DharmRaj Yadav Vs State of U.P.

Excerpt:

True that if the dowry demand is made by him he would be

liable for a severe penalty but the informant was not expected to

imagine and fabricate a fantastic story of giving dowry in the shape

of presents and gifts worth Rs.30-35 lacs without demand at the

time of marriage and after the differences broke between the two,

then accuse him of making demand for more dowry and get, the

entire family comprising dozens of persons including young and

unmarried sisters, husbands of the married sisters sent to jail

The above allegations are so absurd and imaginary that had

there been an iota of truth in such allegations, the informant who

is a well-educated person would not have tolerated such a grave

misconduct on the part of her husband and certainly she would

have lodged a report in Moradabad itself and if not there, she

should have informed the police of Lucknow or the higher

authorities of the petitioner no.6 at Moradabad. The silence on her

part further shows that it is a cock and bull story manufactured by

the informant with a view to wreak vengeance with her husband.

Such an incident could be taken to be end of the already strained

and bitter relationship. If she was doused with acid, she must have

suffered burn injuries on her person. Medical examination of her

injuries would have proved the occurrence. It is not, that she

escaped the attempt but she suffered grievous setback and fell

seriously sick. No explanation about the omission has been offered.

We therefore hold that it was all a bunkum and a manufactured

story so as to wreak vengeance upon the petitioner Sanjeev Kumar

Yadav.

 

 

A gift cannot be a dowry as the dictionary meaning of gift is as follows :-

“a thing given willingly to someone without payment”

The common experience shows that most of the cases of

differences and dissensions between married couples result only in

dowry demand by the husband and by all his family members. The

provisions of the Act are being callously misused by the wives and

their parents with different kinds of stories. The disputes, though

pending in the Courts for decisions, still give rise to the complaints

and F.I.Rs of the wives’ victimization of dowry demand. So long the

status of the husband is enchanting, as was the case in hand with

the informant’s own allegation that her father was mesmerized

with the status of Sanjeev Kumar – presents and gifts comprising

colour T.V., generator sets, maruti cars or even that of better

brand, houses, cash – are offered to grab over the bridegroom. He

is forced to be attracted of all allurements of huge cash and

numerous gifts of household utility, but with the disruption of ties

between the husband and wife or slight dissensions on account of

their colliding temperaments, strained relationship of the wife with

her parents-in-law, difference in the culture of the two families of

wife and husband, distances of the education between the two

including the difference of mental levels, and extra-marital

relationship of either of the two spouses – everything is

channelized into a dowry tunnel and the wife is said to be

victimized of the dowry demand.

‘Draft a qualitative and capturing or a pathetic story of

dowry victimization and harass the husband’ has become the

routine of warring couples.

The Courts are to protect the valuable rights of not only a wife if she is victimized and

maltreated with dowry demand but also a harassed husband who

is also equal in the eyes of law and if a concocted attempt as the

one in hand is made to place the husband in an awkward

situation, certainly the Court must come to the rescue of such a

husband in humiliation.

 

 

IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD LUCKNOW BENCH, LUCKNOW

Writ Petition MB 528 of 2005

Dharm Raj Yadav and others

petitioners

State of U.P. and others

Respondents

! Dr. L. P. Misra, learned counsel for the petitioners

^ Mr. Janardan Singh, learned Additional Government Advocate &

Mr. B. M. Sahai, learned counsel for the complainant

Hon’ble Bhanwar Singh, J.

Hon’ble J. M. Paliwal, J.

Dated:10/01/2006

:Judgment:

This writ petition has been filed by Sanjeev Kumar Yadav, an

Officer of Indian Revenue Service, posted as Assistant Income-tax

Commissioner, Moradabad and his eleven family members. All

these petitioners have challenged the First Information Report of

11th January, 2005, whereupon a case was registered as Case

Crime No.14 of 2005 under Sections 497/498-A/323/504 and 506

read with 511 I.P.C. and 3/4 Dowry Prohibition Act. This F.I.R.

was sought to be quashed on the ground of being per se illegal,

mala fide and based on concocted facts. During the pendency of

petition, charge-sheet dated February 21, 2005 had been filed in a

hurried manner as alleged and since mala fide has been attributed

to the Investigating Officer as also the first informant and the

latter’s father, it is also sought to be quashed alongwith the

criminal proceedings initiated thereupon. After that, another

charge-sheet dated October 25, 2005 has also been filed against all

the petitioners. The main dispute subsists between the husband,

namely, Sanjeev Kumar Yadav, the petitioner No.6 and his wife

Smt. Deepti Yadav, the informant.

Shortly stated the facts giving rise to this petition are as

follows:-

The complainant Smt. Deepti Yadav, D/o Shri Heera Lal

Yadav was married to Shri Sanjeev Kumar Yadav on 9th December,

  1. Sanjeev Kumar Yadav was then an Officer of Provincial Civil

Service (now he is a member of the Central Civil Service and posted

as Assistant Income-tax Commissioner, Moradabad). After her

marriage, she stayed with her husband at the latter’s native village.

As usual, the family members and the relatives of Smt. Deepti

offered various gifts on the occasion of marriage. The grandmother

of the informant, Smt. Sechna Devi had gifted a Maruti Zen Car. A

Marshal Jeep was offered by Deepti’s father but it was retained in

his own name in all the relevant documents. The case of the

informant is that her father was compelled by her husband to gift

two drafts – one for Rs.75,000/- and the other for Rs.45,000/- in

the name of Rajiv Kumar Yadav (brother of Sanjeev Kumar Yadav)

and two more drafts of Rs.50,000/- and Rs.1 lac in the name of

her husband. All these drafts were encashed by the drawees. The

father of the girl also gifted various household items, like, a Hero

Honda Generator set, colour T.V. and other costly items of day-to-

day use valued at Rs.4 lacs. The relatives of the girl also offered as

presents various jewellary items to the family members of her

husband. Despite huge expenditures incurred by her father, her

husband and his parents were not happy with the gift/dowry

items. As a matter of fact, Sanjeev Kumar Yadav and his family

members had an oblique eye on the ancestral property of her

father. They were all greedy persons and used to pass sarcastic

remarks against her father and maligned him as a miser. They

were not happy even though a cash of Rs.15 lacs and garments

worth Rs.2 lacs had been offered by her father on the occasions of

‘lagan’ and ’tilak’ ceremonies. With this greed in his mind, Sanjeev

Kumar Yadav stopped coming to her when she was living at her

parents’ house in Lucknow and when she conceived, Sanjeev

Kumar Yadav pressed her for abortion. However, she did not agree

and in due course delivered a baby son on 17th December, 2000. In

spite of the fact that due intimation was sent to Sanjeev Kumar

Yadav, he did not come to see her and her newly born child. The

petitioner did not keep the informant in her matrimonial home for

long and since she was asked to stay with her parents she came to

Lucknow. In the meantime, Sanjeev Kumar Yadav who was

preparing for the Central Civil Service competition started

demanding a sum of Rs.5 lacs so as to incur expenditure for his

study etc. The informant’s father, despite economical constraints,

but keeping in view a concept of happy life for his daughter, paid

the said sum as demanded. But this too was considered to be

inadequate and Sanjeev Kumar Yadav continued to cause her

mental and physical harassment. When the informant’s parents

contacted her husband’s relatives in village Tadwa (Pilkichha) to

find out the cause of Sanjeev Kumar Yadav’s indifferent attitude

towards the informant, they came to know that Sanjeev and his

family members had expected a dowry of Rupees One crore and a

palatial house in Mahanagar, Lucknow.

The efforts for reconciliation taken recourse to in July, 2001

proved futile. The F.I.R. further discloses that the greed of Sanjeev

Kumar Yadav acquired disproportionate dimensions, when he got

selected in Indian Revenue Service (I.R.S.). He and his family

members taking advantage of this development started demanding

a dowry of Rs.10 lacs and a well-equipped and furnished house in

Lucknow. However, such demand was not fulfilled by the

informant’s father. As a consequence, Sanjeev Kumar Yadav

refused to take her with him to the place of posting, i.e.

Moradabad. Being compelled in the said circumstances, the

informant’s father took her to that place on August 21, 2004 and

she started living with her husband but barely four days after

Sanjeev Kumar Yadav assaulted her and made an abortive attempt

to administer her acid. The informant fell seriously sick. Sanjeev

Kumar Yadav brought her to her parents’ house in Vishwas Khand

on 27th August, 2004 and since then he had not taken care of her.

The informant was also beaten when she was living with him in

district Sultanpur, where he was posted as Deputy Collector.

The informant has also accused Sajeev Kumar Yadav for

having illicit relationship with one Neelam Srivastava, Assistant

Consolidation Officer, posted at Varanasi. The other family

members of Sanjeev Kumar Yadav were also accused of

antagonizing the informant by making taunts and jeering remarks.

All the gift items given by the informant’s father including the

Martial Jeep had been grabbed over by the accused-persons.

In such circumstances of strained and bitter relationship,

she apprehended a risk to her life and therefore preferred to stay

with her parents at Lucknow. Her husband-petitioner also when

under training at Lal Bahadur Shastri National Academy of

Administration, Mussorie declared himself as unmarried with a

view to invite offers for his marriage.

In view of the above averments, the informant alleged that

the accused persons have committed offences under Sections

3/4/6 Dowry Prohibition Act and under Sections 323/307/504/

511/506/520 and 498-A I.P.C. It was also mentioned in the report

that there was a conspiracy among all the accused persons

including Sanjeev Kumar to harass and victimize the informant

and eliminate her and thereby they committed all the offences

under above Sections read with Section 120-B I.P.C.

The petitioners have denied all the above allegations in their

petition. According to them, Sanjeev Kumar had filed a case (Suit

No.248 of 2004) on September 3, 2004 for judicial separation

against his wife Deepti, the informant, under Section 10 of the

Hindu Marriages Act. The said suit is pending in the court of Civil

Judge (Senior Division), Jaunpur. As a matter of fact, it was in

retaliation of the said proceeding that the informant lodged a false

and fabricated F.I.R. on 11th January, 2005 with the Gomti Nagar

Police Station. As regards Zen Car and the demand drafts in the

name of Sanjeev Kumar and his brother Rajiv Kumar, the

petitioners have stated that they are the self-motivated gifts and

not the dowry, as no one would take dowry in the form of demand

drafts. Delivery of Martial Jeep has been denied and so was

rejected the story of subsequent demand for Rs.5 lacs and Rs.10

lacs. Payment of such amounts has been termed to be a white lie.

If initially some amount was paid by demand drafts why Rs.15 lacs

were not paid by way of the same mode, particularly when

relationship between the husband and wife had become strained.

The F.I.R. allegations regarding the informant being assaulted at

Sultanpur and Moradabad have also been termed to be baseless

and the theory of administering acid to Deepti was also said to be a

strangeful incident and more strange was the omission in not

getting an F.I.R. lodged. Although the coercive method attributed

to Sanjeev Kumar Yadav forcing Deepti to inhale or consume acid

being serious in nature could prove fatal to her life, yet she did not

lodge any report or made any complaint which omission proves

hollowness of the said allegation. It is also alleged further that

Deepti’s father is a Junior Engineer in Public Works Department.

He was not expected to have given huge sums of Rs.20 lacs or so in

cash alongwith a Zen Car. The petitioners have expressed their

dismay as they could not know the intelligible source of the said

Engineer having amassed so much of wealth. Sanjeev Kumar

Yadav had disclosed in his petition for dissolution of marriage long

before the First Information Report had been lodged that Smt.

Deepti and her parents exerted their undue pressure upon him to

desert his parents and family and stop supporting them but he did

not agree to their suggestion; as a consequence, he was threatened

by Deepti and her parents of a serious action like false case of

demand of dowry being concocted against him and his family. It

appears that in this background, the case for dowry has been

fabricated to wreak vengeance against Sanjeev Kumar and his

family members. It has also been alleged that one dozen persons of

Sanjeev Kumar including himself have been named as accused of

dowry demand and victimization. No one of Sanjeev Kumar Yadav’s

family has been left from being framed in this case and this very

fact shows the dimensions of vengeance that Deepti and her father

had taken recourse to.

The allegation of illicit relationship with Km. Neelam

Srivastava has been termed to be baseless. As regards the

manipulations being conducted by the informant and her father in

collusion with the police, it has been submitted that the

Investigating Officer filed a false affidavit on 23rd February, 2005

stating that charge-sheet against all the accused persons had been

filed and it was on the basis of this misleading and false statement

that the present writ petition was sought to be dismissed.

The Senior Superintendent of Police, Lucknow transferred

the investigation of this case on March 1, 2005 to Shri Brij Kishore

Singh, Station Incharge, Hazaratganj. On the face of this

development, submission of the charge-sheet having been

submitted a week before i.e. February 23, 2005 seems to be not

only false but also a misleading statement given with a view to play

fraud upon the Court. The investigation conducted by the erstwhile

Investigating Officer Shri K.K. Sharma prior to 1st March, 2005 was

a farce and even the statements of the witnesses were noted by

him without actually examining them under Section 161 Cr.P.C.

Shri K.K. Sharma again misconducted himself by extending his

blind favour to the informant by submitting second charge-sheet

dated 25th October, 2005 although he was no longer an

Investigating Officer. As a matter of fact, Shri Brij Kishore Singh

who was seized of the investigation, was appointed as Investigating

Officer by transfer from Shri K. K. Sharma by the Senior

Superintendent of Police, Lucknow vide his order of March 1,

  1. Thus both the charge-sheets are manipulated,

manufactured and submitted in hurried haste – both times to

mislead the Court with a view to fetch dismissal order of the

present writ petition, under the usual course of practice. The

charge-sheets and the criminal proceedings have also been

challenged by the petitioner as a fraudulent act and since

manipulations and interpolations are crystal clear on the part of

the local police and the informant, the petitioners should not be

subjected to hazardous effect of criminal proceedings in pursuance

of such illegal acts. Even the learned Additional Chief Judicial

Magistrate-II has proceeded to take cognizance without applying

his mind, just like putting a rubber stamp on it. It has also been

submitted on behalf of the petitioners that these circumstances –

full of manipulations and interpolations – as narrated above, led to

cancellation of the bail of Sanjeev Kumar Yadav and vacation of the

stay order issued earlier by this Court.

It is in the above mentioned background that the petitioners

have prayed for a Writ in the nature of Certiorari quashing the

F.I.R. (Annexure 1), both the charge-sheets of 21st February, 2005

and 25th October, 2005 as also the criminal proceedings pending in

the Court of II Additional Chief Judicial Magistrate, Lucknow.

Mr. Brij Mohan Sahai, learned Counsel appearing on behalf

of the opposite party No.5 Deepti Yadav has argued that this

petition has become infructuous following the submission of the

charge-sheets against the petitioners.

Dr. L.P. Mishra, learned Counsel for the petitioners however

insisted for hearing of the arguments on the ground that as the

entire investigation and submission of the charge-sheets as also

the criminal proceedings are based on mala fide of the informant,

her father and connivance of the Investigating Officer, this  petition

deserves to be heard on merit including the objection of Mr. Brij

Mohan Sahai. As counter-affidavit of Smt. Deepti Yadav has been

filed on 26th November, 2005, this Court with the consent of Dr.

L.P. Mishra, learned Counsel for the Petitioners and Mr. Brij

Mohan Sahai, learned Counsel for the informant as also Mr.

Janardan Singh, learned Additional Government Advocate

proceeded to hear the detailed arguments on merits of the case for

final decision.

Whereas the sum and substance of the petitioners’ case is

that they had been victimized by Deepti Yadav’s version, as recited

in her counter-affidavits dated 26th November, 2005 and 4th

August, 2005, the informant’s contention is that the averments

made by her in her report are true and it was she who was meted

out with maltreatment, not only at the hands of her husband but

all other family members of her husband. She was subjected to

dowry demand and when she could not meet the demand of a

palatial house at Lucknow and a sum of Rs.10 lacs, she was

turned out of her matrimonial home by her husband. Also she was

assaulted and forced to consume/inhale acid during her stay with

Sanjeev Kumar Yadav at Moradabad. Further, she denied in her

counter-affidavit that the First Information Report had been lodged

as a sequel to the suit for dissolution of marriage. She has not yet

been served with any notice of the said proceeding.

The petition is also sought to be dismissed on the ground

that the petitioner No.6 Sanjeev Kumar Yadav has not yet

surrendered following cancellation of his bail granted to him by the

Station Officer, Police Station Gomti Nagar. It was solely on this

basis of Sajeev Kumar Yadav being still absconding that the stay

order granted by this Court had been subsequently vacated on

September 9, 2005. The informant has also controverted the

petitioners’ allegation that the Court was in any way or manner

misled by the Investigation Officer Shri K. K. Sharma. Shri Sanjeev

Kumar Yadav being an absconder does not deserve to be granted

any relief. The petition should be dismissed on this ground alone.

We have heard Dr. L.P. Misra, learned Counsel for the

Petitioners, Mr. Janardan Singh, learned Additional Government

Advocate and Mr. Brij Mohan Sahai, learned Counsel for the

opposite party No.5 Deepti Yadav and perused the record.

The first contention pressed into service by Mr. Brij Mohan

Sahai, learned Counsel for the informant is that this petition has

become infructuous as the charge-sheets have been submitted

against the petitioner and the Additional Chief Judicial Magistrate

II, Lucknow has taken cognizance of the case. In this Case, Mr.

Sahai relied upon a decision of the Apex Court in ‘State of Bihar

and another v. P.P. Sharma and another [1991 Cr.L.J. 1438]’

and with reference to the findings and observations of the Apex

Court contended that if a Magistrate or Special Judge is seized of

the matter, extraordinary jurisdiction under Articles 226 and 227

of the Constitution should not be exercised.

A careful reading of this case would reveal that the Managing

Director of BISCOMAUN an institution in the Cooperative Sector

lodged a report with the police regarding fraudulent transactions

for purchase of ‘Suraj Brand N.P.K.’ and it transpired that a

conspiracy was hatched for wrongful gain to M/s. Rajasthan

Fertilizers Pvt. Ltd. The erstwhile Chairman and some officers were

accused of such fraudulent transactions resulting in wrongful loss

to the aforesaid institution as well as the farmers of the State of

Bihar. It was in the background of this case that the Apex Court

did not approve of the High Court’s Order regarding quashing of

the complaint and proceedings and held in particular that there

was no material to show that the F.I.R. was based on malice or

there was any enmity between the accused and the informant. The

question of mala fide exercise of power assumes significance only

when the criminal prosecution is initiated on extraneous

considerations and for an unauthorized purpose. It was also held

that the dominant purpose of registering the case against the

accused was to have an investigation done into the allegations

contained in the F.I.R. and in the event of there being sufficient

material in support of the allegations to present the charge-sheet

before the Court. The allegations of mala fide were not found of any

consequence. Obviously thus, the facts of the said case were

entirely different from the one in hand.

In the present case, the wife of Sanjeev Kumar Yadav has

accused him of dowry demand and further use of provocative and

abusive language and coercive method to force her to consume

acid have been alleged. The relationship between the two is

admittedly strained. During their six years of marriage, they have

stayed together for a few months as would be discussed

subsequently. Malice has been attributed to the informant in

getting the F.I.R. lodged and it has pertinently and significantly

been alleged by the petitioners that the Lucknow Court of Criminal

Law, i.e. the Second Additional Chief Judicial Magistrate is not

competent on account of lack of territorial jurisdiction over the

areas in which the alleged offences of forcing informant to consume

acid, dowry demand and assault had taken place. We would delve

upon the territorial issue in detail, but prior to that, we consider it

necessary to deal with the basic question of law as raised by the

learned counsel for the informant that with the submission of

charge-sheet, this Court has become functus officio to proceed

with the writ petition initially filed under Article 226 of the

Constitution.

This core issue has been answered by this Court in ‘Atique

Ahmad and another v. State of U.P. and others [2001 (2) JIC

764 (All)]’. Exactly similar point of law was raised in this case.

Rejecting the argument that the jurisdiction of the High Court of

judicial review stands ousted no sooner a charge-sheet has been

submitted by the police, the Court held that this Constitutional

Court can take into account the subsequent events in order to do

complete justice between the parties and to avoid multiplicity of

litigations. In this case, the High Court also made a reference to

the Apex Court’s decision in ‘State of Haryana and another v.

Bhajan Lal and others [1992 Supp (1) SCC 335]’ and

categorically referred to the guidelines framed by the Apex Court in

the said case which for better understanding may be recapitulated

as below:-

” (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.

(2)     Where the allegations in the First Information Report and

other materials, if any, accompanying the FIR do not

disclose a cognizable offence, justifying an investigation

by police officers under Section 156(1) of the Code except

under an order of a Magistrate within the purview of

Section 155 (2) of the Code.

(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.

(4)     Where, the allegations in the FIR do not constitute a

cognizable offence but constitute only a non-cognizable

offence, no investigation is permitted by a police officer

without an order of a Magistrate as contemplated under

Section 155 (2) of the Code.

(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 a just conclusion that

there is sufficient ground for proceeding against the

accused.

(6)     Where there is an express legal bar engrafted in any of

the provisions of the Code or the concerned Act (under

which a criminal proceeding is instituted) to the

institution and continuance of the proceedings and/or

where there is a specific provision in the Code or the

concerned Act, providing efficacious redress for the

grievance of the aggrieved party.

(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.”

Learned Counsel for both the parties have relied upon

Bhajan Lal’s case (supra) with reference to the aforesaid

guidelines. We would deal with these guidelines while delving upon

the allegation of malice and spite attributed to the informant in

getting the First Information Report lodged whereupon charge-

sheets have been submitted and criminal proceedings drawn. But

before that, we may refer to the Pepsi Foods famous case on the

point of jurisdiction of this Court to proceed to decide the writ

petition on merit after charge-sheets having been submitted. The

Hon’ble Supreme Court in the abovereferred decision titled as

‘Pepsi Foods Ltd. and another v. Special Judicial Magistrate

and others [(1998)5 SCC 749]’ held that the High Court can

exercise its power of judicial review in criminal matters. Under

Article 227, the power of superintendence by the High Court is not

only of administrative nature but is also of judicial nature. Pointing

out at the powers of the High Court under Article 226 and 227 of

the Constitution and Section 482 Cr.P.C. the Hon’ble Supreme

Court held as follows :-

“Nomenclature under which petition is filed is not quite

relevant and that does not debar the court from

exercising its jurisdiction which otherwise it possesses

unless there is special procedure prescribed which

procedure is mandatory. If in a case like the present one

the court finds that the appellants could not invoke its

jurisdiction under Article 226, the court can certainly

treat the petition as one under Article 227 or Section

482 of the Code. It may not however, be lost sight of

that provisions exist in the Code of revision and appeal

but some time for immediate relief Section 482 of the

Code or Article 227 may have to be resorted to for

correcting some grave errors that might be committed by

the subordinate courts. The present petition though filed

in the High Court as one under Articles 226 and 227

could well be treated under Article 227 of the

Constitution.”

From the above observations of the Apex Court, it is crystal

clear that if a petition has been filed under Article 226 of the

Constitution, it can be treated to be as under Article 227 of the

Constitution and Section 482 Cr.P.C. for providing immediate relief

available under the said Section of the Code. Section 482 Cr.P.C.

deals with the abuse of process of law and the Hon’ble Supreme

Court held that the High Court should not shy away in exercising

its jurisdiction. In the penultimate para of the decision, the Hon’ble

Supreme Court has observed as follows :-

“It is no comfortable thought for the appellants to be told

that they could appear before the court which is at a far

off place in Ghazipur in the State of Uttar Pradesh, seek

their release on bail and then to either move an

application under Section 245 (2) of the Code or to face

trial when the complaint and the preliminary evidence

recorded makes out no case against them. It is certainly

one of those cases where there is an abuse of the

process of the law and the courts and the High Court

should not have shied away in exercising their

jurisdiction. Provisions of Articles 226 and 227 of the

Constitution and Section 482 of the Code are devised to

advance justice and not to frustrate it. In our view the

High Court should not have adopted such a rigid

approach which certainly has led to miscarriage of

justice in the case. Power of judicial review is

discretionary but this was a case where the High Court

should have exercised it. “

From the above principles of law laid down by the Hon’ble

Supreme Court, it is established that if it is required in the interest

of justice to invoke the jurisdiction of this Court, the Court will do

so under its plenary power irrespective of the fact as to whether

the provisions of Article 226 or 227 of the Constitution or of

Section 482 Cr.P.C. are invoked. Power of the Court to discharge

the accused at the stage of framing of charge or existence of

remedy of appeal and revision is not a bar to invoke the

jurisdiction of the High Court under Article 227 of the Constitution

or under Section 482 Cr.P.C.

We are, therefore, inclined to hold that the contention of Mr.

Brij Mohan Sahai, learned Counsel for Deepti Yadav that this

Court will stop exercising jurisdiction under Article 227 of the

Constitution nor will it proceed to hear this case on merit simply

because the charge-sheets have been submitted in the Magisterial

Court is without any substance. The said objection is rejected in

view of the Hon’ble Supreme Court’s decision in Pepsi Foods Ltd.

(supra). As a consequence, we treat this petition under Article 227

of the Constitution of India and also a petition under Section 482

Cr.P.C.

We may now refer to the guidelines laid down in Bhajan

Lal’s case (supra) which have been for convenience reproduced

above. Guidelines no.5 and 7 as determined in the said case are of

greater significance for us to be referred to. Guideline no.5

postulates that the F.I.R. and criminal proceedings can be

interfered with where the allegations made in the F.I.R. or

complaint are so absurd and inherently improbable on the basis of

which no prudent person can ever reach a just conclusion that

there is sufficient ground for proceeding against the accused and

similarly guideline no.7 provides that the High Court can interfere

with 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.

Relying upon the guideline no.5 of the aforesaid citation, Dr.

L.P. Misra, learned Counsel for the petitioners referred to the

recitals of the First Information Report to the effect that Sanjeev

Kumar Yadav had forced the informant to consume/inhale acid

during her stay with him at Moradabad and contended that the

said charge is absolutely baseless and imaginary and it goes to the

extent of absurdity, as though such a dastardly attempt was made

by the petitioner no.6 in between 21.8.2004 and 27.8.2004, yet

neither the complainant, namely, Deepti Yadav nor her parents

took any action for nearly six months. It would be relevant to quote

the said absurd accusation which is as follows:-

The above allegations are so absurd and imaginary that had

there been an iota of truth in such allegations, the informant who

is a well-educated person would not have tolerated such a grave

misconduct on the part of her husband and certainly she would

have lodged a report in Moradabad itself and if not there, she

should have informed the police of Lucknow or the higher

authorities of the petitioner no.6 at Moradabad. The silence on her

part further shows that it is a cock and bull story manufactured by

the informant with a view to wreak vengeance with her husband.

Such an incident could be taken to be end of the already strained

and bitter relationship. If she was doused with acid, she must have

suffered burn injuries on her person. Medical examination of her

injuries would have proved the occurrence. It is not, that she

escaped the attempt but she suffered grievous setback and fell

seriously sick. No explanation about the omission has been offered.

We therefore hold that it was all a bunkum and a manufactured

story so as to wreak vengeance upon the petitioner Sanjeev Kumar

Yadav.

Before we proceed to discuss the other allegations of the

complaint, it would be most relevant for us to make a reference to

the Hon’ble Supreme Court’s decision in ‘Y. Abraam Ajith and

others v. Inspector of Police, Chennai and others [2004 SCC

(Cri) 2134]’ – a decision which deals with the place of jurisdiction

vis-.-vis the offences alleged to have been committed. Incidentally,

it was also a case of strained relationship between the husband

and wife. All the alleged offences were committed according to the

complainant at Nagarcoil but the wife filed the complaint at

Chennai Court. The Hon’ble Supreme Court held that no part of

cause of action arose in Chennai and therefore, the Magistrate

concerned had no jurisdiction to deal with the matter. Accordingly,

the proceedings were quashed.

In the case in hand also, the alleged offences of an attempt

to force the informant to consume acid and of causing assault to

her had taken place at Moradabad. Although it is not clear as to

whether the attempt of administering acid was foiled by the

informant nor it is clear what injuries she suffered during the

assault, yet even if there was some substance in it, in such matter

with above allegations only the police of Moradabad District or the

Magisterial Court of competent jurisdiction established there were

competent to take cognizance of such accusations and deal with

them in accordance with law. The F.I.R. in question has been

lodged with the police of Gomti Nagar Police Station, Lucknow.

Certainly, we would hold that neither the police at Lucknow nor

the Court of Second Additional Chief Judicial Magistrate, Lucknow

would be competent to take cognizance of the offences which were

alleged to have been committed at Moradabad. The F.I.R. does not

disclose that either of the two such offences had taken place at

Lucknow. Even the allegation of dowry demand was not made at

Lucknow. We therefore hold that the Lucknow Court of Second

Additional Chief Judicial Magistrate is not competent to take

cognizance of the offences alleged to have been committed at

Moradabad. In this context, it would also be relevant to note that

the provisions of Section 178 Cr.P.C. which deals with the place of

enquiry or trial, do not cover the issue of cognizance being taken

by the Lucknow Magisterial Court as none of the offences was

committed partly at Lucknow and it is also clear that none of the

offences was continuing one. The provisions of Section 178 Cr.P.C.

for convenience may be quoted as below:-

“Place of  inquiry or trial – (a) When it is uncertain in

which of several local areas an offence was committed,

or

(b) where an offence is committed partly in one local

area and partly in another, or

(c) where an offence is continuing one, and continues to

be committed in more local areas than one, or

(d) where it consists of several acts done in different

local areas,

it may be inquired into or tried by a Court having

jurisdiction over any of such local areas.”

A perusal of the First Information Report, as said above,

does not disclose commission of offence either in part or in full or

in continuation at Lucknow. The proper and ordinary venue for the

trial of a case crime of the area is the jurisdiction in which, on the

evidence, the facts occur, and which are alleged to constitute the

crime. Deepti Yadav in her eleven pages long F.I.R. has not stated

even at a single place that Sanjeev Kumar Yadav or any members

of his family either demanded dowry at Lucknow or assaulted the

informant here or did any other offence within the territorial

jurisdiction of the Lucknow Magisterial Court. It appears from the

consolidated facts recited in the F.I.R. that Deepti Yadav stayed

with her husband at Moradabad for short period of seven days only

in August, 2004 and prior to that she either stayed with him at

Sultanpur or in his native village home at Tadwa (Pilkichha) or at

Gorakhpur. The occurrence of an attempt to administer acid

allegedly took place only at Moradabad where she was also

assaulted. In Sultanpur, where her husband was posted earlier,

she was beaten once but she did not lodge any report either at the

concerned police station at Sultanpur nor she complained to any

higher authority of her husband. Also she did not write a letter to

her parents about this inhuman treatment.  Except Moradabad

and Sultanpur, there is no other place where she might have been

maltreated or assaulted. Out of the four places in picture, i.e.,

Tadwa, Gorakhpur, Sultanpur and Moradabad, she stayed for

sometime in the native village of her husband, namely, Tadwa

(Pilkichha), District Jaunpur and Gorakhpur. The F.I.R. is

absolutely silent of any occurrence of assault or ‘marpeet’ at Tadwa

or Gorakhpur. As said above, only two instances of ‘marpeet’ – one

at Sultanpur and the other at Moradabad, have been quoted, but

no such incident was referred to the duration of her stay at the

remaining two places. The long silence on her part after the two

occurrences at Moradabad and Sultanpur clearly shows that they

are concocted, manufactured with malice and ill-will in order to

wreak vengeance with her husband, namely, Sanjeev Kumar Yadav

and the most significant conclusion which would emerge is that

not a single instance constituting an offence has taken place at

Lucknow.

We would therefore hold that by no stretch of reasoning the

Court of Second Additional Chief Judicial Magistrate is competent

to take cognizance of the matter. Therefore, in the result, the

criminal proceedings initiated against the petitioners

including Deepti’s husband are liable to be quashed on the

ground of lack of jurisdiction alone.

In other words, it may be observed that the allegations

regarding ‘marpeet’ and attempt to administer acid are inherently

improbable besides being absurd and therefore the F.I.R. and the

criminal proceedings including charge-sheets deserve to be

quashed.

The guideline No.7 as referred in Bhajan Lal’s case (supra)

provides that if 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, such

criminal proceedings can be quashed.

In this context, a reference to the allegations of the F.I.R. on

the basis of which the entire investigation and the criminal

proceedings are based would reveal that on occasions more than

one, the dowry demand was made. Precisely, the various instances

of the alleged dowry/gifts can be quoted in seriatim, as follows:-

(1)     Gift of a Maruti Zen Car and a Mahindra Marshal Jeep at the

time of marriage;

(2)     Two sums of Rs.75,000/- and Rs.45,000/- given to Rajiv

Kumar Yadav, the younger brother of Sanjeev Kumar Yadav

by virtue of bank drafts;

(3)     Two sums of Rs.1 lac and Rs.50,000/- in the name of

Sanjeev Kumar Yadav by way of bank drafts;

(4)     The gift of valuable items of domestic use valued at Rs.4

lacs;

(5)     Golden ornaments weighing from 45 to 55 ‘tolas’ gifted to

Sanjeev Kumar’s relatives by the friends and relatives of

Deepti Yadav;

(6)     A cash dowry of Rs.15 lacs and valuable items worth Rs.2

lacs given by the informant’s father on two occasions of

‘lagan’ and ’tilak’;

(7)     Rs.5 lacs demanded by Sanjeev Kumar at the time of his

preparing for Indian Civil Service. The demand was allegedly

met by the informant’s father;

(8)     A demand of house in Lucknow with Rs.10 lacs in cash;

(9)     Reiteration of the demand of Rs.10 lacs by Motilal, the uncle

of Sanjeev Kumar.

We will not scrutinize the above allegations of demand with a

view to hold a trial here, while sitting in the jurisdiction under

Article 226 and 227 of the Constitution of India as the same is not

permissible but certainly we can make an analysis of these

allegations with a view to come to a conclusion upon the

petitioners’ argument, that the entire criminal proceeding is

manifestly attended with mala fide. To be specific and explicit in

the scope of our discussion, we would like to mention that the

contention of the learned Counsel for the petitioners is that the

F.I.R. and the consequential criminal proceedings pending in the

Court of Additional Chief Judicial Magistrate-II, Lucknow is

maliciously instituted by Deepti Yadav with ulterior motive for

wreaking vengeance on the petitioners and with a view to spite her

husband Sanjeev Kumar Yadav due to private and personal

grudge. We, therefore, proceed to make an analysis of the

allegations of the complaint in order to examine the merit of the

above argument.

At the very outset, it may be observed that the eleven long

pages First Information Report which had resulted in launch of

criminal proceedings against the petitioners is so well-worded and

neatly woven that it does not leave any room for doubt that it is a

well-deliberated draft by a legal expert. In fact, it needed to be

quoted as a whole, but we do not consider it appropriate to do that

because of lengthy versions. However, we will do that wherever we

find it necessary to refer to the important parts thereof. If we look

at the second page of the First Information Report (Annexure 1), it

appears to indicate that the father of Deepti was enchanted by the

P.C.S. Service cadre of Shri Sanjeev Kumar Yadav and their

marriage was solemnized on 9th December, 1999 in Vishwas

Khand, Gomti Nagar, Lucknow. It is relevant from the territorial

jurisdiction point of view that in the entire First Information

Report, it is not mentioned that either Sanjeev Kumar Yadav or his

family members made any specific demand of dowry either in cash

or in kind at Lucknow at the time of marriage or even thereafter.

The third page of Annexure 1 further very specifically and with all

modesty on the part of informant says that the informant’s family

members and relations according to their capabilities offered

numerous gifts including a Maruti Zen Car given on behalf of the

informant’s grandmother Smt. Sechna Devi and a Mahendra

Marshal Jeep by the informant’s father. What is of primary

importance to note is that both these vehicles were the gift items

as it is candidly clear from the recitations in the First Information

Report which can be quoted as below:-

“izkfFskZuh ds ifjokj tuksa rFkk lacaf/k;ksa us viuh viuh

lkeF;Z ds vuq:i fookg esa HksaV nh Fkkh ftlesa izeq[k :i

ls izkfFkZuh dh nknh Jherh lspuk nsoh us ,d ek:fr dkj (tsu)

rFkk izkfFkZuh ds firk th dks esjs ifr Jh latho dqekj us

ck/; djds ek’kZy thi (egsUnz) dh vfxze rkSj ij ‘kknh ds

igys gh ys yh FkkhA

It is not disputed that the Mahendra Marshal Jeep is still in

the name of the informant’s father and the petitioners have denied

their custody over it, although the allegation of the informant was

that the said Jeep was being operated by her husband’s father as a

taxi. In other words, it is a property of the informant’s father. The

gift of Maruti Zen Car by the informant’s grandmother is

admittedly a gift and cannot be said to be a dowry item on

demand. Had it been a demanded dowry, there was no question of

its being given by the informant’s grandmother and a candid

admission on the part of the informant that her grandmother

Sechna Devi gave it as a gift rules out the allegations that these

vehicles were given on demand as dowry items. Not only the above

quote of the First Information Report lends assurance to this

conclusion but towards the end of the long drawn First Information

Report also the above admissions on the part of the informant have

been repeated. The last few lines at page 9 of Annexure 1 may be

quoted as below:-

” izkfFkZuh ds fookg ea esjs firkth rFkk ikfjokfjd tuksa]

ikik th ds fe=ksa }kjk HksaV Lo:i iznku fd;s x;s okgu]

vkHkw”k.k] cgqewY; rFkk vU; lkt&lTTkk dh oLrqvksa

dk mi;kssx Jh latho dqekj rFkk muds ifjokjhtu fcuk fdlh

yTtk] ladksp] rFkk Hk; ds LorU= gksdj dj jgs gSa vkSj

bl izdkj izkfFkZuh ds “L=h/ku” ij v/;klu LFkkfir dj og

lHkh yksx Lokeh vkSj vf/”Brk cu x;s gSa A”

It is thus clear that both the vehicles/ornaments and

valuable items of household utility and garments given at the time

of marriage were all gift items. It would be a matter of debate as to

whether these items offered as gifts to Sanjeev Kumar Yadav and

his family members or relations would fall within the ambit of

‘STRIDHAN’ as a question, to invoke provisions of Section 6 of the

Dowry Prohibition Act, would arise as to whether any list of such

items was drawn as required by Section 3 of the Act. The answer

being negative rules out the alleged claim. Moreover, in case of

some items being permitted to be used will also have an impact of

implied consent. The allegation of the Marshal Jeep being run as a

taxi by the family members of Sanjeev Kumar Yadav has been

categorically denied and the fact that the said Jeep is still in the

name of the informant’s father clearly points to the conclusion that

Heera Lal alone is the registered owner of the said vehicle and he

can, therefore, claim his custody over it.

As regards the household items of utility, such as Hero

Honda Generator, Colour T.V. and other items of decoration valued

at Rs.4 lacs, it may be mentioned that the informant has not

asserted in its First Information Report that these items of four

lacs were demanded by the petitioners or anyone else on their side

much less Sanjeev Kumar Yadav. The allegation that Maruti Zen

was purchased in the name of Dharm Raj prior to marriage under

compelling circumstances stands thwarted on the face of the

informant’s allegation, in the earlier part of her report, that this

was a gift item offered by Smt. Sechna Devi.

A gift cannot be a dowry as the dictionary meaning of gift is as follows :-

“a thing given willingly to someone without payment”

The position would however be different, if a gift is

demanded at the time of marriage or prior or after the

solemnization of marriage.

Contrary to the above, the term dowry appears to indicate as

a property or money brought by a bride to her husband on their

marriage. Precisely, Section 2 defines dowry as follows :-

“Definition of ‘dowry’- In this Act, ‘dowry’ means any

property or valuable security given or agreed to be given

either directly or indirectly –

(a)     by one party to a marriage to the other party to

the marriage ; or

(b)     by the parents of either party to a marriage or by

any other person, to either party to the marriage

or to any other person; at or before or any time

after the marriage in connection with the

marriage of the said parties, but does not include

dower or mahr in the case of persons to whom

the Muslim Personal Law (Shariat) applies.”

Section 3 of the Act postulates as follows :-

“Penalty for giving or taking dowry – If any person, after

the commencement of this Act, gives or takes or abets

the giving or taking of dowry, he shall be punishable

with imprisonment for a term which shall not be less

than five years, and with fine which shall not be less

than fifteen thousand rupees or the amount of the value

of such dowry whichever is more.

Provided that the Court may, for adequate and special

reasons to be recorded in the judgment, impose a

sentence of imprisonment for a term of less than five

years.

(2)     Nothing in Sub-section (1) shall apply to, or in

relation to –

(a)     presents which are given at the time of a

marriage to the bridge (without any demand

having been made in that behalf) :

Provided that such presents are entered in a list

maintained in accordance with the rules made

under this Act;

(b)     presents which are given at the time of a

marriage to the bridegroom (without any demand

having been made in that behalf) :

Provided that such presents are entered in a list

maintained in accordance with the rules made

under this Act:

Provided further that where such presents are

made by or on behalf of the bride or any person

related to the bride, such presents are of a

customary nature and the value thereof is not

excessive having regard to the financial status of

the person by whom, or on whose behalf, such

presents are given.”

The above quoted provisions of sections penalize dowry

excluding the presents, i.e. gifts which are given at the time of

marriage either to the bride or to the bridegroom – of course, such

presents have to be entered in a list and they should also be

customary in nature. The financial status of the giver will also be

of primary importance and learned Counsel for the petitioners

asked for a probe into the financial status of the informant’s father

who is a Government Servant. But we would not like to enter into

that arena.

In the case in hand, the informant’s father has not prepared

any list of such items and as has been stated by the informant’s

husband, he is employed as a Junior Engineer in the Public Works

DepartmentU.P. who will certainly not be in a position to offer gifts

and cash amounting to 30-40 lacs of rupees. All sums seems to be

fantastic. The gift items like ornaments, colour T.V., Hero Honda

Generator and valuable items of decoration are all customary.

Although a vehicle is also acquiring these days the status of a

customary gift item at the time of marriage, yet we will not enter

into that debate here for the simple reason that the informant has

herself termed both the vehicles and all dowry items as the gift

items. Section 4 of the Dowry Prohibition Act provides for penalty

only if there is a demand for dowry. If gift items, though technically

may fall in the category of dowry, are offered without demand,

there is no offence.

Therefore, these gift items will not be called as demanded

dowry in view of the provisions of the Section 3(b) of the Dowry

Prohibition Act. As regards the cash, it may be observed that the

informant’s father had allegedly given a sum of Rs.15 lacs at the

time of ’tilak’ and Rs.5 lacs at the time when Sanjeev Kumar Yadav

was preparing for the Central Civil Services. Being conscious of the

fact that this Court must not weigh the evidence so as to find out

the veracity over the factual allegations, yet since we are convinced

from careful perusal of the First Information Report that the entire

story is a cock and bull story as regards dowry demand, we are

giving the reasonings pertaining to allegations based on spite and

vengeance which is sought to be wreaked upon Sanjeev Kumar and

his family members at the hands of the informant and her father.

Peeping from that angle into the allegations of the First Information

Report, we would express our dismay that Sanjeev Kumar Yadav

allegedly was paid Rs.1 lac and Rs.50,000/- by way of drafts prior

to marriage but the same mode of payment was not observed by

Shri Heera Lal, the informant’s father while handing over a hefty

sum of Rs.15 lacs – which perhaps may not be his entire savings of

his salaried service unless there is some other source of income.

Not only this, but he again gave Rs.5 lacs without any bank draft

or cheque and this amount was given at the time, when Sanjeev

Kumar had allegedly stopped visiting his wife and a small kid living

at Lucknow in desertion. Similarly, the demand of Rs.10 lacs in

2004 appears to be a fabricated story just to express her spite and

retaliate of Sanjeev’s act having lost his interest in the informant. It

is astonishing that the informant and her kid had never been

looked after the informant delivered the child, yet a simple demand

of Rs.5 lacs had been very promptly carried out by the informant’s

father, when he was preparing for the Central Civil Services

competitive examination. Sanjeev Kumar Yadav allegedly got the

informant sent to her parents’ house at Vishwas Khand, Lucknow,

yet her father was benevolent enough to give a huge sum of Rs.5

lacs to his son-in-law and we would note with further surprise that

this entire amount had been borrowed by the informant’s father

from his well-wishers (not relatives) with a view to buy peace and

pleasure for his daughter and paid to her husband. Neither bank

cheque nor draft was used as a mode of payment, although a sum

of Rs.15 lacs was paid by draft before marriage. When the

informant’s father tried to ascertain the reason of Sanjeev Kumar

Yadav being indifferent to his wife, he came to learn that Sanjeev

had become greedy after being selected in the Central Civil Services

and his greed has acquired dimensions to the extent that he

wanted to contract another marriage and earn Rs.1 crore as dowry.

In this context, a reference was also made to his conduct that he

had shown himself to be ‘single’ in Lal Bahadur Shastri National

Academy’s record, but Sanjeev Kumar controverted such an

allegation by filing a Certificate-cum-letter indicating therein his

status as ‘married’. The letter of Shri J.B. Saini, Administrative

Officer (Establishment) dated 7th February, 2005 enclosed as

Annexure No.SA1 to the Supplementary Affidavit dated 1st

December, 2005 of Sanjeev Kumar clearly recites that in the

Descriptive Roll of Academy Sanjeev is recorded as ‘married’.

Maybe that somewhere advertently or inadvertently he might have

written himself single but that does not falsify Mr. Saini’s letter

certifying Sanjeev Kumar Yadav as ‘married’.

The common experience shows that most of the cases of

differences and dissensions between married couples result only in

dowry demand by the husband and by all his family members. The

provisions of the Act are being callously misused by the wives and

their parents with different kinds of stories. The disputes, though

pending in the Courts for decisions, still give rise to the complaints

and F.I.Rs of the wives’ victimization of dowry demand. So long the

status of the husband is enchanting, as was the case in hand with

the informant’s own allegation that her father was mesmerized

with the status of Sanjeev Kumar – presents and gifts comprising

colour T.V., generator sets, maruti cars or even that of better

brand, houses, cash – are offered to grab over the bridegroom. He

is forced to be attracted of all allurements of huge cash and

numerous gifts of household utility, but with the disruption of ties

between the husband and wife or slight dissensions on account of

their colliding temperaments, strained relationship of the wife with

her parents-in-law, difference in the culture of the two families of

wife and husband, distances of the education between the two

including the difference of mental levels, and extra-marital

relationship of either of the two spouses – everything is

channelized into a dowry tunnel and the wife is said to be

victimized of the dowry demand.

‘Draft a qualitative and capturing or a pathetic story of

dowry victimization and harass the husband’ has become the

routine of warring couples. As said above, the husband and wife

relationship may become strained on not one but on various issues

as enumerated above, the allegation of demand of dowry is the

eventual result in ninety nine percent of the hundred cases.

Having regard to all these aspects of the matter, we would

like to record a finding that the allegation of demand of Rs.10 lacs

is a fabricated story of the informant and her father with a view to

teach a lesson to the husband, namely, Sanjeev Kumar Yadav, who

if arrested will immediately be placed under suspension and with a

view to force to realize him as to how then the miserable life of an

officer of Indian Revenue Service will commence in and out of jail.

The sole purpose of a novel like story evolved by the

informant and recited in her First Information Report is to take a

revenge with him by getting him sent to jail and further placing

him in sufferings with his eventual suspension. The Courts are to

protect the valuable rights of not only a wife if she is victimized and

maltreated with dowry demand but also a harassed husband who

is also equal in the eyes of law and if a concocted attempt as the

one in hand is made to place the husband in an awkward

situation, certainly the Court must come to the rescue of such a

husband in humiliation. If the dispute between the husband and

wife hinges or surrounds elsewhere, the provisions of the Dowry

Prohibition Act must not be misused. In the case in hand, as is the

allegation of the informant, infidelity seems to be the crux of the

differences between her and her husband. She alleged that her

husband Sanjeev Kumar Yadav had developed illicit relationship

with Km. Neelam Srivastava and as she has now gathered

information, he was all adamant to marry her. The informant was

aggrieved of the alleged love affair going on between her husband

and Neelam Srivastava and it was in the same sequence of events

that the informant alleged about the frequent visits of Sanjeev

Kumar Yadav to Jaunpur where Neelam Srivastava was

conveniently available. Neelam Srivastava is unmarried and posted

as Assistant Consolidation Officer at Varanasi and she has her

house in Jaunpur. The allegation of Sanjeev’s proposal to marry

her is in clear conflict with the informant’s allegation that he had

desired to marry someone and acquired a dowry of Rs.1 crore. An

Assistant Consolidation Officer cannot fetch him that fantastic

amount nor she would be able to provide a palatial house in

Lucknow. Sanjeev Kumar Yadav has denied the informant’s

allegation of infidelity attributed to him vis-.-vis Km. Neelam

Srivastava and said that she is a pious girl.

We are not concerned as to what is the status of Ms. Neelam

Srivastava nor we are concerned as to what is her relationship with

the informant’s husband. What we are concerned with is that the

ground of infidelity against a husband must not be misused with

an accusation of dowry demand. If Sanjeev Kumar is guilty of the

offence of extra-martial relationship, he should be penalized, but in

accordance with law. She must file a complaint in the Court of

competent jurisdiction alleging a charge of adultery and the law

will take its own course. But she cannot be permitted to misutilize

and abuse the provisions of the Dowry Prohibition Act and harass

her husband by getting him arrested and suspended from his

service. True that if the dowry demand is made by him he would be

liable for a severe penalty but the informant was not expected to

imagine and fabricate a fantastic story of giving dowry in the shape

of presents and gifts worth Rs.30-35 lacs without demand at the

time of marriage and after the differences broke between the two,

then accuse him of making demand for more dowry and get, the

entire family comprising dozens of persons including young and

unmarried sisters, husbands of the married sisters sent to jail. The

informant in her First Information Report expected the human

values and courtesies to be expected of Sanjeev Kumar Yadav, but

on her own part every such human value went in oblivion when

the two unmarried sisters Jaya and Usha, cousin Santosh were

framed in this case and got them arrested by police. It is

unbelievable on the face of the First Information Report that the

unmarried sisters of Sanjeev Kumar Yadav and husbands of his

married sisters living away would exert their pressure for dowry

demand. Sri Yadav right from very beginning was nicely placed

initially in U.P. Provincial Services and then in Central Civil

Service. He and his parents would well be said to press for dowry

and harass the informant when she failed to fulfil it. The husbands

of the married sisters, brothers-in-law, uncle and cousin might not

have been invited to associate.

As has also been argued before this Court and pleaded in the

petition and also recited in the regular Civil Suit seeking a decree

for judicial separation, the informant wanted her husband not to

give even the slightest part of his salary to his parents -a cherished

desire of every wife. A perusal of para 7 of the plaint of the Regular

Suit (Annexure 2) reveals that the informant herself started

misbehaving with all members of the plaintiff’s family and also

threatened to get all of them falsely implicated in the case of dowry

demand. It seems to be obvious that she implemented her threats

of getting Sanjeev Kumar and his family members framed in a case

of dowry demand by getting the F.I.R. in question lodged. It was

pleaded further by Sanjeev Kumar Yadav in his plaint that while

leaving his place in and around October, 2001, the informant

carried the entire jewellary and all her garments and while leaving,

threatened everyone in the family to snap her ties with all of them

and thereafter she never came back to stay with him. As said

earlier, the suit for judicial separation was filed on 3rd September,

2004, i.e. about five months before the F.I.R. was lodged. The

petitioners’ contention is that the F.I.R. was nothing but a

retaliatory action of the informant after she came to learn about

the said suit being instituted. In this way, the petitioners’

contention that the informant swung into action with a view to

take revenge by fabricating a cock and bull but attractive story,

appears to be sustainable.

Mr. B.M. Sahai, learned Counsel for the informant further

pressed into service his argument that since an alternative remedy

of filing a petition under Section 482 Cr.P.C. for challenging the

criminal proceedings pending in the Court of Additional Chief

Judicial Magistrate-II, Lucknow is available to the petitioners, this

writ petition should be dismissed. In support of his contention,

learned Counsel relied upon various citations. The first such

decision of the Apex Court is in ‘Basant Kumar v. Eagle Rolling

Mills [AIR 1964 Supreme Court 1260]’. It was held in this case

that when a different forum of Industrial Tribunal could be

approached by the appellant whose medical benefits were

curtailed, a petition under Article 226 of the Constitution would

not be maintainable. This citation is not attracted towards the

facts of the present case, where the petition for quashing of the

F.I.R. was legally maintainable under Article 226 of the

Constitution. During the pendency of the petition, charge-sheets

were filed and the cognizance had been taken. The Hon’ble

Supreme Court in Pepsi Food’s case (supra) has held that in such

a circumstance, the petition can be treated as one under Article

227 or even Section 482 Cr.P.C. and the alternative remedy of

filing an appeal or a revision will not operate as a bar to decide a

petition originally filed under Article 226 of the Constitution. On

the basis of the principle of law laid down in the decision by the

Hon’ble Apex Court, the citations reported in 1993 JIC 151, AIR

1993 SC 892, 1999 (1) JIC 883 (All.), 2001 (1) JIC 597 (Alld.)

are not applicable to the facts and circumstances of the present

case.

It was held in the famous case of Rupan Delol Bajaj v.

Kanwar Pal Singh Gill [(1995) 6 SCC 194] that a prima facie

case was made out against the writ petitioner Shri Gill and there

was sufficient evidence to proceed with, therefore, the FIR lodged

by Mrs. Bajaj and the complaint filed by her husband were liable to

be proceeded with further by the trial Court. The respondent in

that case by slapping on the back of the informant was stated to

have committed an offence of outraging her modesty. We do not

find even an iota of similarity between the two cases and therefore,

we hold that the said decision is of no avail to the informant.

The citation ‘State of Bihar v. Rajendra Agrawalla [1996

JIC   363 (SC)]’ is also distinguishable from the facts of the present

case. As in that case, a petition under Section 482 Cr.P.C. was

filed by the petitioner who was a Sub-Inspector of Police. The High

Court quashed the criminal proceedings but the Hon’ble Supreme

Court held that there was sufficient evidence to constitute

commission of an offence under Section 414 I.P.C. It was also held

in that case that a criminal proceeding can be interfered with by

the High Court under Section 482 Cr.P.C. only if it is shown that

the complaint together with the other material collected during

investigation taken at their face value do not constitute the

offences alleged. In that case, there was recovery of huge stock of

pieces of the track trolley used in BCCL and since the respondents

could not show any document to prove their ownership, it was held

that they were rightly challaned by the police. In the case in hand,

the facts are not as categorical. Neither there was any recovery nor

the demand of dowry is believable.

Learned Counsel for the informant then referred to a citation

of this Court Devi Sahai and others v. State of U.P. and others

[2001 (1) JIC 597 (All)] and contended with reference to it that an

application under Section 482 Cr.P.C. for quashing of the F.I.R.

pending investigation is not maintainable. In that case, 482 Cr.P.C.

petition was filed for quashing of the F.I.R. on the ground that the

F.I.R. was totally false and concocted and had been lodged to

wreak vengeance on account of election enmity. We could not

appreciate as to how this could have helped the informant because

the petitioners of the case in hand filed a writ petition under Article

226 of the Constitution and not a 482 Cr.P.C. petition. It is

however different that with the development of the charge-sheets

having been submitted, this petition has been treated to be as one

under Article 227 and under Section 482 Cr.P.C. in view of the

Apex Court’s decision in Pepsi Food’s case (supra).

Learned Counsel for the informant then relied upon the

citation ‘Sadhana Lodh v. National Insurance Company and

and another [2003 (3) SCC 524]’. With reference to this decision,

it has been submitted that where an alternative remedy of filing

appeal is available, interference under Articles 226 and 227 is not

permissible. In that case, in a motor accident claim, an award of

Rs.3.5 lac as compensation was pronounced. The aggrieved insurer

filed a petition under Articles 226 and 227 of the Constitution

which was allowed by the High Court and the amount of award

was reduced. The Hon’ble Supreme Court held that since an

alternative remedy of filing an appeal was available to the insurer,

filing of a petition under Articles 226 and 227 of the Constitution

or interference in any manner was not permissible under law.

Obviously, the facts of the case are entirely different from the one

before us, therefore, the citation is not attracted towards this case.

For the reason that in the decision Ram Lal Yadava v.

State of U.P. and others [1989 ACC 181], the petition was filed

under Section 482 Cr.P.C. to stay the arrest of an accused during

investigation, the said decision of this Court does not help in any

manner. It was precisely held by this Court in that case that

during investigation arrest of an accused cannot be stayed under

Section 482 Cr.P.C. by the High Court while exercising its inherent

power. Any repetition is unpleasant but since relevant decisions

are not being referred to, we have to observe again and again that

the petition in hand was initially filed under Article 226 of the

Constitution and for the reasons disclosed earlier and in view of

the principle of law laid down in the case of Pepsi Foods Ltd.

(supra), we have treated it to have also been filed under Article 227

of the Constitution and Section 482 Cr.P.C. It is however

significant to note that in this very decision (Ram Lal’s case), a

full bench comprising seven Hon’ble Judges clearly postulated in

para 22 of the Judgment that if the High Court is convinced that

the power of arrest by a police officer will be exercised wrongly or

mala fide in violation of Section 41(1)(a) Cr.P.C. the High Court can

also issue a writ of Mandamus under Article 226 of the

Constitution restraining the police officer from misusing the power

and it is for this principle of law ruled by the Full Bench that Dr.

L.P. Misra learned Counsel for the Petitioners too cited this

decision and placed reliance thereupon. Dr. L.P. Misra further

submitted with reference to a decision in Common Cause, a

Registered Society v. Union of India and others [1999 Vol.VI

SCC 667] that powers of a High Court under Article 226 and the

Hon’ble Supreme Court under Article 32 are plenary in nature and

in exercise of such plenary powers, Court can rectify even its own

mistakes. Although there is no case in hand of rectifying an error,

yet emphasis has been laid by the learned Counsel that under

Article 226 a High Court can exercise plenary power to do complete

justice.

Dr. L.P. Misra then contended with reference to another

decision of the Apex Court in Secretary, O.N.G.C. Ltd. and

another v. V.U. Warrier [(2005) 5 SCC 245] that jurisdiction of

the High Court under Article 226 is equitable and discretionary

and it can exercise this power to reach injustice wherever it is

found.

The sum and substance of the discussions made above is

that the facts of this case being peculiar with the developments

during investigation are such that this Court would consider it

equitable to interfere and quash the entire criminal proceedings

pending against the petitioners.

Learned Counsel for the informant vehemently argued that

since Sanjeev Kumar Yadav did not surrender before the Court

following cancellation of his bail, no discretionary relief should be

extended to him. In this context, it may be significant to note that

when after his arrest, he was brought to Gomti Nagar Police

Station, the Station House Officer released him on bail on the

ground of his illness and all other petitioners arrested from

Jaunpur were sent to jail. The bail of Sanjeev Kumar Yadav was

cancelled on technical ground that since he was on transit

remand, he could not have been released on bail. Subsequently,

this Court vide its Order of 28th July, 2005 stayed his arrest on the

merit of his plea that the F.I.R. on the face of it carried a concocted

version. However, on September 9, 2005 the said interim order was

vacated. He then moved an application soon thereafter for

modification of the order which was finally heard alongwith the

writ petition. It may be relevant to observe that Sanjeev Kumar

Yadav approached this Court for redressal of his grievance and

since right from very inception of his having filed this petition, his

case was that he has been falsely framed in this case by the

informant after concocting a case of dowry demand out of sheer

vengeance, he was justified in his right to seek a modification of

the order by bringing before the Court all the relevant facts and

circumstances. Every citizen has a right to approach this Court not

once but many a times and the facts and circumstances on the

basis of which a prayer for modification of the vacation order was

made would all be very relevant and significant to be looked into.

Once it has come to the notice of the Court that indeed his stand

about the First Information Report being based on retaliatory

measure is acceptable, he cannot be penalized merely because he

moved an application for modification of the vacation order instead

of surrendering himself before the Court for going to jail.

Learned Counsel for the petitioners has also assailed the

charge-sheets – one submitted on February 21, 2005 and the other

on October 25, 2005 (perhaps the same charge-sheet  submitted

twice). The fact regarding submission of the charge-sheet on

21.2.2005 is falsified by the Order dated 1st March, 2005 by the

Senior Superintendent of Police, Lucknow whereby he had

transferred the investigation of this case from S.I. Shri K.K.

Sharma to S.I. Shri Brij Kishore Singh. The very fact that the

investigation was transferred from Shri K.K. Sharma to Shri Brij

Kishore Singh on 1st March, 2005 prima facie proves that there

was some manipulation somewhere in Shri K.K. Sharma’s

statement and conduct of his having submitted charge-sheet on

21st February, 2005.

Deepti Yadav filed a copy of the charge-sheet alongwith her

supplementary affidavit dated 2nd December, 2005. A perusal of

this charge-sheet appears to indicate that it was signed by Shri

K.K. Sharma on some date in February, 2005 but the figures of the

date were interpolated and in their place, 21.2.2005 was

substituted. Cognizance of this charge-sheet had been taken on

October 25, 2005. The charge-sheet dated 21.2.2005 with changed

figures of date has been termed to be of 25.10.2005 by Deepti

Yadav in her supplementary affidavit of December 2, 2005.

Virtually, it seems to be the same charge-sheet submitted twice.

The Presiding Officer in his Order dated 25th October, 2005 says it

had been received on 25th October, 2005. There is manipulation in

the figures of the date underneath the signature of the Second

Additional Chief Judicial Magistrate also. In the figures of ’10’

meant for the month of October, figure ‘3’ is clearly visible within

the circle of ‘0’ which clearly indicates that the Investigating Officer

has committed some significant errors in changing the date under

his signatures. The Presiding Officer also seems to have towed the

same line and did some alienation in the figures of date

underneath his signature. Further, the Investigating Officer

appears to have added Section 307 I.P.C. possibly by replacing the

letters I.P.C. The interpolations are clearly visible in the head-line

of the charge-sheet as well as in his brief note spreading over

columns 5 to 9 in the charge-sheet.  A copy of the order is enclosed

with the charge-sheet and a perusal of the said order dated

25.10.2005 appears to indicate that cognizance was taken by the

learned Second Additional Chief Judicial Magistrate. From bare

perusal, it appears that the learned Second Additional Chief

Judicial Magistrate has not applied his mind while taking

cognizance of the matter. It is simply recited in the order at the

relevant place that the F.I.R. has been perused, which is enough

for taking cognizance, therefore, cognizance is taken. Precisely, the

order may be quoted as below:-

“vkt fnukad 25-10-2005 dks vla0 14@05 /kkjk

498d@323@504@ 506@511@307 n0iz0la0 o 3@4@6 ngst

vf/k0 es vkjksi i= vfHk;qDrxu latho dqekj ;kno] jktho dqekj

;kno] /keZjkt ;kno] eksrhyky ;kno] lUrks”k dqekj ;kno] Jherh

lj;wnsoh] Jherh ‘kksHkkorh] Jherh jatuk] dq0 m”kk] dq0 t;k]

Jherh vk’kk o n;kjke ds fo:) vkjkasi i= izkIr gqvk A voyksdu fd;k

x;k x;k laKku ysus gsrq vk/kkj i;kZIr gS A laKku fy;k tkrk gS A

eqdnek ntZ jftLVj gksssA

vkns’k

i=koyh fnukad 28-10-2005 dks is’k gks A”

It is apparent from perusal of the aforesaid order that the

learned Second Additional Chief Judicial Magistrate has not

examined the facts and evidence of the case. Mere recital about the

perusal of the charge-sheet does not indicate about sufficient

reasoning for taking cognizance. It is not mentioned that the

documentary evidence including the F.I.R. or the statements of the

witnesses or any other piece of evidence was or was not perused by

the learned Second Additional Chief Judicial Magistrate. The Order

has been passed in a mechanical manner without applying mind to

the facts of the case and evidence submitted in support of the

charge-sheet. Had the Presiding Officer scrutinized the F.I.R. even,

he would have learnt that no offence had taken place in the

territorial jurisdiction of Lucknow-district. Apart above, it has also

not been explained on behalf of the informant that as to how the

Senior Superintendent of Police ordered for transfer of the

investigation when charge-sheet has already been submitted and

as to why the Senior Superintendent of Police disclosed before the

Court in Criminal Misc. Case No. 1026 of 2005 that no charge-

sheet had been filed till 1st March, 2005, i.e. the date on which the

investigation was transferred from Shri K.K. Sharma to Shri Brij

Kishore Singh.

From these manipulations also mala fide on the part of the

Investigating Officer stands proved.

In view of the above discussed manipulations and non-

application of mind by the learned Second Additional Chief

Judicial Magistrate, the criminal proceedings stand vitiated and

deserve to be quashed.

For the reasons disclosed above, our conclusions may in

brief be recapitulated below :-

The Writ Petition filed initially under Article 226 of the

Constitution of India is treated to be as the one under Article

227 of the Constitution of India and Section 482 Cr.P.C. in view

of the Apex Court’s decision in Pepsi Food’s case (supra).

The First Information Report was filed by Deepti Yadav with a

view to wreak vengeance upon her husband Shri Sanjeev

Kumar Yadav and his family members.

The First Information Report came into being as a retaliatory

move to teach him and his family members a lesson of filing a

suit for judicial separation on September 3, 2004.

The First Information Report was a sequel to the informant’s

suspicion of infidelity against her husband.

The presents and gifts offered at the time of marriage to Sanjeev

Kumar and his family members were gifts offered by the

informant’s parents, grandmother and other relatives on their

own. Such presents and gifts do not fall within the category of

‘dowry demanded’.

It is falsified that either Sanjeev Kumar or any other member of

his family demanded any dowry.

The Investigating Officer acted in a mala fide way and

manipulated things to mislead the Court of the II Additional

Chief Judicial Magistrate as also this Court by making

manipulations in the charge-sheet as discussed above.

Learned Additional Chief Judicial Magistrate-II has without

application of mind proceeded to take cognizance of the offences

and thereby committed a serious illegality.

The above Magisterial Court at Lucknow has no territorial

jurisdiction to deal with the offences alleged to have been

committed in Tadwa (Pilkichha), District Jaunpur, Sultanpur,

Gorakhpur and Moradabad.

The First Information Report is a well-drafted document based

on spite and animosity.

In view of the foregoing conclusions, we are of the decisive

view that the First Information Report (Annexure 1) as well as the

criminal proceedings pending against the petitioners in the Court

of Additional Chief Judicial Magistrate-II, Lucknow are liable to be

quashed.

Accordingly, the writ petition is allowed and the First

Information Report as also the criminal proceedings including the

charge-sheet(s) dated 21st February, 2005/25th October, 2005 are

hereby quashed.

A writ of Certiorari is issued accordingly.

January 10, 2006

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