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Jharkhand High Court · body

2009 DIGILAW 16 (JHR)

Over Siar Dwivedi v. State of Jharkhand

2009-01-07

N.N.TIWARI

body2009
JUDGMENT In this petition, the petitioner has prayed for quashing the order dated 8.12.2004 passed by learned Sessions Judge, Jamtara in Cr. Revision No.26 of 2004 whereby learned court below has set aside the order dated 17.8.2004 passed by learned Judicial Magistrate, 1st Class, Jamtara and held that a prima facie case under Sections 323, 498A and 420 of the Indian Penal Code is made out and the court had wrongly taken cognizance of the offence under Section 447 of the Indian Penal Code. Mr. Mazumdar, learned counsel appearing on behalf of the petitioner has taken a very short point and submitted that from the entire allegation, no offence under sections 498A and 420 of the Indian Penal Code is made out in this case but the learned Revisional court has erroneously held that a prima facie case under Sections 323 and 498A has been made out. Learned counsel appearing on behalf of the Opposite Party though admitted that there is no allegation of any demand which is one of the ingredients constituting the offence under Section 498A I.P.C. but submitted that since there is a relationship between wife and husband, the Revisional Court has made such observation. He further submitted that the trial before the learned court below is at the concluding stage and if such points are available to the petitioner, he can take those points before the court below. I have heard the learned counsel and considered the submissions as also the facts and materials on record. From the complaint petition, there does not appear to be any allegation of demand by the petitioner. Mere allegation of harassment in the complaint does not constitute an offence under Section 498A I.P.C. The Said section though provides for punishment to the husband or relatives of the husband of women if there is allegation of cruelty by the woman but in the explanation-B attached to the section, cruelty has been distinctly defined. According to the said explanation, cruelty/ harassment must be for coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. According to the said explanation, cruelty/ harassment must be for coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. It has been submitted by learned counsel for the petitioner that since there is no allegation of any demand and harassment for not meeting such demand, the allegation does not constitute the offence under Section 498A. He further submitted that there is no ingredient of Section 420 of the I.P.C. as well and that offence is also not constituted. Section 420 of the Indian Penal Code prescribes punishment for cheating and dishonesty inducing delivery of property. Cheating has been defined under Section 415 of the Indian Penal Code. Section 415 I.P.C. is reproduced herein below: “415. Cheating.-Whoever, by deceiving any person, fraudulently or dishonestly induces the persons so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”.” Mr. Mazumdar, learned counsel for the petitioner submitted that there is no allegation of deceiving the complainant fraudulently and dishonestly inducing her to deliver any property to any person or consenting that any person shall retain any property or intentionally inducing the complainant to do or omit to do anything which she would not have done or omitted if not so deceived. The allegation of suppression of facts also does not come within the ambit of cheating as defined under section 415 of the Indian Penal Code. Though, there is substance in the submissions made by learned counsel for the petitioner, it has been informed that the case is at the stage of final disposal before the court below. The petitioner can take the aforesaid grounds before the trial court. This petition is, thus, disposed of allowing the petitioner to raise all the points before the trial court. Learned court below shall consider the points so raised and pass appropriate order in accordance with law.