# Kapil Tomar v. State of U.P. & Anr

- **Citation:** (2024) 5 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-10
- **Case number:** Application U/S 482. No. 10569 of 2024
- **Bench:** Vikram D. Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-tomar-v-state-of-u-p-anr-51942
- **Pages:** 4

## Headnote

672 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 304-B, 306,498-A, 323, 504
& 506 - 3⁄4 D.P. Act 1961-quashing of
summoning order-dowry death-deceased
wife committed suicide due to harassment
within one year of her marriage-The
applicant claimed that wife was having
affair with another person and placed some
documents
in
his
defence-Once
the
informant has given specific statement
that there was demand of dowry, there was
no occasion for the Investigating Officer to
have not relied upon the statement of
informant-The court held whether the wife
has died on account of behavior of
applicant or solely on her own will, it is to
be seen at the time of evidence-At this
stage
such
issues
cannot
be
considered.(Para 1 to 10)

The application is rejected. (E-6)

List of Cases cited:

Babubhai & ors. Vs St. of Guj. & ors. (2010) 0
Supreme (SC) 782

## Text

5 All. Kapil Tomar Vs. State of U.P. & Anr.
671

"25. The above legislative scheme
indicates that the Magistrate does not
become functus officio after passing an
order under Section 125 Cr.P.C., as and
when the occasion arises the Magistrate
exercises the jurisdiction from time to time.
By Section 125(5) Cr.P.C., the Magistrate is
expressly empowered to cancel an order
passed under Section 125(1) Cr.P.C. on
fulfilment of certain conditions.

26.Section
127
Cr.P.C.
also
discloses the legislative intendment where
the Magistrate is empowered to alter an
order passed under Section 125 Cr.P.C.
Sub-section (2) of Section 127 Cr.P.C. also
empowers the Magistrate to cancel or vary
an order under Section 125 Cr.P.C. The
legislative scheme as delineated by Sections
125 and 127 Cr.P.C. as noted above clearly
enumerated the circumstances and incidents
provided in the Code of Criminal Procedure
where the court passing a judgment or final
order disposing of the case can alter or
review the same. The embargo as contained
in Section 362 is, thus, clearly relaxed in the
proceedings under Section 125 Cr.P.C. as
indicated above.

27.The submissions which have
been pressed by the learned counsel for the
appellant were founded only on embargo of
Section 362 and when embargo of Section
362 is expressly relaxed in the proceedings
under Section 125 Cr.P.C., we are not
persuaded to accept the submission of the
counsel for the appellant that the Family
Court was not entitled to set aside and
cancel its order dated 6-5-2017 in the facts
and circumstances of the present case."

14. From the above legal position, it is
clear that the order passed u/s 125 Cr.P.C.
may be final or interim, can be recalled or
altered u/s 127 Cr.P.C. Therefore, it falls in
the category of exceptional cases mentioned
in Section-362 Cr.P.C. Hence, a bar of
Section 362 Cr.P.C. is not applicable in such
cases.

15. The Judgment relied upon by the
applicant's counsel does not apply in the
present case.

16. In view of the above, this Court
does not find any illegality in the
impugned order passed by the Principal
Judge, Family Court, Azamgarh.

17.

Accordingly,
the
present
application is rejected.

18. Considering the fact that
application u/s 125 Cr.P.C. has been
pending since 2016, therefore, Principal
Judge, Family Court, Azamgarh, is
directed to conclude the proceeding u/s
125 Cr.P.C., expeditiously, preferably
within a period of one year, without giving
any unnecessary adjournment to any of the
parties.
----------
(2024) 5 ILRA 671
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 10.05.2024

BEFORE

THE HON'BLE VIKRAM D. CHAUHAN, J.

Application U/S 482. No. 10569 of 2024

Kapil Tomar ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Ankur Singh Kushwaha, Sri Santosh
Kumar
Upadhyay,
Sri
Vinod
Kumar
Upadhyay

Counsel for the Opposite Parties:
G.A., Sri Shekhar Gangal
672 INDIAN LAW REPORTS ALLAHABAD SERIES
A. Criminal Law-Criminal Procedure Code,
1973-Section
482-Indian
Penal
Code,
1860-Sections 304-B, 306,498-A, 323, 504
& 506 - 3⁄4 D.P. Act 1961-quashing of
summoning order-dowry death-deceased
wife committed suicide due to harassment
within one year of her marriage-The
applicant claimed that wife was having
affair with another person and placed some
documents
in
his
defence-Once
the
informant has given specific statement
that there was demand of dowry, there was
no occasion for the Investigating Officer to
have not relied upon the statement of
informant-The court held whether the wife
has died on account of behavior of
applicant or solely on her own will, it is to
be seen at the time of evidence-At this
stage
such
issues
cannot
be
considered.(Para 1 to 10)

The application is rejected. (E-6)

List of Cases cited:

Babubhai & ors. Vs St. of Guj. & ors. (2010) 0
Supreme (SC) 782

(Delivered by Hon'ble Vikram D.
Chauhan, J.)

1. Heard learned counsel for the
applicant, Sri Shekhar Gangal, learned
counsel for opposite party no.2 and learned
AGA for the State.

2. This application under Section 482
Cr.P.C. has been filed by applicant for
quashing the entire proceedings of Case
No.7114 of 2024 (State Vs. Kapil Tomar),
under Sections 304-B, 323, 498-A IPC and
Section 3/4 D.P. Act, 1961, P.S. Chandaus,
District Aligarh arising out of Case Crime
No.0079 of 2023, under Sections 306, 323,
498-A IPC and Section 3/4 D.P. Act, 1961,
P.S. Chandaus, District Aligarh including
charge sheet dated 12.8.2023 bearing no.175
of 2023 as well as cognizance and
summoning order dated 29.1.2024 passed
by learned Chief Judicial Magistrate,
District Aligarh.

3. It is submitted by learned counsel for
the applicant that applicant is husband and
charge sheet has been filed against applicant
under Sections 304-B, 323, 498-A IPC and
Section 3/4 D.P. Act, 1961. The marriage of
the applicant took place with the deceased
on 4.12.2022. As per prosecution case, at the
time of marriage dowry was given to the
applicant
and
family
members
and,
thereafter, harassment was extended to the
deceased for further dowry and in this
respect, on 5.1.2023 when the informant
along with family members went to the
house of applicant, demand of dowry was
reiterated and car was being demanded.
Subsequently, as per allegation, the wife
was thrown out of the house and thereafter,
the demand was also made and as a result of
same on 6.4.2023 deceased wife has
committed suicide.

3-A. It is submitted by learned counsel
for the applicant that present criminal
proceedings are abuse of process of law as
the conduct of wife was not proper as a
result of same, the father of informant on
30.12.2022 has written a letter admitting
mistake of the deceased and assuring the
applicant of non repetition of the same in
future. It is further submitted by learned
counsel for the applicant that conduct of
deceased wife being not fair an agreement
was entered into between husband and wife,
which is at page 115 of the paper book.

3-B. It is submitted by learned counsel
for the applicant that independent witness
have also given statement that there was
dispute between husband and wife on
account of the fact that wife was interested
in some another person and as a result of
same, there was friction in the marriage and
5 All. Kapil Tomar Vs. State of U.P. & Anr.
673
marriage was not consummated. It is
submitted that although statement of
independent witnesses, who were resident of
same locality, have been recorded in case
diary, however, while submitting charge
sheet the aforesaid statement has not been
considered. It is submitted that Investigating
Officer
is
required
to
conduct
fair
investigation independently and cannot be
partisan to the investigation. In this respect,
learned counsel for the applicant has relied
upon the judgement of Supreme Court in
Babubhai and others Vs. State of Gujarat
and others; 2010 0 Supreme (SC) 782. It is
submitted by learned counsel for the
applicant that as per Regulation 107 of
Police Regulation, it is the duty of the
Investigating
Officer
to
conduct
investigation fairly and to consider the
defence raised by the applicant at the time of
investigation. In this respect, it is submitted
that complaint was also made to the Senior
Superintendent of Police, which is at page
147 of the paper book , which is part of case
diary according to learned counsel for the
applicant.

3-C. It is also submitted by learned
counsel for the applicant that the charge
sheet has been submitted by considering
the statement of informant. On the
aforesaid basis, learned counsel for the
applicant submits that the present criminal
proceedings are not tenable under law. It
is also submitted by learned counsel for
the applicant that the wife has committed
suicide at her parental home and she has
not committed suicide at the place of
applicant
and
as
such,
criminal
proceedings are liable to be quashed. It is
further submitted by learned counsel for
the applicant that wife has not committed
suicide on account of harassment for
demand of dowry, as has been claimed by
the prosecution.

4. Learned counsel for opposite party
no.2 has opposed the application and
submits that the wife has died within seven
years of marriage and the death is unnatural.
It is submitted that the defence raised by
applicant cannot be considered at this stage.
It is further submitted by learned counsel for
opposite party no.2 that there was no
agreement entered into between the parties
and the letter which is at page 112 of the
paper book is not admitted. It is submitted
by learned counsel for opposite party no.2
that on account of harassment by applicant
for demand of dowry, the daughter of
informant has committed suicide and
applicant is liable to be proceeded in
accordance with law. It is also submitted
that once the statement of witnesses of
informant has been recorded, who have
supported the prosecution case, then there
was no other option for the Investigation
Officer except to proceed to submit charge
sheet
and
court
concerned had not
committed any error in taking cognizance in
pursuance of charge sheet submitted by
Investigating Officer.

5. It is to be seen that in the present
case, applicant, who is husband was married
to the deceased on 4.12.2022. The wife has
committed
suicide
on 6.4.2023.
The
applicant claimed that wife was having an
affair with another person and as such, she
was not interested in marriage and marriage
was not consummated. In this respect,
learned counsel for the applicant has placed
before this Court the letter dated 30.12.2022,
which is at page 112 of the paper book to
submit that informant had admitted the
mistake of deceased. It is to be seen that
learned counsel for the applicant has relied
upon the agreement entered into between
husband and wife, which is at page 115 of
the paper book. The agreement is dated
30.12.2022. On the strength of aforesaid, it
674 INDIAN LAW REPORTS ALLAHABAD SERIES
has been stated before this Court that once
parties have agreed upon mistake of
deceased then subsequently lodging of
criminal proceeding is not tenable.

6. It is to be seen that documents
placed before this Court being letter dated
30.12.2022
and
agreement
dated
30.12.2022, learned counsel for opposite
party no.2 has not admitted the aforesaid
documents. The aforesaid documents are,
therefore, at present a disputed documents,
which are required to be proved by the
applicant at the stage of trial. At this stage,
the aforesaid documents are mere defence
raised by the applicant, which is to be
considered at proper stage by the court
concerned. The jurisdiction of Section 482
Cr.P.C. cannot be exercised to hold mini
trial at this stage.

7. So far as argument of learned
counsel for the applicant that independent
witnesses whose statements were recorded
have not been considered while submitting
charge sheet is concerned, the same is to
be seen by court concerned. A perusal of
statement of informant would demonstrate
that there is allegation with regard to
demand of dowry against applicant and
even specific statement has been recorded
in statement under Section 161 Cr.P.C.
The independent witnesses relied upon by
the applicant are the resident of the same
area, who have stated that there was a
dispute between husband and wife,
however, with regard to transaction of
demand of dowry, it is not the case that
they were the witnesses to any such
transaction. Once the informant has given
specific statement that there was demand
of dowry, there was no occasion for the
Investigating Officer to have not relied
upon the statement of informant.

8. The third submission of learned
counsel for the applicant is that the wife has
committed suicide in her parental home. No
site plan has been filed along with
application.

9. The effect whether the wife has died
on account of behaviour of applicant or
solely on her own will, it is to be seen at the
time of evidence. At this stage such issue
cannot be considered. It can be a case where
wife goes back to her parental home being
harassed, she commits suicide at her
parental home although the possibility may
be remote, however, in application under
Section 482 Cr.P.C., such issue cannot be
looked into. The present application under
Section 482 Cr.P.C. is devoid of merits and
is liable to be rejected.

10.

Accordingly,
the
present
application under Section 482 Cr.P.C. is
rejected.
----------
(2024) 5 ILRA 674
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2024

BEFORE

THE HON'BLE SHEKHAR B. SARAF, J.

Appeal U/S 37 of Arbitration & Conciliation Act
1996 No. 257 of 2024

Sh. Dharmveer Tyagi & Ors.
 ...Defendants/Appellants
Versus
Competent Authority Dfcc Special Land
Acquisition Joint Officer Organization &
Ors. ...Plaintiffs/Respondents

Counsel for the Appellants:
Sri Shivam Shukla, Sri Sushil Kumar Shukla

Counsel for the Respondents: