Jharkhand High Court
Pradeep Kumar Bhandari & Anr vs State Of Jharkhand & Anr on 5 August, 2009
Author: Prashant Kumar
Bench: Prashant Kumar
IN THE HIGH COURT OF JHARKAHND RANCHI
Cr. M.P. No. 215 of 2005
1 Pradeep Kumar Bhandari
2. Sidhoswari Devi ... ... ... ... Petitioners
Versus
(1)The State of Jharkhand
(2)Putul Devi ... ... ... ... Opposite Parties
CORAM: THE HON'BLE MR. JUSTICE PRASHANT KUMAR
......
For the Petitioners :M/s Kailash Prasad Deo, Advocate
For the State : Mr. S. Prasad, APP
For Opp. Party no. 2 : Mr. S.P. Roy, Advocate
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ORDER
05/05.08.2009This is an application for quashing the entire criminal proceeding including the order dated 04.12.2004 passed by learned Chief Judicial Magistrate, Dumka, whereby and whereunder, he took cognizance of the offence under Sections 498A/494 and 323 of the Indian Penal Code read with Section 3/4 of the Dowry Prohibition Act in connection with Masalia P.S. Case No. 34 of 2004 corresponding to G.R. Case No. 555 of 2004/T.R. No. 615 of 2005 at present pending in the Court of Sub-Divisional Judicial Magistrate, Dumka.
Briefly stated the case of the prosecution is that the informant-opposite party no. 2, (Putul Devi) married with petitioner no. 1 (Pradeep Kumar Bhandari) as per the Hindu Rites. It is further stated that for about one year, relation between petitioner no. 1 and opposite party no. 2 remain cordial and at that time, petitioner no. 1 was unemployed. It is further alleged that after one year, father-in-law of opposite party no. 2 died and on his place, petitioner no. 1 got a Government job on compassionate ground. It is alleged that thereafter petitioners started demanding Rs. 20,000/-(Rs. Twenty thousand) as dowry and for that purpose they also assaulted opposite party no. 2. It is stated that the opposite party no. 2 disclosed the aforesaid fact to her father. It is stated that her father, being a poor man could only arranged Rs. 2,000/-(Rs. Two thousand) and gave it to petitioner no. 1, but, in spite of the same on the next date, complainant was driven out from her matrimonial house. It is stated that thereafter opposite party no. 2 was living in the house of her parents. It is further alleged that on 30.04.2004, petitioner no. 1 solemnized marriage with Anita Kumari at Basukinath Temple. Accordingly, present case has been filed.
2It appears that after investigation Police submitted charge- sheet against the accused-petitioners and on the basis of said charge-sheet, cognizance of the offence under Sections 498A/494 and 323 of the Indian Penal Code as also under Section 3/4 of the Dowry Prohibition Act was taken by chief Judicial Magistrate, Dumka vide order dated 04.12.2004 and the case transferred in the court of S.D.J.M. Dumka for trial.
It is submitted by learned counsel for the petitioners that in the year 2003, Title Matrimonial Suit No. 17 of 2002 was jointly filed by petitioner no. 1 and opposite party no. 2, in the court of District Judge, Pakur under Section 13B of Hindu Marriage Act, praying therein that a decree for dissolution of marriage by mutual consent may be passed. It is submitted that in the aforesaid Matrimonial Suit, statement of both the parties recorded by learned District Judge, Pakur and thereafter vide order dated 07.04.2003, marriage between petitioner no. 1 and opposite party no. 2 was dissolved. It further appears that in view of aforesaid order dated 07.04.2003, the decree prepared and signed on 25.04.2003. It is submitted that after signature on the aforesaid decree, there is no relation in between petitioner no. 1 and opposite party no. 2 as husband and wife. In that circumstance, no offence under Sections 498A/494/323 of the Indian Penal Code is made out against the petitioners. Accordingly, it is submitted that order by which cognizance was taken is without application of mind and an abuse of the process of Court, which cannot be sustained in this application.
On the other hand learned counsel for the opposite party submitted that petitioner no. 1 had obtained decree for dissolution of marriage by playing fraud on the Court. It is submitted that opposite parity no. 2 had never filed any application along with petitioner no. 1 for dissolution of marriage under Section 13B of the Hindu Marriage Act. It is further submitted that opposite party no. 2 had never executed any Vakalatnama to any Advocate nor did she ever appear in the Court of District Judge, Pakur. It is submitted that petitioner no. 1 had forged and fabricated the documents, alleged to have been signed by opposite party no. 2 and on the basis of aforesaid forged and fabricated documents, he obtained the order and decree as contained in Annexures-3/2 and 3/3. It is submitted that learned court below had rightly took cognizance against the accused-petitioners which does not require any interference by this Court.
3Having heard the submissions, I have gone through the record of the case. From perusal of Annexure-2 it appears that Title Matrimonial Suit No. 17 of 2002 has been filed in the Court of District Judge, Pakur jointly signed by petitioner no. 1 and Putul devi(Opposite party no. 2). After filing of the aforesaid Matrimonial Suit, case was adjourned for six months as per provisions of Hindu Marriage Act. Next date was fixed on 07.04.2003. It appears that on 07.04.2003, petitioner no. 1 and opposite party no. 2 were examined by the District Judge, Pakur and thereafter on the same day, vide Annexure-3/2, learned District Judge allowed Matrimonial Suit and dissolved the marriage between Pradeep Kumar bhandari(petitioner no.1) and Putul Devi (opposite party no. 2). It further appears from Annexure 3/3 that a decree was prepared and same was sealed and signed by the Court on 25.04.2003. Hence from the date of decree petitioner no. 1 and opposite party no. 2 never remained husband and wife.
The contention of learned counsel for the opposite party no. 2 that the aforesaid decree had been obtained by playing fraud on the court, cannot be entertained at this stage. It is stated by the petitioners that at paragraph no. 9 of their application that opposite party no. 2 had not filed any suit for cancellation of judgment of decree passed by learned District Judge in Title Matrimonial Suit No. 17 of 2002. In the counter- affidavit filed by opposite party no. 2, this fact has not been denied, but, an excuse given that the same is not known to opposite party no. 2, therefore, no Suit for cancellation had been filed. However, it appears from Annexure-A, which is an order passed on 17.08.2004 in ABP No. 29 of 2004 by Sessions Judge, Dumka, that petitioner contended before learned Sessions Judge that his marriage with opposite party no. 2 has already been dissolved by issuance of a decree by the competent Court of law, hence no offence under Sections 498A/494 is made out against him. It further appears from the said order that lawyer of opposite party no. 2 while opposing the Anticipatory Bail Application had taken the same stand that aforesaid decree was obtained by playing fraud on court. Thus submission of opposite party no. 2 that she had no knowledge about the decree cannot be accepted. On query, learned counsel for the opposite party no. 2 had not been able to show that even today, any suit for setting aside the aforesaid decree has been filed in the competent Court.
4As noticed above, since the marriage between petitioner no. 1 and opposite party no. 2 had already been dissolved, therefore opposite party no. 2 is not the wife of petitioner no. 1. Thus, in my view, offence under Section 498A as well as offence under Section 494 of the Indian Penal Code is not made out against the petitioners.
Under the said circumstance, I find that impugned order by which cognizance has been taken is illegal and is an abuse of the process of Court, hence cannot be sustained.
In the result, this application is allowed and impugned order dated 04.12.2004 passed by Chief Judicial Magistrate, Dumka in Masalia P.S. Case No. 34 of 2004 corresponding to G.R. No. 555 of 2004 /T.R. Case No. 615 of 2005 now pending in the Court of Sub-Divisional Judicial Magistrate, Dumka is hereby quashed. Consequently, the entire criminal proceeding relating to aforesaid case is also quashed.
(Prashant Kumar, J.) Binit/N.A.F.R.