Wasudeo S/'o Narayaiirao Uchitkar v. State of Chattisgarh

Present:- Shri U. Rudra, Advocate for the petitioners. Shri Awnash K. Mishra, P.L. forthe State/respondent No. 1. Shri Manish Upadhyaya, Advocate for the respondents No. 2 8s 4. (Passedon^^ /10/2009J ^ ^- w •i^ '.'" .4:' ^--

1. This petition under Section 482 ofthe Code ofCriminal Procedure, 1973 (in short 'tiie Code') is for quashinent of the crhnmal proeeeding pending before the Judicial Magistrate First Class, Durg in criminal case No. 779/08 a^.inst tfae petitioners for the ofFence punishable under Section 4 ofthe Dowry Pi-ohibition Act, 1961 (inshortActofl961)..

2. Quasliment is prayed on the ground that without any priina facie material Court below has taken cognizaiice and continuance of such proceeding would amount to abuse the process ofthe Court. •

3. Leamed couiisel for tlie parties are heard, copy of the First Information Report, other documents, order iiiipugned perused.

4. First Iirformation Report dated 16/4/2008 lodged by respondent No. 2 at Mahila Poiice Station, Durg reveals that petitioners No. 1 & 2 father and mother of fhe petitioner No. 3, petitioners No. 4 & 5 brother and sister ofpetitioner N0. 3 were went to the house offhe respondent No. 2 at Bhilai along with petitioner N0. 3 for settlmg the man'iage ofpetitioner No. 3 with daughter ofrespondent No. 2. They settled the man'iage ofpetitioner No. 3 with the daughter ofrespondent No. 1 Ku. Aiiita Sagai Ceremony was perfbrmed on 29/10/07, Rs. 50 thousand cash, one gold ring of 5 smis and other article were aiven to the petitioners in connection with the man-iage of his daughter by the respondent N0. 2. After some time he received iafoniiation that petitioner No. 3 has contacted mama.se with other eirl then respondent No. 2 inquired the matter and finally lodged the report.

5. Documents filed on behaif ofthe petitioners dated 2/2/2008 and 30/1/2008 reveals '"t. ihai'Sakshagandh (Sagai Ceremony) was performed at Blrilai on 29/10/07 and thereafier the petitioner No. 3 man'ied with another giri. The documents dated ^ •"'"_.•' 3 2/2/08 faillier reveals that respondent No. 1 is makuig false a'legatioii of yivim Rs. 50 thousand at the time ofLagun. Leamed couizsel for the petitioners vehementiy argued that present petitioners have not demanded any doviry or received dowry, petitioner No. 3 had married witii another girl after Sakshagandh (Sagai) that may be an offence of cheating, forgeiy committed by the petitioner No. 3 but the material collected on behalf of the prosecution is not sufEcient for taking cogiiizaiice for the offence punishable under Section 4 ofthe "Act .of 1961" against the petitioners and continuance of such criminal proceeding would be abuse ofprocess ofthe Court. On the other hand, leamed counsel for the respondents No. 2 & 4 opposed tlie petition and submits that doeuments dated 30/1/08 and 2/2/08 aloiig with other documents filed by tlie petitioners wliich have been sent by petitioiier No. 1 to Police are sufBcient for drawing the inference tliat Sagai Ceremony was peifomied at Bhilai in connection with the mairiage ofthe petitioner No. 3 with the dauehter of ftie respondent N0. 2. At the tinie of takin.e cogaizance and framing of the charge Court is required to consider the material produced on behaif of the prosecution in its face va!ue. No meticulous scrutiny is required at mBS fhe time of takiiig cognizance or franiing of the charge. Court may quasli the proceeding if fi-om the record it appears that if the allegation made ic the prosecution is admitted in its face value then even no conviction would be le. Power uiider Section 482 ofthe Code is exceptional in natiire and should be used sparingly. While dealine with exercise ofpower under Section 482 oftheCode in l-ita'eSiSStSiiSS''* •-1 ^^ the matter of M/s. Zandu Pharmaceutical Works Ltd. and others ' haraful Haque and othersl the Apex Court has held thus, "8. Exercise ofpo'wer uncler Section 482 ofthe Code in a case ofthis nattire is the exception ancl not the rule. The Section does not confer any new powers on the High Cfftirt. It only saves tne inherent power which the Court possessed It envisages three before the enactnient of the Code. circumstances under vhich the inherent jurisdiction may be exercised, namely, fi) to give ejfect to an order under the Code, (ii) to prevent abuse oftheprocess ofcourt, and fiii) to otherwise seciire the ends ofjiistice. It is neftherpossible nor desirable to lay do-wn any inflexible nde 'which would govern the exercise of inherent jtirisdiction. No legislatsve enactment dealing with procedure can provicfe for all cases therefore, have inherent that mcy possibly arise. Courts, powers apart from express provisions of faw which are necessary for proper discharge of fimctions and diities imposed upon them by law. That is the doctrine whichfinds expression 'in the section v,'hich merely recognizes and presen'es inherent powers of the High Courts. All courts, in the absence of any whether civ'il or criminal possess, express provision, as inherent in their constitution, ail siich povers as are necessary to do the right and to iwdo a wrong in course of adm'inisti'ation of Justice on the principle quando lex aliquid alicui concedit, concedere videtur et id (when the ktw gives a sine quo res ipsae esse non potest person anything it gives him that without which it cannot exist). lyhile exercising powers under the section, the court Inherent does notfanction as a court ofappeal or revision. the section though wide has to be jurisdiction under exercised sparingty, carefidly and with caution and only when such exercise is justified by the tests specifically laid rfown in the section itself. It is to be exercised ex debito real and substantial justitiae to administration ofwhich alone courts exist. Authority ofthe coun exists for advancement ofjustice and ifany attempt is made to abuse that aiuhority so as to prodzice mjiistice. the It would be an abuse of court has power to prevent abuse. process ofthe coiirt to allow any action which vould result In exercise of in injustice and prevent promotion ofjustice. the powers court would be justifled to quash any proceeding ifitfinds that initiation/contimtance ofit amou.ms to abuse of the process of court or quashing of these proceedings li-'hen no offence would otherwise serve the ends ofjustice. is disclosed by the complaint, the court may examine the question offact. Wlien a complaint is soiight to be quashed, justice for AIR 2005 SC 9 .fi''^.cS^""s^,. f t "' \^-'y/ ^»£^ it is permissible to look into the materials to assess whatthe complainant has alleged and -whether any offence is made out even ifthe allegations are accepted in toto.

9. In the present case, fhe documents filed on behalf ofthe petitioners and copy of tfae First Infonnation Report reveals that all petitioners were present at the time of Sagai (Sakshagandh Ceremonyi) of the daughte^ of the respondent N0. 2 with petitioner No. 3 on 29/10/07 and subsequently petitioner N0. 3 contacted marriage with another girl. According to the First &ifoiTuation Report at the tiiue of Sagai Rs. 50 thousand in cash, Qne 5 erms. gold riiie, another article were given to the petitioners in comieetion with the man-iage before solenmization of man-iage which shows that parties had impliedly agreed to give valuable security and valuable thing for mamage which petitioners had received, sanie is dowry as defmed in Section 2 ofthe Dowry Prohibition Act, 1961 wliichreads as under:-

2. Definition of 'dwwry'.- In this Act, "dowry" means anyproperty or valuable security given or agreed to be given either directly or indirectly- fq) (b) by one party to a marriage to the other party to the marriage; or by theparent of either party to a marria.ge or by any other person, to either party to the marnage or to any other person, at or before [or any time after the marriage] [in connection with the marriage ofthe saidparties, but doesnot include] dower or mcihr in '(Shariat) the case of persons to •whom the Muslim Personal Lcnv applies.

10. The First Infonnation Report sent to Police by petitioner N0. 1 reveals tliat respondent NTO. 2 has given the aforesaid money and article in connection with the marriage to tlie petitioners at Bhilai within the territorial jurisdiction of District Durg and the material collected on behalfofthe prosecution is sufBcient fortaking i^ssw"- fllali.r'L'ii i'y'-'" ^. ^-^ ':-';513^'-:'' £,- cogtiizance for the offence punishable under Section 4 ofthe DOWT^' Prohibition Act, 1961, Court below has not comiiutted any illegality iii taking cognizance, I do not find any case for quashnient. Consequent'y, this petition is liabie to be dismissed and it is herebv dismissed. Sd/- T.P, Sharma Judge hlHlSlal^- »