# Sunil Soni & Anr v. State of U.P. & Anr

- **Citation:** Application u/s 482 No.30953 of 2018
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-02-06
- **Case number:** Application u/s 482 No.30953 of 2018
- **Bench:** Ram Krishna Gautam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sunil-soni-anr-v-state-of-u-p-anr-46189
- **Pages:** 5

## Headnote

(A) Criminal Law- Dowry Prohibition
Act - Section 3/4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections-498-A and 304B - read with opinion and finding of
Investigating Officer is not binding
upon the Magistrate - Magistrate has
to take a decision on the basis of the
evidence, collected and contained in
the Case Diary, prepared, during
investigation
-
No
additional
document of fact is to be taken at that
juncture
of
taking
cognizance
-
exercise of inherent jurisdiction under
Section 482 Cr.P.C. is within the
limits. (Para-8,15)

In present case, statement of informant and
other witnesses, were fully intact and accusation
of first information report was reiterated in
those statements - conclusion drawn by the
Magistrate was in accordance with the evidence
collected by the Investigating Officer, as
contained in the Case Diary- Therefore, while
passing impugned summoning order, learned
Magistrate has not committed any abuse of
process of law. (Para-8)
3-5 All. Sunil Soni & Anr. Vs. State of U.P. & Anr.
1635
HELD:- Question of fact is to be seen by the
Trial court - High Court, in exercise of inherent
power, under Section 482 of Cr.P.C., is not
expected to embark upon factual matrix
because it may prejudice a fair trial - Trial court
has to make trial as per evidence to be led
before it and the law of Legislation as well as
precedents on the subject and not to be
influenced by any observations or findings
made. (Para-13,16)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-

## Text

1634 INDIAN LAW REPORTS ALLAHABAD SERIES
courts in India to strictly comply with the
directions contained in the aforesaid case,
no exception can be carved out by the court
below to the same. It is, thus, contended
that since the summoning order passed by
the court below without following the
procedure as laid down in the case of J V
Baharuni, Giriraj Proteins Pvt. Ltd.
Baldevbhai Ramjibhai Patel (Supra), the
same cannot be sustained and is, therefore,
liable to be quashed.

7. In support of his contention,
learned counsel for the applicant has also
relied upon the judgment passed in
Application u/s 482 No.30953 of 2018
(Bali Ram @ Vinod Kumar Vs. State of
U.P. & others) and Matter under Article
227 No.9655 of 2019 (Atausalam @
Chhote Vs. State of U.P. & another).

8. Per contra, learned A.G.A. for the
State has opposed the contention raised by
the learned counsel for the applicant by
submitting that the disputed cheque was
issued by the applicant but the same have
been dishonoured. Therefore, the opposite
party no.2 was right in proceeding against
the applicant by filing a complaint under
Section 138 N.I. Act.

9. Consequently, the present criminal
misc. application succeeds and is allowed.
The impugned summoning order dated
19.04..2018 passed by Judge, Additional
Court, Bijnor is hereby, set aside. The
matter is remanded to the Judge, Additional
Court, Bijnor to decide the summoning of
the applicant afresh in light of the judgment
of the Apex Court in the case of J V
Baharuni, Giriraj Proteins Pvt. Ltd.
Baldevbhai Ramjibhai Patel (Supra)
within a period of one month from the date
of production of a certified copy of this
order.
----------
(2020)03-05ILR A1634
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 06.02.2020

BEFORE

THE HON'BLE RAM KRISHNA GAUTAM, J.

Application U/S 482 Cr.P.C. No. 5028 of 2020

Sunil Soni & Anr. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Pt. S.P. Sharma

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law- Dowry Prohibition
Act - Section 3/4-Code of criminal
procedure, 1973 - Sections 482 -
Inherent jurisdiction - Indian Penal
Code, 1860 - Sections-498-A and 304B - read with opinion and finding of
Investigating Officer is not binding
upon the Magistrate - Magistrate has
to take a decision on the basis of the
evidence, collected and contained in
the Case Diary, prepared, during
investigation
-
No
additional
document of fact is to be taken at that
juncture
of
taking
cognizance
-
exercise of inherent jurisdiction under
Section 482 Cr.P.C. is within the
limits. (Para-8,15)

In present case, statement of informant and
other witnesses, were fully intact and accusation
of first information report was reiterated in
those statements - conclusion drawn by the
Magistrate was in accordance with the evidence
collected by the Investigating Officer, as
contained in the Case Diary- Therefore, while
passing impugned summoning order, learned
Magistrate has not committed any abuse of
process of law. (Para-8)
3-5 All. Sunil Soni & Anr. Vs. State of U.P. & Anr.
1635
HELD:- Question of fact is to be seen by the
Trial court - High Court, in exercise of inherent
power, under Section 482 of Cr.P.C., is not
expected to embark upon factual matrix
because it may prejudice a fair trial - Trial court
has to make trial as per evidence to be led
before it and the law of Legislation as well as
precedents on the subject and not to be
influenced by any observations or findings
made. (Para-13,16)

Application u/s 482 Cr.P.C. dismissed.
(E-7)

List Of Cases Cited:-

1. Geeta Mehrotra & anr. Vs. St. of U.P. & anr.,
(2012) 10 SCC 741

2. Dhanlakshmi v. R.Prasana Kumar , (1990) Cr
LJ 320 (DB): AIR 1990 SC 494

3. Bihar v. Murad Ali Khan , (1989) Cr LJ 1005:
AIR 1989 SC 1

4. Lal Kamlendra Pratap Singh Vs. St. of U.P. ,
2009 (3) ADJ 322 (SC)

5. Amrawati & anr. Vs. St. of U.P. , 2004 (57)
ALR 290

(Delivered by Hon'ble Ram Krishna Gautam, J.)

1. This Application, under Section
482 of Code of Criminal Procedure, 1973,
(Hereinafter, in short, referred to as
'Cr.P.C.'), has been filed by the Applicants,
Sunil Soni (Brother-in-law and Smt. Pooja
Soni (Sister-in-law), with a prayer for
setting aside impugned summoning order,
dated 27.9.2019, and for quashing of entire
proceeding of Case No.115 of 2019, reregistered as Case No.1158 of 2019 (State
vs. Mukesh Soni and others), arising out of
Case Crime No.366 of 2019, under
Sections-498-A and 304-B of Indian Penal
Code, 1860 (Hereinafter, in short, referred
to as 'IPC'), read with Section 3/4 of Dowry
Prohibition Act, Police Station-Kotwali
Jhansi, District-Jhansi, pending before the
Chief Judicial Magistrate, Jhansi.

2. Learned counsel for applicants
argued that both of the applicants were
married eight years before the occurrence.
They were residing at a remote place,
which is at a distance of more than eighty
kilometers, in Madhya Pradesh and are
having no concern with the affairs of the
family of the deceased and also are having
no concern with regard to demand of
dowry, if any, or cruelty, with regard to it
or, for that matter, dowry death of the
deceased. Pursuant to general allegations,
levelled against them, they have been roped
in this case for above offences, just to
harass them, whereas, Investigating Officer
has not chargesheeted them because of the
fact that they were not concerned with the
occurrence, but, the informant submitted an
application before learned Magistrate, at
the time of taking of cognizance, wherein,
cognizance, for offences, punishable, under
various Sections, has been taken against the
applicants, too, and, thereby, process of
summoning has been issued. It was under
abuse of process of law, in view of law laid
down by the Apex Court, in the case of
Geeta Mehrotra and another vs. State of
U.P. and another, (2012) 10 SCC 741.
Hence, for avoiding abuse of process of
law and to secure ends of justice, this
Application, under Section 482 of Cr.P.C.,
has been filed, with above prayer.

3. Learned AGA, representing State
of U.P., has vehemently opposed this
Application.

4. First information report reveals that
it was got lodged, upon a report of Jagdish
Prasad Soni, under Sections 498A and
304B of IPC, read with Section 3/4 of
Dowry Prohibition Act, against Mukesh
1636 INDIAN LAW REPORTS ALLAHABAD SERIES
Soni, Ashok Soni, Munna Soni, Smt. Bina
Bai, Smt. Pooja Devi and Sunil Soni.
Accusation, therein, was with regard to
demand of dowry and cruelty, with regard
to it. Marriage was performed on 18.2.2018
and since very beginning, above demand of
dowry, coupled with cruelty for it, being
made by all those named accused persons.
It has been specifically mentioned that
present applicants were also amongst them,
who were not satisfied with dowry, and
were
demanding
additional
dowry,
resulting in cruelty with regard to it.

5. Investigation proceeded, wherein,
statements of informant and other witnesses
were got recorded. It culminated in
submission of chargesheet against Mukesh
Soni, Ashok Soni, Munna Soni and Smt.
Bina Bai, for offences, under Sections
498A and 304B of IPC, read with Section
3/4 of Dowry Prohibition Act, leaving
behind Smt. Pooja Devi and Sunil Soni. An
application, by the informant, was moved
before the Magistrate that there had been
evidence in the statements, recorded, under
Section 161 of Cr.P.C., as of informant and
other witnesses, too, wherein specific
accusation of demand of a four wheeler, as
additional dowry, coupled with cruelty,
with regard to it, against accused persons,
including, Smt. Pooja Devi and Sunil Soni,
present applicants, herein, was there and
even after it, the chargesheet has been filed
in this case, leaving behind them (present
applicants herein).

6. Learned Magistrate heard both
sides and found that there were statements,
recorded, under Section 161 of Cr.P.C., as
of informant and other witnesses, who were
fully intact, even then, the Investigating
Officer, without any reasons, has left those
two accused persons (present applicants
herein), and as such, on the basis of the
evidence, collected in the chargesheet,
itself,
those
two
accused
persons,
applicants herein, were also summoned.

7. Repeated propositions of law, as
has been propounded by the Apex Court, is
that the Court is not bound by the
conclusion drawn by the Investigating
Officer, while submitting chargesheet,
rather, application of judicial mind, at the
stage of cognizance taking, is to be made
by the Court and if some other conclusion
is being drawn, on he basis of evidence
collected by the Investigating Officer, then,
the Court may take a decision otherwise
also, as above.

8. Meaning thereby, the opinion and
finding of Investigating Officer is not
binding upon the Magistrate, but, the
Magistrate has to take a decision on the
basis of the evidence, collected and
contained in the Case Diary, prepared,
during
investigation.
No
additional
document of fact is to be taken at that
juncture of taking cognizance and in
present case, statement of informant,
Jagdish Prasad Soni and other witnesses,
namely, Devendra Kumar, Smt. Bharati
Devi, Ramesh Chandra and Dharmendra
Kumar, were fully intact and accusation of
first information report was reiterated in
those statements. Hence, conclusion drawn
by the Magistrate was in accordance with
the evidence collected by the Investigating
Officer, as contained in the Case Diary.
Therefore,
while
passing
impugned
summoning order, learned Magistrate has
not committed any abuse of process of law.

9. Section 304B of Indian Penal
Code, 1860, reads as under:

"304B. Dowry death.-(1) Where
death of a woman is caused by any burns
3-5 All. Sunil Soni & Anr. Vs. State of U.P. & Anr.
1637
or bodily injury or occurs otherwise than
under normal circumstances, within seven
years of her marriage and it is shown that
soon before her death, she was subjected to
cruelty or harassment by her husband or
any relative of her husband for, or in
connection with, any demand for dowry,
such death shall be called "dowry death",
and such husband or relative shall be
deemed to have caused her death.

(2) Whoever commits dowry
death shall be punished with imprisonment
for a term, which shall not be less than
seven years, but which may extend to
imprisonment for life."

10. Meaning thereby, the essential
ingredients for offence of dowry death and
punishment therof is death of a woman
caused by any burns or bodily injury or
occurs
otherwise
than
under
normal
circumstances. This unnatural death of
deceased, within seven years of marriage,
appears to have shown that soon before her
death, deceased was subjected to cruelty or
harassment by husband or any relative of
her husband and this cruelty was in
connection with any demand of dowry.
This will be a "dowry death", punishable,
under sub-section (2) of Section 304B of
IPC, as above.

11. In present case in hand, death of
the deceased is within one and a half years
of marriage at nuptial house, by burn and
bodily injuries, coupled with accusation of
demand of dowry since very beginning of
marriage against husband, father, mother,
brother, sister and brother-in-law is there.
Present applicants are the real sister of the
husband and the husband of real sister of
husband. Both of them come within the the
category of relative of husband. Hence,
charges for those offences were made out
against the applicants, too, and on the basis
of evidence, collected in the Case Diary, by
the Investigating Officer, cognizance was
taken by the learned Magistrate, which was
perfectly a valid and legal order, passed in
accordance with law, and as such, there
was no abuse of process of law, warranting
interference of this Court, in exercise of
inherent power, conferred upon it by
Section 482 of Cr.P.C.

12. So far as law, as laid down by the
Apex Court, in the case of Geeta Mehrotra
and another vs. State of U.P. and another
(Supra), cited by the learned counsel for the
applicants is concerned, the facts of above
case and the facts of present case are
entirely different. In Geeta Mehrotra's case
(Supra), the unmarried sister-in-law, i.e.,
Nand and Jeth (Elder brother of husband
and brother-in-law) were arrayed as the
accused and they were of no concern with
the
occurrence.
Hence,
in
such
circumstances, law was laid by the Apex
Court, whereas, in present case, learned
Magistrate has applied its judicial mind and
on the application of judicial mind, on the
basis of evidences, collected by the
Investigating Officer, in the Case Diary,
impugned summoning order has been
passed.

13. Remaining argument of present
applicants of having no concern with the
occurrence of dowry death, is a question of
fact to be seen by the Trial court and this
Court, in exercise of inherent power, under
Section 482 of Cr.P.C., is not expected to
embark upon factual matrix because it may
prejudice a fair trial.

14. Regarding prevention of abuse of
process of Court, Apex Court, in the case
of Dhanlakshmi v. R.Prasana Kumar,
(1990) Cr LJ 320 (DB): AIR 1990 SC 494,
has propounded "To prevent abuse of the
1638 INDIAN LAW REPORTS ALLAHABAD SERIES
process of the Court, High Court, in
exercise of its inherent powers under
section 482, could quash the proceedings,
but, there would be justification for
interference only when the complaint did
not disclose any offence or was frivolous
vexatious or oppressive" as well as in the
case of State of Bihar v. Murad Ali Khan,
(1989) Cr LJ 1005: AIR 1989 SC 1, Apex
Court
propounded
"In
exercising
jurisdiction under Section 482 High Court
would not embark upon an enquiry whether
the allegations in the complaint are likely to
be established by evidence or not".

15. Meaning thereby, exercise of
inherent jurisdiction under Section 482
Cr.P.C. is within the limits, propounded as
above.

16. In view of what has been
discussed above, this Application, under
Section 482 of Cr.P.C., merits dismissal
and
it
stands
dismissed
accordingly.
However, it is made clear that the Trial
court has to make trial as per evidence to be
led before it and the law of Legislation as
well as precedents on the subject and not to
be influenced by any observations or
findings
made,
hereinabove,
in
this
judgment because the same was pertaining
to this proceeding only.

17. However, it is directed that if the
applicants appear and surrender before the
court below within 30 days from today and
apply for bail, their prayer for bail shall be
considered and decided in view of the
settled law laid by this Court in the case of
Amrawati and another Vs. State of U.P.
reported in 2004 (57) ALR 290 as well as
judgement passed by Hon'ble Apex Court
reported in 2009 (3) ADJ 322 (SC) Lal
Kamlendra Pratap Singh Vs. State of U.P.

18. For a period of 30 days from
today, no coercive action shall be taken
against the applicants.

19. In case, if the applicants do not
appear before the Court below within the
aforesaid period, coercive action shall be
taken against them.
----------
(2020)03-05ILR A1638
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 07.02.2020

BEFORE

THE HON'BLE SANAY KUMAR SINGH, J.

Application U/S 482 Cr.P.C. No. 5137 of 2020

Sri Prakash Mishra ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Siddhartha Kumar Mishra, Sri Indra
Kumar Chaturvedi

Counsel for the Opposite Parties:
A.G.A.

(A) Criminal Law-Code of Criminal
Procedure, 1973 - Section 482 -
Inherent jurisdiction - Section 173 -
Report of police officer on completion
of investigation - Section 207 -
Supply to the accused of copy of
police report and other documents -
Indian Penal Code, 1860 - Section 376
IPC - Compliance of provisions of
section
207
Cr.P.C.
is
condition
precedent for commitment of the case
to the court of sessions - accused is
entitled
to
have
copies
of
the
statements
and
documents
accompanying
the
police
report,
which
the
prosecution
may
use