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2019 DIGILAW 371 (JHR)

Bablu Kumar Yadav v. State of Jharkhand

2019-02-05

RAJESH SHANKAR

body2019
ORDER : No one appears on behalf of the O.P.No.2. 2. Earlier also, the case was taken up on 14.01.2019 and the same was adjourned due to non-appearance of the counsel for the O.P.No.2. 3. The present petition has been filed for quashing the entire criminal proceeding including the order of cognizance dated 02.02.2008 passed by the C.J.M Sahibganj in P.C.R Case No. 153 of 2007 for the offence under Section 498-A of the IPC. 4. The brief background of the case is that a complaint being P.C.R Case No. 153 of 2007 was filed against the petitioners by the O.P.No.2 alleging that after her marriage with the petitioner No.1, she remained in her matrimonial home at Bhagalpur (Bihar) for two months and during that period, she was subjected to cruelty by the petitioners for demand of dowry. It is also alleged that on 21.04.2007, the petitioners went to the parental home of the O.P.No.2 at Sahibganj where they assaulted and mentally tortured the O.P.No.2. They also snatched the ornaments of the O.P.No.2 and fled away. 5. The learned counsel for the petitioners submits that after the marriage of the O.P.No.2 with the petitioner No.1, she lived in her matrimonial home only for three days and thereafter she went to her parental home. In spite of repeated requests made by the petitioners, she did not come to her matrimonial home and therefore a matrimonial suit being Divorce Case No. 311 of 2002 was filed in the Court of the Principal Judge, Family Court at Bhagalpur on 16.09.2002. The O.P.No.2 appeared in the said suit, however, subsequently she lost her interest and the said suit was decreed ex-parte against her and the Principal Judge, Family Court, Bhagalpur vide order dated 08.09.2004, passed the decree of divorce on 08.09.2004 and the marriage of the petitioner No.1 and the O.P.No.2 was dissolved. It is further submitted that the incident dated 21.04.2007, as projected in the complaint, is totally false. It would not be acceptable that a person in whose favour the decree of divorce has been passed, will go to take back his wife. It is further submitted that the O.P.No.2 and all the inquiry witnesses have deliberately concealed the fact of divorce between the petitioner No.1 and the O.P.No.2. No sufficient explanation has been made by the O.P.No.2 as to why the complaint was filed after two years of the alleged incident. It is further submitted that the O.P.No.2 and all the inquiry witnesses have deliberately concealed the fact of divorce between the petitioner No.1 and the O.P.No.2. No sufficient explanation has been made by the O.P.No.2 as to why the complaint was filed after two years of the alleged incident. The O.P.No.2 has mischievously implicated the minor children of the family as well as the married sister-in-law and her husband making false allegation. The continuance of the present proceeding will be an abuse of the process of the Court and thus the same is liable to be quashed. The learned A.P.P submits that the complaint specifically discloses the incident of Sahibganj district falling within the territorial jurisdiction of this Court. Since the offence under Section 498-A IPC is continuing and the part of the cause of action is alleged to have been arisen within the territorial jurisdiction of Sahibganj, the Civil Court at Sahibganj is well within jurisdiction to entertain the said complaint. The arguments advanced by the learned counsel for the petitioners are factual in nature which can be agitated at the subsequent stage of the criminal proceeding. 6. Heard the learned counsel for the parties and perused the materials available on record. The petitioners have sought quashing of the entire criminal proceeding including the order of cognizance passed by the learned Court below for the offence under Section 498-A of the IPC. On perusal of the compliant, it appears that the matrimonial home of the O.P.No.2 is at Bhagalpur falling within the jurisdiction of the Patna High Court and the part of the alleged occurrence is said to have occurred at Bhagalpur. However, an incident of 21.04.2007 is alleged to have taken place at the parental home of the O.P. No.2 at Sahibganj within the territorial jurisdiction of this Court. It is a well settled principle of law that the offence under Section 498-A of the IPC is a continuing offence and every Court within whose jurisdiction the part of cause of action has arisen, may entertain the matter. 7. The learned counsel for the petitioners has vehemently argued that the marriage between the petitioner No.1 and the O.P.No.2 was dissolved by virtue of a decree of divorce dated 08.09.2004 itself and as such the allegation made against the petitioners that they had gone for Bidai of the O.P.No.2 on 21.04.2007, is beyond imagination of any prudent person. 8. 7. The learned counsel for the petitioners has vehemently argued that the marriage between the petitioner No.1 and the O.P.No.2 was dissolved by virtue of a decree of divorce dated 08.09.2004 itself and as such the allegation made against the petitioners that they had gone for Bidai of the O.P.No.2 on 21.04.2007, is beyond imagination of any prudent person. 8. No counter affidavit has been filed on behalf of the O.P.No.2 denying the factum of the decree of divorce dated 08.09.2004 granted in favour of the petitioner No.1 by the Principal Judge, Family Court, Bhagalpur. Under such situation, I am of the considered opinion that the alleged incident dated 21.04.2007 has been projected by the O.P.No.2 only in order to invoke the jurisdiction of the Sahibganj Court. 9. The Hon’ble Supreme Court in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors., reported in 1992 Supp. (1) SCC 335 has held as under:- “102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised. (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” 10. In the present case also, it is beyond the imagination of a common person that even after divorce, the cruelty continued in Sahibganj falling within the territorial jurisdiction of this Court. As such, if the alleged incident of 21.04.2007 is taken out of the complaint, no part of cause of action appears to have arisen within the territorial jurisdiction of the Sahibganj Court. So far as the other allegations levelled against the petitioners are concerned, the same are alleged to have happened at Bhagalpur and as such the Court at Sahibganj has no jurisdiction to entertain the matter. So far as the other allegations levelled against the petitioners are concerned, the same are alleged to have happened at Bhagalpur and as such the Court at Sahibganj has no jurisdiction to entertain the matter. It is well settled that the authority of the Court exists for advancement of justice and if any attempt is made to abuse that authority so as to cause injustice, the Court has power to prevent such an abuse. In exercise of the power conferred under Section 482 Cr.P.C, the intervention of the High Court is required to quash a criminal proceeding, if it is found that initiation/continuance of the same amounts to an abuse of the process of the Court or quashing of the criminal proceedings would otherwise serve the ends of justice. 11. Under the aforesaid facts and situation, the present petition is allowed. The entire criminal proceeding including the order of cognizance dated 02.02.2008 passed by the C.J.M Sahibganj in P.C.R Case No. 153 of 2007 is hereby quashed and set aside for want of jurisdiction.