Neetu Dubey @ Nitu Dubey v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 1909 of 2022 ------ Neetu Dubey @ Nitu Dubey Versus .... .... …. Petitioner 1. The State of Jharkhand 2. Preeti Sharma @ Preeti Tiwari .... WITH .... .... Opp. Parties Cr.M.P. No. 1910 of 2022 ------ Vishal Tiwari .... .... …. Petitioner Versus 1. The State of Jharkhand 2. Preeti Sharma @ Preeti Tiwari .... .... .... Opp. Parties WITH Cr.M.P. No. 1921 of 2022 ------ 1. Binayendra Nath Tiwary @ Birendra Nath Tiwari 2. Lalita Tiwari @ Lalita 3. Kunal Kumar Tiwari @ Kunal Tiwari Versus 1. The State of Jharkhand 2. Preeti Sharma @ Preeti Tiwari .... .... .... Opp. Parties .... .... …. Petitioners
Legal Reasoning
been falsely alleged in 2019. On these materials, it is argued that prima facie case is not made out and the summoning order is an abuse of process of Court in view of ratio laid down by the Hon’ble Supreme Court, it is submitted that being malicious prosecution, this is a fit case for quashing. 10. Learned counsel on behalf of State and learned counsel on behalf of complainant have opposed the quashing petition. It is submitted that the plea that has been raised on behalf of petitioners lies in the realm of their defence which is matter of trial and cannot ground for quashing at this stage. The documents that has been filed in the form of photographs uploaded on Facebook page, cannot be looked into without their formal proof. 11. This is yet another case where the entire family members including the married sister-in-law have been dragged into the case on general and omnibus allegations. Indisputably, it was a love marriage which took place on 28.05.2011 and in endured 8 years after which the complaint case was filed. Most of the allegations like unlawful demand and misappropriation of jewelleries pertain to the year 2011 just after the marriage. It has been alleged that termination of pregnancy was due to harassment on the part of the accused persons. 12. There is no overt act against the petitioner Neetu Dubey, who is the married sister-in-law of the complainant and there are materials to prima facie show that the child of the complainant was born at Delhi and the address of 4 the child has been shown to be that of this petitioner. She does not have appears to have shared the domestic household of the complainant which is the matrimonial home and therefore being a married lady the allegation of cruelty against her does not stand to logic or commonsense. Further, the allegation of and misappropriation of the jewelleries/stridhan pertains to the year immediately after the marriage in 2011 and the case has been launched after eight years without any explanation for the delay. It will not be furtherance of justice be proper to permit the prosecution of the case on these materials against this petitioner. 13. The allegations against the petitioners of Cr.M.P. No.1921 of 2022 gender and omnibus. They are the father-in-law, mother-in-law and the brother-in-law and omnibus allegations have been levelled against them. The learned Court below has not found a prima facie case to be made out of attempted kidnapping against the petitioner Kundan Tiwari who happens to be the brother-in-law with regard to the incidence that took place in the year 2019. This incidence will by itself not make out an offence under section 498A. Other part of allegations are of the year 2011 and 2013 much before the filing of the case. Everything has been attributed to the accused person including the premature delivery of the child. On the other hand the very birth certificate goes to show that it was the sister-in-law, Neetu Dubey who had supported the complainant at the time of the delivery at Delhi. 14. It will be desirable to keep in view the observations of Hon’ble the Supreme Court in Birla Corpn. Ltd. v. Adventz Investments & Holdings Ltd., (2019) 16 SCC 610 : 34. In Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC (Cri) 1400] , the Supreme Court has held that summoning of an accused in a criminal case is a serious matter and that the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and law governing the issue. In para 28, it was held as under : (SCC p. 760) “28. Summoning of an accused in a criminal case is a serious matter. Criminal law cannot be set into motion as a matter of course. It is not that the complainant has to bring only two witnesses to support his allegations in the complaint to have the criminal law set into motion. The order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. He has to examine the nature of allegations made in the complaint and the evidence, both oral and documentary, in support thereof and would that be sufficient for the complainant to succeed in bringing charge home to the accused. It is not that the Magistrate is a silent spectator at the time of recording of preliminary evidence before summoning of the accused. The Magistrate has to carefully scrutinise the evidence brought on record and may even himself put questions 5 to the complainant and his witnesses to elicit answers to find out the truthfulness of the allegations or otherwise and then examine if any offence is prima facie committed by all or any of the accused.” The principle that summoning an accused in a criminal case is a serious matter and that as a matter of course, the criminal case against a person cannot be set into motion was reiterated in GHCL Employees Stock Option Trust v. India Infoline Ltd. [GHCL Employees Stock Option Trust v. India Infoline Ltd., (2013) 4 SCC 505 : (2013) 2 SCC (Cri) 414] 15. In view of the direct and specific allegation against the husband Vishal Tiwari, this Court is not inclined to interfere with the summoning order against him. However, the prima facie case having been not made out against the other petitioners, the summoning order as well as the entire criminal proceeding against them is quashed. Cr.M.P. No. 1909 of 2022 and Cr.M.P. No. 1921 of 2022 is allowed whereas Cr.M.P. No. 1910 of 2022 is dismissed. Anit (Gautam Kumar Choudhary, J.)
Arguments
CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Petitioner For the State : Mr. Vikas Pandey, Advocate Mr. Piyush Poddar, Advocate Mr. Manav Poddar, Advocate : Mr. P.D. Agrawal, Special P.P. Ms. Priya Shrestha, Special P.P. : Mr. Krishanu Ray, Advocate For the O.P. No.2 ------ Order No.10 Dated : 04.09.2023 All these three criminal miscellaneous petitions arise out of common summoning order and therefore, they are heard together and shall be disposed of by the common order. 2. Petitioner no.1 is father-in-law, petitioner no.2 is mother-in-law and petitioner no.3 is brother-in-law in Cr.M.P. No.1921 of 2022, petitioner is sister-in-law in Cr.M.P. No.1909 of 2022 and in Cr.M.P. No.1910 of 2022, petitioner is husband of the complainant. Summoning order is challenged on the ground that all the incidence except one which took place allegedly on 30th January, 2019 at Jamshedpur is of the year 2011, 2013 and 2016 whereas the complaint has been filed on 25.02.2019. 3. As per the complaint, the marriage took place on 28.05.2011 and jewels of the complaint was allegedly taken and misappropriated soon 2 thereafter on 29.05.2011, but there is no material to show that from the date of the said incidence till the date of filing the complaint, any complain was made before any legal or social forum regarding this incidence. 4. As per the case of the complainant, she conceived and there was premature delivery on 19.06.2012 and the infant died thereafter birth. Premature delivery is attributed to the stress caused by the accused persons and after the death of the child she was physically and mentally harassed by the accused persons. After the death of her first child, she was brought to her natal home at Jamshedpur by her father on 08.06.2013. In December 2013, she returned to her matrimonial home and demanded her jewelleries. In May 2015, she was blessed with a child in which the entire expenditure of delivery and treatment was borne by the father of the Complainant. 5. It is alleged that on 4th May, 2016 unlawful demand of Rs.10,00,000/- was made and on 30.01.2019, they attempted to kidnap the infant child of the complainant and on being opposed, they threatened to kill her and her child. 6. It is submitted by the learned counsel on behalf of petitioner- Neetu Dubey @ Nitu Dubey that she is married sister-in-law and was living with her husband at Delhi and never shared domestic household with the complainant, but has been dragged into the case only to wreak vengeance. As a matter of fact the child to the complainant was born at Delhi and had stayed at her Delhi house. In support of this contention that the child of the Complainant was born at Delhi under the care of this petitioner, birth certificate of the child has been filed showing permanent address of the child to be the house of the Petitioner. This falsifies the complainant’s case that she subjected the Complainant to cruelty. 7. It is submitted by the learned counsel on behalf of petitioner Kunal Kumar Tiwari @ Kunal Tiwari that specific allegation against him has been made at para 17 of the complaint petition is that on 30.01.2019, he along with his brother (accused no.1), had attempted to kidnap the child from the house of the complainant at Jamshedpur. In this regard, photographs of the petitioner taken at Nasik on January 28, 2019 is annexed to buttress the plea of alibi. Even if it is assumed to be true it will make out an offence of attempted kidnapping of a minor child and not under Section 498A of the Indian Penal Code. The very allegation that this petitioner along with the father of the child whom they attempted to kidnap, threatened to kill him, does not stand to logic and common sense. 3 8. It is submitted on behalf of the father-in-law and mother-in-law that it was not a case of conventional arranged marriage where any demand could have been logically made by the father-in-law and mother-in-law before the marriage. As per the statement in her solemn affirmation, it was an inter caste love marriage and therefore, there was no occasion for making any such demand. The complainant and accused no.1 had chosen each other their life partners and had married, to which these petitioners had only accorded their consent. When the marital relation fell through after eight years of the marriage, they have been implicated and are being dragged in this criminal case at fag end of their life. 9. It is submitted on behalf of petitioner-Vishal Tiwari (husband of the complainant) that entire complaint case is riddled with absurdity and contradictions and only to make this case within the jurisdiction of Jharkhand, the incidence of 2019 has been inserted. As per the complaint, the incidence took place at Uttar Pradesh and only to create jurisdiction one incidence has