Manoj Kumar Madan vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with the prayer to quash and set aside the entire criminal proceeding including the summoning order dated 18.08.2023 passed in the Complaint Case No.500 of 2022 by learned Sub-Divisional Judicial Magistrate, Sahibganj by which the learned Sub-Divisional Judicial Magistrate, Sahibganj has found sufficient material available in the record to proceed inter alia against the petitioners for having committed the offences punishable under Sections 323, 379, 498A, 494, 420, 504, 506/34 & 120B of the Indian PenalCode.

The allegation against the petitioners is that the petitioner no.1 is the husband and petitioner no.2 is the own sister of the informant/opposite party no.2 and the allegation against the petitioner no.1 is that during the subsistence of his marriage with  the informant, he married with the petitioner no.2 and treated the informant/opposite party no.2 with cruelty and the  informant/opposite party no.2 has been driven out  from  her  matrimonial  house  and  when  she  was  driven  out  from  her matrimonial house but her jewelleries, clothes and other valuables are still in her matrimonialhouse.

On the basis of written report submitted by the informant/opposite party no.2, police registered Mirzacheuki P.S. Case No.13 of 2021 and took up  investigation  of  the  case.  After  completion  of  the  investigation,  police submitted Final Report and did not send up the accused person of the case for trial because of lack of evidence.

The complainant filed a protest-cum-complaint case which was registered as P.C.R. Case No.500 of 2022 and in the said case basing upon the protest-cum-complaint petition, statement on solemn affirmation of the  complainant-informant and  the  statement of  three  enquiry  witnesses, the learned Sub-Divisional Judicial Magistrate, Sahibganj has found sufficient material to proceed against the petitioners; as already indicated above.

Learned  counsel for  the  petitioners drawing attention  of this  Court to the unimpeachable documents i.e. the certified copy of the judgment passed by the Family Court, Bhagalpur in Matrimonial Case No.269 of 2018 dated 17.08.2019, submits that the Hindu Marriage between the petitioner no.1 and the informant/opposite party no.2 has been dissolved by the  decree  of  divorce  vide  the  said  judgment  dated  17.08.2019  and  on and  from  17.08.2019,  the  informant/opposite  party  no.2  has  ceased  to  be the wife of the petitioner no.1.

Learned counsel for the petitioners next drawing attention of this Court  to Annexure-8 of  the  brief,  which is the web copy of the  order  of Hon’ble Patna High Court, submits that though the informant/opposite party no.2 filed Misc. Apppeal No.15 of 2021 in the High Court of Judicature at Patna,  but vide order dated  17.11.2022, the complainant has withdrawn the said misc. appeal as the issues between the parties have already  been  settled,  accordingly,  the  said  Misc.  Appeal  No.15  of  2021  is dismiss as withdrawn.

Learned counsel for the petitioners further drawing attention of this Court to Annexure-9, which is the copy of the certificate issued by the Marriage  Officer, Bhagalpur, submits that the  petitioner  no.1  married the petitioner  no.2  on  25.07.2020  and  the  same  has been  registered  under  the provisions of the Hindu Marriage Act on 18.08.2021.

Learned counsel for the petitioners next submit that there is no allegation  anywhere  against  the  petitioner  no.1  of  having committed  any act or omission prior to 17.08.2019 and since 17.08.2019, the petitioner no.1 ceased to be the husband of the informant/opposite party no.2, hence, neither the offence punishable under Section 498A of the Indian Penal Code nor the offence punishable under Section 494 of the Indian Penal Code is made out.

Learned counsel for the petitioners then submits that there is no allegation  against  the  petitioners  of  removing  any  movable  property  out of the possession of informant/opposite party no.2 with any dishonest intention, hence, the offence punishable under Section 379 of the Indian Penal Code is also not made out against them.

Learned counsel for the petitioners next submit that there is no allegation against the petitioners of deceiving the informant/opposite party  no.2  or  inducing  her  in  any  manner  to  part  with  any  property  etc. and in  the absence of the same,  the offence punishable  under Section  420 of the Indian Penal Code is not made out.

Learned counsel  for  the  petitioners further  submit  that  there  is  no allegation against the petitioners of causing hurt to anyone, hence, the offence punishable under Section 323 of the Indian Penal Code is not made out and in the absence of any allegation of intentionally insulting or committing criminal intimidation against the petitioners, the offences punishable under Section 504 or 506 of the Indian Penal Code is not made out. It is next submitted that as none of the offences is made out against the petitioners even with the aid of Section 34 or 120B of the Indian Penal Code, hence, it is lastly submitted that the prayer as prayed for, in this Cr.M.P., be allowed.

Learned  Addl.P.P.  appearing  for  the  State  and  the  learned  counsel for the opposite party No.2 on the other hand vehemently oppose the prayer  of the petitioner  made  in the instant  Cr.M.P  and  learned  counsel for the opposite party no.2 do not dispute the decree of divorce passed by the Family Court, Bhagalpur on 17.08.2019, but he submits that if the informant/opposite  party  no.2  has  challenged  that  decree  in  the  Hon’ble Patna High Court, then without the instruction of the informant/opposite party no.2, the same has been withdrawn. It is lastly submitted that all the offences in respect of which the learned Sub-Divisional Judicial Magistrate, Sahibganj has found sufficient material to proceed against the petitioners is made out against the petitioners on the basis of the materials available in the record against them, therefore, this Cr.M.P., being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, the undisputed facts remains that the marriage between the petitioner no.1 and  the  informant/opposite  party  no.2  has  been  dissolved  by  the  decree of  divorce  by  the  competent  court  being  the  Family  Court,  Bhagalpur  on 17.08.2019,  so  this  Court  has  no  hesitation  in  holding  that  in view  of  the unimpeachable documents being the judgment of the said case as well as the admission made by the parties, the petitioner no.1 ceased to be the husband of the informant/opposite party no.2; on and from 17.08.2019.

Now  coming  to  the  facts  of  the  case,  there  is  no  allegation  against the petitioner no.1 of having committed any wrong with the informant/opposite party no.2 before 17.08.2019, the marriage of petitioner no.2 with the petitioner no.1 undisputedly took place after 17.08.2019.

Under such circumstances, this Court is of the considered view that in view of the dissolution of the marriage between the informant/opposite party no.2 and the petitioner no.1 on and from 17.08.2019 and in the absence of any allegation against the petitioner no.1 of having committed any commission or omission, on any day prior to 17.08.2019, neither the offence punishable under Section 498A of the Indian Penal Code nor the offence punishable under Section 494 of the Indian PenalCode is made out.

So far as the offence punishable under Section 379 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offence are as under:-

(1). The accused removed the movable property;

(2)  He  removed  it  out of  the  possession  of  another  person without his consent;

(3) He did so with a dishonest intention.

as has been observed by the Hon’ble Supreme Court of India in the case of K.N. Mehra vs. State reported in AIR 1957 SC 369.

Now coming to the facts of the case, the only contention of the claimant that she was driven out from her matrimonial house after the undisputed  dissolution of the  marriage  between the  informant/opposite party no.2 and the petitioner no.1. It is crystal clear that on and from 17.08.2019,  the  house  of  the  petitioner  no.1  ceased  to  be  the  matrimonial house of the informant/opposite party no.2, so if prior to that some movable  property  was  kept  by  the  informant/opposite  party  no.2  in  the house of the petitioner no.1, the same will not amount to removal of movable property from the possession of the informant/opposite party no.2 by the petitioners with any dishonest intention and in the absence of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 379 of Indian Penal Code is not made out even with the aid of Section 34 or 120B of the Indian Penal Code.

So far as the offence punishable under Sections 504 & 506 of the Indian Penal Code are concerned, there is absolutely no allegation against the petitioners of intentionally insulting the informant/opposite party no.2  or committing criminal  intimidation  and in the  absence  of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offences punishable under Sections 504 or 506 of Indian Penal  Code are not made out.

So far as the offence punishable under Section 420 of the Indian Penal Code is concerned, the essential ingredients to constitute the offence punishable under Section 420 of the Indian Penal Code are as under:-

(A). Deceit, i.e. to say dishonest or fraudulent misrepresentation and

(B) inducing the person deceived to part with property.

as has been reiterated by the Hon’ble Supreme Court of India in the case of Ram Narayan Popli vs. CBI reported in (2003) 3 SCC 641.

Now coming to the facts of the case, there is absolutely no allegation against the petitioner of deceiving anybody nor there is any allegation  against the  petitioner of inducing  any person  deceived, to  part with any property and in the absence of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section 420 of Indian PenalCode is not made out.

So far as the offence punishable under Section 323 of the Indian Penal Code is concerned, the essential ingredients to constitute the said offences are as under:-

(A). Accused voluntarily caused bodily pain, deceased or infirmity to the victim;

(B).  The  accused  did  so  with  intention  of  causing  hurt  or with the knowledge that he would thereby cause hurt to the victim.

Now coming to the facts of the case, there is absolutely no allegation against the petitioners of causing bodily pain, deceased or infirmity to any victim and in the absence of the same, this Court is of the considered view that even if the entire allegations made against the petitioners are considered to be true in their entirety still the offence punishable under Section  323 of Indian Penal Code  is not  made out even with the aid of Section 34 or 120B of the Indian Penal Code.

In view  of the  discussions  made  above, as  none of the  offences  in respect of which the learned Sub-Divisional Judicial Magistrate, Sahibganj has found sufficient material to proceed against the petitioners is made out even if the entire allegations made against the petitioners are considered to be true in their entirety, this Court is of the considered view that the continuation of this criminal proceeding against the petitioners will amount to abuse of process of law and this is a fit case where the entire criminal proceeding including the summoning order dated 18.08.2023  passed  in  the  Complaint  Case  No.500  of  2022  by  learned  Sub- Divisional Judicial Magistrate, Sahibganj, be quashed and set aside.

Accordingly, the entire criminal proceeding including the summoning order dated 18.08.2023 passed in the Complaint Case No.500 of 2022 by learned Sub-Divisional Judicial Magistrate, Sahibganj, is quashed and set aside qua the petitioners only.

In the result, this Cr.M.P., is allowed.