Jharkhand High Court
Mahanand Jha & Ors vs State Of Jharkhand on 1 February, 2010
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
Cr. Rev. No. 353 of 2009
1. Mahanand Jha
2. Smt. Shanti Jha
3. Smt. Rupa Jha
4. Smt. Meetu Jha
5. Pramod Kumar Jha
6. Pitambar Jha
7. Smt. Ranjana Jha
8. Rajeev Kumar Jha-- -- -- -- -- -- ---Petitioner(s)
Versus
1. The State of Jharkhand
2. Smt. Vinita Jha-- -- -- -- -- -- -- --Opposite Parties
CORAM : THE HON'BLE MR.JUSTICE D.K. SINHA
For the Petitioner(s) : Mr. Sanjay Kumar Dwivedi, Advocate
For the State : Mr. M.B. Lal, A.P.P.
For the Opp. Party No.2 : Mr. Dilip Kumar Prasad, Advocate
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Reserved on: 7-12-2009 Pronounced on: 01- 02-2010
D.K. Sinha, J. This criminal revision is directed against the order impugned dated
27.1.2009passed by the Sub Divisional Judicial Magistrate, Godda in T.R. No.73 of 2009 by which the petition filed under Section 239 of the Code of Criminal Procedure on behalf of the petitioners for their discharge was rejected.
2. Petitioner Nos. 1 to 7 referred to hereinbefore had earlier preferred Cr. Rev. No.485 of 2005 against the order dated 16.5.2005 by which their common petition for discharge under Section 239 of the Code of Criminal Procedure was allowed by this Court in Cr. Revision No.485 of 2005 on 11.6.2008. The impugned order dated 16.5.2005 was set aside with the direction to the Sub Divisional Judicial Magistrate, Godda to pass an order afresh upon hearing the parties and application of judicial mind in accordance with law. Pursuant to such direction the petitioners moved their discharge petition afresh which was dismissed impugned herein.
3. The factual matrix of the case as it stood narrated by the O.P. No.2 Smt. Vinita Jha in her written report presented before the Godda police was that she was married to Rajiv Kumar Jha son of the petitioner Nos. 1 & 2 on 11.7.1997 according to their customary Hindu rituals and after marriage she went to her matrimonial home at village Panjwara she alleged that there she was terrorized and threatened to bring Rs.1,50,000/- from her parental home as she had carried nothing on the eve of her marriage, lest her life would be made miserable. Her husband was not 2 there who was posted as lecturer at Mahila College, Godda. She further alleged that when she conceived during her stay at matrimonial home, her in-laws put pressure for abortion. She informed her father who was posted at Biharsharif in the Electricity Board, who came and took her to Godda where a male child was born to her. After constant persuasion her husband took her away to Panjwara in the month of May, 2002 where she was again threatened various ways and finally she was taken to Godda against her will with the child in the month of October where she was threatened that she would be accepted only when she would carry Rs.1.5 lakhs, lest she would be eliminated. In the month of December, 2002 it was alleged that the petitioners came to Godda in absence of her father, abused in various manner and threatened her mother to allow the informant to go to her matrimonial home with Rs.1.5 lakhs otherwise she and her son both would be killed. On presentation of her written report, Godda P.S. Case No.184 of 2003 was registered on 6.7.2003 for the offence under Section 498A of the Indian Penal Code against all the petitioners except the petitioner No.8 Rajeev Kumar Jha who was her husband. The police after investigation submitted charge-sheet against all the petitioners under Sections 498A/379 of the Indian Penal Code as also under Section 3/4 of the Dowry Prohibition Act.
4. The learned counsel Mr. Dwivedi submitted that according to the F.I.R., the last incident had taken place in the month of December, 2002 but the F.I.R. was lodged after expiry of seven months on 6.7.2003 and such inordinate delay in lodging the F.I.R. could not be explained. The learned counsel urged that in a criminal case F.I.R. used to be extremely vital and valuable piece of evidence for the purpose of corroborating or contradicting the oral evidence adduced during trial. The importance of F.I.R. could be highly estimated from the standpoint of the accused and the delay in lodging the F.I.R. often results in embellishment being assuming afterthought and that the possibility of concoction could not be ruled out.
5. Advancing his argument Mr. Dwivedi further submitted that no specific allegation was attributed against any of the accused as to the nature of cruelty and harassment inflicted upon the informant opposite party No.2 Vinita Jha. Section 498A of the Indian Penal Code defines cruelty into two parts. In first part, it denotes wilful conduct of such nature as to drive the woman who commits suicide and that the second part relates to harassment of woman with a view to coercing her to meet 3 any unlawful demand for any property etc. and no part of the definition is attracted against any of the accused persons as per allegation levelled by the informant-opposite party No.2. Admittedly, gifts were given to the opposite party No.2 according to social tradition and customs which indicated that no demand of dowry was made by the accused persons from the parents of the informant-opposite party No.2 before her marriage. Thereafter general and wild allegation was levelled against all the accused persons that her in-laws asked the informant to pursue her father to pay a sum of Rs.1,50,000/-, otherwise her life would be made miserable and this allegation was general and omnibus without specific attribution against any of the petitioners. Next situation came when the informant conceived and she again made wild allegation that the people of her sasural started pressurizing her for abortion but she was silent as she did not disclose the name of any of the petitioners as to who had actually pressurized her. It was further alleged that her husband came and took her away to matrimonial home on the request of her father but there her husband threatened to kill her and such allegation was only against the husband- Rajeev Kumar Jha and none else. Next part of her allegation was that she was taken to her parental home Godda by her husband who left her there by putting condition that she would be taken back to her matrimonial home only on arrangement of Rs.1,50,000/- and this allegation was also directed against the husband. The learned counsel attracted the attention of this Court towards the incident that in the month of December, 2002 all the petitioners came to the parental home of the informant in absence of her father and threatened her mother to send her daughter with a sum of Rs.1,50,000/-, lest she would be killed , though this part of the alleged occurrence took place in Godda town but no information was given to the local police. The learned counsel submitted that in that manner the informant failed to pinpoint specific attribution against any of the petitioners except her husband. However, from plain reading of the F.I.R. it would be evident that nowhere she alleged that she was assaulted or ill-treated, beaten, harassed, denied maintenance, clothes or food except wild allegations that she was continuously taunted, insulted, abused, scolded, tortured, humiliated etc. The learned counsel submitted and referred to well settled law that where the wife had not specifically named the person to have subjected her to cruelty in her complaint, in absence of any specific allegation of cruelty against the accused persons, they cannot be proceeded for an offence punishable 4 under Section 498A of the Indian Penal Code. Similarly, where no details of alleged harassment or maltreatment in connection with the demand of dowry could be established against the accused, they would be entitled to be acquitted under Section 498A of the Indian Penal Code.
6. Finally, the learned counsel submitted that the learned court-below failed to consider that Mittu Jha was married Nanad of the informant who used to reside in Mumbai with her husband Mirtunjay Jha. Similarly, Rupa Jha who was another married nanad of the informant, was living with her husband Pramod Jha at Patna. Accused Pitambar Jha was admittedly the uncle of the husband of the informant and his wife Ranjana Jha had nothing to do with the family affairs of Rajeev Kumar Jha. Mahanand Jha, father-in-law of the informant, who was holding a responsible post of Additional District Magistrate and was leading a retired life with his wife Shanti Devi did join the Bar at Katihar therefore, it was not expected from the old couple that they would go to Panjwara and Godda with a batch of people and place their charter of demand of dowry in cash who were not the ultimate beneficiary. Petitioners are innocent and the informant has spared none in her wild allegation of demand of cash and did not have reservations even for the married Nanads who were living with their husband at different places mentioned hereinbefore. In such circumstances, the order impugned by which discharge petition of the petitioners was dismissed may be set aside for the ends of justice and to protect the petitioners from their malicious prosecution.
7. Mr. Dilip Kumar Prasad, the learned counsel appearing for and on behalf of the informant opposite party No.2 strongly controverted the contention of the learned counsel for the petitioners and submitted that a roving enquiry of the allegations against the accused is not required to be done at the time of framing of charge and there was general and omnibus allegation against the petitioners perpetrating torture to the informant opposite party No.2 in various ways, narrated in the written report, only with the intention to coerce her to bring Rs.1,50,000/- from her parental home and in this connection, apart from the other in-laws, the husband played a pivotal role which led to miserable tale of the informant as to how she shuttled between her matrimonial home and parental home with a nascent child in her lap. All the petitioners were equally liable for the alleged proposed charge and none of them deserved leniency in any manner.
58. Having regard to the facts and circumstances of the case, careful examination of the materials on the record, I find that the allegations of extending torture to the informant opposite party No.2 in connection with demand of Rs.1,50,000/- is general and omnibus against all the petitioners except at one occasion against her husband petitioner Rajeev Kumar Jha as per her narration in the written report that while dropping her at her parental home, he threatened that she would be accepted only when should would carry Rs.1,50,000/- lest would be eliminated. But I find that no specific overt act has been attributed against any of the remaining petitioners. The learned counsel for the petitioners has consistently submitted that the petitioner Meetu Jha was admittedly a married Nanad of the informant who used to reside with her husband Mirtunjay Jha in Mumbai and that she had undergone surgical operation there. Another petitioner Rupa Jha is admittedly the another married Nanad who used to reside with her husband petitioner Pramod Kumar Jha at Patna. The uncle and aunt of the husband of the informant namely Pitambar Jha and Ranjana Jha have also been figured as accused petitioners in this case without their specific attribution. In this manner these five petitioners though have been named by the informant opposite party No.2 but their attribution for the alleged offence under Section 498A could not be pointed out and the counsel for the informant failed to show any material in this regard against any of them.
9. The Supreme Court of India in Kans Raj versus State of Punjab and others, reported in AIR 2000 S.C.2324 while dealing with a case related to dowry death expressed anguish upon the present trend of prosecution and observed, "A tendency has however developed for roping in all relations of the in-laws of the deceased wife in the matter of dowry deaths which, if not discouraged, is likely to affect the case of the prosecution even against the real culprits. In their own enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused."
10. In view of the above proposition, I find that the prosecution of the near relations like married Nanads, husband of one of the Nanads and the uncle as well as aunt of the husband of the informant without their specific attribution in the alleged crime would tantamount to miscarriage of the process of law, accordingly the petitioners Meetu Jha, Rupa Jha, Pramod Kumar Jha, Pitambar Jha and Ranjana Jha are discharged from their criminal liability. As regards the remaining petitioners Mahanand 6 Jha, Smt. Shanti Jha and Rajeev Kumar Jha, I do not find merit for consideration of their discharge in the instant case in view of prima facie materials and hence their request for discharge stands rejected.
11. With such observation, this petition is allowed in part in the manner indicated above.
(D.K. Sinha, J.) S.B./A.F.R.