Kanhaiya Lal Gupta vs State Of Jharkhand
2022 Latest Caselaw 4033 Jhar

                              -1-            Cr.M.P. No. 280 of 2022

IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr.M.P. No. 280 of 2022
Kanhaiya Lal Gupta, aged about 36 years,
son of Lakshmi Das @ Laxmi Das,
presently residing at 4626
Tuttles Woods, Dr. Dublin-Ohio,
P.O. + P.S.-Columbus, U.S.A.-43016.         ..... ... Petitioner
                           Versus
State of Jharkhand                          ...... ... Opposite Party.
                        --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. Kaushik Sarkhel, Advocate.

For the State           :       Mrs. Priya Shrestha, Spl.P.P.
For the O.P. No. 2      :       Mr. Mahesh Tewari, Advocate.
                        :       Mr. Amit Kumar, Advocate.
                        ------
C.A.V. on 21.09.2022                       Pronounced on 29.09.2022.

The argument of Mr. Kaushik Sarkhel, learned counsel appearing for the petitioner and Mr. Mahesh Tewari, learned counsel

appearing for the O.P. No. 2 was concluded on 21.09.2022 and after hearing at length the court has reserved the judgment.

2. This petition has been filed for quashing of the order dated

06.09.2021, passed in M.C.A. No. 7306 of 2020, passed by the learned ACJM, Ranchi, in connection with Sadar P.S. Case No. 09 of 2020, whereby the petition filed under Section 205 Cr.P.C. has been rejected by

the learned court and the case is pending in the court of learned ACJM, Ranchi.

3. The FIR was registered alleging therein that the informant was married with Kanhaiyalal Gupta on 22.05.2013 according to Hindu rites and customs at Allahabad. At the time of marriage, her father had given

an amount of Rs. 10,50,000/- in cash and Rs. 4,51,000/- through Bank transfer in the account of the father of the petitioner No. 1. It was also

alleged that the entire expenses of the marriage was borne by the father of the informant and several gifts like chain, ring and cloths were given to the accused on demand.

The informant went to his matrimonial home on 23.05.2013 after marriage and the accused misbehaved with her being not

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satisfied with the articles given in the marriage and complained of payment of meager dowry particularly because the husband of the

informant was settled in U.S.A. and is a Software Engineer and therefore they expected more dowry and a car.The husband of the

informant thereafter left for U.S.A., leaving her behind at Kanpur.

The father of the informant having came to know that she had not been taken to U.S.A. applied for her urgent passport and gave her

Rs. 1,00,000/- and only thereafter she could leave for U.S.A. on 23.09.2013.

The informant returned to Kanpur with her husband after one

year and was again sent to U.S.A. in November, 2014 alone. On 04.06.2015 she gave birth to a son Aarav at U.S.A. and she was

thereafter sent back to Kanpur in August, 2015, where she was again tortured by the accused in connection with demand of dowry. She was again taken back to U.S.A. by her husband in November, 2015

when her father threatened to take police action for torture.

On 08.02.2017, the informant gave birth to her second son

Pranav and she was thereafter forcibly sent to Kanpur by her husband, where the torture continued and after mediation, it was decided that the informant would reside with her husband.

It is further alleged that on 18.02.2018, the accused in laws and brother in law came to Ranchi, assaulted her and tried to abduct

her and her two children.

On 10.03.2018, in the birthday party of Pranav, her brother in law tried to rape her and tore her upper body clothes and when she

complained to her in laws they suggested her to keep live in relationship with Akash, brother-in-law.

It is further alleged that the accused persons assaulted her and

tried to burn her and she was saved only after she raised alarm. The mother in law took Rs. 1,00,000/- from her father and took her to

U.S.A. and she was tortured badly. At U.S.A. her husband got her

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implicated in two false cases somehow she could return to India on 20.12.2019.

On 29.12.2019, the accused in laws and brother in law came to Ranchi assaulted her and threatened to take divorce without alimony

and the custody of the children, hence the complaint was filed properly.

4. Mr. Kaushik Sarkhel, learned counsel appearing for the

petitioner has submitted that the present case was filed by the informant after about 7 years of the marriage. He submitted that the petitioner has filed divorce case against the informant on the ground of adultery and

cruelty in the U.S.A., while the informant used to stay with the petitioner in the U.S.A. He further submitted that the petitioner was married with

the informant on 22.05.2013 and the said marriage was arranged marriage and further the marriage of the petitioner and informant was solemnized at Allahabad in the State of U.P. He further submitted that the

petitioner is residing in U.S.A. and after marriage, he took his wife to U.S.A., for which, it is the petitioner, who has actually applied for her

passport and the VISA and even paid for the passport and VISA and the air ticket was also borne by the petitioner. He further submitted that out of the wedlock, children were born in U.S.A. and the informant although

a graduate, but was not well versed with the English language and accordingly, the petitioner took endeavor to admit his wife by admitting

her in English crash course in the U.S.A. so that she gets habituated to the life which she has to live with her husband in U.S.A. He further submitted that on some occasion, both the petitioner as well as O.P. No. 2

came to India to visit families and celebrate festivals and there the petitioner complained to his father-in-law that her daughter has still not stopped several misdeeds, which are the subject matter of chats, which

she was doing earlier and if she continues to do that, then it will be problematic thing for him to continue his conjugal life with her. He

further submitted that the conciliation has taken place between the family

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members of the petitioner and the O.P. No. 2 and mutual understanding was there to that effect and both of them happily agree to live their

conjugal life.

5. Learned counsel has further submitted that thereafter the O.P.

No. 2 and the petitioner went back to U.S.A. He further submitted that the petitioner became scared of her and was apprehensive that the informant may implicate him in a false case of domestic violence and

harassment in U.S.A. and accordingly, the petitioner installed CCTV cameras in his house in U.S.A. to protect himself. He further submitted that the petitioner learnt about the adulterous life of his wife and left no

other option, he filed a divorce case against his wife in the U.S.A., in which the O.P. No. 2 has appeared and claimed for spouse alimony and

child support and on 18.12.2019 the O.P. No. 2 left for India without informing her husband and children. He further submitted that on 29.01.2020, she hired an advocate for the divorce case and in that case on

the date of hearing, it was informed that she was unable to attend the court, as she had typhoid fever and had gone to India. He further

submitted that by order dated 22.10.2021, the court of Common Pleas, Franklin County, Ohio, U.S.A. held the hearing of de facto termination of marriage as part of the process of the divorce case and granted the

divorce.

6. Learned counsel appearing for the petitioner has further

submitted that the petitioner filed his written submission via speed post to SSP, DSP and SHO, when he came to know about the present case and along with all evidences. He further submitted that during the pendency

of the case, the petitioner preferred a petition under Section 205 Cr.P.C. for dispensing his personal appearance before the learned A.C.J.M. on 14.12.2020, wherein the petitioner has stated that he is working in U.S.A.

since 2009 and his two children are studying at U.S.A. and therefore, it will be very difficult to travel to India for attending the day to day

proceedings of the case, which is pending before the learned A.C.J.M.,

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Ranchi. He further submitted that after filing of petition under Section 205 Cr.P.C., the informant filed a petition on 15.12.2020 for issuance of

non-bailable warrant of arrest against the petitioner before the learned A.C.J.M., wherein the learned court has allowed the prayer of I.O. and

issued non-bailable warrant of arrest against the petitioner. He further submitted that subsequently, process under Section 82 Cr.P.C. has also been issued against the petitioner. By order dated 06.09.2021, the learned

court has rejected the petition filed under Section 205 Cr.P.C. Aggrieved with the order of issuing non-bailable warrant of arrest and process under Section 82 Cr.P.C., the petitioner has moved before this Hon'ble Court in

Cr.M.P. No. 2299 of 2021 and during the pendency of said Cr.M.P., proclamation under Section 83 Cr.P.C. has also been issued against the

petitioner on 11.10.2021. He further submitted that the petitioner preferred an I.A. being I.A. No. 6340 of 2021, challenging the order issuing the proclamation under Section 83 Cr.P.C. and the prayer was

allowed the petitioner was directed to made amendment in the petition. He also submitted that by order dated 09.12.2021, this Court has allowed

the said Cr.M.P. and the orders dated 15.12.2020, 02.08.2021 and 11.10.2021 have been quashed. He has further submitted that while quashing the aforesaid orders, it has been taken into consideration that

the case is arising out of Section 498-A of IPC and this is not a case of moral turpitude and for that Section 205 Cr.P.C. has to be been attracted.

He further submitted that without disposing of the petition under Section 205 Cr.P.C., the excessive orders have been passed by the learned court. He further submitted that this Hon'ble Court has also considered the

judgment of Hon'ble Surpreme Court in the case of Bhaskar Industries Ltd. Versus Bhivani Denim & Apparels Ltd. reported in (2001) 7 SCC 401 in passing the order in Cr.M.P. No. 2299 of 2021. According to him,

learned court has failed to appreciate the order passed by this Hon'ble Court, wherein the Judgment of Hon'ble Supreme Court in the case of

Puneet Dalmia Versus Central Bureau of Investigation, reported in

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AIR 2020 SC 214 has also been relied.

7. On these grounds, learned counsel appearing for the petitioner

has submitted that the learned court without considering the settled proposition of law, has rejected the petition filed under Section 205

Cr.P.C., which is not in accordance with law.

8. On the other hand, Mr. Mahesh Tewari, learned counsel appearing for the O.P. No. 2 has submitted that there is no illegality in the

impugned order, as the learned court has held that in absence of the summon, the said Section 205 Cr.P.c. is not attracted. He took the court to Section 205 Cr.P.C. He further submitted that the learned court has

rightly considered the application under Section 205 Cr.P.C. and on application of judicial mind and considering the nature of case and also

looking to the conduct of the petitioner, the said order has been passed. He further submitted that the learned court has taken care of and held that by way of misusing the process of law, a petition under Section 205

Cr.P.C. has been filed by the petitioner only to not cooperate in the investigation. He further submitted that due to this reason, the

investigation of the case has not been completed as yet. He further submitted that the chargesheet has not been submitted as yet and the first date of hearing is not fixed as yet and summon has not been issued, as

such, a petition under Section 205 Cr.P.C. is not applicable. He further submitted that the petitioner is intentionally deliberating hurdle to get

justice from the court. He also submitted that on the petition filed under Section 205 Cr.P.C. an endorsement was made on it 'not pressed', which has also been noted by the learned court while rejecting the petition

under Section 205 Cr.P.C.

9. On these grounds, learned counsel appearing for the O.P. No. 2 submitted that there is no illegality in the impugned order, as such no

interference is required in the matter.

10. Mrs. Priya Shrestha, learned Spl.P.P. appearing for the State

has submitted that the petitioner is not cooperating in the investigation

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and at this stage, a petition under Section 205 Cr.P.C. is not attracted and the learned court has rightly passed the order.

11. In view of such submissions of the parties, the court has gone through the materials available on record. It is an admitted fact that the

petitioner has earlier moved before this Court in Cr.M.P. No. 2299 of 2021, which was allowed by terms of order dated 09.12.2021 and impugned orders were quashed. It was also considered by this Court that

Section 205 Cr.P.C. petition was pending and before proceeding further, the said petition was required to be decided at the earliest and on these grounds, the impugned orders were quashed, which were the subject

matter in Cr.M.P. No. 2299 of 2021.

12. The court has perused the order dated 06.09.2021, which has

been impugned by the petitioner in the present Cr.M.P. and finds that the elaborate order has been passed by the learned court considering the law laid down on the subject in question. The learned court has noted that by

order dated 15.12.2020, the order of non-bailable warrant of arrest has been directed to be issued and later on a petition under Section 205

Cr.P.C. has been filed by M.C.A. No. 7305 of 2020 and a copy of the same was served to the A.P.P. However, the said petition was kept pending and not being pressed by the petitioner and the same was being

adjourned on several dates such as on 04.02.2021, 18.02.2021, 20.02.2021, 05.03.2021 and lastly on 14.06.2021 and it was fixed for

passing the order on 23.08.2021, and on that day, a petition for time with new vakalatnama has been filed, which was allowed by way of last opportunity and on 04.09.2021 fresh notes of judicial pronouncements

has been filed on behalf of the petitioner. In order of the learned court, by which, the petition under Section 205 Cr.P.C. dated 15.12.2021 has been rejected, it has been noted that the investigation is still pending in this

case due to non-appearance of the petitioner namely Kanhaiyalal Guta and also an endorsement has been made on that petition 'not pressed' of

previous counsel Mr. Sunil Kumar Sinha. The learned court found that

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the intention of the petitioner is not good and after issuing process under Section 82 Cr.P.C., and when the learned court is about to dispose of the

petition under Section 205 Cr.P.C., the petitioner has put his appearance with fresh vakalatnama and till date the matter is being delayed by the

petitioner. Thus, the learned court came to the conclusion that the petitioner deliberately is trying to delay the investigation. The learned court has considered the case of Bhaskar Industries Ltd. Versus Bhiwani

Denim & Apparels Ltd. & Ors., reported in (2001) 7 SCC 401. The learned court has also taken note of the spirit of Section 205 Cr.P.C. and considering the other allegations against the petitioner, the learned court

came to the conclusion that any attempt is made to prolong the proceedings by taking advantage with the order dispensing with personal

attendance, it shall be open to the court to pass such order as is felt necessary. The court has also taken note of the spirit of Section 205 Cr.P.C. and held that Section 205 Cr.P.C. can only be invoked once the

summon has been issued and the concerned person has been made accused in the said criminal case and considering the aforesaid nature of

the case, it has been noted that the endeavour of the court is to reunite or save the concept of the family. Elaborate reasons have been disclosed in the said order and that's why the learned court came to the conclusion

that the petition under Section 205 Cr.P.C. is not maintainable, as the cognizance has not been taken as yet and the petitioner has also not been

summoned.

13. The Magistrate may dispense with the personal attendance of the accused in a particular class of cases namely those in which he issues

a summon. It is well settled that where discretion vests in a court it has to be exercised judicially keeping in view all the circumstances of the case and the larger interest of justice. The power under Section 205 Cr.PC. can

be exercised not only when he issuing the summon, but also at any subsequent stage.

14. Although the Section speaks of issue of summons, it is not

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confined to summons cases only. In a warrant case also the magistrate may in his discretion under Section 204, issue a summon instated of a

warrant and in that case he can dispense with the personal attendance of the accused. It is well settled that Section 205 Cr.P.C. only applied after

issuance of summon against the accused and also after taking cognizance. Bhaskar Industries Ltd. case (supra) ratio can apply in a proper case, where bona fide has been shown by the accused, however, in

the case in hand what has been emerged from the discussion of the order of the learned trial court, it appears that the petitioner has tried to linger the investigation and, it also appears that elaborate order has been passed

by the learned court, as such, this court comes to a conclusion that there is no illegality in the impugned order.

22. As a cumulative effect of the above discussions, reasons and analysis, no case of interference is made out. Accordingly, this petition is dismissed. Pending interlocutory application, if any, stands dismissed.

(Sanjay Kumar Dwivedi, J.) Jharkhand High Court, Ranchi.

Dated the 29th September, 2022.

NAFR/ Amitesh/-