KAMINI VERMA Vs. STATE OF UTTARAKHAND
LAWS(UTN)-2013-6-36
HIGH COURT OF UTTARAKHAND
Decided on June 10,2013

Kamini Verma Appellant
VERSUS
State of Uttarakhand and Anr. Respondents

JUDGEMENT

Umesh Chandra Dhyani, J. - (1.) THE applicants, by means of this application under Section 482 Cr.P.C., seek to quash the cognizance order dated 29.09.2008, passed by Judicial Magistrate, Roorkee, Haridwar, in criminal case No. 1557 of 2008, captioned as State v. Sandeep Verma and another. A further prayer was also made to quash the charge sheet dated 11.07.2008, under Sections 498A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act, filed in the above noted case. A first information report was lodged by respondent No. 2 against the accused -applicants in respect of offences punishable under Sections 498A, 323, 504, 506 IPC, on 07.05.2008 in PS Roorkee, District Haridwar, with regard to an incident which occurred on 14.03.2008. After the investigation, charge sheet was submitted against the present applicants in respect of the offences punishable under Sections 498A, 323, 504, 506 IPC and Section 3/4 Dowry Prohibition Act. Aggrieved against the said charge sheet and cognizance order, present application under Section 482 Cr.P.C. was moved on behalf of the applicants, who were the mother -in -law and husband respectively of the sister of respondent No. 2.
(2.) WHILE the incident allegedly took place on 14.03.1998, the first information report was lodged on 07.05.2008 against the mother -in -law and husband of the victim. It was alleged that Sweety Malhotra was married to Sandeep Verma on 26.04.2007 in Roorkee. The articles worth Rs. 1,11,000/ - only were presented as gifts in the marriage. The accused persons started harassing the victim for want of sufficient dowry. Even the food was denied to her. She was also threatened with dire consequences. While learned counsel for the respondent No. 2 submitted that the accused -applicants should be dealt with severely, learned counsel for the applicants contended that the first information report was lodged by respondent No. 2 just to harass the applicants. The fact remains that the offence punishable under Sections 498A IPC is a continuing offence. The bride went to Chandigarh after the marriage. When she was maltreated by the applicants, she was forced to come back to Roorkee (from Chandigarh).
(3.) HON 'ble Supreme Court in Amit Kapoor v. Ramesh Chander and another, : (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 Cr.P.C. Those principles can be summarised as under: i. Though there are no limits of the powers of the Court under Section 482 of the Code but the more the power, the more due care and caution is to be exercised in invoking these powers. The power of quashing criminal proceedings, particularly, the charge framed in terms of Section 228 of the Code should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. ii. The Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the Court may interfere. iii. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. iv. The High Court should not unduly interfere. No meticulous examination of the evidence is needed for considering whether the case would end in conviction or not at the stage of framing of charge or quashing of charge. v. Where the exercise of such power is absolutely essential to prevent patent miscarriage of justice and for correcting some grave error that might be committed by the subordinate courts even in such cases, the High Court should be loathe to interfere, at the threshold, to throttle the prosecution in exercise of its inherent powers. vi. Where there is an express legal bar enacted in any of the provisions of the Code or any specific law in force to the very initiation or institution and continuance of such criminal proceedings, such a bar is intended to provide specific protection to an accused. vii. The Court has a duty to balance the freedom of a person and the right of the complainant or prosecution to investigate and prosecute the offender. viii. The process of the Court cannot be permitted to be used for an oblique or ultimate/ulterior purpose. ix. Where allegations give rise to a civil claim and also amount to an offence, merely because a civil claim is maintainable, does not mean that a criminal complaint cannot be maintained. It may be purely a civil wrong or purely a criminal offence or a civil wrong as also a criminal offence constituting both on the same set of facts. But if the records disclose commission of a criminal offence and the ingredients of the offence are satisfied, then such criminal proceedings cannot be quashed merely because a civil wrong has also been committed. The power cannot be invoked to stifle or scuttle a legitimate prosecution. The factual foundation and ingredients of an offence being satisfied, the court will not either dismiss a complaint or quash such proceedings in exercise of its original jurisdiction. x. Where the allegations made and as they appeared from the record and documents annexed therewith to predominantly give rise and constitute a 'civil wrong' with no 'element of criminality' and does not satisfy the basic ingredients of a criminal offence, the Court may be justified in quashing the charge. Even in such cases, the Court would not embark upon the critical analysis of the evidence. xi. Another very significant caution that the courts have to observe is that it cannot examine the facts, evidence and materials on record to determine whether there is sufficient material on the basis of which the case would end in a conviction, the Court is concerned primarily with the allegations taken as a whole whether they will constitute an offence and, if so, is it an abuse of the process of court leading to injustice. xii. It is neither necessary nor is the court called upon to hold a full - fledged enquiry or to appreciate evidence collected by the investigating agencies to find out whether it is a case of acquittal or conviction. xiii. In exercise of its jurisdiction under Section 228 and/or under Section 482, the Court cannot take into consideration external materials given by an accused for reaching the conclusion that no offence was disclosed or that there was possibility of his acquittal. The Court has to consider the record and documents annexed with by the prosecution. xiv. Quashing of a charge is an exception to the rule of continuous prosecution. Where the offence is even broadly satisfied, the Court should be more inclined to permit continuation of prosecution rather than its quashing at that initial stage. The Court is not expected to marshal the records with a view to decide admissibility and reliability of the documents or records but is an opinion formed prima facie. xv. Where the charge -sheet, report under Section 173(2) of the Code, suffers from fundamental legal defects, the Court may be well within its jurisdiction to frame a charge. xvi. Coupled with any or all of the above, where the Court finds that it would amount to abuse of process of the Code or that interest of justice favours otherwise, it may quash the charge. The power is to be exercised ex debito justitiae, i.e. to do real and substantial justice for administration of which alone, the courts exist. xvii. These are the principles which individually and preferably cumulatively (one or more) be taken into consideration.;


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