# New Delhi v. The State, New Delhi, 1985

- **Citation:** Criminal Misc. Writ Petition No.447 of 1990
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000
- **Case number:** Criminal Misc. Writ Petition No.447 of 1990
- **Bench:** O.P. Garg
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/new-delhi-v-the-state-new-delhi-1985-39540
- **Pages:** 4

## Text

2ALL] Smt. Prem Rastogi and another V The State of U.P. & others 55

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By the Court

1. The petitioner is an accused in Crime
No. Nil of 1999 under Section 9/56 F.E.R.A.
He has been summoned for interrogation. The
allegation of the petitioner is that he has been
falsely implicated in this case. The only
request made in that direction may be issued
for interrogation of the petitioner in presence
of his lawyer.

2. I have heard Sri Manish Tiwari, learned
counsel for the petitioner and Sri S.K. Singh,
learned counsel for Union of India. The
request has been opposed by Sri S.K. Singh
on the ground that it cannot be accepted in
view of the decision of the Hon'ble Supreme
Court in "Poolpandi and others Versus
Superintendent, Central Excise and others,
1992 (29) A.C.C. page 550," it was held that
for interrogation during investigation under
the Customs Act and F.E.R. Act, the refusal
of the presence of the counsel is not violative
of Article 20(3) of the Constitution of India.

3. As against this, the learned counsel for
the petitioner has filed the copies of the
unreported judgements of this Court. The first
is that Criminal Misc. Application No.2221 of
1991 decided by Hon'ble P.K. Jain on
24.6.99. The other decision referred to is
Criminal Misc. Writ Petition No.447 of 1990
decided by Hon'ble G.S.N. Tripathi dated
26.3.98. Both these cases were under the
Customs
Act.
Similar
requests
of
the
petitioner were allowed. However, the perusal
of the judgements show that no law was
discussed and only it was considered that
there is no reason as to why the interrogation
may not be permitted before the counsel. The
third case relied on is the decision of Hon'ble
O.P. Garg, J. in Criminal Misc. Application
No.1620 of 1999 decided on 4.6.99. In a
detailed judgement the case of Poolpandi
(Supra) was considered and was distinguished
on the basis of the decision of the Hon'ble
Supreme Court in the case of "T.K. Advani,
New Delhi Vs. The State, New Delhi, 1985
Cr.L.J. page 1325." I have carefully gone
through the judgement and found that the
decision of the case of T.K. Advani, New
Delhi Vs. The State, New Delhi is based on
the decision of the case of "Smt. Nandini
Satpathy Vs. P.L. Dani and another, 1978
A.I.R. page 1025," decided by the Hon'ble
Supreme Court. This case of Smt. Nandini
Satpathy was considered by the Apex Court in
the case of Poolpandi (Supra) and has drawn
an adverse inference. Therefore, the decision
of Apex Court in the case of Poolpandi is
binding and I accordingly find that the
permission cannot be granted to the petitioner
for interrogation in presence of the counsel.

The petition is accordingly dismissed.

Petition Dismissed.
-----------

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By the Court

1. This is a petition under section 484
Cr.P.C. to quash the proceeding of case no.
747 of 1999 against the applicants pending in
the court of C.J.M. Farrukhabad and also to
quash the non-bailable warrants issued against
the applicants. The facts giving rise to this
petition are as follows;

2. The husband of applicant no. 1 Sri
Bhagwan Das Rastogi had two sons namely
Manoj Rastogi and Atul Rastogi. The
applicant no. the wife of Manoj Rastogi. The
second son, Atul Rastogi was married to
opposite party no. 3 on 30.11.1995. That after
the marriage with opposite party no. 3 she
came to the house of the applicants. It
transpired that she is not a normal lady of
sound mind but is a chronic patient of mental
disease
and
is
suffering
with
disease
schizophremia. That accordingly, he parents
were informed. The father of opposite party
no. 3 is a Senior Judicial Officer, presently
posted as District Judge. They took the
opposite party no. 3 on 5.12.1995. That the
marriage was performed by suppressing the
facts and therefore, a Matrimonial suit no.:4
of 1996 was filed on 1.1.1996 by the husband
of opposite party no.,3 to declare the marriage
as void on the ground of insanity of opposite
party no. 3 In that suit the opposite party no. 3
has been directed to pay the maintenance and
her husband is paying the maintenance
regularly and till sow has paid about Rs.
90,000/-.

3. That the father of opposite party no. 3
being District Judge is well conversant with
the law and therefore he lodged as F.I.R.
against the applicants and her other family
members for an offences under sections 498 -
A, 323,506 I.P.C. and 3/4 of Dowry
Prohibition Act. That the F.I.R. was lodged in
order to put pressure to withdraw the
matrimonial suit. That opposite party no. 3
lived at the house of the applicants only for
five days and went on 5.12.1995. The F.I.R.
was lodged after long delay on 5.3.1999 and it
has been filed as a lever to terrorise the
applicants. That the applicants filed a petition
in this court in which their arrest was stayed.
That however, now the charge sheet has been
filed and therefore, the applicants have prayed
for quashing of the F.I.R. and charge sheet.

3. As against this the contention of the
learned counsel for the opposite party no. 3 is
that se was being harassed and was tortured in
connection with ;the demand of Maruti Car,
frost
free
Refrigerator,
Vedeocon
TV
Bazooka and Washing Machine. That certain
amounts were paid by the father of the
opposite party no. 3 but he was not able to
meet all the demands. That it was totally false
that the opposite party no.3 is a person of
unsound mind and suffering from any disease.
That she has passed High School and
Intermediate Examinations in Ist Division and
in B.A. she obtained 50%j marks and is now
doing M.A. in English. That the applicants are
trying to remarry the husband of the opposite
party no. 3 and therefore, she also filed a suit
which is pending. That therefore there is no
ground to quash the charge sheet.

5. I have heard Sri R.B. Sahai, learned
counsel for the applicant, Sri S.C. Verma,
learned counsel for opposite party no. 3 and
the learned A.G.A. and have gone through the
record.

6. Whether the opposite party no.3 is a
patient of schizophrenia and is a lady of
mential disorder or the dispute between the
2ALL] Smt. Prem Rastogi and another V The State of U.P. & others 57
parties took place in connection with the
demand of dowry iskprely a question of fact
and can not be decided in these proceedings.
Even prima facie the allegations of the
applicants can not be accepted because the
opposite party no. 3 is an educated lady,
passed all examination in first division and
now doing M.A. (Final) in English Literature.
Therefore, it is not a case where prima facie
contention of the applicants may be accepted
that she is a lady of unsound mind. This point,
therefore, can be decided by the court after
recording the evidence of the parties.

7. It is true that F.I.R. was lodged after
long delay on 5.3.1999 whereas the opposite
party no. 3 left the matrimonial home on
5.12.1995. However, the F.I.R. is not barred
by time and for the reason that the F.I.R. is
delayed, the case of the complainant can not
be thrown because it was a matrimonial
dispute and in Indian Society lady is always
treated at some lower level with the husband.
It is of common experience after divorce the
man is able to get remarry very easily, but it
became were difficult for a lady to find
suitable match after she has been branded as a
divorcee. The lady has to live with her first
husband happily, therefore, it is of common
experience that every attempt is made by the
lady to make the marriage successful so also
save her life. In these circumstances it is also
a matter of common experience that the lady
is always show in taking legal steps against
the husband or other family members as
thereafter there will be a point of no return
and question of conciliation becomes remote.
For this reason it may be that the F.I.R. was
lodged after long delay and from the delay in
F.I.R. it can not be inferred that the
allegations of the opposite party no.3 are false
and should be discarded without examining
them after the opportunity of evidence.

8. It may also be mentioned that it can not
be said that the F.I.R. has been lodged with
the sole purpose of harassing as it has been
lodged in Farrukhabad where admittedly the
applicants are residing there with their family
and opposite party no.3 is not residing there.
Therefore, arguments that the proceedings are
wholly malafide and abuse of the process of
the court can not be accepted.

9. It is also contended that the opposite
party no. 3 has also filed a complaint in the
court
of
C.J.M.,
Farrukhabad
under
section494 , 109 I.P.C. Even if it is so, no
inference can be drawn that the case if false. It
is settled law that power under section 484
Cr.P.C. should be exercised very sparingly in
rare cases. Hon'ble Supreme Court in the case
J.P. Sharma Versus Vinod Kumar Jain and
others, 1986 SCC (Crl.) 216 has held that
offence made out on the basis of allegation
made in the complaint without going into
truth of otherwise or the allegations, the High
Court can not exercise its powers under
section 482 Cr.P.C. In the case of State of
Bihar Versus Rajendra Agrawalla 1996 SCC
(Crl) 628, it was observed by the Apex Court
that the power under section 482 Cr.P.C.
should be exercised very sparingly and
cautiously and the High Court should not
appreciate the evidence and come to the
conclusion that no prima facie case is made
out. It is not necessary to refer the other
authorities in this case. On the basis of the
above discussions no conclusion can be drawn
that the complaint has simply been filed in
order to harass the applicants and is abuse of
the process of the court and no case is made
out.

10. The correctness of the allegations can
be decided only after the evidence. I do not
find any ground to quash the proceedings.

The petition is dismissed.
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By the Court

1. This is a petition under Section 482 Cr.
P.C. to quash the proceedings of Criminal
Case
No.293
of
1999,
State
Versus
Gobardhan under Section 409 I.P.C. pending
in the court of Ivth Additional Civil Judge
(Junior Division), Mirzapur.

2. The quashing of the proceedings have
been requested on two grounds. The first
ground is purely legal for which learned
counsel has relied on the decision of the case
of Raj Deo Sharma Versus State of Bihar,
1998 (37) ACC 834.

3. It is contended that the Hon'ble
Supreme Court in this case has directed that in
cases punishable with imprisonment for a
period exceeding seven years the court shall
close the prosecution evidence on completion
of three years from the date of recording the
plea of accused on the charges framed,
whether the prosecution has examined all the
witnesses or not within the said period, and
the court can proceed to the next step
provided by law for the trial of the case. It is
further contended that in the present case the
charges were framed on 12.07.1994 and the
plea of the accused was recorded on that date
and large number of dates have fixed for
evidence
but
the
prosecution
has
not
examined any witness as yet, and therefore,
the evidence of the prosecution should be
closed.

4. I have considered the argument and has
bonafide doubt in my mind as to whether the
evidence could be closed in this case which is
for offence under Section 409 I.P.C. which is
punishable with imprisonment for life in view
of the directions given in the above case. The
perusal of the judgement of the Hon'ble
Supreme
Court
shows
that
the
above
directions
are in addition and without
prejudice to the directions issued by the Apex
court in the case of "Common cause" Versus
Union of India as modified later on.

5. The perusal of the direction given in the
case of "Common Cause" by the Hon'ble
Supreme Court shows that these directions