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2020 DIGILAW 213 (UTT)

AJAY RATHORE v. STATE OF UTTARAKHAND

2020-03-16

R.C.KHULBE

body2020
JUDGMENT Hon'ble R.C. Khulbe, J. By way of present application, moved under Section 482 of Cr.P.C., applicants seek to quash/ set aside the entire proceedings of Crl. Case No.207 of 2018, State v. Ajay Rathore and others, under Sections 498-A, 323, 504, 506 IPC r/w Sections 3/4 of the Dowry Prohibition Act, pending before the Court of Additional Chief Judicial Magistrate Rudrapur, Udham Singh Nagar. 2. None is present on behalf of respondent no.2 in spite of sufficient service. 3. Heard learned counsel for the applicants as well as learned State counsel. 4. Facts of the case are that an F.I.R was lodged against the applicants under Sections 498-A, 323, 504, 506 IPC & 3/4 of the D.P. Act at Police Station Kichha on 04.06.2017. After investigation, the charge-sheet was submitted. Accordingly, the cognizance was taken on 11.01.2018. Aggrieved by it, the applicants have filed the instant petition under Section 482 Cr.P.C. for quashing and setting aside the cognizance order as well as the entire proceedings of the case. 5. On a perusal of the record, it is clear that a compromise has taken place between the parties on 06.02.2017. After that, a joint application was moved under section 13(B) of the Hindu Marriage Act before the Judge Family Court, Moradabad and accordingly on the basis of compromise, the Principal Judge, Family Court Moradabad allowed the application and the decree of divorce was granted on 06.08.2019. The copy of said order is on record, according to which, the compromise has taken place between the parties and accordingly divorce has been granted and both the parties are living separately. 6. Although, the notices were issued to the respondent no. 2- Ms. Archana Rathore, but none is present on her behalf despite sufficient service. 7. From the perusal of the charge sheet dated 25.09.2017 it is clear that the concerned Magistrate took the cognizance on the charge sheet. From a perusal of cognizance order, it is clear that the Magistrate even did not try to read the evidence collected during investigation by the Investigating Officer. He simply took the cognizance on the basis of submission of charge sheet. In fact, the concerned Magistrate did not apply his mind what evidence was available on record against the applicants to summon them under Sections 498-A, 323, 504, 506 IPC & 3/4 D.P. Act. He simply took the cognizance on the basis of submission of charge sheet. In fact, the concerned Magistrate did not apply his mind what evidence was available on record against the applicants to summon them under Sections 498-A, 323, 504, 506 IPC & 3/4 D.P. Act. Since, the decree of divorce has been granted by the Judge Family Court Moradabad between the parties by filing joint application under Section 13(B) Hindu Marriage Act, accordingly, the applicants cannot be summoned in the above offences. 8. Accordingly, the C-482 petition is allowed. The entire proceedings, as mentioned in paragraph no.1 of the judgment pending before the Court below, are hereby quashed.