Jharkhand High Court
Rajhans vs The State Of Jharkhand on 4 September, 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. M. P. No. 2951 of 2022
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Rajhans ... .... Petitioner
Versus
1. The State of Jharkhand
2. Sarita Kumari Singh ... .... Opp. Parties
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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY
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For the Petitioner : Mr. Chanchal Jain, Advocate
For the State : Ms. Priya Shrestha, S.P.P.
For the O.P. No. 2 : Mr. Alok Anand, Advocate
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Oral Order
07 / Dated : 04.09.2023
1. The instant criminal misc. petition has been filed for quashing the FIR
being Dumka (Mahila) P.S. Case No. 05 of 2022 registered under Sections
498A, 494, 495, 420, 506, 34 of IPC.
2. The petitioner is the husband and the case of the informant in brief is that
she was married to him in the year 2005 and without her consent the
petitioner solemnized second marriage in the year 2011 with one Usha
Kumari. It is alleged that because of love affair with said Usha Kumari, the
petitioner used to abuse and assault the informant and subjected her to
physical and mental cruelty. The petitioner deserted the informant and
started living with Usha Kumari and a divorce case was also filed against
her by the petitioner. Two children was born from the wedlock and lastly
she came to know that her name had been struck off from the list of
nominee from the salary account of the petitioner and the name of Usha
Kumari has been entered in her place as his wife. On these allegations, FIR
was lodged on 11.07.2022 which is under challenge in this quashing
petition.
3. It is submitted by learned counsel for the petitioner that this is second
round of litigation under Section 498A of IPC against the petitioner. Earlier
Dumka (Town) P.S. Case No. 172 of 2011 was registered against the
petitioner under Section 498A of IPC on 24.10.2011 in which he was
arrested and after trial, the petitioner has been acquitted of the charge by
the judgment and order of CJM, Dumka on 15.12.2018 in G.R. Case No.
1361 of 2011 (T.R. No. 385 of 2018) (Annexexure-3). The instant case has
been filed after delay of four years from the date of acquittal. They were
not living together and there was divorce case pending between the
petitioner and the informant.
4. Falsity of allegation under Section 494 of IPC shall be apparent from the
fact that in the FIR it has been alleged that he was married to Usha Kumari
in December, 2011 whereas the petitioner was in custody in December,
2011 in connection with Section 498A of IPC. In support of the contention
and, therefore, the bail, granted by this Court dated 11.01.2012, has been
enclosed in which the petitioner was enlarged on bail by this Court in BA
No. 9003 of 2011. Lastly, it is submitted that after acquittal from the
criminal case, he filed divorce suit against which the present case has been
filed. Although the party was on litigating term in 2011 at no point of time
earlier the allegation of bigamy had been made against the petitioner.
5. Learned counsel for the State, assisted by learned counsel for the
informant, have vehemently opposed the quashing petition and submitted
that this case has been lodged not only under Section 498A of IPC but
there are other sections involved. Therefore, acquittal in Section 498A of
IPC will not exonerate the petitioner with respect to other offence.
6. On Section 494 of IPC it is admitted that there is perhaps some error in the
FIR to mention the date of marriage to be December, 2011. However, the
fact of the matter is that the petitioner had performed second marriage
without dissolution of first marriage which will be apparent from the entry
of Usha Kumari in the passbook as a nominee. Reliance is placed in AIR
2021 SC 1918 para 9.5 wherein the law has been reiterated that the FIR is
not an encyclopedia of all facts and it is feasible that the informant will not
be aware of the entire facts. By placing reliance of the party, it is submitted
that even if it is assumed that there was error in the FIR mentioned in the
date of marriage that will not be sufficient to completely falsified. It is
further submitted that with respect to veracity of second marriage without
dissolution of first marriage cannot be looked into at the stage of quashing
of FIR.
7. It is further submitted that the police has submitted its report that the Bank
Manager has reported Usha Kumari to be the nominee as wife of the
petitioner.
8. Petitioner was put on trial on the in an earlier case filed under Section
498A of the IPC in 2011 by the informant in which the petitioner has been
acquitted of the charges on 15.12.2018.
9. As far as Section 498A is concerned there is no new material to initiate the
instant criminal prosecution after the acquittal in the earlier case. That will
be in the teeth of the provision as contained in Section 300 of the CrPC.
10. The allegation of bigamy relates back to the year 2011 and there is no
explanation what prevented the informant to include this charge in her
earlier case last against the petitioner. Apart from the infirmity in the FIR
regarding the date of the alleged marriage, it will not be permissible to
initiate prosecution afresh for offence by adding another section, for which
the materials were available when the earlier round of litigation was
launched and which has now finally been concluded.
To sum up the present round of litigation pertains to allegation of
cruelty on which the petitioner was earlier put on trial and acquitted of the
charges. The addition of the prosecution for bigamy is also not sustainable
for the reasons discussed above.
It will be a gross abuse of process of court to permit the prosecution on
the basis of the FIR on materials which are old and rancid.
Under the aforesaid facts and circumstance, the entire criminal
proceeding arising out of Dumka (Mahila) P.S. Case No. 05 of 2022 is
quashed.
Criminal Miscellaneous Petition is allowed.
(Gautam Kumar Choudhary, J.)
AKT
