Sheetal Prasad Gaur and Others vs Bhagwandas

R.P. Awasthy, J.—It is a petition filed u/s 482 Cr.P.C. for quashing the proceedings instituted on the basis of complaint lodged by the non-applicant.

Contention of the petitioners is that petitioner No. 3 was married to the non-applicant on 20.5.83 at Nagpur, according to Hindu rites. She resided with her husband at Durg till Feb., 1990. No issue was born out of the said wedlock.

The petitioner No. 3 was brought to Nagpur for her medical check up. She was medically examined by a Doctor Jaya Keswani and nothing wrong was found pertaining to her. After two years of the said examination the petitioner was also medically examined at Nagpur. Abnormality in his spermatoza was found and it was further found that there was testicular atrophy. The non-applicant did not receive the medical treatment prescribed for the said abnormality. The petitioner No. 3 filed a petition for granting a decree of divorce and a decree for dissolution of marriage was passed on 29.4.91. The petitioner also filed a petition u/s 125 Cr.P.C. against the non-application.

On 24.3.90 the non-applicant lodged a report at Police Station to the effect that the petitioner No. 3 had taken away all jewellery and clothes with her. The non-applicant also gave a notice dt. 16.7.90 to the petitioner No. 3. He also filed a counter petition for divorce u/s 13 of the Hindu Marriage Act for divorce at Durg.

Non-applicant filed a complaint on 15.9.91 alleging inter alia that he was deceived by the non-applicant to undergo some operation which was not necessary. It was further mentioned in the said complaint that while returning from Nagpur to Durg may be (some times in the month of Feb. 90) he was asked not to disclose the said fact of operation to any one, otherwise he would be done to death. It was further mentioned in the said complaint that he was also filthy abused. The complaint was filed and registered for alleged commission of offences punishable under Sections 294, 506B and 500 read with Section 120A of the IPC.

The contention of the petitioners is that the allegations levelled in the complaint are so patently absurd and inherently improbable that no prudent person can ever reach to a conclusion that there is sufficient ground for proceeding against the accused. Reliance has been placed in AIR 1976 1947 (Nagawwa v. Veer anna).

In reply it has been submitted for the non-applicant that at the stage of issuing process the duty of the Magistrate is to find out if there is prima facie case. Meticulous scanning of evidence is not called for and further at that stage defence of accused need not be considered. Reliance has been placed on authorities recorded in 1990 JLJ 434 (P Parathasarathy v. Smt. Madhu) and Bachchu Vs. Ashok Kumar Tiwari and Another, and page 597 (T.R. Ardhanani v. Kripa Shankar).

In this context it has to be seen that it is not disputed and is apparent from the copy of the complaint that the said complaint was filed oh 15.1.91 on the allegation that till the month of Feb., 90 no issue was born to the present petitioner No. 3 out of the admitted wedlock between her and the present non applicant. There is absolutely no mention thereafter as to when or on what date the petitioner was called to Nagpur, when the said operation was got conducted and when the alleged threat was administered. From the the contents of para No. 3 of the complaint it appears that the alleged incident might have had allegedly taken place on or about the month of Feb., 90. It has not been alleged in the complaint as to whether any report was ever lodged at any Police Station regarding the said complaint. Obviously the said complaint has been filed with the ulterior motive of harassing the present petitioner. The allegations made in the complaint are obviously and patently so absurd and inherently improbable that any prudent person could have never reached to a conclusion that there is sufficient ground for proceeding against the accused. Thus, the said complaint has been registered mechanically without any application of mind.

Consequently, the present petition filed u/s 482 Cr.P.C. is allowed and the order of the learned Magistrate issuing process against the accused is quashed.