Smt. Kusum v. State of Uttaranchal/Uttarakhand

Judgment

1. 2. State of Uttaranchal/Uttarakhand Judicial Magistrate, Roorkee District Haridwar

3. Dhruv Singh S/o Late Sri Kunwar Yudhister Singh R/o Polaris Hotel Police Station Kotwali Roorkee District Haridwar … Opp. Parties Alongwith Criminal Misc. Application No. 147 of 2006

Shailender Chauhan S/o Late Sri Amar Singh Chauhan R/o House No. 1451 Sector 29 Park View Apartment, Noida Police Station Noida District Gautam Budh Nagar (U.P.) … Applicants Vs

1. 2. State of Uttaranchal/Uttarakhand Judicial Magistrate, Roorkee District Haridwar

3. Dhruv Singh S/o Late Sri Kunwar Yudhister Singh R/o Polaris Hotel Police Station Kotwali Roorkee District Haridwar … Opp. Parties Sri Rajendra Singh, Advocate for the petitioners Sri S.S. Adhikari, learned A.G.A. for the State/respondent Nos. 1 and 2 Sri B. Joshi, Advocate, holding brief of Sri Vivek Shukla, Advocate for respondent No. 3 Hon’ble B.C. Kandpal, J. 2 By means of these two petitions, moved under Section 482 Cr.P.C., the petitioners have sought quashing of the proceedings of Criminal Case Nos. 1022 of 2005 and 124 of 2006, State Vs Vishal Chauhan & others and State Vs Shailender Chauhan respectively, relating to offences punishable under Sections 498A, 323, 506 of I.P.C. and 3/4 Dowry Prohibition Act, pending in the court of Judicial Magistrate, Roorkee, District Haridwar.

2. Brief facts of the case are that Smt. Kusum is the mother of Vishal Chauhan, Shailender Chauhan is the brother of petitioner No. 1 and Vishal Chauhan is the husband of Smt. Sunaina (who is sister of respondent No. 3) who got married with her on 08.03.1999 according to Hindu Customs & Rites at Roorkee. After her marriage she lived with her in-laws house. It appears that after some years, the parties to matrimony could not pull well. On

30.09.2004, Dhruv Singh lodged the First Information Report against the applicants under Sections 498A, 323, 506 of I.P.C. and 3/4 Dowry Prohibition Act alleging therein that the applicants demanded Rs. 10 lacs to purchase the house and he had paid Rs. 2 lacs for that purpose to the applicants but they were not satisfied and subjected to cruelty to his sister – Sunaina. After completing the investigation of the case, the Investigation Officer submitted the chargesheet against the applicants under the aforesaid sections and the case were registered against the applicants – Smt. Kusum and Vishal Chauhan. Thereafter, the learned Magistrate took cognizance against the applicants 3 on the impugned chargesheet vide order dated 22.04.2005 and 28.01.2006 respectively.

3. Feeling aggrieved by the aforesaid orders, the applicants have preferred these petitions before this Court.

4. Heard Sri Rajendra Singh, learned counsel for the petitioners, Sri S.S. Adhikari, learned A.G.A. for the State/respondent Nos. 1 and 2, Sri Bhuvnesh Joshi, Advocate, holding brief of Sri Vivek Shukla, Advocate for the respondent No. 3 and perused the record.

5. Learned counsel for the petitioner submitted that Sunaina had consumed herself some poisonous substance. Immediately she was hospitalized at Base Hospital, Delhi, her statement was recorded by Dr. Anil Kumar, S.D.M., Delhi on 27.09.2004 at 10:20 a.m. She has admitted this fact that due to some intimacy and relationship with the friend of her husband, she had some quarrel with her husband. Smt. Sunaina has consumed poison only to save herself in order to hide the above fact. There is nothing prior the report lodged by respondent No. 3 against the applicants. Therefore, the proceedings initiated against the applicants are liable to be set aside.

6. On the other hand, learned counsel for the respondent has submitted that the trial court has not committed any error while issuing summoning order against the applicants. 4

7. Learned counsel for the petitioners has further submitted that the marriage was solemnized in the year 1999 and upto 2004 she has not made any complaint against the applicants and when, the applicants came to know the fact of Sunaina, she has lodged the complaint against applicants with the help of her brother/respondent No. 3. Therefore, the way in which, the complaint has been lodged by respondent No. 3 and the summoning order issued against the applicants by the Magistrate concerned, apparently shows the abuse of process of court and the whole proceeding is liable to be set aside against the applicants.

8. Having considered submissions of learned counsel for the parties and after going through the papers on record, this court finds that the factual aspect of the matter whether any demand was made or not can be better examined, in the present case, by the trial court. It is not desirable on the part of this case to hold as to correctness in the allegation made in the criminal complaint, on the basis of incomplete evidence before it. This Court while exercising the jurisdiction under Section 482 Cr.P.C. is not supposed to act as a trial judge. The averments made in the petition are the disputed question of fact, which can be assessed and judged by the trial court. I am not supposed to embark upon an enquiry with regard to the credibility of the evidence at this stage. Any judgment rendered by me would amount to premature judgment where the evidence is still incomplete and hazy. The applicant shall have an opportunity to place the evidence in their defence before the trial court where the matter shall be finally adjudicated 5 after considering the entire evidence. I do not find any merit in this case at this stage. However, this Court is not inclined to go into the factual aspects of the matter, as it is for the trial court to see the same.

9. Accordingly, both the petitions filed under Section 482 Cr.P.C. are dismissed, with the observation that the petitioner may raise plea of innocence before the trial court.

10. Consequently, the stay orders, if any, passed by this Court in both the petitions stand vacated.

11. Let the copy of this order be placed in C-482 No. 147 of 2006.

28.06.2010 ASWAL (B.C. Kandpal, J.)