Ritesh Kumar vs State of Bihar and Smt. Rashmi Kumar

Abhijit Sinha, J.—Both these applications have been taken up together as they arise out of the same order passed in Barauni (Chakaiya) P.S. Case No. 281 of 2004 and having been heard together are being disposed of by this common order.

Cr. Misc. No. 42212 of 2006 has been preferred by Ritesh Kumar, the husband of the informant, Rashmi Kumari and Cr. Misc. No. 55242 of 2006 has been preferred by Shambhu Nath Sharma and Suchitra Devi @ Suchitra Sharma, the elder brother and bhabhi (sister-in-law) of Ritesh Kumar.

Whereas the petitioner of Cr. Misc. No. 42212 of 2006 has prayed for the quashing of order dated 4.3.2006 passed therein by the learned Chief Judicial Magistrate, Begusarai, whereby he has taken cognizance under Sections 341, 323, 498A IPC and 3/4 Dowry Prohibition Act. The petitioners of Cr. Misc. No. 55242 of 2006 have prayed for the quashing of the entire criminal proceeding arising from the said police case including the order dated 4.3.2006 passed by the learned Chief Judicial Magistrate, Begusarai.

On 13.9.2004 Rashmi Kumari, the wife of Ritesh Kumar the petitioner of Cr. Misc. No. 42212 of 2006, impleaded in both cases as O.P. No. 2, filed a written complaint before the Officer Incharge of Chakaiya Out Post of Barauni P.S. alleging inter alia therein that the informant was married to the petitioner on 30.5.1997 as per the Hindu rites and rituals. At the time of marriage the father of the informant had given gift as per his financial capacity. A week before the marriage, the petitioner and his elder brothers, Shambhu Nath Sharma and Shailesh Kumar, made a demand of Rs. 51,000/- from the father of the informant. The said demand was also met as by then every arrangement for the marriage had taken place. After marriage she remained at the native place of the in-laws at Sona village for about 1 and 1/2 months, during which period she was tortured and teased by the elder brothers of her husband and their wives. After one and half months of her marriage, the informant came back to her parental home and remained with her parents for about 10 months during which none including her husband enquired or cared for her, notwithstanding her contacting him telephonically and ultimately in April 1998 when the father of the informant met the petitioner with a request for second marriage of the informant, the petitioner refused to oblige the father of the informant and even the father-in-law of the informant could not do anything. Ultimately on the intervention of Uncle (Fufa) of the petitioner she was brought to the matrimonial home where she remained up to 2.6.2003.

At the matrimonial home the informant used to get all the affections from her father-in-law but whenever the elder brothers and their wives visited the native village the informant was tortured by them. On the pressure of the father-in-law of the informant the petitioner brought her to their ancestral home at Nala Raod in Patna where the elder brothers and their wives used to reside. Here also the informant was pressurized for a Maruti Zen car. The petitioner frequently used to assault the informant in inebriated condition. When her brothers Amardeep and Anil came to meet her the informant intimated them about the whole issue and when the brothers of the informant tried to reason with her in-laws and the petitioner they too were misbehaved with.

In October 2002 when she became pregnant, she was taken to her Bhaisur''s place at Punai Chak from where she was again brought back to the ancestral home at Nala Raod where Shambhu Nath Sharma too was residing in the ground floor and the informant was kept on the first floor. In that condition also the petitioner did not take care of her and did not stay with her and after a few days she was taken to the ancestral village Sona where she remained up to 02.06.2003, as she was granted permission by her father-in-law to go and stay with her parents. On 27.06.2003 the informant gave birth to a premature male baby and the in-laws including the petitioner did not even attempt to take any care about it nor did they come to see the child on being contacted over telephone. The informant was simply told that unless the demand is fulfilled she will not be brought back.

It appears that on the basis of the said written complaint the aforesaid police case came to be registered under Sections 341, 323 and 498A IPC as also Section 3/4 Dowry Prohibition Act and after due investigation charge sheet under the aforesaid provisions was submitted.

So far as the petitioners of Cr. Misc. No. 55242 of 2006 is concerned it has been submitted that Shambhu Nath Sharma with his wife consequent to a partition having taken place between the two brothers in 1990 which was much prior to the date of marriage of Ritesh and Rashmi was living separately from Ritesh Kumar and he and Ritesh are in government employment and having been posted at different places in discharge of their official duties they had no concern whatsoever with the affairs of Ritesh Kumar and his wife Rashmi Kumari, the informant, and it was highly improbable that after partition the petitioners would have resorted to torturing the informant for dowry.

The joint submissions and common arguments advanced by the petitioners of both the cases is that they have been falsely implicated in this case only with the ulterior motive of harassing and vexing them and to pressurize them and Ritesh Kumar in particular not to pursue his legal remedy of obtaining a decree of dissolution of marriage from the Court of the learned Principal Judge, Family Court, Patna, through matrimonial Suit No. 241 of 2004 as also to extract monetary benefits from the petitioners and other family members. In this connection it was submitted that aggrieved by the misdemeanor and dishonourable behaviour of the spouse Ritesh had applied before the Principal Judge, Family Court, Patna, u/s 13(I) and (II) of the Hindu Marriage Act for dissolution of his marriage with the informant and it was only after summons had been received by her on 13.8.2004 she lodged the instant written complaint on 13.9.2004 by way of counter blast to the matrimonial case and to circumvent the same. By way of pointing out the grave anomaly on the part of the informant and her efforts to pre-empt the divorce case the learned Counsels for the petitioners contended that admittedly the marriage was solemnized on 30.5.1997 and her alleged torture and teasing started from the very day of the entry into the matrimonial home yet she appears to have waited for almost 7 years for filing the written complaint and that too after having received the summons of the matrimonial case.

Curiously she never sought any legal remedy for her predicament in the matrimonial home.

It was also submitted on behalf of the petitioners that one of the brothers of the informant happens to be the Mukhia of the village and indulges in active politics and presumably it was under the clout of the Mukhia brother the Investigating Officer was influenced to file a charge sheet and that too without recording the statements of the accused persons and other independent witnesses which clearly is contrary to the principles of audi alteram partam. It was also submitted that the impugned order clearly discloses a total non application of mind and had taken cognizance in a mechanical manner.

The informant has appeared in both the cases to contest the application and although no written statement or show cause was filed on her behalf oral submissions were sought to be made to justify the prosecution of the petitioners as also the impugned order.

From the impugned order it appears that the learned Magistrate having perused the case records as also the case diary and taking into consideration that a charge sheet had been submitted took cognizance and decided to proceed with the case against the accused on the basis thereof without disclosing as to what were the materials against the petitioners to show their complicity in the crime.

It also appears from the perusal of the written report submitted by the informant that she has very cleverly suppressed crucial and material fact of the matrimonial case having been filed against her and of having received summons in the said case. This only goes to show that the informant had not approached the court with clean hands and adverse inference may have to be drawn for the same.

There is yet another aspect of the matter. The marriage between Ritesh and Rashmi was purportedly solemnized at Quarter no D 21, Barauni Thermal Power Station Colony (BTPS) Chakaiya at Barauni in the District of Begusarai and although the initial demand for dowry was made prior to the marriage the place where such demand was made has not been disclosed. The alleged torture and assault of the informant allegedly took place at the Nala Raod, Patna residence of the husband or at the ancestral home (Sona) within Naubatpur P.S. in the district of Patna and no part thereof appears to have taken place at any place within the jurisdiction of the Begusarai Court. Therefore, in my opinion the court at Begusarai had no jurisdiction to take any cognizance in the case.

Even otherwise the instant written complaint appears to be a case of retaliation to undo and circumvent the earlier matrimonial case filed by the husband.

Due regard being had to the facts and circumstances of the case, the impugned order taking cognizance is hereby set aside and both the applications are allowed.