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2023 DIGILAW 668 (UTT)

Vijay Anand Sharma v. State of Uttarakhand

2023-12-11

RAKESH THAPLIYAL

body2023
JUDGMENT : Rakesh Thapliyal, J. By the instant C-482 application, the applicant is challenging the proceedings of Criminal Case No.1230 of 2019, “State vs. Vijay Anand Sharma”, pending in the Court of IIIrd Additional Chief Judicial Magistrate, Dehradun, whereby the applicant is facing trial in respect of offence punishable under Section 498-A IPC. In addition to this, the applicant is also challenging the order dated 21.09.2019, whereby the application preferred by the applicant under Section 239 of Cr.P.C., for discharge, was rejected, against which, a Criminal Revision was preferred, being Criminal Revision No.262 of 2019, before the VIth Additional Sessions Judge, Dehradun, and the said revision was also dismissed by order dated 28.02.2022, which is also being challenged in the instant C482 application. 2. Brief facts of the case are that the marriage of present applicant with respondent no.2-Ms. Nandini Sharma was solemnized on 09.03.1999 at Arya Samaj Mandir, Delhi, and in fact, it was a love marriage, and was inter-caste and inter-religion marriage. From 09.07.1999 till 12.08.2000, the present applicant was posted with United Nation Mission in Bosnia, Europe, and the complainant accompanied him and they enjoyed their happy and peaceful life abroad. From the wedlock, one son was born on 12.09.2003, and at present, he is major, and he is residing with the applicant. Due to some differences, which were happened in the year 2008, respondent no.2-wife preferred divorce petition on 01.07.2009 on the ground of cruelty. However, the same was dismissed in default on 18.09.2012. In between the period when the divorce petition was pending, FIR against the present applicant was lodged under Section 498-A on 17.09.2011, and after investigation, charge-sheet was filed on 02.02.2012 wherein cognizance was taken, and thereafter, charges were framed on 21.09.2019, against which, revision was preferred, and the same was also dismissed. 3. Learned counsel for the applicant submits that this is nothing but a glaring example of a malicious prosecution, which is evident from Paragraph Nos.5 and 6 of the divorce petition filed by respondent no.2, wherein a categorical statement has been made by respondent no.2 that there was no demand of dowry. 4. Paragraph Nos.5 and 6 of the divorce petition read as under:- “5. 4. Paragraph Nos.5 and 6 of the divorce petition read as under:- “5. That the petitioner agreed for the marriage keeping in view of their deep rooted love for each other and there was no demand or acceptance of any dowry, gift from the respondent or his family or friends from the petitioner or her family. 6. That even after the marriage, the love between the parties blossomed and the parties to the marriage cared a lot for each other. However, with passage of time, the respondent was becoming busy day-by-day in his own job and business and he has little time for the petitioner. Of course, the respondent took care of all the needs of the petitioner, however, the respondent had no time for the petitioner and as and when the petitioner tried to persuade or insist the respondent to have some valuable time with her, the respondent used to get irritated and on many occasions, he even abused the petitioner in front of their maid, brother, sister-in-law (bhabhi), family friends and also in front of the respondent’s own parental family”. 5. Thereafter, the applicant himself surrendered, and then released on bail, and while releasing on bail, surety was given by the brother-in-law of the applicant, namely, Rupendra Singh Sandhu. 6. It is also submitted by learned counsel for the applicant that during investigation, statements of his mother-in-law and brother-in-law were also recorded under Section 161 of the Code of Criminal Procedure, and they denied this fact that there was any demand of dowry. These statements are brought on record. 7. Learned counsel for the applicant further submits that, in fact, no attempts were made by respondent no.2 to revive the divorce petition, which was dismissed in default on 18.09.2012. 8. Thereafter, the applicant preferred the divorce petition under Section 13(1)(ia) and (ib) of the Hindu Marriage Act, 1955, and the same was decreed by ex parte judgment dated 11.09.2013. Learned counsel for the applicant submits that, though the said divorce petition was decreed ex parte, and this fact was very well in the knowledge of respondent no.2, but the ex parte decree of divorce was never been challenged by respondent no.2, and the said judgment attains finality. 9. Learned counsel for the applicant submits that, though the said divorce petition was decreed ex parte, and this fact was very well in the knowledge of respondent no.2, but the ex parte decree of divorce was never been challenged by respondent no.2, and the said judgment attains finality. 9. It is also submitted by learned counsel that on 28.03.2015, respondent no.2 re-married with one Hemant Sharma, S/o Sri Iswar Chand Sharma, R/o 19 Rajpur Road, Dehradun, and in reference to this fact, marriage registration certificate of respondent no.2 with Mr. Hemant Sharma is also enclosed with photograph of both them, which was issued by the Registrar, Compulsory Registration of Marriages, Dehradun on 01.12.2015. 10. Learned counsel for the applicant submits that, at present, the son of the parties is residing with the present applicant. 11. Learned counsel for the applicant submits that the initiation of these proceedings is nothing but a vexatious and unwarranted prosecution. In reference to this, he placed reliance on the judgment of the Hon’ble Supreme Court in Vishnu Kumar Shukla vs. The State of Uttar Pradesh and others, 2023 SCC OnLine SC 1582; 2023 LiveLaw (SC) 1019. 12. Ms. Prabha Naithani, learned counsel for respondent no.2 submits that, in fact, the charge-sheet was issued after collecting credible evidence during investigation. Therefore, it is not a case of malicious prosecution. Apart from this, she also submits that the charges were framed against the applicant on the basis of detailed charge-sheet filed by the authority after thorough investigation. Therefore, this is a case in which the offence is made out against the present applicant under Section 498-A IPC. 13. Learned State Counsel submits that the investigation was proper and after collecting credible evidence, charge-sheet was filed, and the charges were framed against the present applicant, and there is no question for quashing the proceedings against the applicant. 14. This is an undisputed fact that the divorce petition was filed by respondent no.2-wife, wherein in Paragraph Nos.5 and 6, she stated that there was no demand of dowry. This is also undisputed fact that the statements of mother-in-law and the brother-in-law of the applicant were also recorded during investigation, wherein they stated that there was no demand of dowry. This fact has also not been disputed by learned counsel for the parties that while granting bail to the present applicant, the brother-in-law of the applicant was the surety. This is also undisputed fact that the statements of mother-in-law and the brother-in-law of the applicant were also recorded during investigation, wherein they stated that there was no demand of dowry. This fact has also not been disputed by learned counsel for the parties that while granting bail to the present applicant, the brother-in-law of the applicant was the surety. It is also not disputed by learned counsel for the parties that respondent no.2-wife of the applicant re-married with one Hemant Sharma on 28.03.2015, and with regard to the genuineness of the marriage, marriage registration certificate issued by the Registrar, Compulsory Registration of Marriages, Dehradun on 01.12.2015 is enclosed. It is also not disputed by learned counsel for the parties that the divorce petition of the applicant was also decreed, though it was ex parte, but the same has not been challenged by respondent no.2-wife. 15. This C-482 petition was filed in the year 2020, and now respondent no.2 is being represented by learned counsel. Therefore, learned counsel for respondent no.2 cannot say that the judgment passed in the divorce petition was not in the knowledge of respondent no.2. 16. After hearing the arguments of learned counsel for the parties, as well as learned State Counsel, this Court is of the view that the initiation of the proceeding against the applicant is nothing but a futile exercise, particularly, when respondent no.2 already re-married with another person, and living happily with her husband. 17. In view of the above, the present C-482 petition is allowed, and the proceedings of Criminal Case No.1230 of 2019, “State vs. Vijay Anand Sharma”, pending in the Court of 3rd Additional Chief Judicial Magistrate, Dehradun, under Section 498-A IPC, are quashed. 18. Pending application, if any, also stands disposed of.