Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.30103 of 2005 ====================================================== Dr. (Prof.) Rajesh Kumar Barnwal @ Rajesh Kumar Barnwal (son of Shri Bijoy Prasad Barnwal), Assistant Professor (Department of Mathematical and Statistical Science) Middle Tenessee Street University, U.S.A., Resident of Murfreesboro Tenessee, 1301, E, Main Street, X-137, U.S.A.- 301. .... .... Petitioner. Versus 1. The State of Bihar 2. Kavita Rani @ Kavita Devi, W/o Mr. Binay Kumar Sharma (Advocate), Daughter of Mr. Ajay Kumar Gupta, At present residing in the House of Smt. Anapurna Barnwal (Teacher) Mohalla- Madhopur, P.S.- Kotwali Town and District- Munger (Bihar). .... .... Opposite Parties. ====================================================== Appearance : For the Petitioner/s : Mr. Prabhu Narayan Sharma, Adv. For the Opposite Party/s : Mr. Mrigank Mauli, Adv. Mr. Vinay Mistry, Adv. ====================================================== CORAM: HONOURABLE MR. JUSTICE SAMARENDRA PRATAP SINGH ORAL ORDER 19 03-07-2013 Heard learned counsel for the petitioner and the learned counsel for the State and the opposite party no.2. 2. The petitioner is the husband of opposite party no.2 Kavita Rani @ Kavita Devi. The petitioner prays for quashing the order dated 08.09.1998 passed by the Judicial Magistrate, Munger in Complaint case no.292 C of 1998 whereby cognizance has been taken under Sections 498 (A) and 406 of the I.P.C. and Section 3/4 of the Dowry Prohibition act against the petitioner, his father and mother. 3. The petitioner has further prayed for quashing the 2
Facts
Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 2 / 7 entire proceedings. 4. The petitioner submits that a Divorce case bearing Divorce Case no. 03 of 2002 was filed by the opposite party no.2, which was decreed. The petitioner has filed supplementary affidavit stating that the complainant herself filed a petition on 11.02.2003, wherein she stated that she has no hesitation in withdrawing the complaint case filed under Dowry Act. She further stated in paragraph 11 of the petition that she is taking back the power given to her counsel in the said complaint case.
Legal Reasoning
filed by the Bank, we are satisfied that this is a fit case where technicality should not be allowed to stand in the way in the quashing of the criminal proceedings, since, in our view, the continuance of 5 Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 5 / 7 the same after the compromise arrived at between the parties would be a futile exercise.” 10. In B.S. Joshi case, a complaint was filed under Section 498 (A) of the I.P.C. In the said case, a compromise was arrived at between the parties, still the prosecution was not quashed by the High Court under Section 482 of the Cr.P.C. on the ground that the provision is not compoundable as well as the complaint made out a prima facie case, despite a compromise petition being filed by the parties. The Hon'ble Apex Court observed that when both wife and the husband had agreed that the prosecution may be quashed in view of mutual consent and understanding then in the interest of justice the prosecution should be quashed notwithstanding that the provision is not compoundable. 11. In the instant case, a petition was filed after seven years of taking of cognizance in the year 1998. Furthermore, the complainant in her petition stated that in case her properties, a sum of Rs. 5,00,000/- returned she would have no objection in withdrawing the prosecution case itself. In fact, she stated that she is giving necessary instruction in this regard to her counsels. Thus we find that withdrawal was conditional and contingent upon return of her properties and money. The petition for the purpose of 6 Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 6 / 7 withdrawal was not in absolute terms. 12. Counsel for the opposite party no.2 submitted that petitioner did not meet the aforesaid request of the complainant and no money or property was returned. It appears from submissions of the petitioner that the complainant’s grievance was not redressed. This brings upon to the merit of the case. The complaint case does make out a prima facie case under Section 498 (A) of the I.P.C. and 3/4 of the Dowry Prohibition Act. The prosecution case alleges demand and torture against the petitioner. It is alleged that the accused demanded Rs. 2,50,000/- from complainant and started giving mental and physical torture and when the complainant wanted to go to America with her husband, the parent of her husband demanded Rs.2,50,000/- and took all the ornaments of the complainant. The complainant was not spared of torture in USA for two years. The complainant has thus alleged torture both within the jurisdiction of this Court as well as in USA. Since demand of dowry and allegation of torture as alleged also took place in India within the jurisdiction of this Court and U.S.A., the prosecution is not hit by Section 188 of Cr.P.C. The petition under Section 205 of Cr.P.C. filed by the petitioner too was rejected. 13. In these circumstances, I am not inclined to quash 7 Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 7 / 7 the order taking cognizance. This application is dismissed, accordingly. 14. In case, if compromise petition is filed, the learned Magistrate would look into the matter and consider the same without being prejudiced by this order. Uday/- (Samarendra Pratap Singh, J)
Arguments
Learned counsel further submits that vide order dated 06.12.2004 the petitioner’s father and mother were acquitted in the criminal trial by the trial court. He further submits the complainant did not appear that in the said prosecution / trial against his parents. Learned counsel relied upon in paragraph 10 of the judgment in case of B.S. Joshi & Ors. Vs. State of Haryana & Ano. Reported in AIR 2003 SC 1386 as well as paragraph 31 of the judgment in case of Gian Singh Vs. State of Punjab and Ano, disposed of on 24.09.2012 in support of his submissions that when compromise has been effected and the parties do not want to pursue prosecution case under Section 498 (A) of the I.P.C. or Dowry Act, the same can be quashed. 5. The petitioner submits that the informant has 3 Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 3 / 7 alleged torture to her in U.S.A. He contends that as per Section 188 of Cr.P.C. the offence committed outside India cannot be enquired into or tried in India except with the previous sanction of the Central Government. 6. Mr. Mrigank Mauli, learned counsel for opposite party no.2, too has produced a copy of decree of Divorce dated 05.07.2002 passed in Divorce case no. 03 of 2002. He submits that in paragraph 8 of the said judgment of Principal Judge, Munger that complainant has stated that in case jewellery, gifts and a sum of Rs. 5,00,000/- are returned besides emoluments for maintenance and subsistence she would stand reconciled. The Principal Judge, Munger did not pass any order in respect of the aforesaid grievance of the opposite party no.2, but nonetheless decreed the Divorce case filed by complainant. 7. Mr. Mauli further submits that the petitioner neither Rs.5,00,000/- was returned nor any gift and Jewellery, which was given to him. Learned counsel submits that the complainant in her petition filed in year 2003 had reiterated her demand for return of a sum of Rs.5,00,000/- with other gifts. 8. In the instant case, the petitioner has challenged the order taking cognizance dated 08.09.1998 in the year 2005. The Hon'ble Apex Court in paragraph 10 in the judgment of B.S. 4 Patna High Court Cr.Misc. No.30103 of 2005 (19) dt.03-07-201 4 / 7 Joshi & Ors. (supra) has observed that in appropriate case this Court can quash the proceedings, if it comes to the conclusion that in the ends of justice so required. The Hon'ble Apex Court further observed that in a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice and that the ends of justice are higher than the ends of mere law though justice had got to be administered according to laws made by the legislature. 9. Furthermore, the petitioner has placed reliance the judgment rendered in case of Gian Singh (Supra) disposed of on 24.09.2012 particularly paragraph 31 relying upon (2008) 9 SCC 677 of the judgment. Paragraph 31 of the judgment is quoted herein below: “31. On an overall view of the facts as indicated hereinabove and keeping in mind the decision of this Court in B.S. Joshi case and the compromise arrived at between the Company and the Bank as also Clause 11 of the consent terms filed in the suit