NISHU Vs. STATE OF HIMACHAL PRADESH

JUDGEMENT

(1.) Complaint herein is that learned trial Court vide impugned order dated 03.09.2015, Annexure P-4 has went wrong while ordering the cancellation of FIR No. 173/14 registered against her husband and his relations under Sec. 498-A, 506 read with Sec. 34 of the Indian Penal Code in Police Station, Manali, District Kullu, H.P.

(2.) The petitioner herein is the complainant in FIR, Annexure P-1. She was married to accused Vinay Kumar as per Hindu Rites and Customs. She, however, later on was turned out from the matrimonial home allegedly after being tortured by her husband and his relations at the pretext of demand of dowry. At her instance, FIR, Annexure P-1 was registered against her husband Vinay Kumar and his father Kashmir Singh. The police on completion of the investigation has filed the report under Sec. 173 of the Code of Criminal Procedure and sought thereby cancellation of the FIR. The petitioner complainant was summoned and associated by the Court below before passing the impugned order, Annexure P-4 qua cancellation of the FIR.

(3.) The perusal of impugned order reveals that FIR was ordered to be cancelled and liberty reserved to the complainant to file private complaint, if so advised. As a matter of fact, no such order could have been passed nor in view of the FIR already registered in the matter, the liberty in favour of the petitioner-complainant to file a criminal complaint could have been reserved, because in view of the cancellation of FIR any criminal complaint filed afresh would amount to abuse of process of the Court. The appropriate course available to learned trial Court was to have taken on record any other and further details pertaining to the occurrence and it is thereafter the matter considered afresh for passing an appropriate and reasoned order. In the event of any other details qua occurrence furnished by the petitioner-complainant to have considered the same while passing the order qua cancellation of FIR or otherwise in the cancellation report. In the event of any substance find out in the additional material/details if so furnished by the petitioner-complainant the matter could have been returned to the investigating agency for conducting further investigation in terms of the provisions contained under Sec. 173(8) of the Code of Criminal Procedure. The impugned order, in the considered opinion of this Court, is, therefore, not legally sustainable and as such, quashed and set aside. Learned trial Court to decide the fate of cancellation report afresh after affording opportunity of being heard to the petitioner- complainant and in the light of material/details if any furnished by her in the trial Court. The parties through learned counsel representing them are directed to appear in the trial Court on 30th Dec., 2016. The record be sent back along with a copy of this judgment so as to reach in the trial Court well before the date fixed.