Ravinder Kumar vs State of H.P.

Dharam Chand Chaudhary, J.—Complaint is that learned JMIC, Court No. 1, Amb, District Una vide order passed on 31.01.2012 (Annexure P-K) in case No. 132-I/10 has erroneously issued process against the petitioner, one of the accused, as he being the uncle of the principal accused Vikas Sharma residing separately from the said accused and other members of his family, hence never treated deceased Preeti Sharma wife of the principal accused with cruelty nor cheated her in any manner whatsoever. The conclusion drawn by learned Magistrate that a case for the commission of offence punishable under Sections 498A and 417 of the Indian Penal Code is prima-facie made out from the complaint and the evidence produced in preliminary is stated to be wrong and without any basis.

What could I gather from the record is that deceased Preeti Sharma solemnized marriage with accused Vikas Sharma on 28.04.2007. They lived together as husband and wife up to 29.06.2007 and thereafter lived separately. Subsequently, a divorce petition came to be filed by accused Vikas Bhardwaj in the District Courts Rohini, Delhi u/s 13B(2) of the Hindu Marriage Act for dissolution of marriage by a decree of divorce with mutual consent. The marriage was dissolved by learned Additional District Judge, Rohini Courts at Delhi vide judgment and decree dated 20.05.2008 (Annexure P-A).

Complaint is that the accused-petitioner and his co-accused started treating the deceased with cruelty immediately after the marriage. After the marriage, she came to village Katohar Khurd, District Una on 15.10.2007 on the occasion of ''Karva Chauth''. It is during that visit she was found to be mentally disturbed. The matter was not taken seriously by her parents under the belief that being newly married, may have some problem of adjustment in the new environment. Her father, the complainant and his brother-in-law dropped her at Gurgaon, at the place of her in-laws on 24.07.2008. She suddenly came back to her parental house at village Katohar Khurd on 13.09.2008. Her condition was not good on account of being unwell. On search of her bag, the complainant could lay hand on the order dated 20.05.2008 whereby learned Additional District Judge, Rohini Courts, Delhi had dissolved her marriage with accused Vikas Sharma by a decree of divorce with mutual consent. The complainant was not informed about the divorce. Any how, the complainant got her medically checked up and made available best treatment to her, however, she could not be survived and ultimately expired on 13.11.2008.

On the complaint made, FIR No. 118/09, Annexure P-H was registered against the accused-petitioner and his co-accused in Police Station, Amb, District Una. The police on investigation of the case seems to have filed cancellation report, however, not accepted by learned trial Magistrate and to the contrary, while taking cognizance of the offence, passed the order Annexure P-K, issuing process against the accused-petitioner. Learned Sessions Judge in Criminal Revision No. 4-X-2012, preferred by the accused-petitioner has upheld the order Annexure P-K passed by learned Judicial Magistrate and dismissed the revision petition vide order dated 03.04.2013, Annexure P-L, hence this petition with the following prayers:

"i. xxxxx

ii Quash the complaint in case No. 132-I/10 (Annexure P-G) titled Manohar Lal Versus Vikas Sharma and others pending before the Ld. Judicial Magistrate 1st Class, Court No-1, Una alongwith summoning order dated 31.01.2012 (Annexure P-K) and all proceedings ensuing thereof.

iii Quash/set aside the judgment/order dated 03.04.2013 (Annexure P-L) passed by the Ld. Sessions Judge, Una, in Criminal Revision No. 4-X-2012 whereby the Ld. Sessions Judge has dismissed the revision and upheld the summoning order passed by the Ld. Magistrate below."

On hearing Mr. Atul Jhingan, learned counsel for the accused-petitioner and Mr. Dinesh Chander Sharma, learned counsel representing the complainant-2nd respondent, whereas, Mr. Rupinder Singh, learned Additional Advocate General on behalf of the 1st respondent-State as well as taking into consideration the record, no case for quashing the order Annexure P-K passed by learned Judicial Magistrate, Court No. 1, Amb and order Annexure P-L passed by learned Sessions Judge, Una is made out for the reason that PW-13 Smt. Santosh Kumari, mother of the deceased, during the course of her statement recorded in preliminary evidence has implicated the accused-petitioner while deposing that her deceased daughter before her death used to tell that her in-laws were not treating her properly and taunting/commenting that she was not up to their status nor she brought sufficient dowry and also that the uncle and aunt (the accused-petitioner and his wife Smt. Shalu another co-accused) of accused Vikas Sharma were also taunting and passing comments to her at the pretext of dowry. Therefore, it lies ill that no evidence is available on record showing the involvement of the accused-petitioner in the commission of the alleged offence. True it is that he claims himself to be residing separately from accused Vikas Sharma and other member of his family and also that he had no role to play in treating the deceased with cruelty nor ever made any taunting or passed any comments on her at the pretext of dowry. True it is that the Apex Court in a catena of judgments including recent one rendered in Arnesh Kumar Vs. State of Bihar, has deprecated the practice of impleadment of all relations of the husband in a case of this nature, however, when at this stage only process has been ordered to be issued against the accused-petitioner and in case he is innocent having no role to play in the commission of the offence, he may appear in the trial Court and set-up the plea in this regard on the best available opportunity i.e. at the stage of consideration of charge. In case he is able to show his innocence, may seek an order of discharge from the case. At this stage, when evidence available on record implicates him also in the commission of the offence because as per the record available at this stage, the deceased solemnized marriage with accused Vikas Sharma on 28.04.2007 and died on 13.11.2008, though, in the house of her parents at village Katohar Khurd in District Una, however, on account of alleged cruel treatment meted out to her, the order issuing process against him cannot be quashed. Surprisingly enough, there are allegations that with a view to obtain a decree of divorce, incorrect address of deceased was given in the divorce petition. Decree of divorce, Annexure P-A, no doubt, reveals that she was represented by an Advocate before learned Additional District Judge, however, surprisingly enough the parents of the deceased, as per allegations in the complaint were not informed nor associated during the proceedings in the divorce petition. The dissolution of marriage can be treated a circumstance causing mental cruelty after the decree of divorce passed on 20th May, 2008. She lived at Gurgaon itself and as per record served as Teacher in some school. She when fell ill had to come back to the house of her parents. There, as per the allegations, at this stage, despite providing of medical treatment, she expired on 13.11.2008.

The criminal proceedings or an order of the nature impugned in this petition can only be quashed by the High Court in exercise of inherent jurisdiction u/s 482 of the Code of Criminal Procedure under the following circumstances:

"(1) Where the allegations made in complaint or the statement of the witnesses recorded in support of the same taken at their face value make out absolutely no case against the accused or the complaint does not disclose the essential ingredients of an offence which is alleged against the accused;

(2) Where the allegations made in the complaint are patently absurd and inherently improbable so that no prudent person can ever reach a conclusion that there is sufficient ground for proceeding against the accused;

(3) Where the discretion exercised by the Magistrate in issuing process in capricious and arbitrary having been based either on no evidence or on materials which are wholly irrelevant or inadmissible; and

(4) Where the complaint suffers from fundamental legal defects, such as, want of sanction, or absence of a complaint by legally competent authority and the like."

The present is not a case covered under any of the four circumstances detailed supra. The question of jurisdiction raised has been duly considered by learned Sessions Judge vis-�-vis the provisions contained u/s 179 of the Code of Criminal Procedure. True it is that in the judgment, Annexure P-F rendered by a Co-ordinate bench of this Court in the proceedings under The Protection of Human Rights Act, 1993, it is held that the Human Right''s Court i.e. Sessions Judge, Una lacks territorial jurisdiction to try and hear the complaint on account of no part of the alleged offence committed within its jurisdiction. The present are the proceedings qua the commission of offence punishable u/s 498A and 417 of the Indian Penal Code and as the material available on record at this stage disclose that after her return to parental house on 13.09.2008, till she died on 13.11.2008, the deceased was under depression and prima-facie she seems to have undergone depression on account of maltreatment meted out to her in the matrimonial home followed by divorce. Irrespective of such observations, the accused-petitioner, however, may raise all defences including the question of jurisdiction in the trial Court at an appropriate stage during the course of trial.

In view of what has been stated hereinabove, there is no merit in this petition and the same is accordingly dismissed. The parties through learned counsel representing them are directed to appear in the trial Court on 18th October, 2014.

Record be sent back along with a copy of this judgment so as to reach well before the date fixed.