The High Court
Case Details
1 Cr.M.P. No. 1550 of 2019 IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1550 of 2019 1. Siddharth Sinha 2. Suresh Kumar Sinha 3. Beena Sinha -Versus- 1. 2. The State of Jharkhand Leena Sinha ----- … Petitioners … Opposite Parties CORAM: HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI For the Petitioners -----
Legal Reasoning
only prima facie case is required to be looked into by the learned Court on the point of taking cognizance and that was complied by the learned Court and in view of that, the case of opposite party no.2 is covered in light of the judgment passed by the Hon'ble Supreme Court in the case of State of Gujarat v. Afroz Mohammed Hasanfatta, reported in (2019) 20 SCC 539. Relying on the above judgment, he submits that this Court may not interfere at this stage. He further submits that the learned Court has rightly held that the allegations are of period prior to decree of divorce and in view of that, the judgment passed in divorce case cannot be taken in a case in deciding the criminal proceeding. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Kishan Singh (Dead) through LRS v. Gurpal Singh and others, reported in 4 Cr.M.P. No. 1550 of 2019 (2010) 8 SCC 775. 6. Mr. Vardhan, learned counsel for the State submits that the police has submitted final form, however, the learned Court has been pleased to take cognizance on the protest petition filed by the complainant. 7. It is an admitted position that petitioner no.1 was married with opposite party no.2 on 24.06.2011 and petitioner no.1 has filed MTS No.38/2013 for restitution of conjugal rights under Hindu Marriage Act, which was withdrawn on 24.04.2014. The husband filed MTS No.18/2015 under Section 13 of the Hindu Marriage Act in which decree of divorce was passed on 27.03.2017. Opposite party no.2 filed Maintenance Case No.191/2013 against petitioner no.1. Opposite party no.2 was thereafter residing with petitioner no.1. Opposite party no.2 filed Complaint Case No.808/2015 against the petitioners, which was sent by the learned Court under Section 156(3) Cr.P.C. and pursuant to that, Sadar P.S. Case No.1212/2015, corresponding to G.R. No.4399/2015 was registered. The police investigated the matter and final form was submitted on 29.01.2016 and on 20.05.2016, the learned Court has been pleased to issue notice upon opposite party no.2 on the final form as in the final form, the petitioners were not sent up for trial. Opposite party no.2 has not taken any step and the said final form was accepted by the learned Court on 20.06.2016 and, thereafter, on 17.11.2016, opposite party no.2 filed present Protest Petition No.1605/2016, which was dismissed on 17.04.2017, against which, Criminal Revision No.58/2017 was filed by opposite party no.2 on 25.05.2017, in which, the learned Revisional Court vide order dated 05.12.2017 has been pleased to set aside the dismissal order and remanded the matter to the learned Court to make further enquiry and pass fresh 5 Cr.M.P. No. 1550 of 2019 order. The decree of divorce was challenged by opposite party no.2 before this Court in F.A. No.107/2017, which was dismissed vide order dated 02.08.2018. Opposite party no.2 has preferred Civil Review No.87/2018 which was dismissed vide order dated 09.09.2022. These facts itself suggest that the case is having chequered career and the case under Section 498-A of the Indian Penal Code was registered at the behest of opposite party no.2 against her father-in-law and mother-in-law. 8. Even the argument of learned counsel for opposite party no.2 with regard to the order passed in civil proceeding is accepted, it is an admitted position that the divorce was granted considering cruelty by wife, which was affirmed by the High Court and review was also dismissed. 9. The judgment relied by the learned counsel for opposite party no.2 with regard to the order taking cognizance on protest petition even after acceptance of final form is not in dispute. There is no doubt that the learned Court can take cognizance, however, the learned Court is further required to look into the materials considering that final form was submitted in favour of the petitioners. 10. The judgment relied by the learned counsel for opposite party no.2 with regard to order taking cognizance, it is well settled that prima facie case is required to be considered at the time of taking cognizance, however, in the facts which have been considered hereinabove, the learned Court was required to minutely look into the facts. 11. Further, the learned Revisional Court has directed the learned Trial Court to further enquire into the matter, however, on the materials which were already on the record, the learned Court has been pleased to take cognizance meaning thereby, he was not having any option pursuant to the direction of the learned Revisional Court and he has not applied his 6 Cr.M.P. No. 1550 of 2019 independent judicial mind. 12. In this background, line of judgments under Section 498-A of the Indian Penal Code are in favour of the petitioners. A few of reference will be suffice; Geeta Mehrotra v. State of U.P., reported in (2012) 10 SCC 741, K. Subba Rao v. State of Telangana, reported in (2018) 14 SCC 452 and Preeti Gupta v. State of Jharkhand, reported in (2010) 7 SCC 667. 13. The Court finds that divorce has already been taken place and the learned Revisional Court has remanded the case saying that the allegations are prior to divorce decree. 14. How the cases have been filed by opposite party no.2 itself suggest that it was an afterthought filing of the complaint case. 15.
Arguments
: Mr. Hemant Kumar Shikarwar, Advocate Mr. Amandeep, Advocate Mr. Pawan Kumar Singh, Advocate For the State For O.P. No.2 : Mr. Rajneesh Vardhan, A.P.P. : Mr. Rohit Ranjan Sinha, Advocate ----- 07/30.01.2024 Heard Mr. Hemant Kumar Shikarwar, learned counsel for the petitioners, Mr. Rajneesh Vardhan, learned counsel for the State and Mr. Rohit Ranjan Sinha, learned counsel for opposite party no.2. 2. This petition has been filed for quashing of the entire criminal proceeding including the order taking cognizance dated 04.04.2019 in Complaint Case No.1605 of 2016, whereby, cognizance has been taken against the petitioners under Section 498-A/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act, pending in the Court of the learned Chief Judicial Magistrate, Hazaribag. 3. Complaint cum Protest Petition No.1605 of 2016 was filed by opposite party no.2 against the petitioners for the offence under Section 498- A/406/323/34 of the Indian Pneal Code and Section 3/4 of the Dowry Prohibition Act, alleged to have been committed after being aggrieved by submission of final report in Sadar P.S. Case No.1212 of 2015. 4. Mr. Shikarwar, learned counsel for the petitioners submits that cognizance has been taken against the petitioners under Section 498-A/34 2 Cr.M.P. No. 1550 of 2019 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. He further submits that petitioner no.1 is the husband, petitioner no.2 is the father-in-law and petitioner no.3 is the mother-in-law of opposite party no.2. He submits that earlier Complaint Case No.808 of 2015 was filed by the opposite party no.2, which was sent by the learned Court for investigation under Section 156(3) Cr.P.C. and pursuant to that, Hazaribag (Sadar) P.S. Case No.1212 of 2015 was registered. He submits that the police has investigated the case and final form was submitted in which the petitioners were not sent up for trial. He submits that vide order dated 20.05.2016, learned Court has bene pleased to issue notice upon opposite party no.2. He submits that in spite of that, no step was taken by opposite party no.2 and the learned Court has finally accepted the final form on 20.06.2016. He submits that after five months of accepting the final form, protest petition was filed by opposite party no.2 on 17.11.2016 and the learned Court vide order dated 17.04.2017 has been pleased to dismiss the said protest petition, which was challenged by opposite party no.2 in Criminal Revision No.58 of 2017 and the learned Revisional Court vide order dated 05.12.2017 has been pleased to set aside the protest petition's dismissal order and remanded the matter to the learned Court for further enquiry and pass a fresh order and pursuant to that, the learned Trial Court has taken cognizance against the petitioners under Section 498-A/34 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. He submits that in spite of remand of the matter by the learned Revisional Court for further enquiry, the learned Trial Court has not enquired the matter further and only on the direction of the learned Revisional Court, the learned Trial Court has been pleased to take cognizance against the petitioners. He 3 Cr.M.P. No. 1550 of 2019 further submits that divorce was granted on the petition filed by petitioner no.1 on 13.02.2013 and decree of divorce was passed on 27.03.2017. He submits that the first complaint case was filed on 15.04.2015 after filing of the divorce petition. On these grounds, he submits that the order taking cognizance is bad in law. 5. Mr. Sinha, learned counsel for opposite party no.2 submits that the learned Court has accepted the final form, that does not mean that the learned Court was not having any power to take cognizance if the material is there on the protest petition. To buttress this argument, he relied upon the judgment passed by the Hon'ble Supreme Court in the case of Zunaid v. State of U.P. & others, reported in 2023 SCC OnLine 1082. He refers paragraph 11 of the said judgment. He further submits that the learned Court has been pleased to take cognizance looking into the materials and in view of that, no interference is required. He submits that
Decision
In view of the above facts, reasons and analysis, the entire criminal proceeding including the order taking cognizance dated 04.04.2019 in Complaint Case No.1605 of 2016, pending in the Court of the learned Chief Judicial Magistrate, Hazaribag are quashed. 16. Accordingly, this petition is allowed and disposed of. 17. Pending I.A., if any, is disposed of. Ajay/ A.F.R. (Sanjay Kumar Dwivedi, J.)