# Ashish & Ors v. State of U.P. & Anr - **Citation:** (2022) 2 ILRA 211 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-02-04 - **Case number:** Application U/S 482 No. 1540 of 2022 - **Bench:** Anil Kumar Ojha - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ashish-ors-v-state-of-u-p-anr-48108 - **Pages:** 3 ## Headnote (A) Criminal Law- Indian Penal Code, 1860- Sections 494, 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act - Code of Criminal Procedure, 1973- Section 482 - Quashing of proceedings- On basis of not conducting preliminary inquiry - Conducting or not conducting preliminary enquiry is the domain of Investigating Officer on which basis, F.I.R. cannot be quashed. Merely because a preliminary inquiry was not conducted by the Investigating Officer, the same would be no ground to quash the Chargesheet and the criminal proceedings. (B) Code of Criminal Procedure, 1973- Section 482 - Whether victim was beaten and harassed by the applicants; whether there was demand of dowry or not; whether husband, Ashish solemnized another marriage with another lady named Deeksha are questions of fact which cannot be adjudicated upon in this proceeding. Appraisal of evidence is also not permissible in proceedings under Section 482 Cr.P.C. Settled law that while exercising its inherent jurisdiction under section 482 of the Code, the High Court cannot appreciate evidence or disputed questions of fact as the same can only be adjudicated by the trial court after consideration of evidence. Criminal Application rejected. (E-3) ( Para 8, 12) Judgements/ Case law relied upon/ cited:- ## Text 2 All. Ashish & Ors. Vs. State of U.P. & Anr. 211 victim is minor. Offence has been committed against her. There is sufficient material to frame charge against the applicant. Appraisal of evidence is not permissible in proceedings under Section 482 Cr.P.C. 11. In view of the above, the present Application lacks merit and is liable to be dismissed. 12. Accordingly, this Application under Section 482 Cr.P.C. is dismissed at the admission stage itself. ---------- (2022)02ILR A211 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 04.02.2022 BEFORE THE HON'BLE ANIL KUMAR OJHA, J. Application U/S 482 No. 1540 of 2022 Ashish & Ors. ...Applicants Versus State of U.P. & Anr. ...Opposite Parties Counsel for the Applicants: Sri Arvind Kumar Counsel for the Opposite Parties: A.G.A. (A) Criminal Law- Indian Penal Code, 1860- Sections 494, 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act - Code of Criminal Procedure, 1973- Section 482 - Quashing of proceedings- On basis of not conducting preliminary inquiry - Conducting or not conducting preliminary enquiry is the domain of Investigating Officer on which basis, F.I.R. cannot be quashed. Merely because a preliminary inquiry was not conducted by the Investigating Officer, the same would be no ground to quash the Chargesheet and the criminal proceedings. (B) Code of Criminal Procedure, 1973- Section 482 - Whether victim was beaten and harassed by the applicants; whether there was demand of dowry or not; whether husband, Ashish solemnized another marriage with another lady named Deeksha are questions of fact which cannot be adjudicated upon in this proceeding. Appraisal of evidence is also not permissible in proceedings under Section 482 Cr.P.C. Settled law that while exercising its inherent jurisdiction under section 482 of the Code, the High Court cannot appreciate evidence or disputed questions of fact as the same can only be adjudicated by the trial court after consideration of evidence. Criminal Application rejected. (E-3) ( Para 8, 12) Judgements/ Case law relied upon/ cited:- 1. 1992 AIR (1) page 694 (St. of Har. Vs Chaudhary Bhajan Lal), cited 2. Geeta Mehlotra Vs St. of U.P. ,Crl. Appeal No. 1674 of 2012 arising out of SLP (Crl.) No. 10547 of 2010,cited 3. CRM (M) No. 83 of 2020 vide judgement dt. 25.08.2021 (J& K& Ladakh High Court), cited 4. M/s Neeharika Infrastructure Pvt. Ltd. Vs. St. of Maha. & ors., 2020 SCC Online SC 850 5. R. P. Kapur Vs The St. of Punj., AIR 1960 SC 866 (Delivered by Hon'ble Anil Kumar Ojha, J.) 1. Heard learned counsel for the applicants, learned A.G.A. for the State by means of Video-Conferencing and perused the record. 2. This Application under Section 482 Cr.P.C. has been filed with a prayer to 212 INDIAN LAW REPORTS ALLAHABAD SERIES quash the entire criminal proceeding including charge-sheet dated 04.09.2020 as well as cognizance and summoning order dated 11.10.2021 of Case No. 15977 of 2021 arising out of Case Crime No. 309 of 2020 (State Vs. Ashish & Others) under Sections 494, 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act against the applicant no. 1 and under Sections 498A, 323, 506 I.P.C. and Section 3/4 of D.P. Act against Applicant Nos. 2 and 3, P.S., Sipri, District, Jhansi pending in the Court of Chief Judicial Magistrate, Jhansi. 3. Submission of learned counsel for the applicants is that from the matter available on record, offences under Sections 494, 498A, 323, 506 I.P.C. and Section of D.P. Act are not made out against the applicants. Further submitted that applicant no. 1 Ashish is the husband of the victim, Seema whereas applicant nos. 2 and 3 are father-in-law and motherin-law. Next submitted that there is six days' delay in lodgement of the F.I.R. Case has been lodged with ulterior motive and mala-fide intention to harass the applicants. There are only general allegations against the applicants, hence this Petition. 4. Per-contra, learned A.G.A. opposed the aforesaid prayer and submitted that there are specific allegations of demand of dowry and beating the victim by the applicants. Factual controversy cannot be settled in this proceeding under Section 482 Cr.P.C. 5. Learned counsel for the applicants relied upon the judgement of Hon'ble Apex Court reported in 1992 AIR (1) page 694 (State of Haryana Vs. Chaudhary Bhajan Lal), para 26 of Geeta Mehlotra Vs. State of U.P. passed in Criminal Appeal No. 1674 of 2012 arising out of SLP (Crl.) No. 10547 of 2010 & para 6 of Hon'ble Jammu & Kashmir and Ladakh High Court at Srinagar in CRM (M) No. 83 of 2020 vide judgement dated 25.08.2021. 6. The authorities relied upon by the learned counsel for the applicant do not apply to the facts of the present case because victim, Seema in her statement recorded under Section 161 Cr.P.C., which is at page no. 33 of the paperbook, has specifically stated that on 5.08.2020, she again went to her nuptial home with her husband, Ashish. Fatherin-law, Gauri Shankar, mother-in-law, Prem Kumari and two sisters-in-law beaten her and threatened to pour kerosene oil. She anyhow escaped from there and came to her father's home. She has further stated that she came to know that her husband, Ashish has solemnized another marriage with Deeksha, daughter of Pahalwan, Resident of Talaur, P.S. Shahjahanpur, District Jhansi during lockdown. 7. Learned counsel for the applicant specifically mentioned the judgement of High Court of Hon'ble Jammu & Kashmir and Ladakh at Srinagar in CRM (M) No. 83 of 2020 wherein on the basis of non conducting of preliminary enquiry, F.I.R. relating to matrimonial dispute was quashed. 8. Conducting or not conducting preliminary enquiry is the domain of Investigating Officer on which basis, F.I.R. cannot be quashed. 9. In M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharastra and Others, 2020 SCC Online SC 850, the Hon'ble Apex Court has held: 2 All. Dhiraj Gupta Vs. Imran Khan & Anr. 213 "iv) The power of quashing should be exercised sparingly with circumspection, as it has been observed, in the rarest of rare case (not to be confused with the formation in the context of death penalty). v) While examining an FIR/complaint, quashing of which is sought, the Court cannot embark upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the FIR/complaint; vi) Criminal proceedings ought not to be scuttled at the initial stage; vii) Quashing of a complaint/FIR should be an exception rather than an ordinary rule." 10. Following other authorities can be cited on the aforesaid point: R. P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604. 11. Perusal of the record reveals that an F.I.R. was lodged against the applicants in Case Crime No. 309 of 2020 under Sections 498A, 323, 506 I.P.C. and Section 3/4 of POCSO Act. I.O. after collection of evidence and conclusion of investigation, submitted charge-sheet in the matter, thereafter Chief Judicial Magistrate, Jhansi took cognizance on 11.10.2021 and summoned the applicants to face trial. 12. Whether victim was beaten and harassed by the applicants; whether there was demand of dowry or not; whether husband, Ashish solemnized another marriage with another lady named Deeksha are questions of fact which cannot be adjudicated upon in this proceeding. Appraisal of evidence is also not permissible in proceedings under Section 482 Cr.P.C. 13. In view of the above, I am of the considered opinion that this Application lacks merit and is liable to be dismissed. 14. Accordingly, this application under Section 482 Cr.P.C. is dismissed. ---------- (2022)02ILR A213 ORIGINAL JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 15.12.2021 BEFORE THE HON'BLE KRISHAN PAHAL, J. Application U/S 482 No. 6709 of 2009 Dhiraj Gupta ...Applicant Versus Imran Khan & Anr. ...Opposite Parties Counsel for the Applicant: Sri Anil Mullick Counsel for the Opposite Parties: A.G.A. (A) Criminal Law- The Negotiable Instruments Act, 1881-Section 138, Section 94 -The General Clauses Act, 1897Section 17, Section 27 - Code of Criminal Procedure, 1973-Section 482- Demand Notice- receipt of said notice is said to have not returned to the complainant-Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post-The service of notice through registered post was proper and there was no rebuttal evidence to show that the complainant had deliberately and intentionally sent the legal notice to some wrong address or that the applicant had resided at some other place. Furthermore, the applicant must have the knowledge of the cheque having bounced from his bank statement also. The receipt of notice or its service on the applicant is a matter of fact which can only be seen by the Trial Court.