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2012 DIGILAW 764 (PAT)

Siddhartha Kumar Singh v. State Of Bihar

2012-05-10

SHIVAJI PANDEY

body2012
ORDER Heard learned counsel for the petitioners, and learned counsel for the State as well as learned counsel for opposite party no.2. 2. This application has been filed for quashing the order dated 5.11.2009, passed by the Sub Divisional Judicial Magistrate Vaishali at Hajipur in Complaint Case No.C/1-3059 of 2009, Trial Case No. 3262 of 2009 by which the court below has taken cognizance against the petitioners under Sections 323, 498A and 406 of the Indian Penal Code and ¾ of the Dowry Prohibition Act. 3. The complainant, Kiran Singh, was married with one Siddharth Kumar Singh, petitioner no.1 on 27.4.2008. It appears from the record that mother of the complainant is a widow and is working as teacher. On the basis of the information provided by the petitioners that Siddhartha Kumar Singh, the husband has completed the course of Hotel Management and after completion of his study, he is working in Renauld Group of Hotel and on that basis the marriage was solemnized in the Town of Kolkata. After Bidai she went to her Sasural but there was no love and affection for her and according to the complaint petition, she was deprived of her belongings and allegation has been made that she used to be assaulted by her husband, petitioner no.1. It has been alleged in the complaint petition that torture used to be perpetrated on the complainant with the connivance of Chittaranjan Singh and Smt. Rama Singh, petitioner nos. 4 and 5. The reason for the torture was that she did not bring sufficient dowry. She was treated like maid servant and allegation made against petitioner no.1 is that he is a drunker. It has been further alleged that she was compelled for termination of her pregnancy and was asked to bring Rs.2,00,000/- as dowry from her mother. When she failed to satisfy their demand she was expelled from her matrimonial house on 27.4.2009 and situation was such created so it was very difficult for her to live at Kolkata and virtually she was compelled to take shelter in the house of her maternal uncle at Vaishali and she started living there at Alabalpur in the district of Vaishali. As per the complaint petition, on 20.9.2009 petitioner nos.1 and 4 along with two unknown persons came to Vaishali and asked her to go along with them whereupon she replied that she might go but after due consultation with her elder. Conversation started which turned to be a bad and ultimately it has been alleged that petitioner no.1 abused and assaulted the complainant. Outsiders tried to cool down the situation but failed. It has been further alleged that at 2 A.M. in the night the husband of the complainant with the help of others tried to inject Salphas piles to her mouth but on raising alarm she could save her life. It has been alleged that similar incident was repeated after two months and a demand of dowry of Rs.2,00,000/- was made by the husband of complainant-opposite party. 4. Learned counsel for the petitioners has mainly raised two points, namely, no cause of action has taken place in the State of Bihar so much so within the jurisdiction of Hajipur. He further submits that it is completely a malicious prosecution as it will be evident from the fact that divorce petition was filed on 1.8.2009 and she filed show cause on 8.9.2009 and thereafter on 23.9.2009 she came down to Hajipur and filed this concocted case and the allegation has been made against all family members. It has been further submitted that petitioner no.4 is an employee of Telco and on the alleged date of incident he was at Jamshedpur which will be evident from the attendance sheet annexed to the application. He further submits that Doctor’s certificate which is not part of the petition shows that petitioner no.1 was under the treatment of a Doctor and nothing has been asserted against the rest of the petitioners in connection with the incident at Hajipur and as such with regard to rest three persons no cause of action has taken place within the jurisdiction of Hajipur. In support of his contention he has relied on the following judgments: (i) Arjun Ram V. State of Jharkhand and another, reported in 2004 Cr.L.J. 2989 (ii) Sushil Kumar Sharma Vs. Union of India and others, reported in 2005 SCC Cr. 1473 (iii) Ramesh and others Vs. State of T.N., reported in (2005) 3 SCC 507 paragraph 11 and (iv) Sunil Kumar Singh & Anr. State of Bihar & Anr., reported in 2006 Cr.L.J. 3527. Union of India and others, reported in 2005 SCC Cr. 1473 (iii) Ramesh and others Vs. State of T.N., reported in (2005) 3 SCC 507 paragraph 11 and (iv) Sunil Kumar Singh & Anr. State of Bihar & Anr., reported in 2006 Cr.L.J. 3527. 5. In contra, learned counsel for opposite party no.2 has submitted that admittedly part cause of action has taken place within the jurisdiction of Hajipur as petitioner nos. 1 and 4 alleged to have come to Hajipur where she was badly treated. He further submits that even one or two persons have come there, committed the crime though other part was committed at Kolkata, the jurisdiction of Hajipur Court can not be ousted as the incident at Hajipur is consequence of Kolkota incident. In support of his contention he has relied on the following judgments: (i) Ajay Kumar Das V. State of Jharkhand and Anr., reported in 2011(4) PLJR 216 SC, (ii) K. Neelaveni Vs. State represented by Inspector of Police and others, reported in 2010(4) PLJR 22 SC, (iii) State of Madhya Pradesh Vs. Awadh Kishore Gupta & Ors., reported in 2004(1) PLJR 165 SC (Paragraph 13), (iv) Chand Dhawan (Smt) Vs. Jawahar Lal and others, reported in 1992 (3) SCC 317 (v) Smt. Sujata Mukherjee Vs. Prashant Kumar Mukherjee, reported in A.I.R. 1997 SC 2465, and (vi) Jagdish Prasad Shukla and ors. Vs. The State of Bihar and ors., reported in 2011 (1) PLJR 815 . 6. Now in view of the allegation and counter allegation this Court has to decide whether Hajipur court will have a jurisdiction to entertain the application and so much so this Court while exercising the jurisdiction will examine the correctness and incorrectness of statements and materials which are part of the petition as has been argued by the learned counsel for the petitioners. For consideration of scope of Section 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) it will be relevant to consider the case of Ajay Kumar Das (Supra) where the Hon’ble Supreme Court has fixed the parameter as to what will be the consideration for the court in exercising the power under Section 482 of the Code. The Hon’ble Supreme Court has held that while exercising the power under Section 482 of the Code this power should be exercised very sparingly and with circumspection and that too in the rarest of rare cases for that Court would not be justified in embarking upon an enquiry as to the reliability or genuineness or otherwise of the allegations made in the First Information Report or in the complaint petition that the extraordinary or the inherent powers do not confer an arbitrary jurisdiction on the Court to act according to its whim or caprice. The Hon’ble Supreme Court has held that all the allegations will have to be dealt with by the Court at different stages for which liberty would be available to the appellant and it would not be in the interest of justice and it would not be the proper stage when the Court would make an inquiry into the factual position to find out as to whether or not the appellant is guilty of the charges or not as he will have a sufficient opportunity to place the entire case before the Court at the time of framing of the charge. The Court has given liberty to the appellant of that case to raise all his defence as may be available to him in accordance with law at the time of framing of the charge and at that stage the Court shall consider the material on record as also the contentions raised by the appellant in proper perspective and decide the matter in accordance with law. 7. In another judgment in the case of K. Neelaveni (supra) where the Hon’ble Supreme Court has held that while taking cognizance the court will only look into the complaint petition as to whether prima facie case is made out or not. While deciding the case the Hon’ble Supreme Court has held that it has to be borne in mind that while considering the application for quashing of the charge-sheet, the allegations made in the first information report and the materials collected during the course of the investigation are required to be considered. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. 8. Truthfulness or otherwise of the allegation is not fit to be gone into at this stage as it is always a matter of trial. 8. The Hon’ble Supreme Court in the case of State of Madhya Pradesh (supra) has considered the scope of Section 482 of the Code and the Hon’ble Supreme Court has held that while exercising the jurisdiction of Section 482 of the Code it is not permissible for the court to act as a trial Judge. Even when charge is framed at that stage, the Court has to only prima facie be satisfied about existence of sufficient ground for proceeding against the accused. For that limited purpose, the Court can evaluate material and documents on records but it cannot appreciate evidence. The Court will not require to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused. It was further observed that when the materials relied upon by a party are required to be proved no inference can be drawn on the basis of those materials to conclude the complaint to be unacceptable. The Court should not act on annexures to the petitions under Section 482 of the Code, which cannot be termed as evidence without being tested and proved. When the factual position of the case was considered in the light of principles of law highlighted, the inevitable conclusion was taken the High Court was not justified in quashing the investigation and proceedings in the connected case. 9. In similar circumstance in the case of Chand Dhawan (supra) the Hon’ble Suprme Court has considered the scope of Section 482 of the Code and held that the High Court while exercising the power under Section 482 of the Code should refuse to examine the correctness of allegations made in complaint petition when the facts mentioned therein prima facie constitute an offence, this power can be exercised only to prevent the abuse of process of court and to secure ends of justice where statements made in the complaint petition even if taken to be in its face value does not constitute an offence, in that circumstance it will be justified to quash the complaint petition or the order of cognizance. It has further been held that the truthfulness or otherwise of the allegations in the complaint is a matter of trial. 10. It has further been held that the truthfulness or otherwise of the allegations in the complaint is a matter of trial. 10. In view of aforesaid judgments, it is very much clear that this Court will only to see whether from the averments made in the complaint petition a prima facie case is made out and that too within the jurisdiction of Hajipur as it has been argued from the side of the petitioners that no cause of action has taken place within jurisdiction of Hajipur Court but from the narration of the complaint petition as mentioned above which shows that petitioner nos. 1 and 4 had come to Hajipur and abused and assaulted the complainant. 11. Learned counsel for the petitioners submits that most of the allegations are committed within the jurisdiction of Howrah court. Only some part has been alleged to have been committed with a view to bring the jurisdiction of Hajipur and in that context the counsel for the petitioners submits that if the major portion of the alleged offence has taken place within the jurisdiction of Kolkata court then it will be unjustified to continue the proceeding at Hajipur court so it is desirable and also for the ends of justice to transfer the case to Kolkata where both the parties are residing as the complainant is working as an employee at Kolkata. 12. In that context, it will be relevant to consider the case of Smt. Sujata Mukherjee (supra) where the Hon’ble Supreme Court has considered the allegation and has come to the conclusion that part cause of action has taken place with the local area of the court which has taken cognizance and the court refused to quash the proceeding. 13. There is one recent judgment of the Hon’ble Supreme Court in the case of Sunita Kumari Kashyap Vs. State of Bihar and another, reported in (2011)11 SCC 301 where similar to the fact of this case has gone to the Hon’ble Supreme Court where the fact was, the marriage was solemnized by a bride of Gaya with bridegroom of Ranchi. After some time they could not live together and there was alleged demand of dowry and at least it has been stated that her husband went to Gaya and demanded dowry. After some time they could not live together and there was alleged demand of dowry and at least it has been stated that her husband went to Gaya and demanded dowry. The point was taken in that case that only the part cause of action with regard to Gaya court has taken place in connection with one person as such cognizance with regard to other persons made in the complaint petition should be quashed. The court has considered this aspect of the matter and has held in paragraph 18 of the judgment that she was badly treated at Ranchi and her husband came to Gaya with a threat of dire consequences for not fulfilling their demand of dowry and in that context Sections 178 and 179 of the Code was applied, the offence in that case was treated as continuing one, having been committed in more local areas and one of the local area being Gaya, it was held that Gaya court has jurisdiction to proceed with the criminal case instituted therein. The court has rejected the claim of other relatives on the ground that it is a continuing offence and consequence of continuing offence of harassment and ill treatment meted to the complainant at Gaya and as such the court has refused to discharge the other relative of the husband. 14. Here is the similar situation and allegation has been made against petitioner nos. 1 and 4 and it has been argued by the learned counsel for the petitioners that there is no allegation against other petitioners and at least they should be discharged from the case of Hajipur. In view of the judgment in the case of Sunita Kumari Kashyap (supra) it is very difficult for this Court to discharge petitioner nos. 2, 3 and 5 because it is nothing but it is a continuing offence and the consequences has taken place at Hajipur also. In this view of the matter, it is very difficult for this Court to discharge these petitioners. With regard to other petitioners it is admitted fact that there is no dispute that part cause of action has taken place as such the Court of Hajipur has rightly exercised the power to take cognizance. 15. Now let us examine the argument of the learned counsel for the petitioners with regard to malafide. With regard to other petitioners it is admitted fact that there is no dispute that part cause of action has taken place as such the Court of Hajipur has rightly exercised the power to take cognizance. 15. Now let us examine the argument of the learned counsel for the petitioners with regard to malafide. It has been stated that as a divorce petition has been filed and after notice and her appearance she filed the present application before the Hajipur court and as such it is nothing but a malicious prosecution and in support of his contention learned counsel for the petitioners has relied on the judgment in the case of Arjun Ram (supra) where the case was filed after the information of filing of the matrimonial case. It is very difficult for this Court to accept the reasoning given by the Hon’ble Court of Jharkhand and this Court differ with the view taken by the Jharkhand High Court as only fact in the said case for finding of malafide was filing of matrimonial case earlier. It is always a desire for a bride to settle her house in some way or the other and only in exceptional circumstance when all the doors are found closed only then, case used to be filed by a bride. Sometimes it also happens, even after filing of the matrimonial case the parties always try to settle the dispute with the help of relatives and outsiders as they act catalyst in settling the dispute. It will be far-fetching arguments if the complaint case was merely filed after filing of the matrimonial petition it would lead to inference of malafide prosecution and accordingly this Court does not concur with the view of the Jharkhand High Court. So much so in a situation when this Court in the case of Jagdish Prasad Shukla (supra) where the court has held that the judgment and decree passed in matrimonial case can not be a ground for quashing the complaint case. 16. In that view of the matter at this stage it is very difficult for this Court to come to a conclusion that it is malicious prosecution. 16. In that view of the matter at this stage it is very difficult for this Court to come to a conclusion that it is malicious prosecution. However, the parties will have liberty to raise all points in connection with malicious prosecution at the stage of framing of the charge but only because of the fact that there was a matrimonial case prior to filing of complaint case that cannot be a ground for holding the case as malicious prosecution. 17. In this view of the matter, I do not find any merit in this application. However, liberty is granted to the parties, in view of the judgment in the case of Ajay Kumar Das (supra), that at the time of framing of the charge the court below will consider the material on record in terms of the aforesaid case as also the contention raised by petitioners in a proper perspective and decide all matters. 18. With the aforesaid observation this application is dismissed.