Ajay Khorana vs State of U.P. and Namita Khorana

Vinod Prasad, J.—Applicant Ajay Khorana has prayed for quashing of, summoning order dated 10.1.2007 as well as the charge sheet dated 16.2.2006 filed in Crime No. 1713 of 2005 for offences under Sections 323, 504, 506, 498A I.P.C. pending before C.J.M. Basti against him.

The necessary facts eschewing the unnecessarily details of the prosecution allegations are that the applicant was married with respondent No. 2 Namita Khorana on 28th September 1990 at Bhopal. After the marriage respondent No. 2 Namita Khorana was tortured because of demand of dowry and even was assaulted. Respondent No. 2 Namita Khorana was harassed and was turned out of her in-laws house. She lodged a/F.I.R. in respect of offences of demand of dowry and torture with police, which was got investigated and ultimately a charge sheet was laid in the court against the applicant and his parents, in the aforesaid crime No. 1713 of 2005 for offences under Sections 323, 504, 506, 498A I.P.C. on 16.2.2006. The said charge sheet was registered as case No. 4945 of 2006 in the court of C.J.M. Basti and the ''accused persons were summoned. It is this charge sheet, which is being prayed to be quashed.

Sri R.N. Pandey and Sri P.N. Pandey have put in their appearance on behalf of the respondents in this case. Counsel for the respondents informed that this is the fourth exercise by the applicant in this Court with the same relief. They pointed out that initially after submission of the charge sheet when the applicant was not even summoned he filed an application before this Court being Criminal Miscellaneous Application No. 3808 of 2006, which was dismissed as premature, by this Court on 13.4.2006. A copy of the said order has been annexed as annexure No. 3 to this application. Subsequently after the summoning order was passed, applicant Ajay Khorana and others filed Criminal Miscellaneous Application No. 8010 of 2007. In the aforesaid case the two counsels for the respondent wife put in their appearance. After the counsels put in their appearance the said Criminal Miscellaneous application No. 8010 of 2006 was act dismissed by the applicants on 2.5.2007 (annexure No. 1). Subsequently, the-said accused persons Ajay Khorana and others filed a third Criminal Miscellaneous Application No. 9984 of 2007 in which also the respondent wife put in appearance through the aforesaid counsels, and therefore, the applicant again got the third Criminal Miscellaneous application 9984 of 2007 dismissed with liberty to file fresh on 23.5.2007. Both the orders dated 2.5.2007 and 23.5.2007 passed in the aforesaid Criminal Miscellaneous Applications Nos. 8010 of 2007 and 9984 of 2007 were passed by Hon''ble Ravindra Singh, J. Learned Counsel for the applicant therefore, contended that this fourth application is nothing but a misuse of process of court and is not maintainable.

Learned Counsel for the applicant (sic) Contended that since the earlier two applications were got dismissed as not pressed with liberty to file a fresh, therefore, this fourth application is, maintainable. On the merits, learned Counsel for the applicant contended that the court at Basti does not have any territorial jurisdiction to try the accused persons as no cause of action occurred there. He secondly contended that the marriage was solemnized at Bhopal in Madya Pradesh and the dowry was given there. Therefore, it is only the courts at Bhopal who can try the accused. He also submitted that since Basti court did not have any territorial jurisdiction, therefore, in view of the pronouncement of the Apex Court reported in Y. Abraham Ajith and Others Vs. Inspector of Police, Chennai and Another, that the prosecution be quashed.

I have considered, the submissions raised by both the sides. It is an admitted fact that after the charge sheet was filed in the court but before the summoning order was passed the applicant has approached this Court by filing Criminal Miscellaneous Application No. 3808 of 2006, which was dismissed as being premature, since the applicant; was not summoned by that date 13.4.2006. Subsequently after the summoning order was passed on two occasions the applicant approached this Court. Firstly by filing Criminal Miscellaneous Application No. 8010 of 2007. In the said application the respondent wife appeared through her counsels to argue the matter. The applicant then got his said application dismissed with liberty to file a fresh on 2.5.2007. The said exercise was repeated again in Criminal Miscellaneous Application No. 9984 of 2007 by those very accused persons including the applicant. After the aforesaid two orders were passed by this Court that this fourth exercise is ventured by the applicant by filing the present Criminal Miscellaneous Application No. 12135 of 2007. In view of the aforesaid facts the experimental exercise resorted to by the applicant Ajay Khorana is nothing but an abuse of the process of this Court. His conduct is utterly deplorable. In this application the counsel is also the same who was the counsel in the earlier two Criminal Miscellaneous Applications. If the applicative" was so confident of the grounds canvassed by him in this application which are not new and different from the grounds taken by him in the earlier two applications,'' he should have argued his earlier two Criminal Miscellaneous Applications. That having not being done it does not understandable how this fourth application is maintainable as the matter was got dismissed with arguing on merits on the earlier two occasions.

The contention of the learned Counsel for the applicant that since earlier two applications were got dismissed as not pressed with liberty to file fresh those orders will not operate as res judicata against him. The said contention of learned Counsel for the applicant is not only illegal but indicates malpractice which is being resorted to by unscrupulous litigant. This matter has attain the attention of the Apex Court in a case reported in Rajinder Prasad Vs. Bashir and Others, in the aforesaid Judgment the Apex Court has held as follows-

We are of the opinion that when the earlier revision-petition filed u/s 397 of the Code had been dismissed as not pressed, the accused-respondents could not be allowed to invoke the inherent powers of the High Court u/s 482 of the Code for the grant of the same relief. We do not agree with the arguments of the learned Counsel for the respondents that as the earlier application had been dismissed as not pressed, the accused had acquired a right to challenge the order adding the offence u/s 395 of the Code and arraying four persons as accused persons by way of subsequent petition u/s 482 of the Code. The object of criminal trial is to render public justice and to assure punishment to the criminals keeping in view that the trial is concluded expeditiously. Delaying tactics or protracting the commencement or conclusion of the criminal trial are required to be curbed effectively, lest the interest of public justice may suffer....

We are of the opinion that no special circumstances were spelt out in the subsequent-application for invoking the jurisdiction of the High Court u/s 482 of the Code and the impugned order is liable to be set aside on this ground alone.

In view of; the aforesaid law no litigant is allowed to approached this Court repeatedly for the same relief without any additional fact on the same ground. This cannot be left to the litigant to resort to dexterity and saddle this Court with loathsome of petitions without the cases being get finalized.

In view of the said fact, I am of the opinion that this fourth Criminal Miscellaneous Application is not maintainable but it is an exercise in malafidy for which I implant a cost of Rs. 25000/- on the application Ajay. Khorana to be realized by CJM Basti as arrears of land revenue form him within a period of one month from the receipt of certified copy-of this order by him.

Coming to the fasts of the case it is mentioned by the wife in the complaint lodged by her, in paragraph 23 that while she was at Basti on 8th September. 15th September 2005 and 21st September 2005, she was threatened of phone because of non-fulfilment of demand of dowry. She was also threatened by the husband applicant that he has got relations with don and will get her annihilated. This part of cause of action certainly accrued at Basti, therefore, the wife who was tortured for demand of dowry had got a right to maintain the case at Basti. Further I may remind that Section 462 Cr.P.C. clearly provides that no order passed by any court can be declared to be illegal, null and void I because the court who has passed the order had no territorial jurisdiction. Section 462 Cr.P.C. is referred to below:

Proceedings in wrong place- No finding, sentence or order of any Criminal Court shall be set aside merely on the ground that the inquiry, trial or other proceedings in the course of which it was arrived at or passed, took place in a wrong sessions division, district, sub-division or other local area, unless it appears that such error has in fact occasioned a failure of justice.

In view of the aforesaid, even on merits, the applicant does not have any case and both the submissions raised by learned counsel for the applicant are wholly untainable and unmerited and therefore, are repelled.

This application is merit less it is dismissed.

As soon as the amount of cost is realized by the CJM Basti the I same shall be disbursed to the destitute wife who is fighting even for her maintenance against the husband.

Let a copy of this order will sent to C.J.M. Basti within a period of three weeks for his intimation and further action.