Anil Tudu, aged about 41 years, son of Nagendra Tudu, resident of Flat No v. …
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No. 2755 of 2022 Anil Tudu, aged about 41 years, son of Nagendra Tudu, resident of Flat No. 26 B, ICC Flat, P.O. + P.S.- Kadma, Town- Jamshedpur, Dist.- East Singhbhum Versus …... Petitioner 1. The State of Jharkhand 2. Maiya Tudu, wife of Anil Tudu, presently residing at village- Kadma, P.O. + P.S.- Kadma, Town- Jamshedpur, Dist.- East Singhbhum also a resident of 25 T.R. Type Tista Road, Kadma, P.O. + P.S.- Kadma, Town – Jamshedpur, Dist.- East Singhbhum ….. Opposite Parties For the Petitioner For the State For the Opp. Party no. 2 : Mr. Amit Kumar , Adv. : Mr. Pratik Sen , Adv. : Mr. Fahad Allam, Addl. PP P R E S E N T HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY By the Court:- Heard the parties. 2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer for quashing the entire criminal proceeding including the order dated 24.03.2020 passed in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. No. 396 of 2020 by which, learned JMFC, East Singhbhum, Jamshedpur has taken cognizance against the petitioner for the offence punishable under Section 494, 498A of IPC. 3. The brief facts of the case is that the allegation against the petitioner is that the petitioner being the husband of the informant, severed his relationship with the informant and their two daughters and blocked the phone of the informant and he is not paying any money for the maintenance of the informant and their daughter, despite the maintenance case having been filed by the informant. It is also alleged that the mother of the petitioner, 1 Cr.M.P. No. 2755 of 2022 has retired from the service and is not allowing the informant and their daughters to stay with her, in her house. It is further alleged that the petitioner has solemnized second marriage with a lady namely Basanti Hembrom. On the basis of the written report submitted by the informant, police took up investigation of the case and after completion of the investigation, the police submitted charge-sheet against the petitioner alleging commission of offence under Section 498A of the IPC but learned Magistrate basing upon the materials in the record, took cognizance for the offence punishable under Section 494 of IPC as well. 4. Learned counsel for the petitioner submits that the allegations
Legal Reasoning
made against the petitioner in the FIR, in the case diary and in the chargesheet, even if, are considered to be true in their entirety, still neither the offence punishable under Section 498A of IPC nor the offence punishable under Section 494 of IPC is made out, hence the learned Magistrate has committed grave illegality by taking cognizance of the offences punishable under Section 498A / 494 of IPC. 5. Relying upon the judgment of this court in Cr.M.P No. 1563 of 2023 dated 04.12.2023, in which case, this Court relied upon the judgment of the Hon’ble Supreme Court of India in the case of Kahkashan Kausar @ Sonam & Others v. State of Bihar & Others reported in (2022) 6 SCC 599, paragraph-18 of which reads as under: “18. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 1-4-2019, it is revealed that general allegations are levelled against the appellants. The complainant alleged that “all accused harassed her mentally and threatened her of terminating her pregnancy”. Furthermore, no specific and distinct allegations have been made against either of the appellants herein i.e. none of the appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are, therefore, general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High Court, we have not examined the veracity of allegations made against him. However, as far as the appellants are concerned, the allegations made against them being general 2 Cr.M.P. No. 2755 of 2022 and omnibus, do not warrant prosecution.” (Emphasis supplied)
Legal Reasoning
It is submitted by the learned counsel for the petitioner that like that case, in this case also, the allegation against the petitioner do not constitute any of the ingredients of the offences punishable under Section 498A of IPC or 494 of IPC, hence, it is submitted that the entire criminal proceeding including the order dated 24.03.2020 passed in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. No. 396 of 2020 be quashed and set aside. 6. Learned Addl. PP. and learned counsel for the opp. party no. 2 vehemently opposes the prayer for setting aside the entire criminal proceeding including the order dated 24.03.2020 passed in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. Case No. 396 of 2020. Learned counsel for the opp. party no. 2 submits that besides the allegation of treating the informant with cruelty, there is specific allegation against the petitioner that the petitioner married during the lifetime of the informant with another lady hence, the same is sufficient to constitute the offence punishable under Section 494 of IPC as well and hence, it is submitted that this criminal miscellaneous petition, being without any merit be dismissed. 7. Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, so far as the offence punishable under Section 498A of the IPC is concerned, it is pertinent to mention the essential ingredients to constitute the offence punishable under Section 498A of IPC , which are as follows:- (1) A woman was married; (2) She was subjected to cruelty; (3) Such cruelty consisted in – (i) Any willful conduct as was likely to drive such woman to commit suicide or to cause grave injury or danger to her life, limb or health whether mental or physical; (ii) harm to such woman with a view to coercing her to meet unlawful demand for property or valuable security or on account of failure of such woman or any of her relations to meet the lawful demand; (iii) the woman was subjected to such cruelty by her husband or any relation of her husband. 3 Cr.M.P. No. 2755 of 2022 8. Now coming to the facts of the case, there is no allegation against the petitioner of committing any willful conduct, which is of such a nature as likely to drive the woman to commit suicide or cause grave injury or danger to her life, limb or health whether mental or physical of the informant. The only allegation against the petitioner is that the petitioner has stopped having any relationship with the informant and has blocked her phone number and there is no allegation against the petitioner of harassing the informant with a view of coercing her or any person, related to her to meet any unlawful demand for property or valuable security. Under such circumstances, this court is of the considered view that even if the entire allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 498A of IPC is not made out. 9. So far as the offence punishable under Section 494 of the IPC is concerned, the essential ingredients to constitute the said offence as is applicable to the facts of this case are that the petitioner having a wife living, marries again, in a manner that such marriage is void by reason of its taking place during the life of the wife of the petitioner. 10. Now coming to the facts of the case, there is no allegation against the petitioner that his alleged marriage with Basanti Hembrom was of such nature that such marriage is void, as the same took place during the life of the informant and in the absence of such essential ingredients, and in the absence of any material to suggest that as to by which marriage law, the marriage of the informant and the petitioner is governed and whether or not such marriage law makes a second marriage to be a void one, during the lifetime of the first wife, this court is of the considered view that learned Magistrate has committed a grave illegality by taking cognizance of the offence punishable under Section 494 of IPC, without considering this important ingredient to constitute the said offence, more so, when the police after investigation of the 4 Cr.M.P. No. 2755 of 2022 case, did not find the allegation relating to the offence punishable under Section 494 of IPC to be true. 11. Under such circumstances, in the absence of such essential ingredient, this Court is of the considered view that even if the allegations made in the FIR, materials collected investigation as mentioned in the case diary, and the charge sheet are considered to be true in their entirety, still the offence punishable under Section 494 of IPC is not made out against the petitioner. 12. Under such circumstances, this court is of the considered view that the continuation of criminal proceeding in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. No. 396 of 2020 will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the order dated 24.03.2020 passed in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. No. 396 of 2020 be quashed and set aside. 13. Accordingly, the entire criminal proceeding including the order dated 24.03.2020 passed in connection with Mahila P.S. case no. 29 of 2019 corresponding to G.R. No. 396 of 2020 is quashed and set aside.
Decision
14. In the result, this Criminal Miscellaneous Petition stands allowed. High Court of Jharkhand, Ranchi Dated, the 24th April, 2024 Smita /AFR (Anil Kumar Choudhary, J.) 5 Cr.M.P. No. 2755 of 2022