# Sudesh Pal v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 4 ILRA 415
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-07
- **Case number:** Application u/s 482 No. 35720 of 2022
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sudesh-pal-v-state-of-u-p-anr-opp-parties-49965
- **Pages:** 4

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860-Sections 498-A, 504,
304-B, 306 & 3⁄4 D.P. Act-demand of
dowry-unnatural death-wife committed
suicide after institution of divorce petition
by
the
applicant/husband-chargesheet
was filed against the accused/applicant
u/s 304B, 306 alongwith Section 498-As
per the postmortem report, the cause of
death was shock and haemorrhage as a
result of anti-mortem injury-The evidence
is not clear that she committed suicide or
she was killed-At the stage of charge,
benefit of doubt cannot be given to the
accused and in such cases alternative
charge u/s 304B and 302 IPC could be
framed along with charge u/s 498-A IPCWhen a charge is framed u/s 302 IPC, it
does not mean that the trial court is
determined to convict the accused u/s 302
IPC-It is only as a matter of abundant
caution and to give respect to the
directions given in this respect by Apex
Court, charge u/s 302 IPC is only
alternative-Sections 304B and 306 IPC are
two different sections, which cannot sail
together-An alternative charge may be
framed u/s 302 IPC, but no alternative
charge should be framed u/s 306 IPCThus, the trial court has wrongly framed
416 INDIAN LAW REPORTS ALLAHABAD SERIES
an alternative charge u/s 306 IPC.(Para 1
to 13)

The application is partly allowed. (E-6)

List of Cases cited:

## Text

4 All. Sudesh Pal Vs. State of U.P. & Anr.
415
was below the age of 18 years at the time
of alleged commission of crime. It is
common principle of law that a person
below the age of 18 years cannot give
consent with regard to conversion of his or
her religion and such person cannot give
consent with regard to Section 376 I.P.C as
Section 375 I.P.C provides that if a physical
relation is being established with or without
consent of a lady below 18 years of age, it
would not be a valid consent and in that
case physical relation with such minor girl
would be deemed to be raped under the
definition of Section 375 I.P.C. There is no
record of the proceedings of Habeas
Corpus Writ Petition No. 604 of 2022 to
strengthen the version of the applicant that
the victim had stated in favour of the
applicant in High Court. There is no proof
that father of the victim had changed her
actual date of birth. If a person is below the
age of 18 years and he/she is taken away
from his/her lawful guardianship, it may be
said that such person had been kidnapped.
After due investigation a charge-sheet has
been submitted against the accused under
Section 363, 366, 376 I.P.C and 3⁄4 POCSO
Act, hence, on the basis of evidence on
record, it cannot be concluded that ongoing
criminal proceeding is the abuse of process
of Court and to prevent such abuse or to
secure the ends of justice, this Court should
exercise its inherent jurisdiction to quash
the entire criminal proceeding in question .

15. Hence, the proceedings under
Section 482 Cr.P.C is not tenable and is
liable to be rejected.

O R D E R

16. The application under Section 482
Cr.P.C is accordingly rejected.
----------
(2023) 4 ILRA 415
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 35720 of 2022

Sudesh Pal ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri Ayank Mishra

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code,1860-Sections 498-A, 504,
304-B, 306 & 3⁄4 D.P. Act-demand of
dowry-unnatural death-wife committed
suicide after institution of divorce petition
by
the
applicant/husband-chargesheet
was filed against the accused/applicant
u/s 304B, 306 alongwith Section 498-As
per the postmortem report, the cause of
death was shock and haemorrhage as a
result of anti-mortem injury-The evidence
is not clear that she committed suicide or
she was killed-At the stage of charge,
benefit of doubt cannot be given to the
accused and in such cases alternative
charge u/s 304B and 302 IPC could be
framed along with charge u/s 498-A IPCWhen a charge is framed u/s 302 IPC, it
does not mean that the trial court is
determined to convict the accused u/s 302
IPC-It is only as a matter of abundant
caution and to give respect to the
directions given in this respect by Apex
Court, charge u/s 302 IPC is only
alternative-Sections 304B and 306 IPC are
two different sections, which cannot sail
together-An alternative charge may be
framed u/s 302 IPC, but no alternative
charge should be framed u/s 306 IPCThus, the trial court has wrongly framed
416 INDIAN LAW REPORTS ALLAHABAD SERIES
an alternative charge u/s 306 IPC.(Para 1
to 13)

The application is partly allowed. (E-6)

List of Cases cited:

1. K. Prema S. Rao Vs Yadla Srinivas Rao,
(2003) AIR SC 11

2. Balool Vs St. of Raj. (2003) Cr.L.J. 3286

3. Rajbir Vs St. of Har. (2011) AIR SC 568
(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri Ayank Mishra, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned A.G.A for the State and
perused the record.

2. The applicant has filed the
present Application U/s 482 Cr.P.C to
quash
the
entire
proceeding
under
Sections 498-A, 504, 304-B, 306 I.P.C
and Section 3⁄4 Dowry Prohibition Act,
arising out of Crime No. 45 of 2021,
Police Station Daurala, District Meerut,
pending in the Court of C.J.M. Meerut on
the ground that the daughter of the
informant opposite party no. 2, who was
the wife of the applicant committed
suicide
after
institution
of
divorce
petition by the applicant. According to
the F.I.R, the marriage of the daughter of
opposite party no. 2 was solemnized with
the applicant on 19.11.2018. The family
members were not satisfied with the
dowry and they were pressurising the
deceased (Mohini) for providing a car in
dowry, which could not be fulfilled,
hence
she
was
ousted
from
her
matrimonial house on 04.06.2020 and
when she came to know about the divorce
petition,
she
committed
suicide.
According to the applicant, the F.I.R has
been lodged after a lapse of a week
without any explanation for the delay in
lodging the F.I.R, thereafter the I.O.
started investigation and recorded the
statement of the informant and prepared
site plan. As per the postmortem report,
the cause of death was shock and
haemorrhage as a result of anti-mortem
injury. In the F.I.R, the complainant has
specifically averred that his daughter has
committed suicide. The I.O. recorded the
statement of the witnesses - Kushal Pal,
Sattya Pal and Shyamveer. From the
version of the prosecution story, only
Section 306 I.P.C is attracted. But after
the investigation, the I.O. submitted the
charge-sheet under Sections 498-A, 323,
504, 506, 304-B I.PC and 3⁄4 Dowry
Prohibition Act.

3. The I.O has overlooked the
guidelines issued by the Apex Court in
several
judgments,
wherein
the
implication of the entire family had been
forbidden. The I.O. has investigated the
case in a very casual manner. Sections
306 and 304-B I.P.C are two different
Sections, which cannot sail together.

4. The present case is the best
example of misuse of the procedure. The
Sessions Court has framed an alternative
charge under Section 306 I.P.C alongwith
Section 304-B I.P.C. From the bare perusal
of the F.I.R, no offence under the aforesaid
Sections are made out. The applicant is
wholly innocent and has been falsely
implicated in the aforesaid case. He did not
demand any dowry and did not commit any
cruelty or assault against the deceased. The
prosecution
is
based
on
malicious
intentions and is not sustainable in the eye
of law. The applicant has good moral
character and has no criminal history, if the
present proceeding is not quashed, he
4 All. Sudesh Pal Vs. State of U.P. & Anr.
417
would suffer irreparable loss and injury,
hence the proceeding of the S.T NO 105 of
2022 mentioned above be set aside.

5. The applicant has annexed all the
relevant papers with the application.

6. Heard and perused the record.

7. During the argument, the learned
counsel for the applicant did not argue on
all of the aspects and facts mentioned in the
application, but has argued only on the
point that if a charge is framed under
Section 304-B I.P.C, then no alternative
charge under Section 306 I.P.C could be
framed.

8. This Court is of the view that if the
charge-sheet has submitted under Section
304-B of the I.P.C an alternative charge
under Section 302 I.P.C alongwith the main
charge under Section 304-B I.P.C, shall be
framed but no alternative charge should be
framed under Section 306 I.P.C. The reason
behind this is that if in a criminal case a
charge under Section 304-B I.P.C is being
framed and the prosecution succeeds in
proving the case beyond reasonable doubt,
the accused may be convicted under
Section 304-B and if the trial court comes
to the conclusion that it is a case of
abatement to commit suicide, the court can
very well punish the accused under Section
306 I.P.C even in the absence of charge
under Section 306 I.P.C as the punishment
under Section 306 I.P.C is lesser than the
punishment provided under Section 304-B
I.P.C. In K. Prema S. Rao Vs. Yadla
Srinivas Rao, A.I.R 2003 S.C 11 and in
Balool Vs. State of Rajasthan (2003)
Cr.L.J. 3286, it is held that the accused
persons charged under Sections 498-A,
304-B and 120-B I.P.C, can be convicted
under Section 306 I.P.C, if evidence proves
the same, even if no charge under Section
306 I.P.C has been framed.

9. The Apex Court has held in Rajbir
Vs. State of Haryana, AIR 2011 SC 568
that if a charge-sheet has been submitted
under Section 304-B I.P.C, an alternative
charge under Section 302 should be
framed; and if the court comes to the
conclusion that the accused is guilty under
Section 302 I.P.C, in that case the accused
may be convicted and punished under
Section 302 I.P.C because the sentence
provided under Section 302 I.P.C is more
severe than the punishment provided under
Section 304-B I.P.C. The Apex Court in
Rajbir (supra) has directed all the trial
courts in India to ordinarily add Section
302 I.P.C to the charge of Section 304-B
I.P.C. In this regard Registrar Generals of
all the High Courts have been directed to
circulate this judgment to all the trial courts
in India.

10. Thus this Court is of the
considered view that an alternative charge
may be framed under Section 302 I.P.C, but
no alternative charge should be framed
under Section 306 I.P.C.

11. So far as the innocence or guilt of
the accused is concerned, at the very outset
a charge-sheet under Section 304-B I.P.C.
has been filed and there is an unnatural
death
of
the
deceased
during
the
subsistence of the marital relation between
the applicant and the deceased and there
was a matrimonial dispute between the
wife and the husband and a divorce petition
was also filed by the applicant. This Court
is not competent to decide the fact and
evaluate the evidence under Section 482
Cr.P.C, therefore no case is made out to
quash
the
entire
proceeding
of
the
concerned sessions trial.
418 INDIAN LAW REPORTS ALLAHABAD SERIES

12. On the basis the aforesaid
discussions, the Court comes to the
conclusion that the trial court has wrongly
framed an alternative Charge under Section
306 I.P.C, therefore this Application U/s
482 Cr.P.C is liable to be allowed partly.

O R D E R

13. The application is partly allowed
in respect of framing of alternative charge
under Section 306 I.P.C on 01.08.2022 and
the alternative charge framed under Section
306 I.P.C is set aside. The learned trial
court is directed to frame the charge afresh.
The charges so framed may also be altered
exercising the power conferred under
Section 216 Cr.P.C. instead of framing the
fresh charges.

A copy of this order be sent to the
concerned court for compliance. O
----------
(2023) 4 ILRA 418
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Application u/s 482 No. 35979 of 2022

Nadeem Salmani ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Sri A.C. Srivastava

Counsel for the Opp. Parties:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 482 - Indian
Penal Code, 1860-Sections 392, & 413/34Quashing
of
Non-bailable
Warrant-IPhone mobile was looted and 20 mobile
phones
were
recovered
from
the
possession of accused persons-In the
present case, the applicant having full
knowledge that he was wanted in this
case
as
accused,
neither
made
him
available for interrogation to the I.O. nor
moved any form of bail application-the
Impugned order was passed by the
custody of the I.O. for the aid in
investigation-There is no bar for issuance
of
non-bailable
against
any
accused
during the investigation in order to bring
the accused before the Magistrate within
twenty four hours from the time of his
arrest, After arrest he may be sent either
to judicial or the police custody as the
case may be-Therefore the order passed
by the concerned Magistrate being in
accordance with law is not liable to be set
aside.(Para 1 to 21)
The application is dismissed. (E-6)

List of Cases cited:

1. Ekta @ Bulbul Vs St. of U.P. & anr. Appl. u/s
482 No. 30391 of 2016

2. St. thru CBI Vs Dawood Ibrahim Kaskar &
ors. (1997) AIR SC 2494

3. D.K. Basu Vs St. of W.B. (1997) 1 SCC 416

4. Harendra Vs St. of U.P. & ors., CRLR No.
3468 of 2013

5. Smt. Pragati Chaudhary @ Pragati Singhal Vs
St. of U.P. & anr.,Appl. u/s 482 No. 2994 of
2018

6. Manoj @ Ase & ors. Vs St. of U.P., CRLR No.
2827 of 2010

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. Heard Sri A.C. Srivastava, learned
counsel for the applicant, Sri Pankaj Kumar
Tripathi, learned A.G.A for the State, and
perused the material available on record.