Budhiman Singh vs State of U.P.

K.K. Misra, J.—It is not disputed between the parties that both the writ petitions involve common question as they relate back to the F.I.R. dated 2.4.2007 lodged by opposite party No. 4 against the petitioners of both the writ petitions alleging therein dowry death, accordingly we propose to dispose of these petitions by a common order.

The factual matrix necessary for disposal of both the writ petitions is as under:

Late Smt. Anju was married to the petitioner Budhhiman Singh @ Raju S/o late Barakkey R/o Atrauli, District Hardoi on 9.5.2004. In the dowry, ornaments, cash, motorcycle, T.V. and other domestic articles were given to the petitioners by the father of the deceased, but the husband and his family members remained unsatisfied and there was continues lust for the dowry and with this end in view the deceased was tortured.

On 1.4.2007 at about 8.30 p.m. the complainant received information on telephone that his sister was seriously ill and was admitted in hospital, upon this the complainant and his family members reached the marital house of his sister and saw that his sister was lying dead in the courtyard. Accordingly they suspected that due to non fulfillment of dowry demand his sister might have been killed, accordingly an F.I.R was lodged at P.S. Atrauli on 2.4.2007 at 5.30 a.m., on the basis of which a case was registered at crime No. 305 of 2007 under section 498A. 304B I.P.C. and 3/4 of Dowry Prohibition Act. Thereafter the police submitted chargesheet against the petitioners.

Accordingly, it has been urged on behalf of the learned Counsel for the petitioners that the Court may exercise its powers under Articles 226 and 227 of the Constitution of India to quash the same. The writ petitions have been preferred with the following reliefs:

"(i) a writ, or writs, direction or directions and or order or orders in the nature of Certiorari quashing the prosecution of the petitioners under sections 498A/304 I.P.C. & 3/4 Dowry Prohibition Act, of Police Station Atrauli District Hardoi on the basis of the first information report of Case Crime No. 30 5/2007 aforesaid contained in Annexure No. 1 hereinabove, together with the socalled investigation of the same, if any, after summoning the original records of the crime in question lying with the police concerned.

(ii) writ, or writs, directions or directions and/or order or orders in the nature of Mandamus staying the arrest of the petitioners and further harassment, humiliation and harm to the petitioners at the hand of the police concerned in the garb of proceedings of investigation of the concerned case Crime No. 305/07 of Police Station Atrauli District Hardoi pending this petition in the Hon''ble Court.

(iii) any other writ, or writs, direction or directions and/or order or orders deemed just and proper in the facts and circumstances of the case of the petitioners.

The learned Counsel for the petitioners has relied on a decision of the Hon''ble Apex Court in Pepsi Foods Limited and another v. Special Judicial Magistrate and others (1998 (36) ACC 20 (SC)). As no offence is disclosed, it would be a sheer wastage of time and abuse of process of law.

It has been submitted on behalf of the State that not only F.I.R. but after investigation chargesheet has been filed in the Court on bundle of facts and circumstances, which leave no room for doubt that the petitioners are guilty for the commission of the offences and at this stage the petitioners misconceived the facts and both the writ petitions have been filed on improper grounds. It is always open for the petitioners to agitate before the Trial Court and to move application for discharge. In case they do not succeed then only they can move this Court for legal redress.

Considering the rival submissions of the parties, we are of the view that the law laid down by the Hon''ble Apex Court empowers this Court to interfere when the bundle of facts disclose no offence, but when the decision is dependent upon the appreciation of evidence, in that case the Court should refrain from exercising extraordinary powers especially where specific provisions of the Code of Criminal Procedure are available before the Trial Court, which can pass appropriate orders. Considering the merit of the case, we would refrain to make any comment which may cause prejudice to either of the parties. The surrounding circumstances lead us to an irresistible conclusion that it would be better if factual aspect should also be taken into consideration and that too before the Trial Court and it would not be expedient for this Court to exercise extraordinary jurisdiction and to look into the matter superceding the provisions of the Code of Criminal Procedure. Consequently, we are unable to agree with the contention of the learned Counsel for the petitioners that there would be an abuse of process of law if the F.I.R. as well as the chargesheet are not quashed.

The question of quashing of F.I.R. as well as chargesheet would only arise when it does not disclose any offence, or there is no legal bar to take cognizance. The petitioners have not come forward with the case that there was any legal impediment before the Trial Court to take cognizance of the chargesheet.

Thus, the pivot on which the whole case of the petitioners revolves is the factual aspect and that too can only be seen when any application for discharge is moved before the Trial Court and thereafter if the alternative remedy is exhausted, only then this Court would be justified in exercising the extraordinary or inherent powers to check the abuse of process of law. At this stage, the petitions are premature and it would be in the fitness of things to direct the petitioners to avail the alternative remedy, which is most suited in the circumstances and would meet the ends of justice.

The Hon''ble Apex Court in Moran M. Baselios Marthoma Mathews II and others v. State of Kerala and others ((2007) 6 SCC 517), considered the question whether the petition under Article 226 of the Constitution of India is maintainable in a case where the question of fact has to be determined? The Hon''ble Apex

Court held that a distinction must be borne in mind in regard to the exercise of jurisdiction under Article 226 of the Constitution of India and in relation to the matter providing for alternative remedy.

The High Court while exercising its jurisdiction under Article 226 of the Constitution, no doubt, exercises a plenary power but then certain limitations in regard thereto are well accepted and the High Court should not have gone into the factual aspect of the matter.

Consequently in the given circumstances we agree with the contention of the learned A.G.A. that the proper forum is to move an application for discharge before the Trial Court disclosing the facts as referred in these writ petitions and in case the petitioners are aggrieved by the order so passed, then to approach this Court in accordance with law.

Learned Counsel for the petitioners has further placed reliance on a Division Bench decision of this Court in Sanjay Gupta v. The State of U.P.(2007 (25) LCD 501), in which we find that the petition was entertained on the ground that the Judicial Magistrate at Lucknow was not competent to accept the chargesheet and for lack of territorial jurisdiction chargesheet was quashed. No such plea has been raised before this Court by the petitioners that the jurisdiction is lacking in this case.

Thus, looking to the case from all or any angle, we are of the view that the petitioners may approach the Trial Court in accordance with the provisions of the Code of Criminal Procedure by moving an application for discharge and after exhausting that alternative remedy may approach this Court. Thus at this stage no interference is warranted.

No other point has been pressed.

''With these observations, both the writ petitions are disposed of accordingly.