# Nitin & Ors v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 976
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-11-16
- **Bench:** Ram Manohar Narayan Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nitin-ors-v-state-of-u-p-anr-50868
- **Pages:** 5

## Headnote

A. Constitution of India, 1950-Article 227Indian
Penal
Code,
1860-
Dowry
&
Prohibition act,1961 - Sections 406 & 6 -
Challenge
to-summoning
ordercomplainant version in present complaint
1 All. Nitin & Ors. Vs. State of U.P. & Anr.
977
as well as in her previous FIR are
substantially same-no specific averment in
the complaint with regard to section 6 of
D.P. Act-filing of complaint on similar
allegations is not tenable- if section 406
IPC or any other penal section of any
criminal statute are lacking in FIR, the
informant has every right to move an
application for addition of charge, during
course of trial in case it proceeds, but
fresh complaint on similar version already
taken in FIR lodged at the instance of
complainant will amount to misuse of
process of law-Hence, summoning order
passed
by
the
court
below
is
set
aside.(Para 5 to 7)

The writ petition is allowed. (E-6)

## Text

976 INDIAN LAW REPORTS ALLAHABAD SERIES
the charges. Immediately after filing of
charge sheet, application for discharge was
filed. The settled proposition of law is that
at the stage of hearing on the charges
entire
evidence
produced
by
the
prosecution is to be believed. In case no
offence is made out then only an accused
can
be
discharged.
Truthfulness,
sufficiency and acceptability of the
material produced can be done only at
the stage of trial. At the stage of charge,
the Court has to satisfy that a prima facie
case is made out against the accused
person. Interference of this Court at that
stage is required only if there is strong
reason to hold that in case the trial is
allowed to proceed, the same would
amount to abuse of process of the Court.

37. Now coming to this case. It is
apparently clear that while deciding the
discharge application trial Court has not
followed the settled ratio of law laid
down by the Apex Court as well as this
Court. In fact, Court blindly relying upon
the charge sheet submitted by I.O.
rejected the discharge application and
framed charges thereafter. As discussed
hereinabove, treating the allegation in
FIR as well as statement recorded under
Section 161 Cr.P.C. is correct, no case is
made out under Sections 386 & 389 IPC,
but trial Court functioning like a post
office accepted the charge sheet and
treating the version true, rejected the
discharge
application.
Thereafter
proceeded to frame charges also in the
same sections. In fact, approach of trial
Court suffers non application of judicial
view settled by the Apex Court as well as
different Courts. In a very casual manner
vide impugned orders dated 23.11.2022 &
22.2.2023 discharge application has been
rejected and charges have been framed,
which cannot be sustained.

38. Therefore, in light of factual and
legal
discussions
made
hereinabove,
application is partly allowed. Impugned
orders dated 23.11.2022 & 22.2.2023
passed by Chief Judicial Magistrate,
Hathras so far it relates to rejection of
discharge application for Section 386 &
389 IPC as well as framing charges under
Section 386 & 389 IPC are hereby quashed.

39. For remaining sections i.e.,
Sections 452, 504, 506 & 507 IPC, this
Court found no illegality in rejecting the
discharge application and framing charges.
Further, court is directed to proceed to
decide the case strictly in accordance with
law.

40. No order as to costs.
----------
(2024) 1 ILRA 976
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Matters U/A 227 No. 1718 of 2023 (Criminal)

Nitin & Ors. ...Petitioners
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioners:
Sri Sunil Kumar Saroj, Sri Vishal Ohri

Counsel for the Respondents:
G.A., Sri Ashok Kumar Mishra, Sri Krishna
Kant Tiwari

A. Constitution of India, 1950-Article 227Indian
Penal
Code,
1860-
Dowry
&
Prohibition act,1961 - Sections 406 & 6 -
Challenge
to-summoning
ordercomplainant version in present complaint
1 All. Nitin & Ors. Vs. State of U.P. & Anr.
977
as well as in her previous FIR are
substantially same-no specific averment in
the complaint with regard to section 6 of
D.P. Act-filing of complaint on similar
allegations is not tenable- if section 406
IPC or any other penal section of any
criminal statute are lacking in FIR, the
informant has every right to move an
application for addition of charge, during
course of trial in case it proceeds, but
fresh complaint on similar version already
taken in FIR lodged at the instance of
complainant will amount to misuse of
process of law-Hence, summoning order
passed
by
the
court
below
is
set
aside.(Para 5 to 7)

The writ petition is allowed. (E-6)

(Delivered by Ram Manohar Narayan
Mishra, J.)

1. The instant petition under Article
227 of the Constitution of India has been
filed by the petitioners against the order
dated
5.9.2018
passed
by
learned
Additional Sessions Judge/ F.T.C., court
no. 1, Bijnor in Criminal Revision no. 499
of 2022 whereby summoning order passed
by learned A.C.J.M. dated 15.9.2018 in
Complaint Case no. 839 of 2018 (Pooja
Rani @ Himanshi vs. Ashwani Kumar and
others) has been affirmed. The petitioners
by means of present petition have assailed
both orders of the courts below.

2. Heard learned counsel for the
petitioners, learned AGA and learned
counsel for respondent no. 2.

3. Learned counsel for the petitioners
submitted that there is matrimonial disputes
between the petitioners and respondent no.
2. The petitioners are parents-in-law,
brother and sister-in-law of the respondent
no. 2. Complaint filed before the court of
Magistrate against the petitioners, her
husband, with averment that her marriage
with opposite party Ashwani Kumar was
solemnized on 5.3.2016 according to Hindu
rites and rituals in which her father had
given sufficient dowry and gifts but the
opposite parties were not satisfied with the
same and demanded additional dowry.
They used to harass her and subjected her
to physical and matrimonial cruelty for non
fulfillment of demand of dowry. Her
husband was having illicit relation with
some other lady. She was turned out from
her matrimonial home on 26.6.2016 and the
opposite parties withheld her stridhan and
are using her articles in their own use
without any authority. They are also
damaging her articles. The petitioner no. 1
Nitin used to tease her. Learned court
below summoned the petitioners and
husband of the complainant to face trial
under section 406 IPC and Section 6 of
D.P. Act vide order dated 15.9.2018. The
summoning order was assailed by filing
revision before the court of sessions by
present petitioners, however, learned court
below dismissed the revision and affirmed
the summoning order passed by the learned
Magistrate vide order dated 4.2.2023
without considering the grounds taken in
the revision. Long before filing of present
complaint, the petitioner no. 1 lodged an
F.I.R. bearing Crime no. 52 of 2017, under
Sections 452, 323, 506 IPC against father
and family members of the complainant on
17.3.2017. The petitioner no. 1 is informant
and injured in the said F.I.R. and received
as many as seven injuries including one
incised wound on his person. The instant
complaint was filed only to harass the
petitioners
who
are
in-laws
of
the
complainant. Another F.I.R. was also got
registered by the complainant on 19.3.2017
bearing Crime no. 142 of 2017, under
Sections 147, 354-B, 427, 498-A IPC and
3/4 of D.P. Act against her husband and
present petitioners with similar allegation
978 INDIAN LAW REPORTS ALLAHABAD SERIES
which was challenged by the petitioners
before this Court by way of application u/s
482 No. 33834 of 2018 wherein matter was
referred to mediation centre of this Court
and an interim order was passed on
22.11.2018 to the effect that till the next
date of listing, no coercive action shall be
taken against the applicants in said criminal
case arising out of Case Crime no. 142 of
2017. Mediation got unsuccessful. The said
petition u/s 482 Cr.P.C. is still pending
before this Court. Complaint case filed by
respondent no. 2 under section 12 of
Protection of Women from Domestic
Violence Act has been dismissed by the
Delhi court vide order dated 8.3.2022 for
want of prosecution and a copy of order is
filed on record. The present complaint has
been filed by respondent no. 2 with a view
to misuse process of law and harass the
petitioners.
Moreover,
the
petitioners
cannot be beneficiary of any alleged
demand of dowry.

4. Per contra, learned counsel for
respondent no. 2 submitted that no cogent
ground
has
been
disclosed
by
the
petitioners before this Court which would
warrant interference in concurrent findings
of the court below. There is no infirmity,
illegality or irregularity in the impugned
order passed by the courts below. The
instant petition is devoid of merit and is
liable to be dismissed. He further submitted
that mediation directed by this Court in
petition u/s 482 Cr.P.C. filed by the
petitioners with regard to previous FIR, has
failed.

5. This Court is not oblivious of the
fact that there are concurrent findings of the
court below with regard to matter in issue
in present petition. The court of first
instance
summoned
the
petitioners
alongwith co-accused Ashwani Kumar,
husband of the victim, for facing trial of
charge under Section 406 IPC and Section
6 of D.P. Act on complaint filed by the
respondent no. 2, Pooja Rani @ Himanshi.
The said complaint was filed on 19.2.2018.
Learned court below after
recording
statement of the complainant and her
witnesses Narendra Singh and Karan
Singh, who are uncle and father of the
complainant, under section 200 and 202
Cr.P.C.,
summoned
the
petitioners
alongwith co-accused Ashwani Kumar for
charge under Section 406 IPC and section 6
of D.P. Act. Prior to filing of present
complaint, an F.I.R. was lodged at the
instance of complainant at P.S. Noorpur,
District Bijnor on 19.3.2017 bearing Crime
no. 142 of 2017, under Sections 147, 354B, 427, 498-A IPC and 3/4 of D.P. Act
against her husband Ashwani Kumar and
present petitioners in which all allegations
of present complaint were substantially
included. In said FIR also it is stated that
on being harassed and coerced by accused
persons, informant was compelled to shift
to her parental place on 20.6.2016. Her
ornaments were snatched by her in-laws.
The informant/ complainant has also
levelled allegation of teasing (molestation)
against the petitioner no. 1 Nitin, who is
her brother-in-law (dever) in said F.I.R.
However, some interim order was passed
by this Court on 12.11.2018 on application
of Ashwani Kumar and six others under
Section 482 Cr.P.C. No. 33834 of 2018.
The applicant therein included present
petitioners.
Matter
was
referred
to
mediation centre and till the next date of
listing it was directed that no coercive
action shall be taken against the applicants
in criminal case arising out of Crime no.
142 of 2017, under Sections 147, 354-B,
427, 498-A IPC and 3/4 of D.P. Act. Prior
to lodging of this F.I.R. on 19.3.2017, the
petitioner no. 1 had lodged an F.I.R. on
1 All. Nitin & Ors. Vs. State of U.P. & Anr.
979
15.3.2017 at 1:30 pm against father and
family
members
of
the
informant/
complainant under Sections 452, 323, 506
IPC, thus, present complaint as well as
previous F.I.R. lodged at the instance of
respondent no. 2 is proceeded by F.I.R.
lodged by petitioner no. 1 against the father
and family members of complainant as
from the perusal of F.I.R. version of the
complainant in Case Crime no. 142 of 2017
and present complaint on which petitioner
has been summoned to face trial, it appears
that version in both documents are
substantially same, although section 6 of
D.P. Act and Section 406 IPC are not
added in the F.I.R. but there are allegations
with that regard to that in F.I.R. itself,
therefore, court below has summoned the
accused persons/ petitioners inter-alia for
charge under section 6 of D.P. Act, which
provides as under:-

"6. Dowry to be for the benefit of
the wife or her heirs.?

(1) Where any dowry is received
by any person other than the woman in
connection with whose marriage it is given,
that person shall transfer it to the woman
(1) Where any dowry is received by any
person other than the woman in connection
with whose marriage it is given, that person
shall transfer it to the woman"

(a) if the dowry was received
before marriage, within [three months]
after the date of marriage; or

(b) if the dowry was received at
the time of or after the marriage, within
[three months] after the date of its receipt;
or

(c) if the dowry was received
when the woman was a minor, within
1[three months] after she has attained the
age of eighteen years, and pending such
transfer, shall hold it in trust for the
benefit of the woman. [(2) If any person
fails to transfer any property as required
by sub-section (1) within the time limit
specified therefor, [or as required by subsection (3),] he shall be punishable with
imprisonment for a term which shall not
be less than six months, but which may
extend to two years or with fine [which
shall not be less than five thousand rupees,
but which may extend to ten thousand
rupees] or with both.] [(2) If any person
fails to transfer any property as required
by sub-section (1) within the time limit
specified therefor, [or as required by subsection (3),] he shall be punishable with
imprisonment for a term which shall not
be less than six months, but which may
extend to two years or with fine [which
shall not be less than five thousand rupees,
but which may extend to ten thousand
rupees] or with both.]"

(3) Where the woman entitled to
any property under sub-section (1) dies
before receiving it, the heirs of the woman
shall be entitled to claim it from the person
holding it for the time being: [Provided that
where such woman dies within seven years
of her marriage, otherwise than due to
natural
causes,
such
property
shall,
[Provided that where such woman dies
within seven years of her marriage,
otherwise than due to natural causes, such
property shall,"

(a) if she has no children, be
transferred to her parents; or

(b) if she has children, be
transferred to such children and pending
such transfer, be held in trust for such
children.]
980 INDIAN LAW REPORTS ALLAHABAD SERIES

[(3A) Where a person convicted
under sub-section (2) for failure to transfer
any property as required by sub-section (1)
[or sub-section (3)] has not, before his
conviction under that sub-section, transferred
such property to the woman entitled thereto
or, as the case may be, [her heirs, parents or
children] the Court shall, in addition to
awarding punishment under that sub-section,
direct, by order in writing, that such person
shall transfer the property to such woman or,
as the case may be, [her heirs, parents or
children] within such period as may be
specified in the order, and if such person fails
to comply with the direction within the period
so specified, an amount equal to the value of
the property may be recovered from him as if
it were a fine imposed by such Court and paid
to such woman or, as the case may be, [her
heirs, parents or children]."

(4) Nothing contained in this
section shall affect the provisions of section 3
or section 4."

6. From perusal of above provision it
appears that there is no specific averment in
the complaint with regard to section 6 of D.P.
Act, however, it is stated therein that accused
persons failed to return her stridhan given by
her parents on demand made by her which
comes within the purview of section 406 IPC
itself. If section 406 IPC or any other penal
section of any criminal statute are lacking in
FIR, the informant has every right to move an
application for addition of charge, during
course of trial in case it proceeds, but fresh
complaint on similar version already taken in
F.I.R. lodged at the instance of complainant
will amount to misuse of process of law.
Even learned court below has not considered
this point in true prospective and dismissed
the revision filed by the petitioners against
the summoning order. The points raised in
present petition were raised before the
revisional court but same was not duly
considered by the revisional court and
revision was dismissed in summary manner
after citing certain case laws. Article 227 of
the Constitution of India confers on High
Courts power of superintendence over all
courts, tribunals throughout jurisdiction of
concerned High Court.

7. In the light of foregoing discussions
and for the reason that complainant version in
present complaint as well as in her previous
F.I.R. are substantially same, filing of
complaint on similar allegations taken in
F.I.R. already lodged is not tenable and
summoning order issued by the court of first
instance pursuant to said complaint and
judgement of revisional court affirming said
summoning order in criminal revision
preferred by present petitioners are not
sustainable and orders of both court below
are liable to be set aside.

8. The impugned orders passed by the
courts below are set aside. However, it is
clarified that observations made herein above
will not affect the proceedings initiated
pursuant to F.I.R. lodged bearing Case Crime
no. 142 of 2017, P.S. Noorpur, District Bijnor
against the petitioners and co-accused at the
instance of the present complaint/ respondent
no. 2.

9. The instant petition stands allowed
with above observations.
----------
(2024) 1 ILRA 980
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.12.2023

BEFORE

THE HON'BLE MRS. JYOTSNA SHARMA, J.

Matters U/A 227 No. 5804 of 2023 (Criminal)