Virendra Singh and Others vs State of Uttaranchal and Others

Servesh Kumar Gupta, J.—By way of this criminal application, the prayer has been made to quash the summoning order dated 22.7.2006 passed by the Special Judicial Magistrate, Tehri for the offences of Section 498-A, 147, 504 and 506 Indian Penal Code. The said order was passed by the Magistrate in complaint case No. 123 of 2006, Smt. Bindra Devi v. Virendra Singh and Ors. All the accused persons have come up in this petition with the prayer stated above.

Respondent No. 2- Smt. Bindra Devi has been personally served, but there is No. representation on her behalf.

The background facts, emerging out of the petition along with the other papers, are that Virendra Singh was wedded with private Respondent No. 2-Smt. Bindra Devi in 1990''s. The differences between the couple cropped up on the ground that Virendra Singh developed the illicit intimacy with one Raj Kumari (applicant No. 3) and she occupied the place as a second wife in the house of Virendra Singh during the survival of first wife Smt. Bindra Devi.

Smt. Bindra Devi could not live peacefully for a longtime in her husband''s house and she was forced to leave the house. So she filed an application for maintenance u/s 125 Code of Criminal Procedure dated 28.10.1999 wherein the maintenance of Rs. 1,000/- per mensem was awarded to her.

On 26.10.2005, she lodged an FIR against her husband Virendra Singh, niece Km. Sarita and father in law Narendra Singh for the offences of Section 380, 454, 506 Indian Penal Code. Investigation was made and the chargesheet for the offences of Section 380, 411, 454, 504, 506, 498A and 494 Indian Penal Code was submitted by the police.

Learned Counsel for the applicants has apprised this Court that after trial of case No. 37/2010, all the accused persons were acquitted on 25.8.2010 by Judicial Magistrate, Uttarkashi. All the same, No. certified copy of the judgment has been filed to fortify the said fact.

Smt. Bindra Devi filed another complaint case on 21.6.2006 wherein she examined herself u/s 200 Code of Criminal Procedure and her witnesses Dalvir Singh and Bachan Singh were examined u/s 202 Code of Criminal Procedure and the learned Magistrate, after considering the facts of the complaint, supported by the statements of Smt. Bindra Devi and her witnesses, passed the order impugned.

In the complaint, inter alia, Smt. Bindra Devi alleged that on 12.6.2006, she along with her daughter Km. Vinita went to the house of her husband Virendra Singh with the intention to live therein but she was maltreated by hurling abuses. All the accused persons also extended the threat to kill her if she did not leave the house. They all said that agricultural land does not belong to her and she cannot claim any right over the same. The taunts were aired by all the accused persons that nothing has been given from her father in the marriage, so she has lost any right in the in-laws house. She was asked to leave the in-laws house forthwith.

Learned Counsel of the applicants has argued that even in the application moved first time on 28.10.1999 u/s 125 Code of Criminal Procedure, No. allegation of dowry was made and in the chargesheet, which was registered as case No. 37/2010, whereupon the applicants were tried for the offence of Section 498-A Indian Penal Code, inter alia other offences, they have been acquitted by the Judicial Magistrate, Uttarkashi, so now it is quite unreasonable to raise these allegations further in the complaint filed on 21.6.2006.

Learned Counsel of the applicants has also relied upon a precedent of the Hon''ble Supreme Court in the case of "Sundar Babu and Ors. v. State of Tamil Nadu reported in LXXII 2011 ACC 954", wherein it was held that if the allegations appear to be malafide and just to harass the applicant/accused persons, then the powers u/s 482 Code of Criminal Procedure should be exercised by the High Court. At the same time, the Hon''ble Apex Court has also held that the Court does not function as a court of appeal or revision- Power has to be exercised sparingly, carefully and with caution- Court would be justified to quash proceeding if satisfied that initiation/continuance of the same amounts to abuse of process of the Court and quashing thereof would serve the ends of justice.

It is pertinent to mention here that the chargesheet was filed on the basis of incident dated 26.10.2005 while this complaint is based inter alia on the main incident of 12.6.2006 when Smt. Bindra Devi visited the house of Virendra Singh with intention to reside there along with her daughter. This Court is of the view that until a woman''s marriage is dissolved, she makes every endeavour to maintain her matrimonial status by finding a resort in her matrimonial house. Every time she wants to secure and restore the matrimonial protection. So the visit of Smt. Bindra Devi to her in-laws house on 12.6.2006 along with her minor daughter with the intention to settle and reside there, is not unusual notwithstanding the allegations of living Raj Kumari as a second wife of her husband there. However, the allegations in the complaint, so far as the involvement of applicant No. 4-Surendra Singh (maternal father in law), No. 5-Km. Sarita (niece) and Ranbir Singh (maternal brother in law) appear to be an impleadment of them just to harass and make pressure upon rest of the applicants. So, this order of cognizance is liable to be set aside only against Surendra Singh, Km. Sarita and Ranbir Singh.

In view of what has been stated above, C482 petition is partly allowed. The order of cognizance against the applicants Surendra Singh, Km. Sarita and Ranbir Singh is quashed and the same is also quashed so far as the offence of Section 147 Indian Penal Code is concerned. The complaint shall proceed against rest of the applicants (Virendra Singh, Narendra Singh and Raj Kumari) for the offences of Section 498-A, 504 and 506 Indian Penal Code.

A copy of this order be sent to the trial court concerned to proceed with the case accordingly.