# Virendra Kumar Kushwaha & Ors v. State of U.P. & Anr. 892 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 1 ILRA 891
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-09-15
- **Case number:** Application U/S 482. No. 6533 of 2023
- **Bench:** Dinesh Pathak
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/virendra-kumar-kushwaha-ors-v-state-of-u-p-anr-892-indian-law-reports-allahabad-50971
- **Pages:** 12

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 200, 202, 482 -
Protection of Women from Domestic
Violence Act, 2005 - Section 2(f), 2(q),
3, 5, 12, 18, 19, 20 & 22, 23 - Application
u/s 482 CrPC - filed to challenge the
summoning order and the impugned interim
maintenance
order
-
marriage
was
solemnized between applicant no. 1 and
respondent no. 2 in 2019 - wife alleged
dowry harassment and physical abuse by
husband and in-laws - complaint filed u/s 12
of DV Act - summons were issued to all
applicants - further direction were issued to
District Probation Officer (DPO) to conduct
inquiry - DPO recorded Statements and
submitted the report - trial court passed exparte interim maintenance order of Rs. 3000/-
per month in favour of respondent no. 2
(wife) - instant application - applicants
argued allegations were omnibus, vague, and
lacked specific instances, especially against
applicant nos. 4 and 5 (sisters-in-law) who
were living separately - applicant no. 4
employed as nurse in Noida, applicant no. 5
married and residing with her in-laws - Court
finds that, allegations against applicant nos. 4
and 5 were casual and perfunctory - by
relying on the Supreme Court judgment in
Preeti Gupta Vs St. of Jharkhand, court held
that, continuing proceedings against applicant
nos. 4 and 5 would amount to abuse of
process
-
hence,
proceedings
against
applicant nos. 4 and 5 is quashed -
proceedings to continue against applicant
nos. 1, 2, and 3 - interim maintenance order
upheld - applicants granted liberty to file
detailed objections and adduce evidence
before trial court within three weeks -
directions issued accordingly - application is
partly allowed. (Para - 24, 25, 26, 28, 29)

Application Partly Allowed. (E-11)

List of Cases cited:

## Text

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1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
891
the Act, raises presumption that the cheque
was issued for a legally existing debt and
such presumption can be rebutted by the
respondent/accused, during the course of
the trial. At the time of exercise of
jurisdiction u/S 482 of the Act, the Court is
not required to evaluate the truthfulness or
otherwise the allegations levelled by the
complainant against the accused whatever
may be the defences of the accused, those
defences can be examined only during the
trial. Even if the accused is successful in
showing some suspicion or doubt in the
allegations levelled by the complainant, it
would be impermissible to discharge the
accused before trial. If the Magistrate is
satisfied that prima facie case is made out,
fulfilling all the ingredients of Section 138
of the Act. In view of the presumptions u/S
139 of the Act, such complaints cannot be
quashed on the basis of the averments made
by the accused with regard to his defences.

19. In the light of the aforesaid
judgements of the Apex Court, if we test the
judgement of the Co-ordinate Bench of this
Court in Vijay Kumar Upadhyay(Supra),
which has been heavily relied upon by the
learned counsel for the applicant herein, the
said judgement is prima facie appears to be
per incuriam as the same has not considered
the aforesaid settled propositions of law.
While exercising the powers u/S 482 of the
Code, the Co-ordinate Bench of this Court
has totally ignored the provisions of Section
139 of the Act, which makes out a
presumption in favour of the holder of the
cheque, which is a rebuttable presumption
and which can be rebuttted during the trial of
the accused persons. Therefore, in considered
opinion of this Court, the judgement in Vijay
Kumar Upadhyay(Supra) is not a good law
and is not applicable in the facts of the instant
case. In the light of the aforesaid judgments,
if we test the facts of the instant case, in the
instant case the opposite party no.2 was in
possession of the cheque, which was issued
by the applicant herein, which was presented
by him within its validity period in the Bank,
which was dishonoured. Notice for dishonour
and demand notice informing the dishonour
of the cheque given by the opposite party
no.2 herein to the applicant. Despite receipt
of the said notice, the applicant has failed to
make the payment of the said cheque amount.
Therefore, the instant complaint has been
filed within a period of limitation, as
provided under the Act. Section 139 of the
Act, raises a presumption in favour of the
opposite party no.2, that the said cheque was
issued by the applicant in discharge of its
legal liability, which can be rebutted by the
applicant only during the trial. Disputed
defence raised by the applicant, that the said
cheque was issued earlier in point of time as a
security, which has been denied by the
opposite party no.2, cannot be adjudicated
while exercising the powers u/S 482 of the
Code. This is a disputed question of fact that
has to be decided by the Trial Court after the
evidence is led by the parties.

20. Therefore, in the considered
opinion
of
this
Court,
the
instant
application
has
no
merits
and
is
accordingly dismissed.
----------
(2024) 1 ILRA 891
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 482. No. 6533 of 2023

Virendra Kumar Kushwaha & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties
892 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Applicants:
Sri Raj Kumar Kesari

Counsel for the Opposite Parties:
G.A., Sri Deepesh Kumar Ojha, Sri Prashant
Drivedi

(A) Criminal Law - Criminal Procedure
Code, 1973 - Section - 200, 202, 482 -
Protection of Women from Domestic
Violence Act, 2005 - Section 2(f), 2(q),
3, 5, 12, 18, 19, 20 & 22, 23 - Application
u/s 482 CrPC - filed to challenge the
summoning order and the impugned interim
maintenance
order
-
marriage
was
solemnized between applicant no. 1 and
respondent no. 2 in 2019 - wife alleged
dowry harassment and physical abuse by
husband and in-laws - complaint filed u/s 12
of DV Act - summons were issued to all
applicants - further direction were issued to
District Probation Officer (DPO) to conduct
inquiry - DPO recorded Statements and
submitted the report - trial court passed exparte interim maintenance order of Rs. 3000/-
per month in favour of respondent no. 2
(wife) - instant application - applicants
argued allegations were omnibus, vague, and
lacked specific instances, especially against
applicant nos. 4 and 5 (sisters-in-law) who
were living separately - applicant no. 4
employed as nurse in Noida, applicant no. 5
married and residing with her in-laws - Court
finds that, allegations against applicant nos. 4
and 5 were casual and perfunctory - by
relying on the Supreme Court judgment in
Preeti Gupta Vs St. of Jharkhand, court held
that, continuing proceedings against applicant
nos. 4 and 5 would amount to abuse of
process
-
hence,
proceedings
against
applicant nos. 4 and 5 is quashed -
proceedings to continue against applicant
nos. 1, 2, and 3 - interim maintenance order
upheld - applicants granted liberty to file
detailed objections and adduce evidence
before trial court within three weeks -
directions issued accordingly - application is
partly allowed. (Para - 24, 25, 26, 28, 29)

Application Partly Allowed. (E-11)

List of Cases cited:
1. Sandhya Manoj Wankhede Vs Manoj Bhimrao
Wankhede, (2011) 3 SCC 650,

2. R.P. Kapur Vs St. of Punj. : AIR 1960 SC 866;

3. St. of Har. & ors. Vs Bhajan Lal & ors. : 1992
Supp (1) SCC 335;

4. Trisuns Chemical Industry Vs Rajesh Agarwal
& ors. : (1999) 8 SCC 686 3;

5. M. Krishnan Vs Vijay Singh & anr. : (2001) 8
SCC 645;

6. Joseph Salvaraj A. Vs St. of Guj. & ors.:
(2011) 7 SCC 59;

7. Arun Bhandari Vs St. of U.P. & ors. : (2013) 2
SCC 801;

8. Anand Kumar Mohatta & anr. Vs State (NCT
of Delhi), D/o Home & anr. - (2019) 11 SCC
706,

9. Gian Singh Vs St. of Punj., (2012) 10 SCC
303,

10. Mohd. Allauddin Khan Vs St. of Bihar & ors.,
2019 (6) SCC 107,

11. Chilakamarthi Venkateswarlu & anr. Vs St.
of A.P. & anr.- SLP (Crl.) No.10762 of 2018,

12. Priti Saraf & anr. Vs St. of NCT of Delhi &
anr.- 2021 SCC Online SC 206,

13. St. of Har. & ors. Vs Bhajan Lal & ors.,
(1992 Suppl (1) SCC 335).

14. Arnab Manoranjan Goswami Vs St. of Mah.
& ors., 2020 SCC Online SC 964,

15. M/s Neeharika Infrastructure Pvt. Ltd. Vs St.
of Mah. & ors. - AIR 2021 SC 1918,

16. Geeta Mehrotra Vs St. of U.P., (2012)10 SCC
471

17. Kahkashan Kausar @ Sonam Vs St. of Bihar,
(2022) 6 SCC 599,

18. Preeti Gupta & anr. Vs St. of Jhark. & anr.,
(2010) 7 SCC 667.
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
893
(Delivered by Hon'ble Dinesh Pathak, J.)

1. Heard Sri Raj Kumar Kesari,
learned counsel for the applicants, Sri
Prashant Dwivedi, learned counsel for the
opposite party no.2 as well as learned AGA
for the State.

2. The applicants have invoked the
inherent jurisdiction of this Court assailing
the impugned summoning order dated
5.4.2021 passed by the learned Civil Judge
(Sr. Division), Kaushambi and order dated
3.12.2022 passed by the learned Civil
Judge
(Sr.
Division)/
FTC/
ACJM
Kaushambi under Section 23 of Protection
of Women from Domestic Violence Act,
2005 (in brevity D.V.Act) in Complaint
Case No. 369 of 2021 (Ritu Kumari Vs.
Virendra Kushwaha & Ors.) under Section
12 of the D.V. Act.

3. Facts culled out from the
avertments made in the instant application
are that marriage of respondent no.2 was
solemnized with applicant no.1 in the year
2019. It appears that owing to matrimonial
bickering, respondent no.2 has moved a
complaint dated 24.3.2021 against her
husband
and
in-laws
(mother-in-law,
father-in-law and two sisters-in-law) under
Section 12 of D.V. Act. The learned trial
court, vide order dated 5.4.2021, has issued
summons against the present applicants and
directed the Probation/Protection Officer
for submitting his report. In pursuance of
the
order
dated
5.4.2021,
the
Probation/Protection Officer has submitted
inquiry report/formal incident report dated
16.11.2021 in Form-I as required under
Rule (5) of Domestic Violence Rules 2006.
District Probation Officer in his report
dated 16.11.2022 has mentioned the
statements
of
complainant,
husband,
mother-in-law and father-in-law. During
pendency of proceeding under Section 12
of D.V. Act, learned court has passed an
ex-parte order dated 3.12.2022 under
Section 23 of D.V. Act granting interim
maintenance to the tune of Rs. 3000/- per
mensem in favour the respondent no.2
(wife). Having been aggrieved, instant
application has been filed assailing the
order
of
interim
maintenance
dated
3.12.2022 and the summoning order dated
5.4.2021.

4.

Learned
counsel
for
the
applicants has submitted that summoning
order has illegally been issued in a very
perfunctory
manner
without
proper
appreciating the facts of the complaint in
the light of the provisions as enunciated
under the D.V. Act. He has made
emphasized on the maintainability of the
present application against applicant nos.
4 and 5 who are sisters-in-law of
respondent no.2. As per the averments
made in the affidavit, applicant no.4 is
unmarried sister-in-law and doing private
job of Nurse at NOIDA, however,
applicant no.5 is married and living
separately with her in-laws. It is further
submitted that learned court below has
illegally assumed the income of the
husband (applicant no.1) and granted
interim maintenance to the tune of Rs.
3000/-
per
mensem
without
any
justification. The applicant no.1 has no
sufficient source of income to comply the
order passed by the court below. It is
further submitted that applicant no.1 is
willing to keep his wife/respondent no.2
with him, however, she herself deserted
the society of applicant no.1 and refused
to live with him. It is next submitted that
the order passed by the learned trial court
is illegal and unwarranted under the law
and tainted with regularities, therefore,
the same is liable to be quashed.
894 INDIAN LAW REPORTS ALLAHABAD SERIES

5. Per contra, learned counsel for the
respondent no.2 has vehemently opposed
the submission of learned counsel for the
applicant and contended that on the face of
record, prima facie, the complicity of the
present applicant in the commission of
offence under D.V. Act cannot be ruled
out. He has supported the summoning order
dated 5.4.2021 and the order of interim
maintenance dated 3.12.2022. It is next
contended that considering the desertion of
the respondent no.2, learned trial court has
rightly passed the ex-parte order under
Section 23 of D.V. Act in absence of
applicant no.1 who has deliberately ignored
the court proceeding despite the service of
notice. The interim maintenance granted in
favour of respondent no.2 to the tune of
Rs.3000/- per mensem cannot be said to be
exorbitant considering the notional income
of applicant no.1. It is next contended that
the present application is liable to be
rejected being misconceived and devoid of
merit.

6. Having considered the rival
submissions advanced by the learned
counsel for the parties and perusal of the
record, it reveals that matrimonial status
between applicant no.1 and respondent no.2
being husband-wife and the relationship of
respondent no.2 with the applicant nos. 2 to
5 being in-laws have not been denied. In
her complaint filed under Section 12 of
D.V. Act, respondent no.2 has sought relief
under Section 18,19, 20 and 22 of D.V. Act
arraying
the
present
applicants
as
respondents.
Allegation
of
domestic
violence
has
been
levelled
against
respondents
(applicants
herein)
in
perfunctory manner without referring any
particular incident of domestic violence
attributing
to
any
of
them.
The
Probation/Protection
Officer,
while
submitted his report, has recorded the
statement of complainant (respondent no.2
herein) and the statements of respondent
nos. 1,2 and 3 of the complaint (applicant
nos. 1, 2, and 3 herein) to show his prima
facie satisfaction qua cognizance of the
case under Section 12 of D.V. Act. In
clause-2 of the report as submitted in Form-
I under Section 5(1) of the Domestic
Violence Rules, names of all the applicants
are mentioned. In clause-4, date of violence
has been shown to be March 24, 2021
which was allegedly commissioned against
the
Ritu
Kumari,
(respondent
no.2)
wherein, as mentioned in remark column,
she has allegedly been abused and
pounded. Nature of violence has been
shown as a demand of dowry, harassment,
insult, radical and humiliation etc. A four
wheeler and cash amounting Rs. 1 lakh has
been also shown to be demanded from the
respondent no.2. In her statement recorded
before the District Probation Officer, she
has
stated
that
her
marriage
was
solemnized with the applicant no.1 on
9.3.2019 according to hindu rites and
rituals. Her father has expended about Rs. 8
lakhs in marriage which includes one lakh
cash given in Tilak ceremony. In marriage
ceremony, two gold finger rings, one
motorcycle along with household goods
and Stridhan have been gifted as well.
While she came her in-laws house, one four
wheeler and cash amounting Rs.1 lakh has
been demand by her husband, father-inlaw, mother-in-law and two sisters-in-law.
She has been abused, thrashed and thrown
out from her matrimonial house on
16.1.2021 for want of fulfillment of dowry.
In the meantime, she gave birth to a boy on
28th September, 2020 out of wedlock with
applicant no.1. Behavior of husband was
not good towards the child to whom he
disown and expressed his desire to
solemnize second marriage. It is further
stated by respondent no.2 that all her in-
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
895
laws, as arrayed in the complaint being
respondents, have thrashed, abused and
kicked her out for demand of additional
dowry. She has narrated her ordeals to her
parents who came and took her along with
her child in private vehicle. Thereafter, she
made a complaint of such incident in
women police station, where both the
parties have been called upon for amicable
settlement, however, husband has refused
to toe the line, therefore, she has resorted to
legal recourse. As per her statement,
husband (applicant no.1) is earning about
Rs.30,000/-
per
month
by
operating
Autorikshaw and running a Kharad shop.

7.

Husband,
respondent
no.1
(applicant no.1 herein) has stated before
District
Probation
Officer
that
the
complainant was not happy with the
marriage and used to said that the marriage
has been solemnized against her own
volition. She was interested to marry with
some other boy, however, he used to ignore
all these facts. Despite birth of a boy child,
no change emanates in her behavior. On
18.01.2021, she took one neckless, payal,
math bindiya (forehead dot), rings, waist
belt, six payal chain and Rs.10,000/- cash
from the almirah of the house and went to
her maternal home without informing to
her husband and in-laws. On 17th March,
2021, he along his mother went to the
maternal house of the complainant to bring
her back, however, her parents have
misbehaved and refused to sent the
complainant along with them. On a
complaint moved by the complainant in
women police station, applicant no.1 has
been called upon and, after settlement, she
became ready to live with the applicant
no.1 and made promise that she will go to
her matrimonial house on April 2, 2021,
however, on the said date, she did not turn
up. Applicant no.1 has instituted a case for
restitution of conjugal rights under Section
9 of Hindu Marriage Act. He has never
harassed physically and mentally to his
wife for demand of dowry. He is still ready
to keep his wife with him.

8. Applicant no.2 being respondent
no.2 in the complaint (father-in-law) has
made his statement that marriage of the
applicant no.1 and respondent no.2 was
solemnized without any dowry. She was
not happy with the marriage on the pretext
that her marriage was solemnized without
her own volition. She fled to her maternal
home along with her Stridhan, however,
ever after several efforts being made she
any how returned to her in-laws house. On
18.1.2021 she again went to her maternal
home without informing to any one. On
17th March, 2021, while his son went to
bring complainant back, she refused to
come with him. Despite the amicable
settlement took place in the women police
station she never turned up. His son has
filed a case of restitution of conjugal rights
under Section 9 of Hindu Marriage Act. He
has further stated that she has never been
tortured or harassed for demand of dowry
and a false case has been instituted against
the applicants. His daughter is residing in
NOIDA.

9.

Applicant
no.3,
who
is
respondent
no.3
in
the
complaint,
(mother-in-law) has reiterated the facts as
stated by her husband (applicant no.2)
that the false and malicious prosecution
has been instituted by respondent no.2
who has never been subjected to torture
and cruelty for demand of dowry. Despite
best efforts being made by applicants,
respondent no.2 has refused to come back
to her matrimonial house. Her daughter is
residing in NOIDA and doing job of
nursing in J.P. Hospital.
896 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Applicant Nos. 4 and 5
(respondent nos. 4 and 5 in complaint),
sisters-in-law of the respondent no.2, have
not appeared before the District Probation
Officer to get their statements recorded.
District Probation Officer has observed that
despite notices have been sent thrice, they
did not turn up.

11. Considering the contents of the
application under Section 12 D.V. Act, in
light of the report submitted by the District
Probation Officer and the statement of the
complainant made before the District
Probation Officer, it reveals that the names
of all the family members of the husband
has been taken by the complainant in casual
manner on omnibus allegations without
citing any particular incident attributing to
any of the respondents (applicants herein).
Mere domestic relationship between the
parties is not sufficient to inculpate the
person who is in the domestic relation with
aggrieved person unless there is a specific
incidents of domestic violence as defined
under Section 3 of the D.V. Act. The
District Probation Officer has submitted the
domestic incident report form-1 in printed
format wherein illustrations of the domestic
violation are already mentioned and over
some of the illustrations tick marks are
made. In her statement, respondent no.2 has
not whispered any particular incident as to
how she has been subjected to the verbal
and emotional abuse as marked in the form1 by her in-laws who have been arrayed as
respondents in the complaint.

12. Under Section 2(q) of the D.V.
Act,
phrase
"respondent"
has
been
defined wherein any adult male person
who is, or has been, in a domestic
relationship with the aggrieved person
and against whom the aggrieved person
has sought any relief under this Act will
come within definition of respondent. As
per dictum of the Hon'ble Apex Court in
the matter Sandhya Manoj Wankhede
Vs. Manoj Bhimrao Wankhede, (2011)
3 SCC 650, female relatives of husband
are fall as well under the definition of
respondent. The applicants herein, who
have been arrayed as respondents in the
complaint, may be treated to be a person
under the definition of the respondents as
enunciated under Section 2(q) of the D.V.
Act, however, mere arraying the present
applicants, particularly applicant nos. 4 &
5,
being
respondents
in
complaint,
against
whom
aggrieved
person
(respondent no.2) has sought relief under
D.V. Act, cannot be treated to be a
paramount consideration for initiation of
the penal proceeding unless case of the
domestic violence as enunciated under
Section 3 of the D.V. Act, prima facie, is
made out and domestic relationship, as
defined under Section 2 (f) of the D.V.
Act is established with the aggrieved
person from the complaint coupled with
the domestic incident report submitted by
the District Probation Officer.

13.

Notably,
complainant
(respondent no.2) has named the family
member of her husband including him by
referring their names in a casual manner
based
on
omnibus
allegations,
particularly names of the respondent nos.
4 and 5, sisters-in-law of respondent no.2,
who are residing separately. Respondent
no.4 is a Nurse by profession and doing a
job in a hospital at NOIDA and
respondent no.5 is married women living
alongwith her in-laws. In this backdrops
of the case, learned counsel for the
applicant
has
urged
to
allow
this
application and rejected the complaint
under Section 12 of the D.V. Act, so far
as, it relates to the applicant nos. 4 and 5.
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
897

14. The power conferred under
Section 482 Cr.P.C. is very specific and
wide to secure the ends of justice or to
prevent the abuse of the process of any
Court or to make such orders as may be
necessary to give effect to any order under
this Code. No provision of this Code is
deemed to limit or effect such inherent
power of the High Court.

15. It has been held by the Apex
Court in the cases of R.P. Kapur Vs. State
of Punjab : AIR 1960 SC 866; State of
Haryana and Ors. Vs. Bhajan Lal and
Others : 1992 Supp (1) SCC 335; Trisuns
Chemical Industry Vs. Rajesh Agarwal
and Ors. : (1999) 8 SCC 686 3; M.
Krishnan Vs. Vijay Singh & Anr. :
(2001) 8 SCC 645; Joseph Salvaraj A.
Vs. State of Gujarat and Ors. : (2011) 7
SCC 59; Arun Bhandari Vs. State of
Uttar Pradesh and Ors. : (2013) 2 SCC
801; Anand Kumar Mohatta and Anr.
Vs. State (NCT of Delhi), Department of
Home and Anr. : (2019) 11 SCC 706 that
exercise of inherent power of the High
Court under Section 482 of the Code of
Criminal Procedure is an exceptional one.
Great care should be taken by the High
Court before embarking to scrutinise the
complaint/FIR/charge-sheet
in
deciding
whether the rarest of the rare case is made
out to scuttle the prosecution in its
inception.

16. In the case of Gian Singh vs. State
of Punjab, (2012) 10 SCC 303, Hon'ble
Supreme Court has made the following
observation in Paragraph 61 which is
quoted herein below :-

"61. The position that emerges
from
the
above
discussion
can
be
summarised thus: the power of the High
Court in quashing a criminal proceeding or
an FIR or a complaint in exercise of its
inherent
jurisdiction
is
distinct
and
different from the power given to a criminal
court for compounding the offences under
Section 320 of the Code. Inherent power is
of wide plentitude with no statutory
limitation but it has to be exercised in
accord with the guideline en-grafted in
such power viz.: (i) to secure the ends of
justice, or (ii) to prevent abuse of the
process of any court."

17. In Criminal Appeal No. 675 of
2019 arising out of SLP (Crl.) No. 1151 of
2018, Mohd. Allauddin Khan v. State of
Bihar and others, 2019 (6) SCC 107, the
Apex Court has held that the High Court
had no jurisdiction to appreciate the
evidences of the proceedings under Section
482 Cr.P.C. because where there are
contradictions or the inconsistencies in the
statements of the witnesses, is essentially
an issue relating to appreciation of
evidences and the same can be gone into by
the Judicial Magistrate during trial, when
the entire evidence is adduced by the
parties. The same view has also been
reiterated in judgment dated 31.07.2019
passed by Apex Court in Criminal Appeal
No.1082 of 2019, arising out of SLP (Crl.)
No.10762
of
2018,
Chilakamarthi
Venkateswarlu and Another v. State of
Andhra Pradesh and Another.

18. In the case of Priti Saraf & anr.
Vs. State of NCT of Delhi & anr.
Criminal Appeal No(s). 296 of 2021
(Arising out of SLP(Crl.) No(s). 6364 of
2019] (judgment dated March 10, 2021) :
2021 SCC Online SC 206 the Apex Court
while considering the powers under Section
482 Cr.P.C. has held as follows:

"23. It being a settled principle of
law that to exercise powers under Section
898 INDIAN LAW REPORTS ALLAHABAD SERIES
482 CrPC, the complaint in its entirely
shall have to be examined on the basis of
the allegation made in the complaint/
FIR/charge-sheet and the High Court at
that stage was not under an obligation to
go into the matter or examine its
correctness. Whatever appears on the face
of the complaint/FIR/charge-sheet shall be
taken into consideration without any
critical examination of the same. The
offence ought to appear ex facie on the
complaint/FIR/charge-sheet
and
other
documentary evidence, if any, on record.

19. The scope and ambit of the inherent
jurisdiction of the High Court under Section
482 CrPC has been examined in detail by
Hon'ble Apex Court in State of Haryana
and Others Vs. Bhajan Lal and Others,
(1992 Suppl (1) SCC 335). The relevant para
is mentioned hereunder:-

"102. In the backdrop of the
interpretation
of
the
various
relevant
provisions of the Code under Chapter XIV
and of the principles of law enunciated by
this Court in a series of decisions relating to
the exercise of the extraordinary power under
Article 226 or the inherent powers under
Section 482 of the Code which we have
extracted and reproduced above, we give the
following categories of cases by way of
illustration wherein such power could be
exercised either to prevent abuse of the
process of any court or otherwise to secure
the ends of justice, though it may not be
possible to lay down any precise, clearly
defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to
give an exhaustive list of myriad kinds of
cases wherein such power should be
exercised.

(1) Where the allegations made
in the first information report or the
complaint, even if they are taken at their
face value and accepted in their entirety
do not prima facie constitute any offence
or make out a case against the accused.

(2) Where the allegations in the
first
information
report
and
other
materials, if any, accompanying the FIR do
not disclose a cognizable offence, justifying
an investigation by police officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint
and the evidence collected in support of the
same do not disclose the commission of any
offence and make out a case against the
accused.

(4) Where, the allegations in the
FIR do not constitute a cognizable offence
but constitute only a non-cognizable
offence, no investigation is permitted by a
police officer without an order of a
Magistrate as contemplated under Section
155(2) of the Code.

(5) Where the allegations made
in the FIR or complaint are so absurd
and inherently improbable on the basis of
which no prudent person can ever reach
a just conclusion that there is sufficient
ground
for
proceeding
against
the
accused.

(6) Where there is an express
legal bur engrafted in any of the provisions
of the Code on the concerned Act (under
which a criminal proceeding is instituted to
the institution and continuance of the
proceedings and or where there is a
specific provision in the Code or the
concerned
Act,
providing
efficacious
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
899
redress for the grievance of the aggrieved
party.

(7) Where a criminal proceeding
is manifestly attended with mala fide
and/or where the proceeding is maliciously
instituted with an ulterior motive for
wreaking vengeance on the accused and
with a view to spite him due 10 private and
personal grudge."

20. It has been further elucidated
recently by Hon'ble Apex Court in Arnab
Manoranjan Goswami Vs. State of
Maharashtra and Others, 2020 SCC
Online SC 964 where jurisdiction of the
High Court under Article 226 of the
Constitution of India and Section 482 CrPC
has been analysed at great length.

21. Further, in the case of M/s
Neeharika Infrastructure Pvt. Ltd. Vs.
State of Maharashtra and others reported
in AIR 2021 SC 1918, Full Bench of the
Apex Court while considering the powers
of quashing under Section 482 of the
Criminal Procedure Code and/or Article
226 of the Constitution of India has
illustrated the circumstances under which
quashing of a criminal case can be done
and/or interim order can be granted.

22. The Hon'ble Supreme Court has
shown his concern in number of cases qua
institution of criminal proceedings against
the husband and his relatives on omnibus
allegations by referring their name in a
casual manner. In the matter of Geeta
Mehrotra Vs. State of U.P., (2012)10
SCC 471 and the Case of Kahkashan
Kausar @ Sonam Vs. State of Bihar,
(2022) 6 SCC 599, Hon'ble Apex Court has
expounded that omnibus allegation by
referring the name of the relatives of the
husband in a casual manner are not
sufficient to implicate them in criminal
cases. Considering the ratio decided by the
Hon'ble Supreme Court in the given
circumstances of the present case, I am of
the considered view that inculpating the
applicant nos.4 and 5 in the complaint, who
are sisters-in-law of the respondent no.2, is
not justifiable in the eye of law. Enforcing
them to face trial in mechanical manner
would amount of abuse of judicial process.

23. Applicant nos.1, 2 and 3 have
come with the specific plea in their
statement before the District Probation
Officer that applicant no.4 is residing in
NOIDA. In paragraph nos. 11 and 15 of the
affidavit filed in support of instant
application, applicants came with specific
plea that respondent no.4 is unmarried and
doing her job in NOIDA and with respect
to the applicant no.5 it has clearly been
mentioned that she is married woman
living separately alongwith her in-laws.
There is no specific denial in the counter
affidavit to the averments made in
paragraph nos. 11 and 15 of the affidavit
filed in support of instant application.
Moreover, in the connected application
filed by the applicant nos. 1 to 4 herein
being Application u/s 482 Cr.P.C. No.
10036 of 2022, they have assailed the
summoning order passed against them
under Section 498-A, 323 IPC and 3/4 D.P.
Act. In the aforesaid matter, while passing
the summoning order dated 14.09.2021,
learned Magistrate has exempted the Rubi
Kushwaha (applicant no.5 herein). In the
said application as well, applicants have
come
with
specific
plea
that
Priya
Kushwaha (applicant no.4) is doing job of
Nurse in J.P. Hospital at NOIDA. In
support of their contention, applicants have
filed registration certificate of the applicant
no.4 showing diploma in "General Nursing
and Midwifery" which was issued on
900 INDIAN LAW REPORTS ALLAHABAD SERIES
14.12.20218 after completion of three years
training course from September 2015 to
September 2018. They have also filed
Attendance Report and Certificate dated
April 05, 2022 issued from the authority
concerned of J.P. Hospital, NOIDA to
show that since 14.09.2020 she was
throughout
working
in
J.P.
Hospital
NOIDA. In the attendance report she has
been shown present on the date of alleged
incident i.e. on 16.01.2021. In reply to an
averment of the applicants in this regard as
mentioned in paragraph no.12 of affidavit
filed in support of the application under
Section 482 Cr.P.C. No. 10036 of 2022, no
specific denial has been made by the
respondent no.2 in the counter affidavit.
Marital status of the applicant no.4 and her
professional work being a Nurse has not
been specifically denied.

24. In the present matter as well,
which is arising out of the proceeding
under Section 12 of D.V. Act, the marital
status of applicant no.5 and professional
status of applicant no.4 as Nurse have not
been denied by respondent no.2 in her
counter affidavit. Respondent no.2 has
made omnibus allegation against all the
family members of her husband by
referring their names casually in her
statement before the District Probation
Officer, who has recorded her statement
and submitted the domestic incident report
in form-1, which is a printed format, as
required under Section 5 of Domestic
Violence Rules. In the matter of Preeti
Gupta
and
Another
vs.
State
of
Jharkhand and Another, (2010) 7 SCC
667, the Hon'ble Supreme Court has
acknowledged the tendency to implicate the
husband and all his immediate relatives in
complaint arising out of matrimonial
discord. Hon'ble Supreme Court has
expounded that the court's have to be
extremely careful and cautious in dealing
with these complaints and must take
pragmatic realities in the consideration
while dealing with the matrimonial cases,
as allegations of harassment by husband's
close relatives, who are living in different
city and never visited or rarely visited the
place where the complainant resided,
would add an entirely different complexion
and such allegations would have to be
scrutinized
with
great
care
and
circumspection. In the given circumstances
it is a specific case of applicants that the
applicant no.4 is doing job being a Nurse in
J.P. Hospital at NOIDA and applicant no.5
is a married woman and residing with her
in-laws at matrimonial house. There is no
justification to force the applicant nos.4 and
5 to face complicated penal provisions
under the D.V. Act in a mechanical manner
on the basis of omnibus allegation as
allegedly mentioned by the respondent no.2
in perfunctory manner. Sisters-in-law who
are residing outside and managing their
own affairs could hardly be believed to
abuse
respondent
no.2
verbally
or
emotionally for the purpose of making out
a case of domestic violence as enunciated
under Section 3 of D.V. Act. No particular
instance has been given attributing to the
overt act of applicant nos.4 and 5 to make
out a case of domestic violence against
them. In the complaint under Section 12 of
the D.V. Act nothing has been whispered
against the present applicants except
arraying them in the cause title of the
complaint.
Even
before
the
District
Probation Officer no specific allegation has
been made against applicant Nos. 4 & 5.
Names of all the applicants have been taken
in casual manner to anyhow trap them in
the complication of the legal provisions as
enunciated under the D.V. Act. Inculpating
the present applicants under the D.V. Act is
nothing but to abuse of process of the court
1 All. Virendra Kumar Kushwaha & Ors. Vs. State of U.P. & Anr.
901
which is, in my opinion, liable to be
discouraged to secure the ends of justice.

25. So far as granting an interim
maintenance, by order impugned dated
3.12.2022, is concerned I found no
illegality or perversity in the said order
which has been passed ex-parte against the
present applicant no.1. Perusal of the ordersheet of Case No. 369 of 2021, as appended
with this application, reveals that the
learned trial court has treated the services
of notice sufficient upon respondent no. 1
to 5, vide order dated 19.4.2022, and by
subsequent order dated 22.8.2022 matter
was ordered to be proceeded ex-parte
against the present applicants by stopping
their opportunity of defence. Vide order
dated 2.11.2022, further date was fixed for
ex-parte evidence of the complainant. In
the affidavit filed in support of the instant
application, applicants have not whispered
anything qua ex-parte proceedings. They
have simply assailed the order dated
3.12.2022
qua
amount
of
interim
maintenance. Considering the high price of
living the amount of Rs. 3000/- per
mensem cannot be said to be exorbitant.
Learned trial court has granted interim
maintenance
considering
the
notional
income of the applicant no.1, prima facie,
which cannot said to be excessive. He has
still an opportunity to contest the case and
put his defence before the trial court to
prove his innocence.

26. In the peculiar facts and
circumstances of the present case, I am of
the considered view that the allegations as
made against applicant nos. 4 and 5 are
wholly insufficient and, prima facie, do not
make out a case of domestic violence
against them under the provision as
enunciated in D.V. Act. Moreover, the
allegation made against applicant nos.4 and
5 are far-fetched and improbable that no
prudent person can conclude that there are
sufficient grounds to proceed with the
matter under the D.V. Act against the
applicant nos.4 and 5. In effect, the matter
in hand falls squarely in categories (1) and
(5) as set out in the case of Bhajan Lal
(Supra). Permitting the proceeding to go
on against the applicant nos.4 and 5 in such
a situation would, therefore, result in clear
and patent injustice. Therefore, it is fit case
to quash the proceeding under D.V. Act in
exercise of inherent jurisdiction under
Section 482 Cr.P.C. so far as it relates to
the applicant nos.4 and 5.

27. Resultantly, the instant application
is partly allowed and summoning order
dated 05.04.2021 passed by the learned
Civil Judge (Senior Division) Kaushambi
in Complaint Case No. 369 of 2021 under
Section 12 of D.V. Act, so far as it relates
to the applicant nos. 4 and 5, is here by
quashed. Further proceeding will go on
against
the
remaining
applicant
i.e.
applicant nos. 1, 2 and 3.

28. It is made clear that the instant
application is rejected against the order
dated 03.12.2022 passed by Civil Judge
(Senior Division)/F.T.C./Additional Chief
Judicial
Magistrate,
Kaushambi under
Section 23 of the D.V. Act, by which an
interim maintenance has been granted in
favour of the respondent no.2.

29. Before parting the matter, learned
counsel for the applicants has prayed to
give
an
opportunity
to
the
present
applicants for filing detailed objection in
proceeding under Section 12 of D.V. Act
and to issue a direction for expeditious
disposal of the said proceeding. Though,
the applicants have not assailed the order
dated 22.8.2022 whereby the case was
902 INDIAN LAW REPORTS ALLAHABAD SERIES
ordered to be proceeded ex-parte and order
dated 2.11.2022 whereby the complainant
was permitted to adduce her evidence exparte,this Court is of the view, in the
interest of justice, that it would be befitting
to modify orders dated 22.8.2022 and
2.11.2022 to the extent that the opportunity
may be given to the present applicants for
filing their detailed objection and adduce the
evidence in proceeding under Section 12 of
D.V. Act. As such, in exercise of inherent
power, in order to secure the ends of justice,
the orders dated 22.8.2022 and 2.11.2022 are
hereby modified to the extent that the present
applicants are at liberty to file detailed
objection and adduce evidence, if any, before
the trial court in original proceeding under
Section 12 of D.V. Act within a period of
three weeks from today and the same shall be
considered and decided in accordance with
law after giving due opportunity of hearing to
the parties concerned within statutory period
as enunciated under Section 12 (5) of D.V.
Act.

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(2024) 1 ILRA 902
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.09.2023

BEFORE

THE HON'BLE DINESH PATHAK, J.

Application U/S 482. No.10036 of 2022

Virendra Kumar Kushwaha & Ors.
 ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Raj Kumar Kesari

Counsel for the Opposite Parties:
G.A.,Sri Prashant Dwivedi
Criminal Law - Criminal Procedure Code,
1973 - Sections 200, 202 & 482 - Indian
Penal Code, 1860 - Sections 498-A & 323 -
Dowry Prohibition Act, 1961 - Sections 3 &
4 - Application u/s 482 - for quashing the
impugned summoning order - marriage was
solemnized
between
applicant
no.
1
and
respondent no. 2 in 2019 - a complaint was filed
by the wife in 2021 - levelling allegations of
torture and cruelty for demands of dowry of a
four-wheeler and Rs.