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2016 DIGILAW 425 (JHR)

Pankaj Upadhyay v. State of Jharkhand

2016-03-08

RONGON MUKHOPADHYAY

body2016
ORDER : 1. In this application, the prayer of the petitioner is for quashing the entire criminal proceeding arising out of Complaint Case No. 930 of 2015 including the order dated 9.9.2015 passed by the learned Judicial Magistrate, 1st Class; Ranchi whereby and where under cognizance has been taken for the offences punishable under Section 498-A of the I.P.C. and Section 3/4 of the Dowry Prohibition Act. 2. A complaint case was instituted by the opposite party no. 2 in which it was stated that the marriage of his daughter was solemnised with the petitioner on 27.11.2013 at Kripalpur, Balia in the State of Uttar Pradesh as per Hindu rites and customs. At the time of marriage, the demand of dowry which was made was complied with by the opposite party no. 2. It has been alleged that after the daughter of the complainant went to her matrimonial house, the accused nos. 2, 3 & 4 started taunting her for bringing less dowry. Subsequently, she was shifted to Bangalore to stay with the petitioner. It has been alleged that the petitioner also started making a demand of dowry and used to assault her brutally. Further allegation has been levelled that on 29.7.2014, the complainant's daughter was assaulted and was forced to drink Harpic after which she became unconscious and was admitted to a hospital in a critical stage. The complainant on hearing the news brought her back to Ranchi where she was admitted in hospital and her life was saved. It has also been alleged that on 18.4.2015, the father-in-law along with 5 to 7 persons had come to the house of the complainant and threatened the complainant with dire consequences and also refused to take back his daughter till their demand of dowry are met. On the basis of the aforesaid allegations, Complaint Case No. 930 of 2015 was instituted. 3. Upon conducting an inquiry under Section 202 of Cr.P.C. by examining the complainant on solemn affirmation as well as his witnesses, cognizance was taken on 9.9.2015 by Sri C.B. Kumar, learned Judicial Magistrate, 1st Class, Ranchi for the offences punishable under Section 498-A of the I.P.C. and Sections 3/4 of the Dowry Prohibition Act. 4. Heard Mr. B.M. Tripathy, learned senior counsel appearing for the petitioner and Mr. R.S. Mazumdar, learned senior counsel appearing on behalf of the opposite party no. 2. 5. Mr. 4. Heard Mr. B.M. Tripathy, learned senior counsel appearing for the petitioner and Mr. R.S. Mazumdar, learned senior counsel appearing on behalf of the opposite party no. 2. 5. Mr. B.M. Tripathy, learned senior counsel for the petitioner has submitted that no case under Section 498-A of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act is maintainable as against the petitioner, solely for the reason that the marriage of the petitioner was solemnised with the daughter of the complainant by suppressing the earlier marriage which was solemnised by the daughter of the complainant with one Rahul Kumar. In support of his contentions, learned senior counsel has referred to the marriage certificate dated 20.5.2011 issued by the Marriage Officer, Purulia district. Learned senior counsel has further submitted that since the daughter of the complainant had fled away with Rahul Kumar, an FIR was instituted by the complainant being Lalpur P.S. Case No. 282 of 2011, which was registered for the offence punishable under Sections 363 & 366 of the Indian Penal Code in which doubts were made about the involvement of Rahul Kumar in enticing away the daughter of the complainant. Submissions have been advanced that when the daughter of the complainant was traced out, she had given a statement which was recorded under Section 164 of Cr.RC. in which she had categorically stated that she had solemnised marriage with Rahul Kumar at Howrah in the State of West Bengal. It has also been submitted that a suit for dissolution of marriage was preferred by Rahul Kumar in which by an ex-parte judgment dated 14.7.2015, the marriage between the Rahul Kumar and the daughter of the complainant was dissolved. These facts, according to the learned senior counsel for the petitioner highlights the mala-fide intention of the opposite party no. 2 in deliberately suppressing the earlier marriage and getting his daughter married with the petitioner. Such circumstance reveals a malicious prosecution, being heaped upon the petitioner and in such view of the matter the entire criminal proceedings as against the petitioner deserves to be quashed and set aside. 6. Mr. R.S. Mazumdar, learned senior counsel for the opposite party no. 2 has in his initial phase of the argument challenged the contention of the learned senior counsel for the petitioner with respect to the purported marriage between the daughter of the complainant and Rahul Kumar. 6. Mr. R.S. Mazumdar, learned senior counsel for the opposite party no. 2 has in his initial phase of the argument challenged the contention of the learned senior counsel for the petitioner with respect to the purported marriage between the daughter of the complainant and Rahul Kumar. It has been submitted that the entire edifice which has been created with respect to the earlier marriage solemnised by the daughter of the complainant crumbles in face of the inquiry which was undertaken by the complainant with respect to the genuineness and validity of the marriage certificate which forms one of the basis of quashing of the entire criminal proceedings. In this context, learned senior counsel has referred to the counter affidavit filed by the opposite party no. 2 which contains an application submitted to the Registrar General of Marriage (West Bengal) with regard to the authenticity of the marriage certificate as well as the Marriage Officer, who had allegedly solemnised the marriage. Submissions have been advanced that the Marriage Officer had himself retired on 15.6.2007 and there appears no circumstance under which he could have issued the marriage certificate and therefore, it can be concluded that the marriage of the daughter of the complainant was never solemnised with Rahul Kumar as has been alleged. To bolster his argument, learned senior counsel has also referred to an order passed in a Habeas Corpus Application made before this Court in which the statement of the victim was recorded and it was clearly stated that she does not want to go with Rahul Kumar and that she had never solemnised marriage with him. It has therefore been submitted that in the circumstances enumerated above, when the marriage of the daughter of the complainant with Rahul Kumar itself becomes cloudy, the initiation of a criminal proceeding against the petitioner cannot be stalled as no ground exists for interference. In support of his contention, learned senior counsel for the opposite party no. 2 has referred to the judgment in the case of Umesh Kumar vs. State of Andhra Pradesh reported in AIR 2014 SC 1106 : 2013 (4) JLJR (SC) 151, State of Maharashtra and Others vs. Som Nath Thapa & Others reported in (1996) 4 SCC 659 and Md. Malek Mondal vs. Pranjal Bardalai & Anr. reported in (2005) 10 SCC 608 : 2005 (3) JLJR (SC) 13. 7. Malek Mondal vs. Pranjal Bardalai & Anr. reported in (2005) 10 SCC 608 : 2005 (3) JLJR (SC) 13. 7. The rival contentions made by the learned counsel for the parties seems to have been confined to the fact as to whether Nidhi Kumari (daughter of the complainant) had earlier got herself married with Rahul Kumar or not. The marriage certificate dated 20.5.2011, seems to have been issued by one Shanti Prasad Chakraborty on 20.5.2011 claiming himself to be the Marriage Officer of Purulia district. The letter issued by the Registrar General of Marriage, West Bengal dated 12.10.2012 on the query made by the opposite party no. 2 reveals that the said Shanti Prasad Chakraborty was an Ex-Marriage Officer for the district of Purulia, but he has superannuated from service on 15.6.2007. The solemnisation of the marriage as per the said letter was not authentic in the eye of law. A list of non-official marriage officers of the Purulia district has also been appended which does not contain the name of Mr. Shanti Prasad Chakraborty. The authenticity or genuineness with regard to the issuance of the marriage certificate thus cannot be considered to be a gospel truth as such certificate was issued by a person not competent under the law, and therefore, the marriage of Nidhi Kumari with Rahul Kumar solemnised in the district of Purulia gets doubtful. Upon institution of Lalpur PS. Case No. 282 of 2011 by the complainant Nidhi Kumari was recovered and the statement recorded under Section 164 of Cr.P.C. reveals about the factum of marriage with Rahul Kumar. But when questioned on being asked to appear in person in a Habeas Corpus Application being W.P. (H.B.) Cr. No. 104 of 2012, a categorical statement has been made by her that she was not married with the petitioner. Contradictory statements having been made by Nidhi Kumari does not substantiate or justify the claim of the petitioner with respect to suppression of the earlier marriage. A suit for dissolution of marriage was filed by Rahul Kumar in which reference has been made about his marriage with Nidhi Kumari in Purulia and thereafter vide judgment dated 14.7.2015, the marriage of Rahul Kumar with Nidhi Kumari was dissolved. 8. A suit for dissolution of marriage was filed by Rahul Kumar in which reference has been made about his marriage with Nidhi Kumari in Purulia and thereafter vide judgment dated 14.7.2015, the marriage of Rahul Kumar with Nidhi Kumari was dissolved. 8. The entire surrounding circumstances involved in the present case does not at all convince this Court that Nidhi Kumari was earlier married to Rahul Kumar and by suppressing the actual fact had subsequently solemnised marriage with the petitioner. In the case of "Umesh Kumar" (supra), it was held as follows:- "18. Thus, in view of the above, it becomes evident that in case there is some substance in the allegations and material exists to substantiate the complicity of the applicant, the case is to be examined in its full conspectus and the proceedings should not be quashed only on the ground that the same had been initiated with mala-fides to wreak vengeance or to achieve an ulterior goal." 9. In the case of "State of Maharashtra and Others" (supra), was held as follows:- "32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage." 10. In the case of "Md. Malek Mondal" (supra), learned counsel has referred to the following paragraphs which are quoted herein below:- "6. The proceedings of the complaint are at the initial stage after the cognizance has been taken. The petitioner could not be interrogated since he has been avoiding to appear before the NCB officer despite issue of various notices as per the averments made in the complaint The allegations in the complaint are grave The recovery, according to the prosecution, is of 2.050 kg of heroin which, according to the statement of Dilip Das, belonged to the petitioner. The question whether Section 42 of the NDPS Act has been complied or not being a question of fact has to be gone into on appreciation of evidence that may be adduced before the Special Judge. Prima facie, the High Court has come to the conclusion that there has been compliance. This is not the stage for in-depth examination of this question. The contention that there is no material against the petitioner since the only material on record was inadmissible retracted statement allegedly made by the co-accused Dilip Das also cannot be accepted, at this stage, when only cognizance has been taken and the petitioner is still to be interrogated. The question about corroborative nature of evidence may also have to be gone into at the appropriate stage. The only other contention urged is about the lack of power of the Special Judge to issue warrant of arrest. 8. Before parting, we may also note that wide extraordinary power of quashing vested in the High Court is to be exercised sparingly and with caution and not to stifle legitimate prosecution. Such a power is required to be exercised in a case where the complaint does not disclose any offence and it is frivolous, vexatious or oppressive. At that stage, there cannot be meticulous analysis of the case. The High Court has rightly declined the prayer to quash the complaint at this initial stage. It cannot be said that there was no material for taking cognizance by the Special Court. The reading of the complaint as a whole shows that as per prosecution case a huge recovery of heroin was made. The recovered substance was stated to belong to the petitioner, the petitioner did not respond and failed to appear before the NCB officers despite written notices. Under these circumstances, the complaint was filed against the petitioner and Dilip Das seeking leave of the court to file supplementary complaint after further investigation that may be carried out after custodial interrogation of the petitioner. In this background, the complaint cannot be quashed." 11. In the case of "Umesh Kumar" (supra), it was held that a proceeding should not be quashed only on the ground that the same has been initiated with a mala-fide intention and to wreak vengeance. In this background, the complaint cannot be quashed." 11. In the case of "Umesh Kumar" (supra), it was held that a proceeding should not be quashed only on the ground that the same has been initiated with a mala-fide intention and to wreak vengeance. Had not the opposite party no 2 brought on record the subsequent developments which had taken place with respect to the genuineness of the marriage certificate and the order passed in the Habeas Corpus application, this Court, would perhaps have tended to believe the version of the petitioner. The allegation of mala-fide or wreaking vengeance or initiation of a malicious prosecution evaporates when one goes through the evidences brought on record by the opposite party no. 2. Moreover, in a proceeding under Section 482 of Cr.PC. this Court has to be circumspect while considering the rival submissions and if material exists prima facie to suggest commission of the offence, the criminal proceedings cannot be stalled/stiffed at the behest of the accused. 12. In my considered opinion and in view of the discussions made herein above, there being a prima facie case in existence against the petitioner, I am not inclined to entertain this application, which is accordingly, dismissed.