors., u/s 420 Indian Penal Code, Police Station Naubasta, District Kanpur Nagar, pending in the court of learned Additional Chief Metropolitan Magistrate, Ist, Kanpur Nagar, initiated by her husband Ashok Kumar Chaudhary against her wife and in-laws. Since both petitions have been connected by an order dated 27.2.2008 passed in Criminal Misc. Application No. 3043 of 2008, therefore both the petitions are being disposed of by means of a common order.

Heard the Learned Counsel for the applicants, the learned A.G.A. appearing on behalf of State and perused the record.

The opposite party No. 2 in the instant petition had lodged the first information report on 19.4.2007 against her husband and in-laws(the applicants in Criminal Misc. Application No. 24395 of 2007) in respect cruelty and ill treatment meted to her on account of non fulfillment of demand of dowry soon after the marriage. The marriage took place on 25.2.2007 and the first information report was lodged on 19.4.2007. The allegation made in the report for demand of dowry of ten lacs rupees, and when the in-laws of the applicant No. 1 failed to fulfill their demand of dowry, the victim was ousted from her matrimonial house, therefore the opposite party No. 2 had left with no other alternative but to lodge the first information report which was registered under Sections 498-A, 323, 504, 506 Indian Penal Code and Section 3/4 Dowry Prohibition Act as case crime No. 232 of 2007, Police Station Naubasta, District Kanpur Nagar. After collecting the material evidence the Investigating Officer submitted the charge sheet on 27.5.2007 and the court below had taken cognizance against the applicants.

It is submitted by the Learned Counsel for the applicants that a compromise had arrived between the parties for dissolution of marriage. The said compromise application has been filed on behalf of the applicants. Aggrieved by the said order the applicants approached this Court and this Court by an order dated 4.10.2007 referred the matter to the Mediation Centre to resolve the matrimonial dispute through the process of mediation and reconciliation.

The husband of the opposite party No. 2 had also filed a complaint on 14.5.2007 against his wife and her family members with the allegations that by doing fraud upon the husband three lacs rupees have been obtained on the pretext that compromise had arrived at between the parties and the wife will never prosecute the husband. After en-cashing the money by the father of the opposite party No. 2(wife) the first information report was lodged against the husband and his family members, therefore the wife and his family members are liable to be prosecuted under Sections 420, 465, 466, 467, 468, 469 Indian Penal Code. The statement of the husband Ashok Kumar Chaudhary was recorded u/s 200 Code of Criminal Procedure. and the statements of Chaman Lal Diwakar, the father of Ashok Kumar Chaudhary, Om Shankar Shukla who was the mediator in the marriage and one Mahesh Prasad, neibourer of Ashok Kumar Chaudhary were recorded u/s 202 Code of Criminal Procedure. who had supported the complaint case and on the basis of evidence adduced the court below had arrived at the conclusion that prima facie offence u/s 420 Indian Penal Code is made out against Smt. Neelisha Sankhwar and her family members and they were summoned by an order dated 5.12.2007 to face the trial.

It is vehemently argued by the Learned Counsel for the applicants that the opposite party No. 2 had registered the first information report only to harass the applicant and his family members when both the parties had entered into compromise and the marriage was dissolved and the certain amount of money was also obtained as agreed between them and the divorce suit dated 11.4.2007 was also filed prior to the lodging of the first information report by the opposite party No. 2 which was registered on 19.4.2007.

The Learned Counsel for the opposite party No. 2 has contended that the applicants while filing the present petition before this Court had showed the willingness that there are chances of settlement and by concealment of fact obtained the order dated 4.10.2007 when a complaint was lodged by him against the wife. The opposite party No. 2 along with her parents had appeared before the mediation centre in pursuance of the order of this Court but they failed to agree to compromise rather threatened to drag the entire family to implicate in criminal cases, an in fact a false and frivolous complaint was lodged against the wife and his family members, whereby the court below has passed the order summoning the opposite party No. 2 and her family members u/s 420 Indian Penal Code. All the allegations made against the opposite party No. 2 are false and vague. The husband is himself compelling the wife to divorce him and on account which he has filed a divorce petition u/s 13 of Hindu Marriage Act which is pending before the competent court.

Having considered the submissions made by the Learned Counsels for the parties and after going through the averments made in the first information report and in the complaint and considering the statements recorded by the Investigating Officer/Magistrate, it cannot be said that no offence is made out. At this stage the allegations levelled are to be taken correct on its face value with no addition or substraction, nor the critical analysis of facts as alleged can be undertaken to make out the defence for the accused to stifle the legitimate prosecution at its very inception. Since in this matter the dispute was between the husband and wife and this Court had granted indulgence by giving a chance to the respective sides to come to a compromise by mediation and reconciliatory proceedings by order dated 4.10.2007, but the Learned Counsel for the parties have submitted that no agreement had arrived between the parties, which shows that none of the parties were ready to compromise. Since the offence is prima facie disclosed and the court below has taken cognizance and as such the proceedings initiated against the applicants do not suffer from any infirmity of law, therefore the proceedings cannot be quashed. This Court cannot go into the merits and demerits of the case as the proceedings can be quashed only in exceptional circumstances, where no offence is made out and at this stage is premature to record any such finding. The applicants have ample opportunity to raise the objections at the appropriate stage, therefore, there is no merit in these petitions. Accordingly both the petitions are dismissed. Interim orders granted by this Court are hereby vacated.

Office is directed to communicate the order to the court concerned to proceed with the case in accordance with law.

However, in case the applicants who have not applied for bail, they shall appear before the court concerned within thirty days from today and apply for bail their prayer for bail shall be considered and decided expeditiously in view of the settled law laid by this Court in the case of Amrawati and Anr. v. State of U.P. reported in 2004 (57) ALR 290 as well as judgment passed by Hon''ble Apex Court reported in 2009 (3) ADJ 322 (SC) Lal Kamlendra Pratap Singh v. State of U.P. No coercive steps shall be taken against the applicants within the aforesaid period. But in case the applicant do not appear before the Court below within the aforesaid period, coercive action shall be taken against them.

With the aforesaid directions, this application is dismissed.

A copy of this order may be placed on record in the connected petition.