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2011 DIGILAW 490 (UTT)

MANFOOL SHARMA v. STATE OF UTTARANCHAL

2011-08-03

SERVESH KUMAR GUPTA

body2011
JUDGMENT Hon’ble Servesh Kumar Gupta, J. : Challenge by way of this application moved under section 482 CrPC is to the cognizance order dated 24.11.2003 as well as the order dated 30.6.2004 passed by the Special Judicial Magistrate, Haridwar in Criminal Case No. 900/2003 titled as Smt. Indu Sharma v. Manfool Sharma & six others. 2. Having heard the learned Counsel of either parties, it appears that Smt. Indu Sharma resident of city Haridwar was wedded with Shri Rajendra Prasad Sharma, Advocate based at Dehradun city and used to reside along with his parents and other family members who are arraigned as the accused persons in the criminal complaint case No. 900/2003. This marriage was solemnized on 27.11.1996. It also appears that the matrimonial relations could not last long between the two and Shri Rajendra Prasad Sharma filed a petition under section 9 of the Hindu Marriage Act on dated 15.3.2001 for restitution of conjugal rights against his wife Smt. Indu Sharma. Before the said petition could have been adjudicated by the competent court, Shri Rajendra Prasad Sharma unfortunately left this mortal world on 3.1.2003. So, this way petition became redundant. 3. It has been contended on behalf of the applicants/accused persons that Smt. Indu Sharma had left her matrimonial home in the year 2002. In the complaint also it has been averred by Smt. Indu Sharma that in December, 2002 her father breathed his last. So without any preparation she left her matrimonial home all of a sudden. Even the necessary rituals in the bereaved misery family were not over, meanwhile she got an information about the death of her husband on dated 3.1.2003. So she rushed up to her matrimonial house at Dehradun, but unfortunately the accused persons treated her badly and put lock in the residential portion on her dwelling in the matrimonial house beside other restrictions which were imposed upon her. When she moved a complaint to the PS Cantt., none paid any heed to her voice. So she was constrained to return to her father’s house at Haridwar. Again on 15.1.2003, she reached to Dehradun in order to participate in the necessary rituals like Terahvi and Rasm Pagri and she demanded the right of dwelling in the portion of dwelling of her husband in the house along with her stridhan, but everybody turned the deaf ear. So she was constrained to return to her father’s house at Haridwar. Again on 15.1.2003, she reached to Dehradun in order to participate in the necessary rituals like Terahvi and Rasm Pagri and she demanded the right of dwelling in the portion of dwelling of her husband in the house along with her stridhan, but everybody turned the deaf ear. So helplessly she again returned to her father’s house at Haridwar. 4. Finding no other way, she moved a complaint under Section 406 CrPC on dated 31.3.2003 in the Magistrate court at Haridwar whereupon the statement of under Section 200 CrPC of the complainant and statement under section 202 CrPC of two independent witnesses Ashok Kumar and Nathu Ram were recorded. After recording the said statement, Magistrate took the cognizance and passed the impugned order dated 24.11.2003. 5. The accused persons before surrendering to the cognizance order raised a preliminary objection against the cognizance order which was also confirmed by the Magistrate on dated 30.6.2004 albeit the same was set aside for accused no. 6 Smt. Sanjeeta and accused no. 7 Dayanidhi. This way five accused persons are still under the cognizance order, they moved a revision no. 199/04 which was failed. Therefore the accused/applicants have come up in this petition seeking to stay of the cognizance order which was granted to them at the time of filing the same. A prayer has also been made to quash the cognizance orders as aforementioned. 6. It has been pleaded on behalf of the applicants that they used to reside separately from late Shri Rajendra Sharma. So the allegations of misappropriation of the stridhan cannot be levelled against them. This contention is not worthy of acceptance because in para 15 of the petition under section 9 of the Hindu Marriage Act moved by late Shri Rajendra Prasad Sharma himself, there is a reflection that all the accused persons used to reside joint. Moreover, even in this application no separate address of the accused persons is mentioned in front of their names. Only a common address has been indicated in this petition. Learned Counsel on behalf of the applicants has also drawn the attention of this Court towards the photocopy of ration card issued on dated 17.3.1999 which adverts the name of Manfool Sharma, Smt. Rajwanti, Rajkumar and Bhola (in all four). Only a common address has been indicated in this petition. Learned Counsel on behalf of the applicants has also drawn the attention of this Court towards the photocopy of ration card issued on dated 17.3.1999 which adverts the name of Manfool Sharma, Smt. Rajwanti, Rajkumar and Bhola (in all four). This ration card is not the conclusive proof and does not rebut the other evidence as have been analyzed and discussed by this Court aforesaid. 7. It has also been contended that Smt. Indu Sharma could have raised the matter for return of her stridhan under section 27 of the Hindu Marriage Act while contesting the petition of section 9 of the Act. This contention is also worthless because the said petition of section 9 of Hindu Marriage Act could not take its finality and due to death of Shri Rajendra Prasad Sharma on dated 3.1.2003 has become redundant. 8. It has also been contended that Shri Manfool Sharma is a nonagenarian and her better half should not be less than octogenarian. Even if it is so, the cognizance order cannot be set aside taking the old age of the accused persons into consideration. Smt. Indu Sharma has categorically given a vivid description of all the stridhan which were entrusted to the accused persons at the time of her marriage and they have refused to return the same. I think this is all the more a factual aspect and to be looked into by the court below during the evidence adduced in the trial. So I do not find any reason to accept this petition. 9. Resultantly, the petition is bereft of merit and fails and the same is dismissed accordingly.