Harbhajan Singh and Another vs State of U.P. and Another

I.M. Quddusi, J.—Heard the learned Counsel for the parties.

The present petition u/s 482, Code of Criminal Procedure has been filed challenging the prosecution of the applicants in Complaint Case No. 6 of 1995 Jasvinder Kaur v. Harbhajan Singh and Anr. u/s 405/406, Indian Penal Code Police Station Kemri, district Rampur on which the applicants have been summoned by the learned Magistrate vide order dated 25.1.1995. The applicants preferred a revision against the summoning order as Criminal Revision No. 19 of 1995 before the Sessions Judge, Rampur which was dismissed on 26.4.1995 holding that the revision was not maintainable as the order was an interlocutory one and the accused should have appeared before the Magistrate and contended that the process should not have been issued as there was no sufficient ground to proceed in the matter and that the complaint should be dismissed. The applicants thereafter filed objections and the learned Magistrate passed an order dated 17.10.1995 rejecting the objection and confirming the earlier order dated 25.1.1995.

The brief facts as narrated in the affidavit filed in support of the application are that the marriage between applicant No. 1 and opposite party No. 2 took place on 18.2.1993. On 23.9.1994 opposite party No. 2 lodged a first information report against five accused persons and complaint case against two more accused persons, namely, Shrimati Shinder Kaur, sister of the husband and Milkiyat Singh, her husband u/s 3/4 of Dowry Prohibition Act and Section 498A, Indian Penal Code and was registered as Case Crime No. 332 of 1994 under the aforesaid sections. The learned Magistrate after perusing the statements recorded u/s 200 and 202, Code of Criminal Procedure came to the conclusion that at that stage, it cannot be said that no case u/s 405/406, Indian Penal Code has been made out against the applicants. This order has been passed by the learned Magistrate after filing objection by the applicants which is a final order against which a Criminal Revision lies and the petition u/s 482, Code of Criminal Procedure is not maintainable. In the matter of Deepti alias Arati Rai Vs. Akhil Rai and Others, , the Hon''ble Supreme Court has held that the inherent power cannot be utilised for exercising powers expressly barred by the Code. In the matter of State of T.N. Vs. Thirukkural Perumal, , the Hon''ble Supreme Court has held that the High Court was not Justified in evaluating the genuineness and reliability of the allegations made in the F.I.R. and the complaint on the basis of evidence collected during investigation. In the matter of Pratibha Rant v. Surqj Kumar and Anr. 1985 (1) Crimes 614, it has been held that the High Court should very sparingly exercise its discretion u/s 482, Code of Criminal Procedure to quash a F.I.R. or a complaint. The High Court should proceed for the purpose of exercising its power u/s 482, Code of Criminal Procedure to quash a F.I.R. or a complaint, entirely on the basis of the allegations made in the complaint or the documents accompanying the same per se. It has no jurisdiction to examine the correctness or otherwise of the allegations. In the present case, the allegations made in the complaint were clear, specific and unambiguous and prima facie constitute an offence u/s 406, Indian Penal Code Therefore, the complainant cannot be denied the right to prove her case at the trial by pre-empting it at the very behest by the orders passed by the High Court. It is, of course, open to the accused at the trial to take whatever defences that were open to him but that stage has not yet come and, therefore, the High Court was totally ill-advised to speculate on the merits of the case at that stage and quash the proceedings.

In the instant matter also, on the basis of the allegations made in the complaint as well as the statement recorded under Sections 200 and 202, Code of Criminal Procedure, it cannot be said that no prima facie case is made out to prosecute the applicants u/s 405/406, Indian Penal Code However, at this stage it would not be proper to discuss the specific allegations made in the complaint as well as in the statements recorded by the learned Magistrate as that would more likely prejudice the case of the parties.

In view of the above observations, the petition lacks merits and is hereby dismissed. However, it is made clear that none of the observations made above shall be taken into consideration by the learned court below while deciding the case on merits.