# Vikas Verma v. State of U.P. & Anr

- **Citation:** (2024) 1 ILRA 161
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-18
- **Case number:** Application U/S 482 No. 9771 of 2023
- **Bench:** Rajesh Singh Chauhan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vikas-verma-v-state-of-u-p-anr-51113
- **Pages:** 7

## Headnote

Criminal Law - Criminal Procedure Code,
1973 - Sections 216, 217 & 482 - Indian
Penal Code, 1860 - Sections 302, 304-B &
498-A - Dowry Prohibition Act, 1961 -
Sections 3 & 4 - Application u/s 482 - for
quashing the charge-sheet and summoning order
- FIR - alleged that accused has harassed the
deceased for dowry after marriage - accusations
included forced purchases of expensive items like
a Royal Enfield motorcycle and jewellery -
Investigation - Charge-sheet, filed only against
accused husband, but names of other co-accused
are dropped - whether trial court can be framed
charge without having any material or evidence
to that effect - court finds that, - no material of
any kind is available at to suggest the prosecution
to file charge sheet against the present petitioner
u/s 302 IPC - held that, the alternative charge
may not be framed against the against the
petitioner by the trial court - Accordingly,
impugned summoning order is set-aside -
however, the trial court may be conducted and
concluded the trial against the petitioner u/s 498A, 304-B of IPC and u/s 3/4 DP Act, in
accordance with law - consequently, applicant is
partly allowed. (Para - 16, 18, 19)

Application Partly allowed. (E-11)

List of Cases cited:

## Text

1 All. Vikas Verma Vs. State of U.P. & Anr.
161

10. From the above mentioned legal
position, it is clear that merely filling up
printed proforma and then signing the same
will not be a cognizance at all because this
is completely non-application of mind on
the part of the concerned Magistrate for
taking cognizance. Learned Magistrate has
to apply his mind on the material available
before him which should be reflected from
his cognizance order, itself.

11. In view of the above, impugned
cognizance order dated 01.03.2016 passed
by the Chief Judicial Magistrate, Gonda is
hereby quashed and he is at liberty to pass a
fresh cognizance order in light of the
observations made above, within a period
of one month.

12. With the aforesaid observations,
the present application is allowed.
----------
(2024) 1 ILRA 161
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 18.01.2024

BEFORE

THE HON'BLE RAJESH SINGH CHAUHAN, J.

Application U/S 482 No. 9771 of 2023

Vikas Verma ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Rakesh Kumar Agarwal, Saksham Agarwal

Counsel for the Opposite Party:
G.A., Girish Kumar Pande, Prashant Pandey

Criminal Law - Criminal Procedure Code,
1973 - Sections 216, 217 & 482 - Indian
Penal Code, 1860 - Sections 302, 304-B &
498-A - Dowry Prohibition Act, 1961 -
Sections 3 & 4 - Application u/s 482 - for
quashing the charge-sheet and summoning order
- FIR - alleged that accused has harassed the
deceased for dowry after marriage - accusations
included forced purchases of expensive items like
a Royal Enfield motorcycle and jewellery -
Investigation - Charge-sheet, filed only against
accused husband, but names of other co-accused
are dropped - whether trial court can be framed
charge without having any material or evidence
to that effect - court finds that, - no material of
any kind is available at to suggest the prosecution
to file charge sheet against the present petitioner
u/s 302 IPC - held that, the alternative charge
may not be framed against the against the
petitioner by the trial court - Accordingly,
impugned summoning order is set-aside -
however, the trial court may be conducted and
concluded the trial against the petitioner u/s 498A, 304-B of IPC and u/s 3/4 DP Act, in
accordance with law - consequently, applicant is
partly allowed. (Para - 16, 18, 19)

Application Partly allowed. (E-11)

List of Cases cited:

1. Shamnsaheb M. Multtani Vs St. of Karn.
(2001) 2 SCC 577.

2. Lakhjit Singh Vs St. of Punj. - (1994) Suppl. 1
SCC 173.

3. Shanti Vs St. of Har. - (1991) 1 SCC 371.

4. Jasvinder Saini & ors. Vs St. (Government of
NCT of Delhi) - (2013) 7 SCC 256.

5. Rajbir alias Raju & anr. Vs St. of Har. -
(2010) 15 SCC 1156.

(Delivered by Hon'ble Rajesh Singh
Chauhan, J.)

1. Heard Sri Saksham Agarwal,
learned counsel for the petitioner and Sri
Aniruddh Kumar Singh, learned AGA-I for
the State.

2. Learned counsel for the petitioner
has informed that the learned counsels for
162 INDIAN LAW REPORTS ALLAHABAD SERIES
the private opposite party have informed
the learned counsel for the petitioner in
writing that they shall not be appearing in
the present case on behalf of the private
opposite party.

3. By means of this petition, the
petitioner
has
prayed
the
following
reliefs:-

"The applicant most humbly and
respectfully beg to submit that on the basis
of facts mentioned in the accompanying
affidavit
this
Hon'ble
Court
may
graciously be pleased to quash the chargesheet dated 14.02.2021, summoning order
dated 04.03.2021 passed by Learned
Judicial Magistrate Lucknow and also the
order dated 27.04.2023 passed by Learned
Additional Sessions Judge/ Special Judge4 (Prevention of Corruption Act) Lucknow
whereby charge had been framed under
Section 498(A)/304(B)/302 IPC and 3/4
Dowry Prohibition Act 1961 (the certified
copy
of
the
charge-sheet
dated
14.02.2021,
summoning
order
dated
04.03.2021 and order dated 27.04.2023 is
contained in ANNEXURE-1, 2 & 3
respectively) or to pass any other order in
the interest of Equity, Justice and Good
Conscience."

4. The question to be adjudicated in
this petition is that as to whether the
learned trial court can frame charge for
Section 302 IPC as an alternative charge
without
having
any
clinching
material/evidence in respect of Section 302
IPC in a case where charge relating to
Sections 498-A, 304-B IPC and Section 3/4
of Dowry Prohibition Act has been framed
by this Court on the basis of the FIR and
the charge sheet, which has been filed only
under those Sections, not under Section 302
IPC.

5. The precise facts of the case are
that the FIR bearing FIR No.0949 of 2020,
under Sections 498-A, 304-B of IPC and
Section 3/4 of Dowry Prohibition Act,
1961, Police Station- P.G.I., District-
Lucknow has been filed by the father of the
deceased against his son-in-law Vikas
Verma and other family members, namely,
Chandrabhan
(father-in-law
of
the
deceased), Rajani (mother-in-law of the
deceased), Pushpendra (Devar) and Rupali
(Nanad).

6. Pursuant to the aforesaid FIR,
investigation has been conducted and after
completion of investigation, charge sheet
has been filed only against Vikas Verma
(husband of the deceased) under Sections
498-A, 304-B IPC and Section 3/4 of
Dowry Prohibition Act and names of other
co-accused persons have been dropped.
Admittedly, no protest application has been
filed on behalf of the complainant/
informant against the charge sheet whereby
the names of other co-accused persons have
been dropped. Learned trial court took
cognizance
of
the
charge
sheet
on
04.03.2021 and issued summons on the
same date i.e. 04.03.2021 against the
present petitioner only.

7. Learned trial court i.e. Additional
Sessions Judge/ Special Judge, Special
Court No.4, (Prevention of Corruption Act)
Lucknow has passed an order dated
27.04.2023
(Annexure
No.3)
framing
charges
against
the
petitioner
under
Sections 498-A, 304-B IPC and Section 3/4
of Dowry Prohibition Act. By means of the
aforesaid order, learned trial court has
framed alternative charge under Section
302 IPC also against the petitioner.

8. Learned counsel for the petitioner
has submitted that undisputedly, this is the
1 All. Vikas Verma Vs. State of U.P. & Anr.
163
prerogative of the learned trial court to
frame
any
charge
on
the
basis
of
material/evidence available on record. Even
the learned trial court may alter or add any
charge at any time before pronouncement of
judgment
under
Section
216
Cr.P.C.
However, no alternative charge can be
framed without having any material or
evidence to that effect. In the present case, no
allegation of any kind whatsoever has been
levelled against the petitioner in respect of
murder,
even
during
the
course
of
investigation, no cogent material or reliable
evidence has been found by the prosecution
to suggest that the petitioner may be charged
under Section 302 IPC, therefore, the charge
sheet has been filed under Sections 498-A,
304-B IPC and Section 3/4 of Dowry
Prohibition Act, not under Section 302 IPC.
Even as per the prosecution story itself, at the
time of incident in question, the petitioner
was far away from the place of incident and
prima facie, it was appearing that it was a
case of suicide. He has further submitted that
if there is any clinching evidence to suggest
that the accused person has committed the
offence of murder of his own wife within a
period of seven years of the marriage and he
along with his entire family was coercing her
by demanding dowry, the charge under
Section 302 IPC could have been framed and
in that case, the alternative charge under
Section 304-B of IPC could have also been
framed. In these circumstances, the charge
under Section 302 IPC may not be treated as
an alternative charge, rather it should be the
main charge. The facts and circumstances of
the present case are entirely different as
argued above, therefore, in the present case,
framing charge under Section 302 IPC as an
alternative charge is nullity in the eyes of law.

9. Learned counsel for the petitioner
has submitted that though the Apex Court
in re; Rajbir alias Raju and Another v.
State of Haryana, (2010) 15 SCC 116,
directed all the trial courts in India to
ordinarily add Section 302 IPC to the
charge of Section 304-B IPC, so that death
sentences can be imposed in such heinous
and barbaric crimes against women, but
while considering the aforesaid judgment,
the Apex Court in re; Jasvinder Saini and
Others v. State (Government of NCT of
Delhi), (2013) 7 SCC 256, has held that
mechanical addition of charge under
Section 302 IPC, when prima facie
evidence did not support the case of
murder, would not be appropriate. The
Apex Court further clarified that since the
learned trial court has got power under
Section 216 Cr.P.C. to alter or add the
charge before pronouncement of the
judgment, therefore, if the learned trial
court finds any cogent or reliable material
during the course of the trial to the effect
that Section 302 IPC should be added with
Section 304-B IPC, such exercise may very
well be undertaken by the learned trial
court.

10. Therefore, learned counsel for the
petitioner has submitted that in view of the
facts and circumstances of the present case,
since charges under Sections 498-A, 304-B
IPC and Section 3/4 of Dowry Prohibition
Act have been framed and no clinching or
cogent material/ evidence is on record to
show that the offence under Section 302
IPC has been committed by the petitioner,
so the impugned order dated 27.04.2023
passed by the learned trial court may be set
aside/ modified to the extent of framing of
alternative charge under Section 302 IPC.

11. On the other hand, Sri Aniruddh
Kumar
Singh,
learned
AGA-I,
has
submitted that there is no dispute on the
findings and direction of the Apex Court in
re; Jasvinder Saini (supra) wherein all
164 INDIAN LAW REPORTS ALLAHABAD SERIES
relevant judgments on the subject including
Rajbir alias Raju (supra) has been
considered but he has submitted that the
Apex Court in re; Shamnsaheb M.
Multtani v. State of Karnataka, (2001) 2
SCC 577, having coram of three Judges
has held that if the trial court finds that the
prosecution has failed to make out the
offence under Section 302 IPC but the
offence under Section 304-B IPC has been
made out, the court has to call upon the
accused to enter on his defence in respect
of said offence and after affording ample
opportunity to the accused, conviction
under Section 304-B IPC may be granted
but if such person is convicted under
Section 304-B IPC without affording an
opportunity of hearing, it would lead to
serious miscarriage of justice.

12. On being confronted Sri Aniruddh
Kumar Singh, learned AGA-I, on his
aforesaid submission to the effect that the
facts and circumstances of the present case
are such wherein only alternative charge
under Section 302 IPC was framed whereas
the main charge under Section 304-B IPC
has also been framed, on that point, Sri
Aniruddh Kumar Singh has stated that he
wanted to say that any charge may be
framed against the accused persons on the
basis of material available on record by
affording an opportunity of hearing and this
prerogative of the Trial Court may not be
questioned. However, so far as the facts and
circumstances of the present case are
concerned, he has submitted that on the
basis of material available on record, it is
not clear at this stage as to how an
alternative charge under Section 302 IPC
has been framed by the learned trial court
but during the course of the trial, if any
clinching material/ evidence is recovered or
emerged, the learned trial court may very
well add charge under Section 302 IPC
against the petitioner strictly in accordance
with law.

13. Heard learned counsel for the
parties and perused the material available
on record.

14. At the very outset, I would like to
refer Two Hundred and Second Report on
Proposal to Amend Section 304-B of Indian
Penal Code of October, 2007 submitted by
the Law Commission of India, Government
of India wherein vide Item No.2.11, aspect
of framing of charge - whether under
Section 302 IPC or 304-B IPC has been
discussed. Notably, after referring the
judgment of the Apex Court in re;
Shamnsaheb
M.
Multtani
(supra),
Lakhjit Singh Vs. Sate of Punjab, 1994
Supp. 1 SCC 173, Shanti v. State of
Haryana, (1991) 1 SCC 371, as well as the
provisions of Sections 302, 304 & 498-A
IPC as well as Sections 221, 222 & 464
Cr.P.C. and Section 113-B of the Evidence
Act and throwing some light upon Sections
216 & 217 Cr.P.C., the Law Commission of
India while summing up has opined as
under:-

"... The Evidence Act too was
amended
to
provide
for
certain
presumptions in this regard. The offence of
dowry death as provided in Section 304-B
is not the same offence as murder in terms
of Section 302. A case may or may not fall
under both the sections. Where an accused
is charged for one offence, he can be
convicted for another offence if the charged
offence is failed to be made out but the
ingredients of another offence are satisfied
on available evidence, provided it does not
lead to miscarriage of justice. In spite of
such provisions in the law, the incidents of
dowry deaths are not showing any
significant decline or abatement. Hence the
1 All. Vikas Verma Vs. State of U.P. & Anr.
165
demand for more stringent punishment of
death for the offence of dowry deaths."

15. Now, I shall deal the aspect as to
whether the alternative charge under
Section 302 IPC has been framed properly
or framing of such charge was absolutely
unwarranted in view of the facts and
circumstances of the present case. Perusal
of the FIR clearly reveals that death of the
daughter of the complainant/ informant has
taken place within seven years of marriage
inasmuch as the daughter of the informant/
complainant got married with Vikas Verma,
the petitioner, on 28.11.2016 and she died
on 12.12.2020. The general allegations of
demanding dowry and cruelty have been
levelled against Vikas Verma (husband) and
other family members. The cause of death
is hanging and as per material available on
record, except ligature mark, no other
injury was found on the body of the victim.
During the course of the investigation, it
was found that on the date of incident,
Vikas Verma was far away from the place
of incident. Further, during the course of
investigation, involvement of other accused
persons, namely, Chandrabhan (father-inlaw), Rajani (mother-in-law), Pushpendra
(Devar) and Rupali (Nanad) has not been
found, therefore, their names have been
dropped from the charge sheet and charge
sheet under Sections 498-A, 304-B IPC and
Section 3/4 of Dowry Prohibition Act has
been filed only against the present
petitioner. No protest application of any
kind whatsoever has been filed by the
complainant/
informant
against
the
investigation in respect of deleting the
names of other accused persons from the
charge sheet.

16. Therefore, prima facie, it is clear
that no material of any kind is available at
this stage to suggest the prosecution to file
charge sheet against the present petitioner
under Section 302 IPC, therefore, in
absence of cogent material against the
petitioner regarding charge under Section
302 IPC, the alternative charge may not be
framed against him by the learned court
below.

17. Hence, following the observation
of the Apex Court in re; Jasvinder Saini
(supra), wherein the Apex Court has held
that the mechanical addition of charge
under Section 302 IPC, when prima facie
evidence available on record did not
support the case of murder, framing
alternative charge under Section 302 IPC is
absolutely
unwarranted.
Relevant
paragraphs no.10, 11, 14 & 15 of the
aforesaid judgment are being reproduced
herein below:-

"10.Section 216 of the Code of
Criminal Procedure deals with alteration
or addition of any charge and empowers
the court to do so at any time before the
judgment is pronounced. The section runs
as follows:

"216.Court may alter charge.?(1)
Any court may alter or add to any charge at
any time before judgment is pronounced.

(2) Every such alteration or
addition shall be read and explained to the
accused.

(3) If the alteration or addition to
a
charge
is
such
that
proceeding
immediately with the trial is not likely, in
the opinion of the court, to prejudice the
accused in his defence or the prosecutor in
the conduct of the case, the court may, in its
discretion, after such alteration or addition
has been made, proceed with the trial as if
the altered or added charge had been the
original charge.

(4) If the alteration or addition is
such that proceeding immediately with the
166 INDIAN LAW REPORTS ALLAHABAD SERIES
trial is likely, in the opinion of the court, to
prejudice the accused or the prosecutor as
aforesaid, the court may either direct a new
trial or adjourn the trial for such period as
may be necessary.

(5) If the offence stated in the
altered or added charge is one for the
prosecution of which previous sanction is
necessary, the case shall not be proceeded
with until such sanction is obtained, unless
sanction has been already obtained for a
prosecution on the same facts as those on
which the altered or added charge is
founded."

11.A plain reading of the above
would show that the court's power to alter
or add any charge is unrestrained provided
such addition and/or alteration is made
before the judgment is pronounced. Subsections (2) to (5) of Section 216 deal with
the procedure to be followed once the court
decides to alter or add any charge. Section
217 of the Code deals with the recall of
witnesses when the charge is altered or
added by the court after commencement of
the trial. There can, in the light of the
above, be no doubt about the competence
of the court to add or alter a charge at any
time
before
the
judgment.
The
circumstances in which such addition or
alteration may be made are not, however,
stipulated in Section 216. It is all the same
trite that the question of any such addition
or alternation would generally arise either
because the court finds the charge already
framed to be defective for any reason or
because
such
addition
is
considered
necessary after the commencement of the
trial having regard to the evidence that may
come before the court.

14.Be that as it may, the common
thread running through both the orders is
that
this
Court
had
inRajbir
case[Rajbirv.State of Haryana, (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR
2011 SC 568] directed the addition of a
charge under Section 302 IPC to every case
in which the accused are charged with
Section 304-B. That was not, in our
opinion, the true purport of the order
passed by this Court. The direction was not
meant to be followed mechanically and
without due regard to the nature of the
evidence available in the case. All that this
Court meant to say was that in a case
where a charge alleging dowry death is
framed, a charge under Section 302 can
also be framed if the evidence otherwise
permits. No other meaning could be
deduced from the order of this Court.

15.It is common ground that a
charge under Section 304-B IPC is not a
substitute
for
a
charge
of
murder
punishable under Section 302. As in the
case of murder in every case under Section
304-B also there is a death involved. The
question whether it is murder punishable
under Section 302 IPC or a dowry death
punishable under Section 304-B IPC
depends upon the fact situation and the
evidence in the case. If there is evidence
whether direct or circumstantial to prima
facie support a charge under Section 302
IPC the trial court can and indeed ought to
frame a charge of murder punishable under
Section 302 IPC, which would then be the
main charge and not an alternative charge
as is erroneously assumed in some
quarters. If the main charge of murder is
not proved against the accused at the trial,
the court can look into the evidence to
determine whether the alternative charge of
dowry death punishable under Section 304B
is
established.
The
ingredients
constituting the two offences are different,
thereby
demanding
appreciation
of
evidence from the perspective relevant to
such ingredients. The trial court in that
view of the matter acted mechanically for it
framed an additional charge under Section
1 All. Prashant Saxena Vs. State of U.P. & Anr.
167
302 IPC without adverting to the
evidence adduced in the case and simply
on the basis of the direction issued
inRajbir case[Rajbirv.State of Haryana,
(2010) 15 SCC 116 : (2013) 2 SCC (Cri)
149 : AIR 2011 SC 568] . The High Court
no doubt made a half-hearted attempt to
justify
the
framing
of
the
charge
independent of the directions inRajbir
case[Rajbirv.State of Haryana, (2010) 15
SCC 116 : (2013) 2 SCC (Cri) 149 : AIR
2011 SC 568] , but it would have been
more appropriate to remit the matter back
to the trial court for fresh orders rather
than lending support to it in the manner
done by the High Court."

18. It is needless to say that during the
course of the trial, if the learned trial court
finds that there is any clinching or cogent
material convincing the learned trial court
that the trial of the present petitioner should
be conducted under Section 302 IPC also,
the same charge may be added by the
learned trial court under Sections 216 &
217 Cr.P.C.

19. Accordingly, the order dated
27.04.2023 passed by learned Additional
Sessions Judge/ Special Judge, Special
Court No.4, (Prevention of Corruption Act)
Lucknow is hereby set aside/ modified so
far as the alternative charge under Section
302 IPC has been framed against the
petitioner. However, the trial against the
petitioner may be conducted and concluded
under Sections 498-A, 304-B of IPC and
Section 3/4 Dowry Prohibition Act strictly
in accordance with law.

20. Accordingly, the present petition
is partly allowed.

21. No order as to costs.
----------
(2024) 1 ILRA 167
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 29.08.2023

BEFORE

THE HON'BLE SAMEER JAIN, J.

Application U/S 482 No. 19546 of 2019

Prashant Saxena ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Awadhesh Kumar Saxena, Sri Avijit
Saxena, Sri Kamal Krishna (Sr. Advocate)

Counsel for the Opposite Parties:
G.A., Sri Rajendra Kumar Dubey, Sri
Santosh Kumar Pandey

Criminal
Law
-
Code
of
Criminal
Procedure,1973
-
Section
Application
195(1)(a)(i) - Indian Penal Code,1860 -
Section 498A, 354 & 323 - Criminal Proceedings
Quashed - The applicant sought to quash the
charge-sheet dated 17.04.2019, cognizance
order dated 25.04.2019, and proceedings in
Criminal Case No. 0597 of 2018 under Sections
376 and 506 IPC - Held, the proceedings were
quashed as the allegations of rape and criminal
intimidation appeared false, concocted, and
motivated by ulterior motives, constituting an
abuse of process. (Paras 5, 44, 46)

B. False and Frivolous Allegations -
Ulterior
Motive
-
The
informant,
the
applicant's
sister-in-law,
alleged
rape
and
threats, but prior cases under Sections 498A,
354, 323 IPC, and the Domestic Violence Act
against the applicant and his family indicated
personal vendetta - Held, as per Mahmood Ali
Vs St. of U.P., the court must examine attending
circumstances beyond the FIR to identify
vexatious proceedings instituted to harass,
warranting quashing. (Paras 20, 21, 36, 40)

C. Inherently Improbable Allegations -
The informant claimed the applicant raped her