JUDGMENT
K.K. Chaubey, J.
1. Sarvsri Rakesh Kumar, Kamlesh Kumar and Rajesh Kumar sons of Sri Ram Abhilash Dubey who are accused in S.T. No. 332 of 1989 (Crime No. 130 of 1985) under Sections 302/498A I.P.C. and 3/4 of the Dowry Prohibition Act have filed the above application under Section 482 of the Code of Criminal Procedure for quashing the charge sheet No. 155,in the above crime case.
2. Smt. Sudhra Devi, wife of Ram Abhilash Dubey, Smt. Manju Shree, wife of Vinod Kumar Dubey and Vinod Kumar Dubey alias Suresh Dubey son of Sri Ram Abhilash Dubey, who are also accused in S.T. No. 332 of 1989 have filed the above connected criminal misc. application under Section 482 of the Code of Criminal Procedure for quashing the aforesaid charge-sheet in the said crime number.
3. In Criminal Misc. Application No. 772 of 1990 Hon’ble S.I. Jafri, J. stayed further proceedings in S.T. No. 332 of 1989 pending in the Court of 5th Additional District and Sessions Judge, Allahabad vide order dated 19-1-1990. By the said order, Criminal Misc. Application No. 483 of 1990 was connected with Criminal Misc. Application No. 772 of 1990. As both the cases arise out of the same sessions trial and common questions have arisen in them, they have been heard together and are being disposed of by a common judgment.
4. It has been pleaded in the affidavits filed in support of both petitions that the marriage of Rakesh Kumar was solemnised in the month of February, 1984 with Kumari Rita, daughter of Sri Tarkeshwar Nath Dubey resident of 128/131-E, Kidwai Nagar, Kanpur. The relations between the newly wedded couple were cordial and no scuffle took place between them. Smt. Rita used to go to her parents’ house and used to come to Allahabad after spending a few days alongwith her parents. On the Holi festival, that is, on 6-3-1985, Smt. Rita was brought by Rajesh Kumar, elder brother of Rakesh Kumar by Prayag Raj Express train. They reached Allahabad at about 9 A.M. The family members of the applicants welcomed her arrival after five months. Due to Holi festival, ladies of the applicant’s house were busy ,in preparation of sweat dishes, Gujhia etc. and youngsters were enjoying a picture on television. Smt. Rita did not come to see the picture on the pretext that she was tired. After the end of the picture, members called Smt. Rita but she did not reply. One of the family members went to her room, which was bolted from inside. As she did not respond to the call, a child saw from the window that Smt. Rita was hanging from the fan with saree around her neck. The door was then broken and a doctor was called, who declared her dead A suicide note (Annexure 9) was found in the room of the deceased.
5. Applicant Kamlesh Kumar lodged the first information report the same day at 1.00 P.M. at Police Station Kotwali to the effect that the wife of his younger brother committed suicide by hanging herself from the fan, whereafter the police started investigation. The Investigating Officer Sri Rama Shanker Tiwari endorsed the story of suicide and so was the opinion of Panches in whose presence, inquest of the dead body was done. The post mortem examination of the dead body was conducted at the request of the cousins brother of the first informant. The doctor could not arrive at any conclusion regarding the cause of death and so he preserved viscera. The viscera was sent to chemical examiner for . analysis. The Assistant Director of Vidhi Vigyan Prayogshala reported that in the viscera alcohol poison was found.
6. It was pleaded that only one Jar containing the viscera had been sent for chemical analysis but the Assistant Director reported about receipt of two Jars. Rotton tissues of viscera were also found in the Jars. The presence of rotten tissues of viscera and two Jars can only go to show that either the prosecution made manipulations or committed some, error in preservation and process of sending viscera.
7. It has also been pleaded that in the suspected case of poison brain blood and urine should also have been sent for chemical analysis.
8. It is further pleaded that the post mortem examination on the dead body of Smt. Rita Devi was not done in accordance with G.O No 928-G.I./8.4.748/80 dated 21-8-1980.No proper and fair investigation had been done hence, the charge-sheet filed has no face value in the eye of law.
9. Before coming to the counter affidavit of the opposite parties, it would be pertinent to refer, the report lodged by Sri Tarkeshwar Nath Dubey, father of the deceased, on 9-3-1985. It was addressed to “the Senior Superintendent of Police, Allahabad. In this report it has been pleaded that Smt. Rita Devi was married in February, 1984 to the applicant Rakesh Kumar, resident of 106, Badshahi Mandi, City Hotel, Hewet Road, Allahabad. Vinod Kumar Dubey is elder brother of Rakesh Kumar. Smt. Nirmla Devi is sister of Vinod Kumar. After marriage Smt. Rita Devi had come to Allahabad, where she stayed for 8-10 days and thereafter went to her parents. After 15-20 days Rakesh Kumar brought Smt. Rita Devi from Kanpur to Allahabad, where she lived for 3-4 months. During this period Rakesh Kumar and his mother Smt. Sudhra Devi treated Smt. Rita Devi with cruelty. After “receipt of information the complainant came to Allahabad and took Smt. Rita Devi to Kanpur. Smt. Rita Devi informed her father that her husband Rakesh Kumar was having illicit connection with the wife of his elder brother Vinod Kumar. Smt. Nirmala Devi had also illicit connection with Kamta and Sanjay Srivastava, friends of Rakesh Kumar. They also insisted that Smt. Rita Devi should ask her parents to give a car otherwise she would be done to death. No report was lodged at the Police Station under the impression that Rakesh Kumar and his family members will see the realities themselves after sometime. In the first week of November, 1984, Rakesh Kumar, his mother and sister again assaulted Smt. Rita Devi. Receiving the information, her father came to Allahabad and took her to Kanpur, where her injuries were treated by a doctor. On 28-2-1985, Ram Abhilash Dubey, father-in-law of the deceased informed the father of the deceased at Kanpur that according to family custom, Smt. Rita Devi should celebrate Holi in her Sasural to which he did .not agree. However, the father of the deceased came to Allahabad and met Rakesh Kumar, his father and brothers. They gave words that in future, Smt. Rita Devi would not be ill-treated. Believing this, Smt. Rita Devi was sent with Rajesh Kumar, the elder brother of her husband, by Prayagraj Express on 6-3-1985. On 6-3-1985: at about 4.00 P.M. somebody informed the mother of Smt. Rita Devi that Rita had committed suicide. The mother of the deceased informed the complainant Tarkeshwar Nath Dubey, who was at his shop. He came to his house at 5.00 P.M. and contacted Ram Abhilash Dubey on phone, who informed that Smt. Rita Devi had committed suicide in her room. Thereafter Ram Abhilash Dubey was requested not to disturb the dead body and was also informed that the parents of the deceased were coming, After making arrangement of a driver, the parents of the deceased reached Allahabad in the night at about 1.30 A.M. When they came to the house of Ram Abhilash Dubey they learnt that the dead body was being cremated at Rasoolabagh Ghat. He rushed there and found that amongst the family members only Ram Abhilash Dubey was present there. The complainant straightway came to Kotwali but did not come across any Sub-Inspector of Police. A constable informed that a report has already been made. Ultimately Tarkeshwar Nath Dubey gave a written report to the Senior Superintendent of Police, Allahabad on the basis of which a case was registered at Crime No. 130 of 1985 under Section 302/498A I.P.C. and Section 4 of the Dowry Prohibition Act.
10. A counter affidavit has been filed on behalf of the opposite parties in which it is said that Smt. Rita Devi was sent by her Maika people at 5.00 A.M. by Prayagraj Express from Kanpur on 6-3-1984 with Rajesh Kumar Dubey. After post mortem examination of the dead body, viscera had been preserved to find out the cause of death. Nothing was found by the doctor who did the post mortem examination of the dead body to support the story of suicide. Two Jars had been sent for chemical analysis but due to oversight only one Jar was written in the report submitted to the Court. Viscera had been preserved properly. The G.O. dated 21-8-1990 is not applicable to this case because post mortem examination was done at the request of the accused. The Sub-Inspector Rama Shanker Tiwari prepared an inquest report according to rule. The investigation was done by the Circle Officer after the report was registered under Sections 302/498A I.P.C. and 3/4 Dowry Prohibition Act. The charge-sheet was submitted after collecting the evidence. The suicide note found in the room of the deceased is not in her hand-writing rather somebody else has prepared it.
11. A rejoinder affidavit was also filed on 5-2-1990 by Vinod Kumar Dubey.
12. Learned counsel for the applicant and opposite party have been heard at length. The record has also been perused. Learned counsel for the applicant raised following points in his arguments :
(1) The first contention was that the viscera was preserved by the doctor who conducted post mortem examination because he did not arrive at any opinion regarding cause of death. This viscera was sen i in one Jar but the report of the Chemical Examiner shows that viscera contained in two Jars was chemically examined by him. Learned counsel for the applicant argued that it was not known as to how two Jars were presented before the Assistant Director when only one Jar had been sent. According to him, it is quite possible that the viscera chemically analysed was not of the deceased Smt. Rita Devi but of somebody else. Learned counsel for the opposite parties, however, replied that viscera had already been preserved in two Jars which was sent for chemical examination but due to oversight the writer of annexure ‘4’ wrote only one Jar.
(2) The second contention of the learned counsel for the applicant was that inquest was not done according to Section 174 of the Code of Criminal Procedure.
(3) The third contention was that according to G.O. dated 21-8-1980, the post mortem examination should have been done by two doctors but in this case only one doctor did it.
(4) The fourth contention was regarding genuineness of suicide note
(5) Lastly, it was said that investigation was full of irregularities.
13. Before looking to these contentions, it will be desirable to consider the legal position regarding a petition under Section 482 of the Code of Criminal Procedure. No doubt, after submission of charge-sheet (as in the present case), a petition under Section 482 is maintainable but it will not mean that in such petition, this Court will look to the evidence collected by the investigating agency. For the application of Section 482 of the Code of Criminal Procedure, the allegations made in the first information report/complaint or the charge-sheet have to be taken at their face value and accepted in their entirety. If the allegations therein do not construe an offence, the criminal proceeding instituted on their basis should be quashed and not otherwise. Learned counsel for the applicant referred the following cases on which reliance was placed by him.
14. S.P. Jaiswal v. State and Anr. (AIR 1953 Punjab 149). This is a ruling on Section 561-A of the Criminal Procedure Code, 1898. Section 561-A of the old Code contained similar provision to Section 482 of the present Code. In this ruling a Single Judge of the Punjab High Court held that the High Court is entitled to look into the police diaries for determining whether any case has been made out or not.
15. Vinod Kumar Sethi and Ors. v. State of Punjab and Anr. (AIR 1982 Punjab and Haryana 372). In this Full Bench case the main question for consideration was as to whether the High Court has inherent jurisdiction to quash the first information report and the consequent investigation even before a charge-sheet is filed in the Court. This Full Bench laid down four pre-conditions for exercise of such power. This Full Bench case of Punjab High Court was considered in Criminal Misc. Application No. 5939 of 1988 (Ramlal Yadav and Ors. v. State and Ors.) and five other connected Criminal Misc. Applications by a Bench of Seven Judges of this Court. In its judgment dated 1-2-1989, this Court did not agree with the view taken in the aforesaid Full Bench case of Punjab High Court. In that case this Court was of the view that the High Court had no inherent power under Section 482 of the Criminal Procedure Code to interfere with the investigation by the police. In the instant case, the aforesaid rulings of Punjab and Haryana High Court are off the point, because in this case chargesheet has already been submitted and, in fact, the prayer of the applicant is to quash the charge-sheet.
16. The next case relied upon by the learned counsel for the applicant is Chandra Shekhar and Anr. v. State (1982 Cr.L.J. NOC 163 (All.)). In this ruling a Single Judge of this Court held “ordinarily the High Court does not interfere at the interlocutory stage in criminal proceedings in subordinate courts. It interferes only when there is abuse of process of law or where proceedings are without jurisdiction or where there is glaring defect on the face of the proceedings which renders prosecution untenable or where there is no reasonable chance of the accused being convicted.
17. Reliance was also placed by the learned counsel for the applicants in Sunderam and Ors. v. State (1984 Crl.L.J. NOC 62 (Madras)) in which a Single Judge of the Madras High Court has held that the proceedings against the accused deserve to be quashed if the charge-sheet was filed for motivated reasons and did not contain the ingredients of the offence complained of.
18. Besides above rulings relied upon by the learned counsel for the applicants, reference may be made to the following authorities :
(1) State of Bihar v. Murad Ali Khan and Ors. (1989 Supreme Court Cases (Crl) 27) in which it has been held that :
“Jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly and with circumspection. In exercising that jurisdiction the High Court should not embark upon an enquiry whether the allegations in the complaint are likely to be established by evidence or not. That is the function of the trial Magistrate when the evidence comes before him. Though no inflexible rules could be laid down to regulate the High Court’s Jurisdiction, when the High Court is called upon to exercise this jurisdiction to quash a proceeding at the stage of the Magistrate taking cognizance of an offence, the High Court is guided by the allegations, whether those allegations set out in the complaint or the chargesheet, do not in law constitute or spell out any offence and whether resort to criminal proceedings would, in the circumstances, amount to an abuse of the process of the Court or not.”
(2) State of U.P. v. R.K. Srivastava and Ors. (AIR 1989 SC 2222). In paragraph 3 of this ruling, the Hon’ble Supreme Court has observed :
“It is a well settled principle of law that if the allegations made in the first information report are taken at the face value and accepted in their entirety do not constitute an offence, the criminal proceedings instituted on the basis of such first information report should be quashed.”
(3) Mrs. Dhanalakshmi v. R. Prasanna Kumar and Ors. (1990 Allahabad Criminal Rulings 11). In this ruling Hon’ble Supreme Court has observed :
“Section 482 of the Code of Criminal Procedure empowers the High Court to exercise its inherent powers to prevent abuse of the process of Court. In proceedings instituted on complaint exercise of the inherent power to quash the proceedings is called for only in cases where the complaint does not disclose any offence or is frivolous, vexations or oppressive. If the allegations set Out in the complaint do not constitute the offence of which cognizance is taken by the Magistrate it is open to the High Court to quash the same in exercise of the inherent powers under Section 482. It is not, however, necessary that there should be a meticulous analysis of the case, before the trial to find out whether the case would end in conviction or not.”
19. In face of the legal position as noted in the aforesaid three judgments of the Hon’ble Supreme Court, it is not possible to argue that this Court in an application under Section 482 of the Code of Criminal Procedure can enter into the evidence to find out if the case is likely to end in conviction or not. Regarding the scope of Section 482 of the Code of Criminal Procedure it is now well settled that the High Court is guided by the allegations made in the complaint or charge-sheet and only it has to be seen if these allegations constitute any offence or not and whether resort to criminal proceedings in such circumstances amounts to an abuse of the process of the Court or not.
20.. In the back ground of this legal position let us come to the contention of the learned counsel for the applicants. A perusal of the charge-sheet (Annexure 10) makes it clear that there is allegation of demand of dowry and treating Smt. Rita Devi with cruelty. Various circumstances have also been noted in the charge-sheet to indicate that it was not a case of suicide rather a case of murder. The suicide note said to be in the handwriting. After having a look at the detailed allegations and points noted in the chargesheet, coupled with the evidence of the witnesses noted therein on different points, it is not possible to say that the perusal of the charge-sheet prima-facie does not constitute any offence. The allegations made therein will have to be taken on the face value and if the applicants are prosecuted on the basis of these allegations and evidence thereon, it cannot be said that their prosecution would amount to an abuse of the process of the Court.
21. This finishes the legal consideration in this petition. However, we may consider the different contentions raised by the learned counsel for the applicants. The first contention is regarding the Jars in which viscera had been sent. No doubt, in Annexure ‘4’ only one Jar of viscera pertaining to Crime No. 130 of 1985 of Police Station Kotwali, Allahabad preserved from the dead body of Smt. Rita Devi is mentioned, whereas in the report of the Joint Director, Vidhi Vigyan Prayogshala (Annexure ‘5’) two sealed Jars of Crime No. 130 of 1985 of Police Station Kotwali, Allahabad’ being the viscera of the dead-body of the deceased Smt. Rita Devi is mentioned but this difference does not appear to be very material at this stage. In both the documents there is reference of case number as well as viscera having preserved from the dead body of Smt. Rita Devi at the time of post mortem examination. The Box Number containing the viscera is 1273 as noted in Annexure ‘5’. The report of the Joint Director same number of Box is noted is Annexure ‘6’, the letter of the Superintendent, Motilal Nehru Hospital, Allahabad from where the viscera of Smt. Rita Devi was despatched to chemical examiner for analysis. Moreover, if there is any confusion it can be well sorted out at the time of evidence and the applicants will have ample opportunity to show, what they claim but at this stage only because due to over-sight one Jar appears to have been noted in Annexure ‘4’, it cannot be inferred that the viscera was not of the deceased Smt. Rita Devi.
22. The next contention of the learned counsel for the applicants was that the inquest of the dead body in this case was done by the Sub-Inspector of Police and lot by a Magistrate as provided under Section 174 of the Code of Criminal Procedure. Learned counsel for the opposite party argued that in the instant case, the inquest was done at the request of the accused, hence it was not necessary to report the matter to the Magistrate for inquest being done by him. Whether the inquest done in this case by a Sub-Inspector is against the aforesaid provision or not and if it is against the aforesaid provision, what will be the effect, can very well be considered at the time of the disposal of the case by the Sessions Judge. This cannot be a ground for interference under Section 482 of the Code of Criminal Procedure.
23. The next contention was regarding the post mortem examination having been done by only one doctor. It was argued that according to G.O. No. 928 GI/8-2-74/80 dated 21-8-1980 (Annexure 7), the postmortem examination should have been done by two doctors but was done by only one doctor. The G.O. is only an executive direction. The effect of its non-compliance on the case can very well be considered by the Sessions Judge at the time of disposal of the sessions case. On this ground also no interference under Section 482 of the Code of Criminal Procedure is called for.
24. It was thereafter contended that the suicide note is enough to prove that it was not a case of murder. It has been seen earlier that the genuineness of this suicide note has been denied. After the evidence is led during the course of Sessions trial about the suicide note, the Sessions Judge will be free to come to a decision regarding the genuineness or Otherwise of this note but at this stage this also is not a ground for interference under Section 482 of the Code of Criminal Procedure.
25. Last contention regarding investigation being irregular or whether the investigation was fair are not, are the matters to be considered not at this stage but at the stage of final disposal of the Sessions Trial. At this stage it will not be proper to enter into discussion on these points.
26. As said earlier, from the charge-sheet it appears that the prosecution has evidence to prove the demand of dowry, treating the deceased with cruelty, besides some important circumstances indicating that it could be a case of murder. The legal position has already been discussed earlier. Accordingly, in the instant case, this Court is guided by the allegations made in the charge-sheet and it has to be seen if the said allegations constitute an offence. As a mere reading of the allegations of the charge-sheet definitely go to show that the allegations contained therein constitute the offence of treating the deceased with cruelty for dowry and consequent murder for dowry, it will not be possible at this stage to have a maticulous analysis to the evidence to find out if on the basis thereof, conviction can be recorded or not.
27. For these reasons, the applications under Section 482 of the Code of Criminal Procedure are held to be without merit and are hereby rejected. The stay order passed in the case earlier is vacated. The case is pretty old one. The learned Sessions Judge is directed to dispose, it off giving top priority.