MEHTA, J. - (1.) THE present petition has been filed by Jasa Ram, his parents Kanhaiya Lal and Smt. Amrav and his sister Kumari Gayatri seeking quashing of criminal proceedings arising out of FIR No. 57/2007 of the Police Station Manila Thana, Jodhpur and the criminal proceedings arising therefrom for the offences under Sections 498-A, 406, 323 read with Section 34 l.P.C.
(2.) SUCCINCTLY stated, facts necessary for the disposal of the petition are that the petitioner - Jasa Ram was married to respondent No.2 - Smt. Sarita on 4.5.2003. A child was born out of the wedlock in September, 2004. Smt. Sarita lodged a report at the Police Station, Mahila Thana, Jodhpur on 16.4.2007 making allegations therein that she was harassed on account of brining less dowry by all the petitioners and that the dowry articles belonging to Smt. Sarita were not returned back. It was also alleged that she was beaten up by the accused persons. Subsequent to he investigation in the said FIR, the police has filed a charge-sheet in the Court of A.C.J.M. No.2, Jodhpur and charges have been framed against the petitioners for offences under Sections 498, 406, 323 read with Section 34 of l.P.C. Subsequent to the framing of the charges, statement of the first prosecution witness has already been recorded. Seeking quashing of all the above proceedings, the petitioner No.1- Jasa Ram has appeared on behalf of all the petitioners and has prayed that the proceedings against the petitioners under the provisions of Sections 498-A, 406, 323 IPC are perse illegal and amount to abuse of process of Court and cannot be sustained. He has prayed that the proceedings are liable to be quashed by virtue of the provisions of Section 482 Cr.P.C. on the grounds mentioned in the judgment of the Hon'ble Apex Court in State of Haryana and Ors. vs. Bhajan Lal and Ors., reported in 1992 Supp. (1) Supreme Court Cases 335. The petitioner has submitted that prosecution of the petitioners is vitiated because the allegations made in the FIR do not disclose any offence even if they are accepted in their entirety. It has further been argued that uncontroverted allegations made in the FIR and the evidence collected in support of the same do not disclose any offence against the accused persons. The petitioner has placed reliance on the directions No.1, 3, 5 and 7 of the guidelines issued by the Hon'ble Apex Court in Bhajan Lal's case (supra), in which reads under : "(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach at a just conclusion that there is sufficient ground for proceeding against the accused. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge." It has also been submitted that the prosecution of the petitioners for the offence under Section 323 I.P.C. is hit by the bar of Section 300 Cr.P.C. because for the very same allegations, the petitioners have already been tried and have been acquitted. For the purpose of this argument, reliance has been placed on the judgment of the Hon'ble Apex Court in Vijaylakshmi and Anr. vs. Kunnath Kumaran's son Vasudevan and Ors., reported in (1994) 4 Supreme Court Cases 656.
(3.) THE petitioner has further argued that prima facie, no commission of the offence under Section 498-A IPC is disclosed against the petitioners even from the admitted allegations leveled in the FIR and the material collected in support thereof during the course of the investigation. As regards charge of Section 406 l.P.C, it has been submitted that neither in the FIR, there is any allegation that the complainant had entrusted any of her dowry articles to the accused or that the accused had misappropriated the same and converted he same to their own use fraudulently so to invoke the provision of Section 406 IPC. THE petitioner has pointed out the seizure memo of the dowry articles Of the complainant were voluntarily produced by Jasa Ram (the petitioner) before the police officer. In support of his argument, the petitioner has relied upon the judgment of Hon'ble Apex Court in Preeti Gupta vs. State, reported in AIR 2010 Supreme Court 3363; Ran Singh and Anr. vs. State of Haryana and Anr., reported in (2008) 4 Supreme Court Cases 70 = 2008(1) RLW 622 (SC) and Onkar Nath Mishra & Ors. vs. State (NCT of Delhi) and Anr., reported in (2008) 2 Supreme Court Cases 561.;