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2019 DIGILAW 1344 (ALL)

Abhilasha Pathak v. State of U. P.

2019-05-16

RAHUL CHATURVEDI

body2019
JUDGMENT : Rahul Chaturvedi, J. 1. Heard Shri Anil Kumar Chaurasia, learned counsel for the applicant, Shri Manish Tiwary, learned counsel for opposite party nos. 2 to 6 and learned A.G.A. for the State. 2. Perused the record. 3. Since the matter has been put on board as fresh, private opposite party along with the learned AGA are not inclined to furnish any counter affidavit, therefore with the consent of contesting parties, the matter is being adjudicated and decided at the preliminary stage itself, by delivering the following order and judgment. 4. By means of instant application filed under section 482 Cr.P.C., the applicant Ms. Abhilasha Pathak is assailing validity and veracity of the order dated 22.2.2019 passed by I-Additional Session Judge, Chandauli, whereby while deciding Criminal Revision No. 13 of 2017, the aforementioned court affirmed rejection order dated 05.06.2017 passed by the Chief Judicial Magistrate Chandauli in Complaint Case no. 3146/2016 in exercise of power U/s 203 Cr.P.C., on merit. 5. After hearing rival submissions, this Court has no hesitation to express its prima-facie opinion that it is one of those unique and extraordinary cases, where a promiscuous lady (applicant) by exploiting and stratifying her gender, slapped criminal prosecution against her husband and his family members, just to quench her retaliatory and sadistic joyride. In fact, this second innings is being recklessly played by the applicant against her husband and in-laws to bring them to kneels and restrain them from raising any demand. To attain the dirty objective, there seems that the applicant is pawning the Court and subjugating her husband as well as his companions to squeeze out more money from them by playing 'poor wife' card and thus giving a worst pitch for her husband to bat on. 6. The genesis of case ignites from lodging of the complaint before the Chief Judicial Magistrate, Chandauli on 16.05.2016 making tall allegations therein against her husband Vinay Kumar Pathak, father-in-law-Amresh Chand Pathak, mother-in-law)-Bhagwati Devi, brothers of the husband-Vimal Kumar Pathak and Vikash Chand Pathak , R/o House No. C-57, Rajeev Nagar, Kalyanpur, P.S. Gudammba, District Lucknow. The time and date of the occurrence is narrated to be 6.00 P.M. and 1.00 P.M. on 21.12.2011 and 02.04.2016 respectively. In her complaint, she claimed that on 25.05.2005 she got married with Vinay Kumar Pathak and her ceremonial bidai by means of Gauna, was solemnized in February, 2006. The time and date of the occurrence is narrated to be 6.00 P.M. and 1.00 P.M. on 21.12.2011 and 02.04.2016 respectively. In her complaint, she claimed that on 25.05.2005 she got married with Vinay Kumar Pathak and her ceremonial bidai by means of Gauna, was solemnized in February, 2006. Thereafter she joined family of her husband at Lucknow. Subsequently, as per poor society's norms, allegation of dowry demand was made against opposite party no.2 to 6. Further therein, it is alleged that on account of non fulfillment of the so-called promise of giving Rs. 5.00 lakhs and a Swift Car, she was made soft target of alleged misbehavior, harassment and torture. During the antagonistic period, on 15.01.2007, the couple was blessed by a baby child named Suzi. It is further mentioned that on 21.12.2011, a panchayat was convened before whom her in-laws, who promised that they would not maltreat their daughter-in-law (applicant) in future. But on 04.01.2012, she was again assaulted by her husband, was carried by him to Varanasi and on 05.01.2012 she was dumped to her parent’s place. She next narrated that she lodged complaint, containing her woos, before the court concerned which culminated into compromise by the coordinate bench of this Court vide order dated 01.12.2014 passed in Criminal Misc. Application U/S 482 Cr.P.c. 30777 of 2013. On 02.04.2016 around 1.00 P.M., the husband and his other relatives arrived at Chandauli and demanded their stridhan, on refusal, they once again assaulted her by kicks and fists, whereupon she raised alarm but before arrival of any village folk from the neighbourhood, all the accused persons, grabbed all the stridhan, valuables and ornaments. and took to their heels. She rushed the Police Station, to lodge FIR but the local police refused to lodge the same on the ground of domestic matter. Thereafter, the complainant and his father got her medically examined; and therefore, the actions of her husband and other named accused persons would come within the realm U/s 498A, 323, 504 I.P.C. and U/s 3/4 Dowry Prohibition Act. 7. The instant complaint was lodged on 16.05.2016 for the second time and perusal of the text of the complaint establishes that there is passing casual reference of earlier proceedings between the contesting parties without furnishing full particulars of that case. This by itself shows that the applicant has not appeared before the court with the clean hands. 7. The instant complaint was lodged on 16.05.2016 for the second time and perusal of the text of the complaint establishes that there is passing casual reference of earlier proceedings between the contesting parties without furnishing full particulars of that case. This by itself shows that the applicant has not appeared before the court with the clean hands. She has not whispered the terms and condition of the alleged compromise earlier entered into before the court. 8. Thereafter, the statements under sections 200 and 202 Cr.P.C. were recorded. On 05.06.2017 the learned Magistrate after critically analyizing all the material on record, taking into account the statements under sections 200 and 202 Cr.P.C., has passed an elaborated order holding therein that the complaint itself is devoid of merits and accordingly it was dismissed in exercise of powers under section 203 Cr.P.C. Aggrieved by the aforesaid order, the applicant Abhilasha Pathak preferred Criminal Revision No. 38/2017 raising certain legal/factual points therein whereupon learned Revisional Court, after hearing contesting parties, vide its judgment and order dated 22.02.2019 rejected the revision and put a seal of approval to the order of learned C.J.M. Chandauli dated 05.06.2017 by a well reasoned judgment. 9. Hence by means of instant 482 application, the applicant is assailing both the orders dated 5.6.2017 and judgment and order dated 22.02.2019 passed by the courts below. 10. Learned Counsel for the opposite party no.2 to 6, Shri Manish Tiwary has submitted that the applicant has not come before this court with clean hands, there is a material concealment by her in her complaint itself and thus, he has vehemently opposed the prayer sought by her in the instant 482 application. 11. This Court has carefully perused both the orders impugned i.e. order dated 5.6.2017 and judgment and order of learned Revisional Court dated 22.02.2019. 12. Per contra, Shri Manish Tiwary exposing the applicant, submitted that on the earlier occasion Criminal Complaint Case No. 116/2012 (Abhilasha Pathak Vs. Vinay Kumar Gautam) was filed U/s 498A I.P.C. and U/s 3/4 D.P. Act was filed pending in the Court of C.J.M. Chandauli and the same was challenged by means of Criminal Misc. Application NO. 30777/2013 (Vinay Kumar Pathak Vs. State of U.P.). A compromise application was filed sworn by none other than Smt. Abhilasha Pathak (opposite party no.2) herself. In paragraph no. Application NO. 30777/2013 (Vinay Kumar Pathak Vs. State of U.P.). A compromise application was filed sworn by none other than Smt. Abhilasha Pathak (opposite party no.2) herself. In paragraph no. 4 of the aforesaid compromise it has been carved out that after the inter-se discussion with the family members they have agreed and decided to withdraw all the civil and criminal cases pending before different courts and it was decided that there is no point in maintaining the broken relationship as husband and wife and dissolved the marital relationship between them. It was also agreed that opposite party no.2 (Abhilasha Pathak) shall move withdrawal of the following cases:- A. Case No. 169 of 2013 U/s Domestic Violence Act (Abhilasha Pathak Vs. Vinay Kumar Pathak), pending in the court of Chief Judicial Magistrate, Chandauli. B. Case No. 111/2013, U/s 127 Cr.P.C. (Abhilasha Pathak Vs. Vinay Kumar Pathak) pending in the court of Family Court, Chandauli. C. Case No. 36/2014, U/s 128 of Cr.P.C. (Abhilasha Pathak Vs. Vinay Kumar Pathak) pending in the court of Family Court, Chandauli. D. Case No. 116/2012 under Section 498A of I.P.C. and U/s 3/4 D.P. Act, Police Station Sayyed Raja District Chandauli, pending in the court of Chief Judicial Magistrate, Chandauli. E. The applicant filed divorce petition before Family Court, Lucknow bearing Case No. 2396/2011 U/s 13 of Hindu Marriage Act (Vinay Kumar Pathak Vs. Smt. Abhilasha Pathak. Besides above, it was further agreed upon that : F. The wife (opposite party no.2) or her family members will have no further claim in respect of present matrimonial relationship. G. The applicant and opposite party no.2 are agreed to live separately and do not any interfere to each other in any matter and they are settle their dispute criminal and civil cases. 13. The aforesaid compromise deed was drafted and signed by both the parties on 26.11.2014. Relying upon the said compromise, the Coordinate Bench of this Court on 01.12.2014 in the consonance with the ratio lay down in the case of B.S. Joshi Vs. State of Haryana, 2003(4) SCC 675 , Gian Singh Vs. State of Punjab, 2012 (10) SCC 302 and Narinder Singh Vs. Relying upon the said compromise, the Coordinate Bench of this Court on 01.12.2014 in the consonance with the ratio lay down in the case of B.S. Joshi Vs. State of Haryana, 2003(4) SCC 675 , Gian Singh Vs. State of Punjab, 2012 (10) SCC 302 and Narinder Singh Vs. State of Punjab (Laws) 2014-3-56, hold that there would be no fruitful purpose would be served throwing the parties in the litigations and in the ends of justice would be served by allowing the application and quashing the proceedings, accordingly the instant application inre: Abhilasha Pathak Vs. Vinay Kumar Pathak) pending in the court of Chief Judicial Magistrate, Chandauli was quashed, On 11.11.2014 the following order was passed. “On 28.10.2014, the following order was passed: “Supplementary affidavit filed today is taken on record. Heard Shri Manish Tiwary, learned counsel for the applicant, learned A.G.A. for the State and Sri A.K. Shukla, learned counsel for the opposite party no.2. According to the learned counsel for the applicant the parties have already settled their score outside the Court, whereas, learned counsel for the opposite party no.2 states that no such settlement has been made. The best way to find out as to whether the settlement has been made or not is to get correct information from the parties themselves. As such it would be expedient that the applicant as also the opposite party no.2 may remain present before this Court on the next date. Learned Counsels for the parties states that after a week on any date the parties shall remain present. List this case on 11.11.2014. On the said date the applicant as also the opposite party no.2 shall remain present before the Court. Counsels for the parties shall ensure their presence. The interim order granted earlier shall continue till the next date.”. Today the applicant Vinay Kumar Pathak and opposite party no.2 Smt. Abhilasha Pathak are present and duly identified by their counsels namely, Sri Manish Tiwary, learned counsel for the applicant and Sri A.K. Pandey, Advocate representing opposite party no.2. Opposite party no.2 has stated before the Court that this settlement was only with regard to the proceedings under Section 128 Cr.P.C. She admits of having received bank draft of Rs. 10 lakhs, as mentioned in the compromise. Opposite party no.2 has stated before the Court that this settlement was only with regard to the proceedings under Section 128 Cr.P.C. She admits of having received bank draft of Rs. 10 lakhs, as mentioned in the compromise. She further says that the settlement was not relating to other pending cases and therefore, this application under Section 482 Cr.P.C. arising out of proceedings under Section 498A Cr.P.C. cannot be decided in terms of the compromise relating to Section 128 Cr.P.C. It has been argued on behalf of the applicant that the settlement was with regard to all the pending cases and in terms of compromise parties had decided not to pursue the cases against each other. If that he so, then it would be appropriate that opposite party no.2 returns Rs. 10 lakhs to her husband and applicant may continue to contest all the pending cases in accordance with law. Opposite party no.2 has stated that the income of her husband is more than 20,000/-and may be near about 30,000/-per month. If that be so, then amount of Rs. 10 lakhs would be for one time settlement of all the cases but since opposite party no.2 has denied the settlement with regard to other cases, the Court cannot compel the parties to make the settlement. It will be open to parties to contest their respective cases in accordance with law. Opposite party no.2 prays for and is granted tow weeks time to return the amount of Rs. 10 lakhs to the applicant with liberty to continue to contest the case under Section 128 Cr.P.C. also. List this case on Ist December, 2014. On the said date applicant and opposite party no.2 would again remain present and on or before the said date opposite party no.2 may return the amount of Rs.10 lakhs and file an appropriate affidavit to that effect before this Court. Till the next date of listing interim order granted earlier to continue. Today the applicant Vinay Kumar Pathak is present. On behalf of opposite party no.2 Sri A. K. Shukla, Advocate, representing her has filed an application along with affidavit. Along with the said affidavit is annexed a fresh agreement / compromise deed dated 26.11.2014. Till the next date of listing interim order granted earlier to continue. Today the applicant Vinay Kumar Pathak is present. On behalf of opposite party no.2 Sri A. K. Shukla, Advocate, representing her has filed an application along with affidavit. Along with the said affidavit is annexed a fresh agreement / compromise deed dated 26.11.2014. Sri Shukla has stated that in terms of the new compromise arrived at between the parties as annexed to the affidavit all the cases instituted by both the parties against each other has been withdrawn and may be closed. 15. Thus from the aforesaid, it is clear that on the earlier occasion she was enriched by Rs. 10.00 Lakhs as one time settlment and then only the compromise agreement dated 26.11.2014 was arrived at between the parties. 16. In the afore-mentioned backdrop, it is now essential and imperative to scan the present complaint case. In her statement U/s 200 Cr.P.C. the applicant in no uncertain terms stated that she is residing with her parents since 2012 and in the complaint she has shown the date and time of the occurrence as 21.12.2011 and 02.04.2016. Further-more, in her complaint she stated that without informing her about the High Court's order, after obtaining her signatures on the compromise fraudulently, the instant complaint case has been launched. 17. Cumulative effects of all these facts clearly indicate that since 2012 the applicant is separately residing at Chandauli and as per condition of the settlement between them, she received Rs. 10.00 lakhs from her husband it was also assured in the aforesaid settlement that the applicant would withdraw all the cases initiated by her after receipt of the aforesaid amount but instead withdrawing all the cases, initiated by her, but the applicant-Ms. Abhilasha Pathak, on account of avaricious lust, filed another application U/s 498A I.P.C. and 3/4 D.P. Act by means of filing second Complaint Case No. 3146 of 2016, disrespecting the second condition of withdrawl of all the cases against her husband. It is a million dollar's question that she never spelled out in her complaint that she is in receipt of Rs. 10.00 lakhs from her husband as one time settlement on the earlier occasion and is striving to play second innings by way of the present case. It is a million dollar's question that she never spelled out in her complaint that she is in receipt of Rs. 10.00 lakhs from her husband as one time settlement on the earlier occasion and is striving to play second innings by way of the present case. Filing successive petitions, after giving cosmetic changes in the earlier story, is nothing but an arm twisting and a gross misuse of criminal judicial system. 18. Under the provisions of law, the proceedings under Sections 498A IPC, Domestic Act, Dowry Prohibition Act, 125 Cr.P.C., and 24 of the Hindu Marriage Act etc., have been legislated with a laudable object so that no wife should is left by her husband in a destitute condition but it should not be wielded as a weapon for exploiting and extracting more money from her husband. 19. In the present case, there is a conditional settlement between husband and wife. After the settlement, both the parties were bound to abide by the terms of the compromise and as a natural outcome, the relationship between them were severed permanently and irrevocably. As per own admission of the applicant, she is residing separately since 2012 and has got no concern with opposite party no.2, Vinay Kumar Pathak, then there was no occasion or purpose that he would commit an offence on 2.4.2016 as alleged in the compliant. To initiate successive proceedings is barred under the law, but as mentioned above, it is the greed and lust for more money, the instant criminal prosecution was initiated for the second time and this court finds no illegality or perversity in the orders dated 05.06.2017 and 22.02.2019 respectively and accordingly the present 482 application sans merits and accordingly dismissed with cost. 20. This court would be failing in its duty, while imposing cost upon the applicant for venturing in to this adventure by filing successive criminal prosecution against her husband and his other family members, time and again for obvious reasons spelled out herein above, therefore, this Court computes Rs. 2.50 lakhs to be recovered from the applicant-Smt. Abhilash Pathak as land revenue and the same be handed over to opposite party no.2 Vinay Kumar Pathak as compensation. 2.50 lakhs to be recovered from the applicant-Smt. Abhilash Pathak as land revenue and the same be handed over to opposite party no.2 Vinay Kumar Pathak as compensation. The Chief Judicial Magistrate, Chandauli is directed to recover the aforesaid amount within a period of twenty days from Abhilasha Pathak from the date of production of a certified copy of this order and handover to opposite party no.2 within a week thereafter. 21. Office is also directed to transmit copy of this order to the court concerned within twenty days from today for communication and compliance.