Smt. Santosh Sharma vs Judicial Magistrate, Roorkee, District Haridwar and Another

Hon''ble Servesh Kumar Gupta, J.—By means of this petition u/s 482 CrPC, the prayer has been advanced to quash the Criminal Complaint Case No. 1239 of 2007, pending in the Court of Judicial Magistrate, Roorkee and the order of cognizance dated 12.6.2007 passed therein by the learned Magistrate.

The facts, shorn of superflueity, are that Smt. Santosh Sharma/petitioner is the mother of private opposite party Smt. Nisha Sharma. Smt. Nisha Sharma was espoused with one Manoj Kumar Sharma on 2.7.1998 at Haridwar itself. She was blessed with an elder daughter and son out of the wedlock and was leading a reasonably happy life with her husband Sri Manoj Kumar Sharma.

Having heard the learned counsel of the applicant and gone through all other papers available on the record, it appears that Sri Manoj Kumar Sharma had a neighbour, residing in front of his house, named Sri Cheenu, son of Sri Virendra. Sri Manoj Kumar Sharma and Cheenu had the intimate relations between each other. They were in the habit of taking regular evening sittings with alcoholic drinks, that further deteriorated the moral values between the two and Sri Manoj Kumar Sharma made it easier for his friend Cheenu to have access with Smt. Nisha Sharma for sensual pleasures. Sri Manoj Kumar Sharma raised the demand from his father-in-law Sri Vidhya Dhar Sharma (a retired Army personnel) to transfer the ownership of his house (No. 211 Avas Vikas Colony, Roorkee) in the name of Sri Manoj Kumar Sharma, but the desired goal could not be achieved, so this all cropped up the mutual intense differences between Sri Manoj Kumar Sharma (husband of Smt. Nisha Sharma) and his father-in-law Sri Vidhya Dhar Sharma along with his family.

In this backdrop, the FIR was first lodged by Sri Vidhya Dhar Sharma on 16.5.2006 u/s 364 IPC against Sri Cheenu and Sri Manoj Kumar Sharma. The incident was narrated to be of 10.4.2006 pertaining to Crime No. 116 of 2006, Police Station Gangnahar, Roorkee. An elaborate tale of entire atrocities committed on the part of Sri Manoj Kumar Sharma and his close friend Cheenu towards Smt. Nisha Sharma was entailed in the FIR. On the other hand, noticing the lodging of FIR against him, Sri Manoj Kumar Sharma too lodged a cross FIR on 19.5.2006 narrating the incident of the same date i.e. of 10.4.2006, wherein Sri Cheenu and his father Virendra Kumar were also named as accused persons along with Smt. Santosh Sharma, wife of Vidhya Dhar Sharma. This Court is not aware as to what happened about the FIR lodged by Sri Vidhya Dhar Sharma, but learned counsel appearing on behalf of the petitioner/applicant has apprised this Court that a charge sheet was submitted by Police as a result of lodging of the FIR by Sri Manoj Kumar Sharma in Crime No. 116A/2006 and a Sessions Trial No. 341 of 2008 was proceeded in the Court of Additional District and Sessions Judge, Roorkee, which resulted in acquittal of Sri Virendra Kumar and Anant Kumar alias Cheenu, S/o Sri Virendra Kumar. It was also submitted that a charge sheet was also advanced against Smt. Santosh Sharma, but that is under challenge before this Court u/s 482 CrPC, wherein the proceedings were stayed.

Simultaneously, the impugned complaint was also lodged by Smt. Nisha Sharma for the same incident allegedly happened on 10.4.2006 making her own mother Smt. Santosh Sharma accused for the offence of Section 406 IPC. Smt. Nisha Sharma-complainant, inter alia, with other allegations complained that she visited her native house on 24.3.2006 along with `12,000/- and lots of jewellery with her. Smt. Santosh Sharma (mother) had taken all the jewellery along with the above wherewithal for keeping the same in a safe custody, but did not return the same later. Smt. Nisha Sharma examined herself u/s 200 and her sole witness husband Sri Manoj Kumar Sharma u/s 202 CrPC. Learned Magistrate, having gone through the statements of the complainant and her husband Sri Manoj Kumar Sharma took cognizance of the matter on 12.6.2007 for the offence of Section 406 IPC.

In the panoptic analysis, as has been stated above, it is obvious that Smt. Nisha Sharma was made to play like a puppet in the hands of her husband Sri Manoj Kumar Sharma, whose intentions can be discerned to be apparently mischievous in order to grab the property of Sri Vidhya Dhar Sharma. She had no option but to follow the directions of her husband Sri Manoj Kumar Sharma in order to live a peaceful matrimonial life. The entire story, as has been narrated by Smt. Nisha Sharma, does not inspire confidence of this Court at all and no reasonably prudent man can rely upon such an unbelievable facts. It appears that the learned Magistrate has not applied his mind prior to taking of the cognizance in the matter. Passing a cognizance order and making any person an accused entails a serious consideration and the cognizance order should have been passed only when there appears to be some prima facie truthfulness as to inspire the confidence of the Court. Simply making the ex parte statements on oath by the complainant and one witness, who is none else but only her husband, does not make her entitle to make any person accused of the offence and force him to attend the Court and surrender and pray for bail and then to face a rig marole trial.

In view of what has been stated above, the petition has merits and deserves to be allowed. The petition is allowed. The impugned complaint dated 8.5.2007 and order of cognizance-dated 12.6.2007 passed therein are hereby quashed.