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Judgment
Heard Mr. Sidhartha Roy, counsel appearing on behalf of the petitioner.
Heard Mr. Arun Kumar, counsel appearing on behalf of the opposite party no.2.
Heard Mr. P.D. Agarwal, counsel appearing on behalf of the State.
This criminal miscellaneous petition has been filed for quashing the entire criminal proceeding including order taking cognizance dated 28.6.2013 arising out of Jharia P.S. Case No.37/2013 dated 21.01.2013 corresponding to G.R. No.335/13, pending in the court of J.M. 1st Class, Dhanbad whereby and whereunder the learned ACJM, has allegedly found prima facie case against the accused person under Section 498A of the Indian Penal Code and 3/4 of Dowry Prohibition Act and has been pleased to order for trial and disposal.
Counsel for the petitioner submits that admittedly the marriage in this case was solemnized on 26.11.2009 and thereafter, the wife left the matrimonial house on 10.04.2011. On 03.06.2011, the husband filed a divorce case and a decree of divorce was granted on 16.06.2012. He submits that the instant case under Section 498A read with Section 3 and 4 of Dowry Provision Act has been filed on 21.01.2013.
Counsel for the petitioner submits that as the marriage was already dissolved by virtue of decree dated 16.06.2012, no case under Section 498A or provision of Section 3/4 of dowry Provision Act could have been filed by the father of the ex-wife of the petitioner.
The counsel submits that the issue is squarely covered by the judgment passed by Hon'ble Supreme Court in Criminal Appeal No.1048 of 2018 arising out of S.L.P.(Cr.) No 4122 of 2016 decided on 21st August, 2018. He submits that it has been held by the Hon'ble Supreme Court that once divorce is granted, no case under Section 498A of Indian Penal Code and Section 3 and 4 of Dowry Prohibition Act, 1961 can be filed.
The counsel further submits that so far as the order taking cognizance is concerned, the same is a non-speaking order and in view of the judgment passed by Hon'ble Supreme Court reported in (2013) 3 JCR 120 (SC); (M/s GHCL Employees Stock Option Trust Vs. M/s India Infoine Limited) para - 14, the order taking cognizance is required to be a speaking order. He submits that in the instant case, no speaking order has been passed while taking cognizance. He further submits that the order taking cognizance, should specifically discuss the materials, which have come during evidence and further indicate satisfaction of the court on the basis of such material. He further submits that under similar circumstances, this Court in Cr.M.P No.2011 of 2018 has followed the judgment passed by Hon'ble Supreme Court as reported above and has quashed the order taking cognizance and remanded the matter to the learned court below.
In response, counsel appearing on behalf of the opposite party no.2 submits that the allegation which has been levelled in the F.I.R. relates to the period prior to the grant of divorce. He further submits that the divorce itself, was ex parte divorce and it cannot be inferred that the informant i.e., father of the petitioner was aware about the decree of divorce. He further submits that specific allegation has been levelled regarding demand of dowry and mental and physical torture of the wife of the petitioner during her stay in the matrimonial house and merely because divorce has been granted, the same does not wipe out the criminal liability of the petitioner, which arose out of his acts prior to divorce.
He further submits that there is close proximity in time between the date of divorce and the filing of F.I.R. and accordingly, there is no question of any inference that the factum of divorce was known to the informant. He also submits that the alleged date of divorce is 16.06.2012 and as per the case of opposite party no.2, the wife was thrown out of matrimonial house on 20.07.2012. Further, the judgment of divorce has been obtained by substituted service of notice upon the wife though she was living in her matrimonial house. The counsel while distinguishing the judgment passed by Hon'ble Supreme Court submits that the specific case of the complainant in the said case was that the complainant had disclosed in the complaint petition itself, that the divorce had been granted four years prior to filing of the complaint and before the Hon'ble Supreme Court, it was submitted that divorce has not been granted as per law. The learned counsel submits that there is no such corresponding similar fact involved in this case and the allegation levelled in the present case relates to offence prior to ex parte divorce.
The counsel further submits that there is a clear allegation made in the F.I.R. The order taking cognizance, indicates in so many words that the learned court below, after being satisfied with the materials on record, had taken cognizance for the alleged offence. Accordingly, the order taking cognizance cannot be said to be against the ratio of the judgment passed by the Hon'ble Supreme Court as reported in (2013) 3 JCR 120 (SC).
In response, the counsel for the petitioner submits that in the judgment of divorce dated 16.06.2012, it has been specifically mentioned at para - 3 that in pursuance to notices issued against the defendant/Jyoti Saw (wife) she did not appear despite publication of notice in newspaper and the case proceeded ex parte against her. He submits that therefore, there is a finding that the notice was duly served upon the wife and accordingly, it cannot be said by the respondent that they had no knowledge about the divorce. He further submits that as per the F.I.R. itself, the criminal case was lodged when it came to the knowledge of the father of the petitioner's ex-wife that the petitioner is going to perform second marriage.
After hearing the counsel for the parties and after considering the materials on record, this Court finds that admittedly the date of marriage is 26.11.2009 and as per the F.I.R. itself, allegations have been made regarding demand of dowry and mental and physical torture of the wife, which relate to the period during which the wife of the petitioner was staying in her matrimonial house.
As per the allegation made in the F.I.R., the wife was thrown out from her matrimonial house on 20.07.2012 and F.I.R was lodged by her father on 21.01.2013 when he came to know that his son in law is going to perform second marriage. It further appears from record that an ex parte decree for divorce dated 16.06.2012 was granted in Title Matrimonial Suit No.292 of 2011 filed by the husband and the notices were deemed to be served through publication of notice in newspaper. This Court finds that so far as the divorce decree is concerned, there is no such finding in the judgment that the notice through process of court was duly served to the wife but it has been mentioned that the notice was served to her through newspaper, which is admittedly a substituted mode of service of notice. This Court finds that the title matrimonial suit was filed in the year 2011 and it was numbered as Title Matrimonial Suit No.292 of 2011 and as per the allegation levelled in the F.I.R., the wife was thrown out from the matrimonial house on 20.07.2012. No deemed knowledge of divorce suit/decree can be imputed to the father of the wife, who is the informant of the present case and admittedly father of the wife is not a party to the divorce suit.
This Court finds that in the ratio of the judgment by Hon'ble Supreme Court decided in Criminal Appeal No.1048 of 2018, arising out of S.L.P. Cr. No.4122 of 2016 does not apply to the facts and circumstances of this case. In the said case before Hon'ble the Supreme Court, it was specifically mentioned in the complaint petition itself, by the wife that she was divorced four years prior to filing of the complaint case and she claimed before the Hon'ble Supreme Court that such plea was taken being ignorant of Sharia law. This plea was rejected by the Hon'ble Supreme Court. The Hon'ble Supreme Court was of the view that where the complainant approaches with a case that there has been a divorce long back i.e., 4 years before filing of F.I.R, Section 498A of Indian Penal Code in terms would not be attracted. This Court is of the view that the said is clearly distinguishable on facts and does not apply to the facts and circumstances of this case.
So far as the judgment passed by Hon'ble Supreme Court reported in (2013) 3 JCR 120 (SC) is concerned, this Court finds that the said case arose out of a complaint case and the Hon'ble Supreme Court observed that summoning of accused in a criminal case is a serious matter. Hence, the criminal law cannot be set into motion as a matter of course.
The order of Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto and accordingly the Magistrate has to record his satisfaction with regard to the existence of prima facie case on the basis of specific allegation made in the complaint supported by satisfactory evidence and other materials on record. In the said case, the Managing Director was made accused only by virtue of his position as Managing Director, although there was no material against him and the learned Magistrate has mechanically taken cognizance and did not consider that there is no vicarious liability under Indian Penal Code and accordingly the learned Magistrate ought to have considered the specific role of the Managing Director while taking cognizance against him.
This Court finds that in the instant case, the case arises out of an F.I.R. and specific allegation has been levelled against the petitioner in the F.I.R itself. This Court further finds that the learned trial court while taking cognizance of the case has recorded as follows:
The charge sheet and case diary submitted by I.O. has been produced before me.
Perused the charge sheet and case diary submitted by I.O. U/s 498(A) of IPC and ¾ of DP Act against accused person namely Bharat Sao as his name noted in col no. 11 of the C.S.
On the basis of materials available on case-record, a prima facie case is made out against the accused person namely Bharat Sao u/s 498(A) of IPC and ¾ of DP Act as his name noted in col no. 11 of the C.S.
Accordingly cognizance of offence is taken u/s 498(A) of IPC and ¾ of DP Act. Since the accused person named above is in custody, O/c to issue production warrant at once. The case record is transferred to the court of Sri Abhishek Prasad, JM 1St, Class, Dhanbad for trial and disposal.
Put up on 05.07.2013 for Production. (dict)
The learned court has clearly indicated that the court had perused the charge sheet and the case diary submitted by the I.O. and the materials available for taking cognizance under Section 498A of Indian Penal Code and Sections 3 and 4 of Dowry Provision Act against the accused person namely Bharat Sao and on such the basis a prima facie case was said to have been made out against the accused person.
In the aforesaid facts and circumstances, this Court finds that there is no illegality in the order taking cognizance and the learned court below has taken care of going through the materials on record. Otherwise also specific allegation has been made in the F.I.R. itself. This Court does not agree with the submission of the petitioner that the order taking cognizance is contrary to the ratio of the aforesaid judgement reported in (2013) 3 JCR 120 (SC) .
As a cumulative effect of the aforesaid findings, the instant petition is hereby dismissed.
However, dismissal of this case as well as any of the observations made in this order will not prejudice the case of either parties before the learned court below and the parties are free to take all the points, which have been taken in this petition as well as those which are available to them as per law, at appropriate stage.
Interim order, if any, stands vacated.
Pending interlocutory applications, if any, stand dismissed as not pressed.
Office is directed to communicate this order to the learned court below through FAX.