DLST010102172024 Rs. 1.

25

GRN:

BEFORE THE ADDITIONAL SESSIONS JUDGE

SC/582/2024

STATE
Vs
ABHISHEK ANAND

Miscellaneous Application like condonation of delay

The above naPETITION BY AND ON BEHALF OF PETTIONER VIZ.

ALOK KUMAR SINHA, S/O LATE SH. CHANDRA MOHAN SINHA
SECTION 250 OF THE BHARTIYA NAGRIK SURAKSHA SANHITA
CORRESPONDING SECTION 227 OF CODE OF CRIMINAL
PROCEDURE FOR DISCHARGE FROM THE OFFENCES AS
ALLEGED UNDER SECTION 304-B, 498A AND 406 OF INDIAN
PENAL CODE W.R.T FIR BEARING NO. 458 OF 2021 REGISTERED
WITH P.S.;-NEBSARAI, DELHI POLICE AND CONSEQUENT
CHARGESHEET DATED 18.01.2022 AND SUPPLEMENTARY
CHARGE SHEET FILED BY INVESTIGATING OFFICER UNDER
SECTION 173 OF CODE OF CRIMINAL PROCEDURE BY THE
INVESTIGATING OFFICER.
MOST RESPECTFULLY SHOWETH :

1. That the Petitioner hereby seeking benign indulgence of this court for
discharge from the present criminal proceedings whereby the petitioner has
been kept under Column No. 12 vide supplementary charge sheet filed
before the Ld. Court of M.M. (South), Saket at Delhi, under section 173 of
Code of Criminal Procedure in FIR No. 458 of 2021, registered with P.S.:
Neb Sarai, Delhi Police for the offences punishable u/s 304-B, 498-A and
406 IPC read with section 34 IPC. It is submitted that Ld. Court of JMFC-
03, South, (Saket) vide order dated 06.07.2024 took the cognizance of
offence under section 304-B/ 498-A r/w section 34 of IPC and summoned
the petitioner vide order dated 06.07.2024, and committed the present case
vide order dated 28.08.2024 to Sessions Court, (South) Saket Delhi.

2. That the Investigating Officer, after registration of FIR in question, has

proceeded towards the investigation, recorded the statement of witnesses
acquainted with the facts, under section 161 Cr.P.C. apart from official
witnesses to be examined during the trial. The relevant witnesses besides
the official witnesses, proposed to be examined during trial are as follows -

(i) Aman Kumar Chaudhary, S/o Sh. KapileshwarChoudhary.

(ii) AshutoshChoudhary, S/o Sh. KapileshwarChoudhary.
(iii) Sh. KapileshwarChoudhary, S/o Late Sh. Dev Narayan Choudhary.

3. That the bare perusal of the statement of witnessesalong with documents

and material available on court’s record itself reveals that
Prosecution has not able to made out even a prima facie case against the
petitioner under any stretch of interpretation. The Charge
sheet/Supplementary Charge sheet amply discloses that the Investigating
Officer did not find any incriminating material but some vague and bald
allegation made out by witnesses proposed to be examined during trial and
therefore, placed the petitioner under column no.12. It is further submitted
that prosecution has relied only upon false statements and even if the same
will be proved after the conclusion of trial, the essential ingredient to
constitute the offences as alleged could not be established and therefore the
petitioner is entitled to be discharged from the present criminal proceedings
and thus approaches this Hon’ble Court through present
petition.

4. That the petitioner wish to humbly submit, before countering the

allegations, that it is admitted case of prosecution that the petitioner is
brother-in-law of deceased’s husband and could not be
considered as “relatives” of Husband in terms of
section 498-A so as to attract the said section.

5. That even the CDR, produced by the Investigating Officer (IO) shows
that there were three incoming calls from deceased to petitioner during 11th
May, 2021 to 12th June, 2021 and five outgoing calls from petitioner to the
deceased during 29th May, 2021 to 14th June, 2021. These were the
courtesy calls made during the initial days of marriage and no call was
exchanged after 14th June, 2021. Incident took place on 19th October,
2021. During this period of more than four months there was no
interaction/conversation at all between the petitioner and the deceased.

6. That in the background of the para 2 above, the sequential development

in the case make the things clearer that how the complainant misused the
law and tried to frame the petitioner for the reasons best known to him or
perhaps because, the complainant would have thought that the petitioner
would approach him and he would negotiate with him for some
considerations as the petitioner is a government official and he would
definitely try hard to get out of the case.

7. The perusal of the ‘FIR’, statement recorded

under section 161 and materials available on the records with relevant
extract of charge sheet (supplementary) which are being reproduced
hereinafter paras demonstrates as to how the Informant and his family
members attempting to implicate the petitioner on false accusations that
could not be sustained either in the eyes of facts or in the eyes of laws
thereby compelling him to undergone into acute mental trauma:

(i) FIR: As may be seen, in the main contents of the FIR dated 22.10.2021,
there are around 634 words and there is nothing against the petitioner, not a
single word/allegation has been made but all of sudden and out of nowhere
petitioner’s name gets parachuted at the end stating
“…….अतः श्रीमान सेआग्रह
है कि उपरोक्त तथ्यों को संज्ञान में लेते हुए
……….. SH. Alok Kumar के
विरुद्ध एफ आई आर दर्ज कर उचित क़ानूनी
कार्यवाही की जायेI”

(ii) Statement of the complainant under 161: By the time case progresses,
while lodging his statement dated 20.02.2022 under 161, the complainant
forgets the name of the petitioner. This can be understood. The famous
quote of Mark Twain, explains this - “If you tell the truth, you
don’t have to remember anything.”

(iii) Kapileshwar Choudhary (deceased’s father): He made

statement on 20.02.2022 wherein petitioner’s reference comes
up in following lines which is too complex to understand:
“….मेरी पुत्री के फ़ोन से
कॉन्फ्रेंस करके मेरी मंझली बहु को फ़ोन पर फ़ोन
करके मेरी पुत्री की ननद भावना झा, साधना झा,
सासु रंजना झा, नन्दोईआलोक सिन्हाऔर दहेज़ की
डिमांड करते थेऔर चार पहिये की गाड़ी की डिमांड
करते थे ....”
To comprehend this allegation is not less than a challenge. Who was doing
calls from deceased’s phone to Manjhli Bahu and who took
others on conference call is quite a riddle. At best, it is submitted that the
allegation is too general and devoid of any specific viz. time, date, other
specification etc….and the prosecution did not able to produce
even a single piece of incriminating material on judicial records that
substantiate the allegations of demand of dowry/car against the petitioner.
As indicated above, the way the complainant parachuted the name of
petitioner in this case, in the same manner Shri Kapileshwar Choudhary,
who served and superannuated from Bihar Police Department, knew that
how relatives can be dragged years in the case merely by mentioning their
name in the FIR or Statement.

(iv) Ashutosh Choudhary (Deceased’s step brother): He merely

stated in his statement dated 20.02.2022 recorded under section 161 Cr.P.C.
that the petitioner has an eye over the property situated at Purnea. However,
he himself clarifies that the property is exclusively owned by mother-in-law
of the petitioner. It is submitted that why the petitioner would subject the
cruelty to the deceased to get the share of property owned by his mother-in-
law and what purpose it would serve. Moreover, the aforesaid
circumstances could not be considered as cruelty so as to attract even
section 498-A of IPC what to talk of Section 304-B of Indian Penal Code.

8. That there are two allegations against the petitioner which are:

(i) Had an eye over Purnea’s property belonging to

petitioner’s mother-in-law
(ii) Demand of dowry/car through a conference call

As may be seen aboveallegations are bald, omnibus and bereft of any

specific fact and the Section 498A, IPC cannot be invoked what to talk
about 304B. While granting anticipatory bail to the petitioner dated
19.04.2022 (Annexure-) Ld Special Judge-NDPS/ASJ (South) observed
after perusing the case diary and the statements under Section 161 Cr.PC as
recorded “…the allegations aginst the
applicant/accused are too vague and general. No specific incident of any
cruelty/physical or mental abuse have been
made….”.

That it cannot be coincidence that the conclusion of the investigation which

remained continued around three years in this case under which
Supplementary Charge sheet was placed before Ld. Court of M.M. (South),
Saket on 6.7.2024 concluded on the same note that (kindly see page no.
….of Supplementary Charge sheet,

“……अब तक की तफ्तीश से व
corroborative CDR से alleged Alok Sinha .... के खिलाफ कोई
substantial evidence फाइल पर नहींआयाहै।..... गवाहों के
बयानात से भी alleged Alok Sinha....के खिलाफ कोई allegation
फिलहाल prove नहीं हो पाया है। ... alleged Alok Sinha ......
को कोर्ट से anticipatory bail मिल चुकी है जिनको चालान
हजा के खाना न. १२में रखा गया है…।
“

9. That the petitioner is being charged by the prosecution under Section

498A, 304B and 406 of IPC. Section 498Ais much lessor offence compare
to 304-B of IPC.The expression of “cruelty” under
section 498 A IPC has much wider spectrum than that of 304B. Hon`ble
Apex Court in the matter of ParanGouda &Anr.Versus The State
of Karnataka & Anr. (Slp) Crl. No 12216 of 2022 while
confirming the legal proposition referred toDinesh Seth Versus State of
NCT in Criminal Appeal No. 1239 of 2003 and explained section 498-A
which is as follows :-

“26. The ingredient of cruelty is common to Sections 304-B

and 498-A IPC, but the width and scope of the two sections is different,
inasmuch as Section 304-B deals with cases of death as a result of cruelty
or harassment within seven years of marriage, Section 498-A has a wider
spectrum and it covers all cases in which the wife is subjected to cruelty by
her husband or relative of the husband which may result in death by way of
suicide or cause grave injury or danger to life, limb or health (whether
mental or physical) or even harassment caused with a view to coerce the
woman or any person related to her to meet unlawful demand for property
or valuable security.”

10. Hon’ble High Court of Delhi in Satbir Dalal

&Ors. vs State (Govt. Of Nct Of Delhi) on 14February, 2019
observed that “…..it is a settled position of law that
for framing a charge not only suspicion but grave suspicion
isrequired…”. It was observed that –

“21. To constitute an offence under Section 304B and Section

498A IPC, it not mere bickering whichwould amount to an offence but it
should be harassment of such a nature that would drive a womanto commit
suicide.

22. No allegation or incidence has been cited by any of the family members
of the deceased ofharassment or cruelty of a nature that would drive a
woman to commit suicide or cause bodily harm.
23. It is not only a unnatural death within seven years of marriage that is
required to be established,what is additionally required to be established
and which was been lost sight of by the Trial Court, isthat soon before the
death the deceased was subjected to cruelty or harassment and cruelty
asdefined under Section 498A should be of such a nature as is likely to
drive a woman to commitsuicide or cause grave injury.

24. The allegations made by the family of the deceased against the
petitioners do not show that thedeceased was subjected to cruelty of such a
nature so as to qualify as an offence under Section.

26. In view of the above, the impugned order on charge dated 08.09.2015
and the consequentcharge framed against the petitioners cannot be
sustained and accordingly the same is quashed. Theconsequence to the
same is that the petitioners are discharged of the offence under
Sections304B/498A/34 IPC.”

11. That in the Mirza Iqbal @ Golu vs the State of Uttar Pradesh, in para
11, Hon’ble Supreme Court had referred to GeetaMehrotra and
Anr. Vs State of Uttar Pradesh and Anr, wherein it was observed that -

“….family members of husband were shown as

accused by making casual reference to them.” In the very same
judgement, it was held that a large number of family members are shown in
the FIR by casually mentioning their names and the contents do not
disclose their active involvement, as such, taking cognizance of the matter
against them was not justified. It is further held that taking cognizance in
such type of cases results in abuse of judicial process.”
12. That the prosecution with ulterior motive and oblique reasons only with
a view to implicate the petitioner under false accusation imposed charge of
section 34 of IPC which is not applicable at all in the present case. The
Hon`ble apex Court in the matter of Krishnamurthy alias Gunodu and
Ors.vs. State of Karnataka “Participation in the crime in
furtherance of the common intention cannot conceive of some independent
criminal act by all accused persons, besides the ultimate criminal act
because for that individual act law takes care of making such accused
responsible under the other provisions of the Code. The word
“act” used in Section 34 denotes a series of acts as
a single act. What is required under law is that the accused persons sharing
the common intention must be physically present at the scene of occurrence
and be shown not to have dissuaded themselves from the intended criminal
act for which they shared the common intention. A Division Bench of the
Patna High Court in SatrughanPatar v. Emperor held that it is only when a
court with some certainty holds that a particular accused must have
preconceived or premeditated the result which ensued or acted in concert
with others in order to bring about that result, that Section 34 may be
applied”.
Therefore, it can be safely concluded, thereby, that the case of prosecution
is amply motivated, improper and reeks of malicious intent which is not
sufficient to attracts the section of 304-B, 498A and 406 IPC.
PRAYER
Hence, in view of the submissions made above, it is crystal clear that no
prima facies case is made out attracting the section 304B, 498A and 406
IPC and as such it is most respectfully prayed to this Hon`ble Court that:-
(a) Pass an order to the effects that the petitioner be discharged from the
present criminal proceedings arising out of FIR No. 458 of 2021, P.S.:- Neb
Sarai and charge sheet /supplementary charge sheet filed by the
Investigating Officer before the Ld. Court of MM,-06, South, Saket Delhi.
and/or
(b) Pass an appropriate order as may be deem fit and proper in the facts and
circumstances of this case.

SH ALOK KUMAR

Taluka: South Delhi, District: South

Date : 25-10-2024

Counsel for Applicant/

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