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2015 DIGILAW 746 (HP)

Sanjeev Kumar v. State of H. P.

2015-06-23

P.S.RANA

body2015
Order : P.S. Rana, J. Present petition is filed under Section 482 Cr. P.C. read with Article 227 of the Constitution of India for quashing FIR No. 85 of 2013 dated 7.8.2013 registered against the petitioners under Sections 406, 498-A and 120-B IPC at P.S. Kot-Kehlur Tehsil Shri Naina Devi Ji District Bilaspur (H.P.). It is pleaded that private complaint No. 119 of 2007 titled Nirmala Devi vs. Sanjeev Kumar was filed before Sub Divisional Judicial Magistrate Anandpur Sahib under Sections 406, 498-A read with Section 120-B IPC which was decided on dated 22.12.2012 and learned Sub Divisional Judicial Magistrate Anandpur Sahib acquitted all accused persons qua offence punishable under Sections 406, 498-A read with Section 120-B IPC by way of giving them benefit of doubt. It is pleaded that as per Constitution of India accused persons cannot be tried twice for the same offence. It is further pleaded that Smt. Nirmala Devi left her matrimonial house in the month of May 2003 and application under Section 156(3) Cr. P.C. for registration of FIR was filed on dated 3.8.2013 after more than ten years and on this ground FIR is liable to be quashed. It is also pleaded that there is no specific date and time mentioned as to when 1 lac (Rupees one lac only) was demanded by petitioners from Smt. Nirmala Devi as dowry and further pleaded that list of dowry articles filed is also false. It is pleaded that no article of dowry was entrusted to petitioners. It is pleaded that as of today articles of dowry took away by Smt. Nirmala Devi in presence of Pardhan Gram Panchayat and other members. It is pleaded that divorce petition already stood filed by petitioner No.1. Prayer for acceptance of petition filed under Section 482 Cr. P.C. sought with further prayer to quash FIR No. 85 of 2013 dated 7.8.2013 registered in Police Station Kot-Kehloor District Bilaspur (H.P.). 2. Per contra reply filed on behalf of the State of H.P. pleaded therein that Sanjeev is husband of Nirmala Devi and Jagdish Singh is father-in-law of Nirmala Devi and Smt. Darshna Devi is mother-in-law of Nirmala Devi and Sandeep @ Vickey is brother-in-law of Nirmala Devi. It is pleaded that Nirmala Devi was married with Sanjeev Kumar in the year 2002 and one male child was born. It is pleaded that Nirmala Devi was married with Sanjeev Kumar in the year 2002 and one male child was born. It is pleaded that prior to the birth of male child Smt. Nirmala Devi was residing at her parental house. It is pleaded that Smt. Nirmala Devi filed private complaint under Sections 406, 498-A and 120-B IPC before Sub Divisional Judicial Magistrate Anandpur Sahib. It is pleaded that Sub Divisional Judicial Magistrate Aanadpur Sahib decided the case on dated 22.12.2012 with a direction that Nirmala Devi would be at liberty to file fresh complaint under the provisions of law before the competent Court having jurisdiction. It is pleaded that in compliance of direction of learned Sub Divisional Judicial Magistrate Aanadpur Sahib announced in IPC complaint No. 119 of 2007 titled Nirmala Devi vs. Sanjeev Kumar fresh complaint before learned Judicial Magistrate 1st Class Bilaspur under Sections 406, 498-A and 120-B IPC filed and thereafter learned Judicial Magistrate 1st Class Bilaspur sent the complaint under Section 156(3) Cr. P.C. for investigation. It is pleaded that during investigation it was established that after sometime of marriage all petitioners started maltreating and harassing and misbehaving Smt. Nirmala Devi physically as well as mentally and also demanded 1 lac (Rupees one lac only). It is further pleaded that petitioner No.1 and petitioner No. 3 also beaten Smt.Nirmala Devi and Nirmala Devi was forced to leave her matrimonial house. It is pleaded that cruelty is continuing offence against the married women and there is no question of limitation. It is pleaded that learned Sub Divisional Judicial Magistrate Aanadpur Sahib while announcing the judgment in IPC complaint No. 119 of 2007 has given the liberty to complainant to file fresh complaint under the provisions of law before competent Court of law having jurisdiction. It is pleaded that during investigation criminal offences under Sections 406, 498-A and 120-B IPC are established and challan was prepared by SHO of P.S. Kot Kehlur. It is pleaded that FIR was registered in P.S. Kot Kehlur as per directions of learned Judicial Magistrate 1st Class Bilaspur issued under Section 156(3) of Code of Criminal Procedure. Prayer for dismissal of petition filed under Section 482 IPC read with Article 227 of Constitution of India sought. 3. It is pleaded that FIR was registered in P.S. Kot Kehlur as per directions of learned Judicial Magistrate 1st Class Bilaspur issued under Section 156(3) of Code of Criminal Procedure. Prayer for dismissal of petition filed under Section 482 IPC read with Article 227 of Constitution of India sought. 3. Per contra separate reply filed on behalf of Smt. Nirmala Devi wife of co-petitioner No.1 Sanjeev Kumar pleaded therein that petitioners have not approached the Court with clean hands and suppressed the material facts. It is pleaded that learned Sub Divisional Judicial Magistrate Aanadpur Sahib had given the liberty to Nirmala Devi to file fresh complaint under provisions of law before competent Court having jurisdiction. It is pleaded that Smt. Nirmala Devi had also filed proceedings under Section 125 Cr. P.C. regarding maintenance allowance but co-petitioner No.1 Sanjeev Kumar did not pay any maintenance allowance to Smt. Nirmala Devi. It is pleaded that Smt. Nirmala Devi has filed fresh complaint strictly as per compliance of directions issued by Sub Divisional Judicial Magistrate Aanadpur Sahib in case No. 119 of 2007 titled Nirmala Devi vs. Sanjeev Kumar decided on dated 22.12.2012. It is pleaded that Smt. Nirmala Devi has filed an application under Section 156(3) of Code of Criminal Procedure before learned Judicial Magistrate 1st Class Bilaspur seeking direction to SHO P.S. Kot Kehlur to register criminal case under Sections 406, 498-A and 120-B IPC. It is pleaded that learned Judicial Magistrate 1st Class Bilaspur had perused the facts mentioned in the complaint and thereafter after perusal of entire complaint had directed the SHO P.S. Kot Kehlur to register the FIR and investigate the matter. It is pleaded that in compliance to the directions of learned Judicial Magistrate 1st Class Bilaspur SHO P.S. Kot Kehlur had registered the case under Sections 406, 498-A and 120-B IPC vide FIR No. 85 of 2013 dated 7.8.2013. It is pleaded that offence under Sections 406, 498-A is continuous criminal case against married women. Prayer for dismissal of petition filed under Section 482 Cr. P.C. read with Article 227 of Constitution of India sought. 4. Court heard learned counsel appearing for the petitioners and learned Assistant Advocate General appearing on behalf of non-petitioner No.1 and learned counsel appearing on behalf of non-petitioner No.2 at length and also perused the entire record carefully. 5. Following points arise for determination in present case:- 1. P.C. read with Article 227 of Constitution of India sought. 4. Court heard learned counsel appearing for the petitioners and learned Assistant Advocate General appearing on behalf of non-petitioner No.1 and learned counsel appearing on behalf of non-petitioner No.2 at length and also perused the entire record carefully. 5. Following points arise for determination in present case:- 1. Whether petition filed under Section 482 Cr. P.C. read with Article 227 of Constitution of India is liable to be accepted in view of availability of alternative efficacious statutory remedy? 2. Final Order. Reasons for findings on Point No.1. 6. Submission of learned Advocate appearing on behalf of petitioners that earlier also private criminal complaint was filed under Sections 406, 498-A read with Section 120-B IPC before Sub Divisional Judicial Magistrate Aanadpur Sahib and accused persons were acquitted by Sub Divisional Judicial Magistrate Aanadpur Sahib and again fresh FIR could not be registered is rejected being devoid of any force for the reasons hereinafter mentioned. Court has perused the judgment passed by learned Sub Divisional Judicial Magistrate Aanadpur Sahib in private complaint No. 119 of 2007 titled Nirmala Devi vs. Sanjeev kumar and learned Sub Divisional Judicial Magistrate Aanadpur Sahib has given the liberty to complainant Nirmala Devi to file fresh complaint under the provisions of law before competent Court having jurisdiction. There is no evidence on record in order to prove that judgment passed by learned Sub Divisional Judicial Magistrate Aanadpur Sahib in private complaint No. 119 of 2007 was set aside by competent authority of law. Judgment passed by learned Sub Divisional Judicial Magistrate Aanadpur Sahib dated 22.12.2012 has attained the stage of finality. In judgment Sub Divisional Judicial Magistrate Aanadpur Sahib has given the liberty to complainant Nirmala Devi to file fresh complaint under the provisions of law before competent Court. It is well settled law that judgment should not be read in isolation but should be read as a whole. The liberty granted to Smt. Nirmala Devi to file fresh complaint under the provisions of law before competent Court of law is not challenged by petitioners before higher authorities. Hence it is held that fresh complaint was filed by Smt. Nirmala Devi in compliance to the directions of Sub Divisional Judicial Magistrate Aanadpur Sahib given in judgment passed in private complaint No. 119 of 2007 titled Nirmala Devi vs. Sanjeev Kumar decided on 22.12.2012. 7. Hence it is held that fresh complaint was filed by Smt. Nirmala Devi in compliance to the directions of Sub Divisional Judicial Magistrate Aanadpur Sahib given in judgment passed in private complaint No. 119 of 2007 titled Nirmala Devi vs. Sanjeev Kumar decided on 22.12.2012. 7. Another submission of learned Advocate appearing on behalf of the petitioners that FIR No. 85 of 2013 dated 7.8.2013 registered in P.S. Kot Kehlur is contrary to law is also rejected being devoid of any force for the reasons hereinafter mentioned. It is proved on record that FIR No. 85 of 2013 dated 7.8.2013 was registered against the petitioners under Sections 406, 498-A and 120-B IPC in compliance to the directions issued by learned Judicial Magistrate 1st Class Bilaspur under Section 156(3) of Code of Criminal Procedure. It is held that investigation was started in present case as per directions of learned Judicial Magistrate 1st Class Bilaspur issued under Section 156(3) Cr. P.C. It is well settled law that where investigation is started at the instance and as per reference sent by Magistrate under Section 156(3) Cr. P.C. then police officials to whom the reference is sent has no discretion but to register the FIR and initiate investigation in accordance with law and thereafter to submit the report to the Judicial Magistrate under Section 173 Cr. P.C. 8. Another submission of learned Advocate appearing on behalf of the petitioners that criminal Court cannot take cognizance under Section 468 of Code of Criminal Procedure 1973 is rejected being devoid of any force for the reasons hereinafter mentioned. It is held that on dated 22.12.2012 Sub Divisional Judicial Magistrate Aanadpur Sahib had granted liberty to Nirmala Devi to file fresh complaint under the provisions of law before competent Court of law. It is held that limitation would start w.e.f. 22.12.2012 granted by Sub Divisional Judicial Magistrate Aanadpur Sahib to file fresh complaint. It is held that offences under Sections 498-A IPC and 406 IPC are criminal warrant cases. It is held that alternative remedy to the petitioners to plead their case for discharge under Section 239 of Code of Criminal Procedure 1973 before learned trial Court is available in present case and learned trial Court after hearing the petitioners and State would pass the order under Section 239 of Cr. P.C. strictly in accordance with law in present case. P.C. strictly in accordance with law in present case. It is further held that another alternative remedy to file revision under Section 397 of Code of Criminal Procedure is also available to the petitioners against the order passed by learned trial Court under Section 239 Cr. P.C. It was held in case reported in (2008)8 SCC 781 titled Monica Kumar (Dr.) and another vs. State of U.P. and others that inherent jurisdiction under Section 482 Cr. P.C. has to be exercised carefully and with caution. It was held in case reported in 1997 (2) Crimes 331 (Orissa High Court) titled Basudev Bhoi vs. Bipadabhanjan Puhan and another that inherent power under Section 482 Cr. P.C. should be exercised when no other alternative remedy is available to the litigant. It was held that power under Section 482 Cr. P.C. should be exercised sparingly. It was held in case reported in JT 2015 (4) SC 576 titled Union of India vs. Major General Shri Kant Sharma and another that if alternative statutory remedy is available then power under Articles 226 and 227 of Constitution of India should not be invoked. ( See: JT 2013 (11) SC 387 titled Commissioner of Income Tax and others vs. Chhabil Dass Agarwal. See: (1997) 3 SCC 261 titled L. Chander Kumar vs. Union of India (Constitutional Bench of India) Point No. 1 is decided against the petitioners. Point No. 2 (Final Order) 9. In view of above stated facts petition filed under Section 482 Cr. P.C. read with Article 227 of Constitution of India is dismissed. However petitioners shall be at liberty to raise the plea before learned trial Court under Section 239 of Code of Criminal Procedure 1973 that petitioners could not be prosecuted for the same criminal offence more than once as mentioned under Article 20(2) of Constitution of India and thereafter learned trial Court after hearing prosecution and accused persons will decide the plea in accordance with law. Observations made in this order will not effect the merits of case in any manner and will be strictly confine for the disposal of petition filed under Section 482 of Code of Criminal Procedure 1973 read with Article 227 of Constitution of India. Petition is disposed of. All pending miscellaneous application(s) if any also stands disposed of.