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2012 DIGILAW 611 (RAJ)

Jaswant Kaur v. State of Rajasthan

2012-03-12

SANDEEP MEHTA

body2012
JUDGMENT 1. - The instant misc. petition has been filed by the petitioners challenging the order dated 16.7.2008 passed by the learned ACJM, Suratgarh in F.I.R. No. 225/2007, whereby cognizance has been taken against the petitioners for the offences under Sections 147, 448 and 380 Indian Penal Code as affirmed in revision by the learned Addl. District Judge (FT), Anupgarh by his order dated 24.1.2009. 2. Assailing the impugned orders, learned counsel appearing on behalf of the petitioners submits that petitioner No. 1 was married to respondent No. 2 and was residing in the House No. 3/103. It is submitted that the marital dispute arose between the parties and the husband (respondent No. 2), who is a Govt. teacher posted at Chak 2 PPM, filed proceedings for divorce against the petitioner No. 1 by showing wrong address and thus, managed to procure the ex-parte decree of divorce against the petitioner No. 1. The petitioner No. 1 was all along living at House No. 3/103 of the Housing Board Colony, Suratgarh and showing her address to be 13/113, the divorce proceedings were filed and fraudulent service was shown to have been effected upon the petitioner No. 1, whereby the ADJ No. 2, Sri Ganganagar was led to grant ex parte decree of divorce. Petitioner No. 1 was having no knowledge about divorce having been granted and was continued to reside in the matrimonial home. It is submitted that having succeeded in his evil design to have the marriage dissolved by having service shown to be effected fraudulently, the respondent No. 2 filed a false complaint against the petitioners in the month of August, 2007 with the allegation that the petitioners had broken into the house of the complainant, despite the decree of divorce having been granted and that when the complainant went to this house in the month of July, 2007, he came to know that the accused-petitioners had broken the lock of his house and had taken away the household articles. The complainant allegedly pleaded with the accused persons to vacate the house because the divorce had been granted on which the accused are stated to have replied that they would vacate the house. The complainant allegedly pleaded with the accused persons to vacate the house because the divorce had been granted on which the accused are stated to have replied that they would vacate the house. The complainant went away on this assurance but when he went back to the house on 21.8.2007, he found that only the petitioners No. 1 and 2 were present in the house and rest had gone away and had taken away the household articles of the complainant. The complaint was forwarded to the police for investigation under Section 156(3) Criminal Procedure Code, where F.I.R. No. 609/2007 was registered at Police Station, Suratgarh for the offences under Sections 452, 380, 504, 448 and 147 Indian Penal Code and investigation commenced. The investigating agency came to the. conclusion that the complainant had procured the decree of divorce by fraudulently showing the service to be effected on the petitioner No. 1, while the complainant and the petitioner No. 1 were continued to reside in the house No. 3/103 of the Housing Board Colony and that the claim of the complainant regarding having divorced the petitioner No. 1 and thus, petitioner No. 1 having vacated the house, was absolutely false. Learned Magistrate, however, on the basis of the protest petition filed by respondent No. 2 and the statements of witnesses, recorded under Sections 200 and 202 Criminal Procedure Code, proceeded to take cognizance against the petitioners for the offences mentioned above. Learned ACJM proceeded to summon the petitioners for the offences mentioned above by his order dated 16.7.2008. The petitioners challenged the order of cognizance by filing the revision, which too, has been rejected by the learned ADJ (FT) Anupgarh by his order dated 24.1.2009. It is in this background that the instant Misc. Petition has been filed by the petitioners seeking quashing of the proceedings subsequent to the order taking cognizance. 3. Mr. I.J. Yadav, learned counsel appearing on behalf of the petitioners, submits that in this case, the decree of. divorce was procured by the complainant by showing a fictitious address at which petitioner No. 1 was not residing. No evidence has been brought on record by the complainant to show that petitioner No. 1 ever resided in the house No. 13/113. I.J. Yadav, learned counsel appearing on behalf of the petitioners, submits that in this case, the decree of. divorce was procured by the complainant by showing a fictitious address at which petitioner No. 1 was not residing. No evidence has been brought on record by the complainant to show that petitioner No. 1 ever resided in the house No. 13/113. He submits that deceptively, similar particulars were deliberately given by the complainant in the divorce petition so that a fraudulent service may be got effected upon the petitioner No. 1. He has also placed on record the order of the learned ADJ No. 2, Sri Ganganagar dated 13.2.2012, whereby ex parte decree of divorce has been set aside. Learned counsel for the petitioners, thus, submits that petitioner No. 1 had very much right to reside in the matrimonial home and the cognizance which has been taken against the petitioners for the offences under Sections 380, 448 and 147 by the ACJM by order dated 16.7.2008 is absolutely illegal. He submits that the complainant has not provided any details of the articles, which were stolen by the petitioners. He also submits that even if the decree of divorce is granted in favour of the complainant, then too, by virtue of the provisions of the Protection of Women from Domestic Violence Act, 2005, the petitioner No. 1 has a right to reside in the shared household. Thus, he submits that the order taking cognizance is ex facie bad in law and amounts to abuse of the process of the Court. 4. Per contra, learned counsel for respondent No. 2 submits that the order taking cognizance is perfectly justified and no interference is called for in the impugned order. He has further submitted that the decree of divorce was validly granted in favour of the complainant (respondent No. 2) and thereafter, the petitioner No. 1 had no right to enter into the house of the complainant. He therefore, submitted that this Court should refrain from exercising its inherent powers by making interference in the impugned order and quashing the proceedings validly initiated at the threshold. 5. I have given my thoughtful consideration to the rival submissions made at bar and have also gone through the impugned orders. He therefore, submitted that this Court should refrain from exercising its inherent powers by making interference in the impugned order and quashing the proceedings validly initiated at the threshold. 5. I have given my thoughtful consideration to the rival submissions made at bar and have also gone through the impugned orders. From a bare perusal of the orders impugned and the Final Report submitted by the police, it becomes apparent that the complainant in this case has tried to hide the facts from the Court and did not bring any material on record to show that petitioner No. 1 ever resided at the House No. 13/113. The competent Court has already recalled the order granting ex parte divorce decree to the complainant and the police during the course of investigation also came to a finding that the petitioner No. 1 never moved out of the House No. 3/103. That apart, even if the complainant, as he claims had procured a divorce decree, then too, the petitioner No. 1 had a right to reside in the shared household as per the provisions of Protection of Womens from Domestic Violence Act, 2005. Therefore, even if the case of the complainant is accepted at its highest, then too, merely by the entry of the petitioners into the house, as claimed by the complainant, no prima facie case for the offences under Sections 147, 448 and 380 Indian Penal Code can be said to be made out in this matter. The complainant admittedly came to know about the illegal entry of the petitioners into his house in the month of July, 2007, yet he chose to keep silent and then initiated proceedings by filing a complaint in the month of August, 2007. No explanation is forthcoming for this delay in filing of the complaint. If the case of the complainant regarding illegal entry of the accused persons into his house was based upon a genuine grievance, then there was no reason for him to have waited for a period of nearly one month before initiating proceedings. Even, the complainant has not made any specific allegation against the petitioners in the belatedly filed complaint as to what were the articles stolen by the accused persons from his house. Even, the complainant has not made any specific allegation against the petitioners in the belatedly filed complaint as to what were the articles stolen by the accused persons from his house. Resultantly, this Court is of the opinion that the learned ACJM has committed a graver error in taking cognizance against the petitioners for the offences under Sections 147, 448 and 380 I.P.C. 6. Accordingly, this Misc. Petition succeeds and the impugned order dated 16.7.2008 passed by the learned ACJM, Suratgarh taking cognizance against the petitioners for the offences under Sections 147, 448 and 380 Indian Penal Code as affirmed in revision by the learned Addl. District Judge (FT), Anupgarh by his order dated 24.1.2009, is set aside and the proceedings initiated against them are quashed. The stay petition too, stands disposed of.Petition allowed. *******