# Jagdish Kumar & Ors v. State Of U.P. & Ors

- **Citation:** (2016) 8 ILRA 799
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-08-09
- **Bench:** Mrs. Vijay Lakshmi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jagdish-kumar-ors-v-state-of-u-p-ors-44271
- **Pages:** 4

## Headnote

Section 482 Cr.P.C. - Quashing of cognizance in dowry death case - Applicants sought quashing of
the cognizance order dated 20.1.2001 passed by the C.J.M., Varanasi in Case No. 255 of 2001 (State v. Ravi
Kumar & Others), arising out of Case Crime No. 113 of 2000, under Sections 498A, 304B I.P.C. and 3/4 Dowry
Prohibition Act, P.S. Cantt., district Varanasi. FIR alleged cruelty and dowry demand, whereas the defence
relied on a dying declaration recorded by the Settlement Officer (Consolidation), Varanasi, after medical
certification of the declarant's consciousness, in which the deceased stated that she accidentally caught fire
while boiling milk for her child and no family member was present at that time, and her mother-in-law
extinguished the fire. Applicants emphasized three weeks' delay in lodging the FIR and prior intimation sent by
the husband through speed post to the police about an accidental burn, contending that there was no
possibility of conviction and that continuation of proceedings would be an abuse of process and sheer wastage
of court time. Held, while exercising inherent jurisdiction under Section 482 Cr.P.C., the High Court cannot
assess the veracity, reliability or truthfulness of evidence such as a dying declaration or conduct a pre-trial
evaluation of defence materials; at this stage only prima facie case is to be seen in light of settled Supreme
Court precedents, and disputed defence must be tested by the trial court, where the accused have the remedy
of moving an application for discharge. In view of the law laid down in R.P. Kapur v. State of Punjab, State of
Haryana v. Bhajan Lal, State of Bihar v. P.P. Sharma, Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq
and others and other authorities, the prayer for quashing the cognizance order was refused, though applicants
were given liberty to appear before the trial court and seek bail, with a direction that bail be considered in
light of Amrawati v. State of U.P. and Lal Kamlendra Pratap Singh v. State of U.P., and that no coercive action
be taken for 30 days.
Application Dismissed

Case Law discussed:
State of Orissa v. Bansidhar Singh, (1996) 2 SCC 194
R.P. Kapur v. State of Punjab, A.I.R. 1960 S.C. 866
State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426
State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283 (Para 10)
Amrawati and another v. State of U.P., 2004 (57) ALR 290 (FB)
800 INDIAN LAW REPORTS ALLAHABAD SERIES

Lal Kamlendra Pratap Singh v. State of U.P., 2009 (3) ADJ 322 (SC)

## Text

8 All. Jagdish Kumar & Ors. Vs State Of U.P. & Ors.
799
(2016) 8 ILRA 799
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 2028 Of 2001

Jagdish Kumar & Ors. ...Applicants
Versus
State Of U.P. & Ors. ...Opposite Parties

Counsel for the Applicants:
D.D. Gupta, Ajatshatru Pandey, G.S. Chaturvedi

Counsel for the Opposite Parties:
A.G.A., Sameer Jain

Section 482 Cr.P.C. - Quashing of cognizance in dowry death case - Applicants sought quashing of
the cognizance order dated 20.1.2001 passed by the C.J.M., Varanasi in Case No. 255 of 2001 (State v. Ravi
Kumar & Others), arising out of Case Crime No. 113 of 2000, under Sections 498A, 304B I.P.C. and 3/4 Dowry
Prohibition Act, P.S. Cantt., district Varanasi. FIR alleged cruelty and dowry demand, whereas the defence
relied on a dying declaration recorded by the Settlement Officer (Consolidation), Varanasi, after medical
certification of the declarant's consciousness, in which the deceased stated that she accidentally caught fire
while boiling milk for her child and no family member was present at that time, and her mother-in-law
extinguished the fire. Applicants emphasized three weeks' delay in lodging the FIR and prior intimation sent by
the husband through speed post to the police about an accidental burn, contending that there was no
possibility of conviction and that continuation of proceedings would be an abuse of process and sheer wastage
of court time. Held, while exercising inherent jurisdiction under Section 482 Cr.P.C., the High Court cannot
assess the veracity, reliability or truthfulness of evidence such as a dying declaration or conduct a pre-trial
evaluation of defence materials; at this stage only prima facie case is to be seen in light of settled Supreme
Court precedents, and disputed defence must be tested by the trial court, where the accused have the remedy
of moving an application for discharge. In view of the law laid down in R.P. Kapur v. State of Punjab, State of
Haryana v. Bhajan Lal, State of Bihar v. P.P. Sharma, Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq
and others and other authorities, the prayer for quashing the cognizance order was refused, though applicants
were given liberty to appear before the trial court and seek bail, with a direction that bail be considered in
light of Amrawati v. State of U.P. and Lal Kamlendra Pratap Singh v. State of U.P., and that no coercive action
be taken for 30 days.
Application Dismissed

Case Law discussed:
State of Orissa v. Bansidhar Singh, (1996) 2 SCC 194
R.P. Kapur v. State of Punjab, A.I.R. 1960 S.C. 866
State of Haryana v. Bhajan Lal, 1992 SCC (Cr.) 426
State of Bihar v. P.P. Sharma, 1992 SCC (Cr.) 192
Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haq and another, 2005 SCC (Cr.) 283 (Para 10)
Amrawati and another v. State of U.P., 2004 (57) ALR 290 (FB)
800 INDIAN LAW REPORTS ALLAHABAD SERIES

Lal Kamlendra Pratap Singh v. State of U.P., 2009 (3) ADJ 322 (SC)

(Delivered by Hon'ble Mrs. Vijay Lakshmi, J.)

1. Heard learned counsel for the applicants, learned A.G.A. for the State and learned
counsel for O.P. No. 2. Perused the records.

2. The applicants, by means of this application under Section 482 Cr.P.C., have invoked the
inherent jurisdiction of this Court with prayer to quash the cognizence order dated 20.1.2001 passed
by the C.J.M. Varanasi, in Case No. 255 of 2001, State Vs. Ravi Kumar and others, arising out of
Case Crime No. 113 of 2000, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, P.S. Cantt.,
district Varanasi.

3. The contention of learned counsel for the applicants is that the applicants are innocent
and O.P. No. 2 has lodged a false FIR against them with a delay of three weeks without any
plausible explanation for the same. Learned counsel has drawn the attention of this court to the
dying declaration of the deceased, copy whereof has been annexed as Annexure no. 6 to the
affidavit filed in support of the application, which shows that the deceased has clearly stated that
while boiling milk for her child she accidentally caught fire and at that time no family member was
present at home, however, her mother-in-law reached there and extinguished the fire. The further
submission of learned counsel for the applicant is that the aforesaid dying declaration has been
recorded in accordance with law by the Settlement Officer of Consolidation, Varanasi, after the
Medical Officer, S.S.P.G. Hospital, Varanasi, certified that the patient remained conscious during
and after such statement. It is next submitted by learned counsel for the applicant that prior to the
lodging of the FIR the husband of the deceased had sent an information through speed post on
22.2.2000 to the police of P.S. Cantt., Varanasi, informing about the said occurrence, copy whereof
has been annexed as Annexure no. 10 to the affidavit. Learned counsel has submitted that in view
of the above facts, there is absolutely no possibility of conviction of the applicants and the criminal
proceedings against the applicants will not only amount to a futile exercise but an abuse of the
process of the court and sheer wastage of the precious time of the litigants, their counsel and the
Court, hence the cognizance order and the entire proceedings of the case initiated in pursuance
thereof be quashed.

4. Learned AGA and learned counsel for O.P. No. 2 have vehemently opposed the
application by submitting that while exercising the inherent jurisdiction under section 482 Cr.P.C.
this court cannot look into the minute factual details and it cannot examine the veracity, reliability
and truthfulness of the evidence, which are to be adduced by the prosecution during trial and this
court cannot quash the entire proceedings on the basis of any evidence (dying declaration in the
present case) without even giving opportunity to the prosecution to duly prove that evidence.

5. Learned counsel for O.P. No. 2 has placed reliance on the law laid down by the Apex
Court in the case of State of Orissa Vs. Bansidhar Singh, (1996) 2 SCC 194, in which the Hon'ble
Apex Court has held that "the veracity, reliability and truthfulness of the alleged dying declaration
8 All. Jagdish Kumar & Ors. Vs State Of U.P. & Ors.
801
would be tested only after the evidence is recorded in the court and if on proper evaluation of such
evidence, the court comes to the conclusion that the dying declaration is truthful version of the
deceased relating to the circumstances of his death, then there is no question of any further
corroboration as the conviction can be founded only on such dying declaration."

6. In the wake of the aforesaid law laid down by the Hon'ble Apex Court this court while
exercising the jurisdiction u/s 482 Cr.P.C. cannot judge the veracity, reliability and truthfulness of
the alleged dying declaration. At this stage only prima facie case is to be seen in the light of the law
laid down by Supreme Court in cases of R.P. Kapur Vs. State of Punjab, A.I.R. 1960 S.C. 866,
State of Haryana Vs. Bhajan Lal, 1992 SCC (Cr.) 426, State of Bihar Vs. P.P.Sharma, 1992 SCC
(Cr.) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful Haq and another
(Para-10) 2005 SCC (Cr.) 283.The submissions made by learned counsel for the applicants call for
adjudication on pure questions of fact, which may be adequately adjudicated upon only by the trial
court and while doing so even the submissions made on points of law can also be more
appropriately gone into by the trial court in this case. This Court does not deem it proper, and
therefore cannot be persuaded to have a pre-trial before the actual begins. The disputed defence of
the accused cannot be considered at this stage.

7. Moreover, the applicants have got a right of discharge by moving a proper application
for the said purpose before the trial court and he is free to make all the submissions in the said
discharge application before the Trial Court including those which have been canvassed by him
before this Court in this application.

8. Accordingly the prayer for quashing the impugned cognizance order is refused.

9. However, it is directed that if the applicants appear before the court below and apply for
bail within 30 days from today, the court below shall make endeavour to decide the bail application
keeping in view the observations made by this Court in the Full Bench decision of Amrawati and
another Vs. State of U.P. 2004 (57) ALR 290 and affirmed by Hon'ble Supreme Court in the case
of Lal Kamlendra Pratap Singh Vs. State of U.P. 2009 (3) ADJ 322 (SC).

10. For the aforesaid period of 30 days no coercive action shall be taken against the
applicants.

11. With the aforesaid observations this application is finally disposed off.
------------
802 INDIAN LAW REPORTS ALLAHABAD SERIES

(2016) 8 ILRA 802
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 08.08.2016

BEFORE

THE HON'BLE MRS. VIJAY LAKSHMI, J.

Application U/S 482 No.- 14286 Of 2013

Deep Narayan & Anr. ...Applicants
Versus
State Of U.P. & Anr. ...Opposite Parties

Counsel for Applicants:
Rakesh Dubey, Rajiv Gupta

Counsel for Opposite Parties:
Govt. Advocate, Shashank Tripathi

Territorial Jurisdiction - Sections 177 to 179 Cr.P.C. - Offence under Section 498A I.P.C. being a
Continuing Offence -- Application under Section 482 Cr.P.C. filed to quash proceedings in a complaint case
under Sections 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, on the ground that the Magistrate at Kanpur
Nagar lacked territorial jurisdiction as the alleged offence took place at Katni, M.P., the matrimonial home of
the complainant's daughter - Held: The complaint discloses that the wife was subjected to cruelty for dowry
demand at her matrimonial home and was thereafter left at her parental home at Kanpur with a threat that
she would not be permitted to return unless the dowry demand was met; the offence under Section 498A
I.P.C. being a continuing one, commencing at the matrimonial home and continuing to the parental home, is
squarely covered by clause (c) of Section 178 and by Section 179 Cr.P.C. (relying on Sunita Kumari Kashyap
Vs. State of Bihar and another, Criminal Appeal No. 917 of 2011; Sujata Mukherjee (Smt) Vs. Prashant Kumar
Mukherjee, (1997) 5 SCC 30; and State of M.P. Vs. Suresh Kaushal and another, (2003) 11 SCC 126) - The
Magistrate at Kanpur Nagar therefore has jurisdiction to try the case. (Paras 7, 11-24)

Effect of Prior Compromise Between Spouses - Fresh Cause of Action on Subsequent Harassment
- Distinction from Cases of Permanent Separation -- Contention that the summoning order could not
survive an earlier compromise recorded between the parties at the Mediation Centre, pursuant to which a final
report had been submitted - Held: A fresh dispute between husband and wife may arise at any time even
after reunion following a compromise, giving rise to a fresh cause of action; this position may not hold where
the spouses separate permanently after the compromise - The judgment in Ruchi Agarwal Vs. Amit Kumar
Agrawal and others, 2005 SCC (Cri) 719, is distinguishable, being a case where the parties had permanently
separated after compromise and the wife had accepted alimony in lieu of divorce, unlike the present case
where the parties reunited and a fresh cause of action arose upon renewed harassment for dowry - Reliance
on Geeta Mehrotra and another Vs. State of U.P., (2012) 10 SCC 741, held not to assist the applicants on facts
of the case. (Paras 8, 25-26)

Section 204(2) Cr.P.C. - Filing of List of Witnesses - Not a Condition Precedent to Institution of
Complaint - Directory in Nature -- Contention that the summoning order is vitiated for want of
compliance with Section 204(2) Cr.P.C., as no list of witnesses was filed by the complainant before summons
were issued - Held: The impugned order itself directs the complainant to file the list of witnesses and take