Jharkhand High Court
Sunil Kumar Mishra, Anil Kumar Mishra, ... vs The State Of Jharkhand And Pawas Mishra on 14 July, 2006
JUDGMENT D.K. Sinha, J.
1. The present Cr. Revision application has been preferred by the petitioners herein for setting aside the impugned order dated 8.2.2006 passed by the Sub-Divisional Judicial Magistrate, Godda in T.R. Case No. 489 of 2005 whereby and whereunder the petition filed by the petitioners for their discharge was rejected.
2. The petitioners had earlier moved before this Court in Cr. Rev. No. 1028 of 2004 which was remanded back by the order dated 30.11.2005 for a fresh decision on the discharge petition. It is stated that by the impugned order the trial court has again dismissed the prayer for their discharge. Hence the present revision.
3. The brief fact of the case is that the complainant/opposite parry No. 2, namely, Pawas Mishra had filed a complaint case being P.C.R. No. 65 of 2000 in the court of Chief Judicial Magistrate, Godda, against the petitioners and one Suresh Chandra Mishra, father-in-law of the complainant/opposite party No. 2 narrating that she was married to the petitioner No. 1 on 22.5.1998 as per Hindu Rites. Thereafter she was subjected to torture by the petitioners in relation to demand of dowry to the tune of Rs. 50,000/- in cash as well as Colour T.V. and a Motor Cycle. The complainant/opposite party No. 2 was driven out on 26.1.1999 after retaining her valuable ornaments and clothes and was asked not to return unless their demands were fulfilled. The complaint petition was sent to the local police station under Section 156(3) of the Code of Criminal Procedure on the basis of which Godda (T) P.S. case No. 118 of 2000 was registered on 14.4.2000 for the offence under Section 498A of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act. The police submitted charge sheet against the petitioners and father-in-law of the complainant/opposite party No. 2 for the offence under Section 498A of the Indian Penal Code as also under Sections 3 and 4 of the Dowry Prohibition Act and accordingly, cognizance was taken.
4. The learned Counsel appearing for the petitioners submitted that the complainant/opposite party No. 2 had actually left her matrimonial home on 17.2.1999 on the pretext of attending marriage ceremony of her relatives and when she did not return back and finding no way out, the petitioner No. 1 had to send a legal notice through lawyer on 13.10.1999 to the complainant/opposite party No. 2 and its acknowledge was received on 28.10.1999 but without any response. Inspite of constant pursuasion when the complainant/opposite party No. 2 did not return to lead her happy marital life with her husband petitioner No. 1, finding no alternative, the petitioner-husband had to file a Matrimonial suit No. 8 of 2000 in the court of District Judge, South 24 Parganas at Alipore, for a decree of divorce on the ground of torture and cruelty meted out by the complainant/opposite party No. 2 to the petitioner No. 1-husband under Sections 13 (1)(1A)(1B) of the Hindu Marriage Act. In the meantime, on receipt of the notice in the said Matrimonial suit, the complainant/opposite party No. 2 filed a proceeding under Section 125 of the Code of Criminal Procedure for her maintenance and subsequently a complaint case under Section 498A and Sections 3 and 4 of the Dowry Prohibition Act for which the present revision has been preferred against the impugned order whereby the petition for their discharge in the complaint case giving rise to police case was rejected.
5. The learned Counsel further submitted that both the proceeding as well as criminal case against the petitioners were filed subsequently sequel to the Divorce Suit filed earlier by the husband petitioner-No. 1 to mount upon pressure him. The maintenance to the tune of Rs. 500/- was enhanced to the tune of Rs. 1400/- per month to the opposite party No. 2 by the court concerned in a proceeding under Section 125 of the Code of Criminal Procedure.
6. The complainant/opposite party No. 2 appeared in the Matrimonial suit, filed written statement and challenged the prayer made for dissolution of the marriage by a decree of Divorce which was brought about by her husband on the ground cruelty, desertion and torture to him (petitioner No. 1). The marriage was dissolved by the order of the 5th Additional District Judge, Alipore, 24 Parganas after hearing the parties on contest by a decree of Divorce on 8.4.2002 (Annexure 5 and 5/1).
7. The learned Counsel further submitted that the Additional Sessions Judge in the Matrimonial suit held that there was no possibility of re-union between the husband-petitioner No. 1 and wife-opposite party No. 2 and that the allegation of desertion, cruelty and torture on the part of the opposite party No. 2 stood established on several material particulars and as such the judgment and order passed in the Matrimonial Suit No. 8 of 2000 was well considered which achieved its finality on contest by the Superior court of Additional District Judge which will prevail over any proceeding of the criminal court.
8. The learned Counsel pointed out that the opposite party No. 2 had implicated all the family members and relatives of the petitioner No. 1 only to humiliate them though they had no nexus with the allegation made in the complaint petition giving rise to the police case.
9. Advancing his argument learned Counsel for the petitioners submitted that the petitioner No. 2. Anil Kumar Mishra and petitioner No. 3 Chetna Mishra @ Chetna Jha, wife of Anil Kumar Mishra were living in the quarter at Kanpur provided by the Ministry of Defence and they had no occasion to meet the opposite party No. 2 after her marriage and on the alleged date of occurrence i.e. 26.1.1999 both the petitioners were present at Kanpur in the Republic Day Programme for which they have annexed certificate (Annexure 6 and 6/1).
10. Similarly the petitioner No. 4, Sarita Kumari @ Putul is the married sister of the husband of the complainant/opposite party No. 2 permanently residing at her matrimonial home, Bhagalpur, had not at all concern with the family matters between the petitioner No. 1 and the opposite party No. 2.
11. The learned Counsel pointed out several discrepancies in the allegations leveled in the complaint case by the opposite party No. 2 against the petitioners, one of which is the demand of Rs. 50,000/- but in the Matrimonial Suit No. 8 of 2000 (Divorce Suit) the opposite party No. 2 and her father had tried to introduce the allegation against the petitioners of an imaginary demand of dowry of Rs. 4,50,000/- which was disproved by the court. It is relevant to mention on the point of cruelty that the allegation made in the complaint petition became non-est, unfounded and falsified in the judgment of Matrimonial suit aforesaid. Similarly inordinate delay of one year in filing the complaint petition by the opposite party No. 2 has not been explained and for the reasons stated above, the petitioners are liable for their discharge.
12. Finally it has been submitted that when the marital relationship between the petitioner No. 1 and opposite party No. 2 has been severed after the decree of divorce by the competent court of civil jurisdiction, the opposite party No. 2 now ceases to be the wife of the petitioner No. 1 and therefore, the proceeding in the present case becomes non-est in the eye of law.
14. The learned Counsel urged that when the petition for discharge of the petitioners was rejected by the Sub-Divisional Judicial Magistrate, Godda on 18.10.2004 a criminal revision was preferred before this Court which was heard and by order dated 30.11.2005 the Sub-Divisional Judicial Magistrate, Godda was directed to consider the matter afresh and to pass a reasoned order. The Sub-Divisional Judicial Magistrate, by impugned order dated 8.2.2006 again rejected the prayer for discharge of the petitioners without considering the materials on record and without apply his judicial mind and the finding recorded by the competent court of Civil Jurisdiction in the Judgment passed in Matrimonial suit No. 8 of 2000 was completely ignored.
15. Reliance has been placed upon the decision by a Bench of this Court, reported in 2004(2) east Cr. C. 604 (JHR). This Court held, It is true that the court at the stage of Section 227 of the Cr.P.C. should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he is conducting a trial. But at the same time while exercising jurisdiction under Section 227 Cr.P.C. the court cannot act merely as a post office box or as a mouth piece of the prosecution but has to consider the broad probability of the case, the total effect of the evidence and documents produced, any basic infirmities and find out whether a prima facie case against the accused has been made out. The court is bound to discharge the accused if he thinks that there is no sufficient ground for proceeding against the accused persons.
16. Having regard to the facts and circumstances of the case, perusal of the impugned order dated 8.2.2006 passed by the Sub-Divisional Judicial Magistrate, Godda in P.C.R. case No. 65 of 2000 I find that the direction made by a Bench of this Court in Cr. Rev. No. 1028 of 2004 on 30.11.2005 was taken into considered of the material fact by the court below while appreciating the petition for discharge filed on behalf of the petitioners, once again.
17. It is relevant to mention that the complaint case No. 65 of 2000 of complainant/opposite party No. 2 was sent under Section 156(3) of Code of Criminal Procedure for lodging a police case and accordingly, Godda (T) P.S. case No. 118 of 2000 was lodged for the offence under Sections 498A and 406 of the Indian Penal Code as also under Sections 3 and 4 of the Dowry Prohibition Act as against as many as five accused persons including the petitioners. Police after investigation submitted charge sheet under the said offence and these were the only materials before the Sub-Divisional Judicial Magistrate, Godda including the case diary of Godda (T) P.S. case No. 118 of 2000 on behalf of the prosecution to consider the petition for discharge of the petitioners once again pursuant to the direction made by a Bench of this Court in Cr. Rev. No. 1028 of 2004 on 30.11.2005. The petitioners have presented their defence case on the basis of certain documents as evidence including the judgment passed in Matrimonial suit No. 8 of 2000 by the court of 5th Additional District Judge, Alipur whereby the marriage between the petitioner No. 1 and the opposite party No. 2 was dissolved by a decree of divorce on 27.3.2002.
18. Usually judgment passed in a civil matter is nothing but an opinion on the facts in that particular case and cannot be used to influence decision on facts in other trials. Section 41 of the Indian Evidence Act 1872 speaks about the relevance of certain judgments in Probate etc. cases. With reference to Sarkar on Evidence 14th Edition 1993 VL.I page 733 interpretations have been made about the principle and scope of judgment in rem. It is stated therein that ordinarily judgment binds only the parties to it which is known as a judgment in Personam. The judgments for which provision is made in this section are usually called judgments in rem, a phrase which denotes certain judgment which are conclusive only against the parties to them but also against all the world. The Judgment passed in a divorce suit comes within the category of judgment in rem against all the world under Section 41 of the Evidence Act. In the present case the judgment and decree in matrimonial suit, referred to herein above, has got its legal character that the relationship between the petitioner No. 1 and opposite party No. 2 as husband and wife was severed and their marriage has been dissolved. To such extent the evidence of such dissolution of marriage is relevant in the present criminal case.
19. Sarkar on evidence has quoted the decision Narayanan v. Mathan Mithai it was held therein "the standard of proof for imposing liability is widely different between the civil and criminal courts and while in a civil suit a defendant can be made liable on probabilities or the action decided on a mere consideration of the burden of proof, in the absence of other evidence, no accused can be convicted on such uncertain grounds. Similarly the findings in a civil proceeding are not binding in a subsequent prosecution founded upon same or similar allegations".
20. In the present case I find that the complainant/opposite party No. 2 has narrated the allegations against the petitioners including demand of dowry in cash and kind as well as torture extended to her in various ways. On the other hand the grounds set forth in the Matrimonial suit brought about by the petitioner No. 1 was cruelty, desertion meted out by the complainant against him as well as other members of his family including the petitioners. Admittedly, the Matrimonial suit was decreed in favour of the petitioner No. 1 by dissolution of the marriage between the opposite party and the petitioner No. 1 finding the ground of cruelty as well as desertion proved as against the complainant. But such ground cannot be a defence for the discharge of all the petitioners in the present case in view of the specific allegation for which separate provision under the Code of Criminal Procedure for the trial of the accused persons.
21. The marriage of the petitioner No. 1 with the opposite party No. 2 took place on 22.5.1998 according to Hindu Rites and Rituals. The Matrimonial suit No. 8 of 2000 was filed by the husband-petitioner No. 1 in the court of the District Judge, South 24 Pargans at Alipore on 8.1.2000 on the ground of torture and cruelty by the opposite party No. 2. The learned Counsel pointed out that in retaliation the complainant initiated a proceeding under Section 125 of the Code of Criminal Procedure for her maintenance amount and subsequently a complaint case vide P.C.R. case No. 65 of 2000 was also filed by her against all the petitioners including her father-in-law giving rise to police case. There appears substance in the arguments on behalf of the petitioners that only after institution of the Matrimonial suit, the complainant/ opposite party No. 2 brought about both the proceeding and cases as against the petitioner No. 1 and others respectively.
22. From plain reading of the complaint petition it is evident that allegation is only against the husband-petitioner No. 1 of extending mental torture and demand of Rs. 50,000/- in cash as well as coloured T.V. and Motor Cycle whereas the allegations against the other petitioners are general and omnibus using common noun for them without specific attribution. I find that the learned Sub-Divisional Judicial Magistrate did not find prima facie materials against the father of the petitioner No. 1 Suresh Chandra Mishra and no summon was directed to be issued against him. Upon careful perusal of the entire materials and in view of the aforesaid submissions and discussions I find no materials against the petitioner No. 2, Anil Kumar Mishra, his wife, Chetna Mishra (petitioner No. 3) and married sister of the husband namely Sarita Kumari petitioner No. 4 to proceed against them for the offence under Sections 498A, 406 and 34 of the Indian Penal Code and also under Sections 3 and 4 of the Dowry Prohibition Act. But on the other hand, I find prima facie materials against the petitioner-husband for the offence under Section 498A of the Indian Pena Code and only under Section 3 of the Dowry Prohibition Act keeping in view the allegation made in a complaint case and presuming on the facts that he would be ultimately beneficiary of Rs. 50,000/-, colour T.V. and a Motor cycle alleged to be demanded by him, subject to evidence appearing in course of trial.
23. In the result, the order impugned dated 8.2.2006 passed by the Sub-Divisional Judicial Magistrate, Godda in T.R. Case No. 489 of 2005 arising out Godda (T) P.S. case No. 118 of 2000 is set aside. Let charge be framed against the petitioner No. 1 Sunil Kumar Mishra for the offence under Section 498A of the Indian Penal Code and Section 3 of the Dowry Prohibition Act with the direction to the court concerned to proceed in accordance with law.
24. This Cr. Revision petition is allowed in part and is disposed of with the above observation.