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Himachal Pradesh High Court · body

2009 DIGILAW 148 (HP)

RAMESH KUMAR MAHAJAN v. STATE OF H. P.

2009-03-13

SURINDER SINGH

body2009
JUDGMENT Surinder Singh,J(Oral).:-There is long drawn matrimonial litigation inter-se the petitioner and his wife- Smt. Neelam Kumari. This petition has been filed under Section 482 Cr.P.C. to quash the F.I.R. No. 63 of 2008 dated 14.5.2008 under Section 498-A and 494 of the Indian Penal Code registered in Police Station, Jhakri by the father of Neelam Kumari, whereby the petitioner contended that the allegations in the F.I.R. are false and no case worth the name has been made out and also that neither the complainant is an aggrieved party nor the police have any territorial jurisdiction to investigate the case. 2. Precisely the facts of the case are that the petitioner and Neelam Kumari solemnized their marriage on 6.12.1985. She is working as Assistant in the Haryana Police Housing Corporation, Panchkula and the petitioner was earlier at Rampur and now in N.T.P.C. Kol Dam, District Bilaspur.During the subsistence of this marriage she gave birth to male issue, named Nikhil. Due to the matrimonial disputes, both the spouses are allegedly residing separately for the last 14 years and now the divorce proceedings are pending in the Court of District Judge, Chandigarh. The record of the case reveals that earlier at the instance of the wife a case was also registered against the petitioner under Section 498-A in Police Station, Kalka which was compromised when it was pending in the court of Judicial Magistrate. But the said compromise was unsuccessfully assailed by Smt. Neelam Kumari before the Additional Sessions Judge, Ambala. Again feeling aggrieved she filed a Cr. M.No.5445 M of 1998 ,in the High Court of Punjab and Haryana which was also dismissed on 30th January, 2004. 3. Again she filed a criminal complaint under Section 498-A of the Indian Penal Code before the Judicial Magistrate, Chandigarh which is stated to be pending. Smt. Neelam Kumari had also filed a petition for maintenance on behalf of her son Nikhil Kumar which matter was taken up to the High Court where it was ultimately compromised in Criminal Misc. No. 62195-M of 2006. The High Court of Punjab and Haryana passed a detailed order on the basis of compromise on 30th January, 2004, whereby the entire matter with respect to the maintenance was settled. No. 62195-M of 2006. The High Court of Punjab and Haryana passed a detailed order on the basis of compromise on 30th January, 2004, whereby the entire matter with respect to the maintenance was settled. It is thereafter, the father of Smt. Neelam Kumari made the present complaint to the Superintendent of Police, Shimla that the petitioner has married another woman and was living with his second wife at Ghanvi and she gave birth to a male child in Kamla Nehru Hospital (KNH) Shimla . In the record of the hospital the parentage of the child reflects the name of the petitioner. Thus a case under Sections 498-A and 494 of the Indian Penal Code was registered in Police Station, Jhakhri vide F.I.R. No. 63/2008 but the aggrieved party i.e. Smt. Neelam did not make any complaint. The police investigated the case and prepared the challan against the petitioner which has assailed in this petition. 4. Short reply to this petition has been filed by the respondent-State and the record has been produced today in the Court. 4. Sh. J.S.Guleria, learned Assistant Advocate General for the State submitted that the case under Section 498-A I.P.C. is not made out and the offence under Section 494 I.P.C. is a non cognizable offence and the complainant is not an aggrieved party. The police is preparing a cancellation report. 5. Upon hearing the learned counsel for the parties and on going through the record, I find that there is no allegation and statement of any witness worth the name, to constitute an offence under Section 498-A IPC. Further the father of Neelam Kumari is not an aggrieved party, therefore neither he can file any complaint for the offence under Section 494 of the Indian Penal Code as per the provisions of Section 198 Cr.P.C. nor the police can take cognizance of the offence. Further, on facts none of the spouses have lastly resided within the jurisdiction of police station, Jhakari nor, any part of cause of action has arisen at that place. Thus in the circumstances, the continuance of the proceedings would be merely an abuse of process. 6. Therefore, the present petition is allowed. Consequently, F.I.R.No. 63 of 2008 dated 14.5.2008 registered under Sections 498-A and 494 of the Indian Penal Code in Police Station, Jhakri, District Shimla, H.P. and subsequent proceedings thereto are hereby quashed and set aside. Thus in the circumstances, the continuance of the proceedings would be merely an abuse of process. 6. Therefore, the present petition is allowed. Consequently, F.I.R.No. 63 of 2008 dated 14.5.2008 registered under Sections 498-A and 494 of the Indian Penal Code in Police Station, Jhakri, District Shimla, H.P. and subsequent proceedings thereto are hereby quashed and set aside. However, the aggrieved party is at liberty to pursue her matter in the competent court as per the provisions of law.