Jharkhand High Court
Durga Devi vs The State Of Jharkhand And Another .... ... on 29 January, 2024
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND, RANCHI
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Cr.M.P. No. 795 of 2015
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1.Durga Devi
2.Shailender Kumar
3.Sweety @ Shobha Singh .... Petitioners
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
With
Cr.M.P. No. 2108 of 2014
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Bibha Kumari @ Vibha Devi .... Petitioner
-- Versus --
The State of Jharkhand and Another .... Opposite Parties
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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
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For the Petitioners :- Mr. Kalyan Roy, Advocate
For the State :- Mr. P.K. Chatterjee, Advocate
Mr. S.K. Munda, Advocate
For the O.P.No.2 :- Mr. Amit Kumar, Advocate
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10/29.01.2024 Heard the learned counsels appearing on behalf of the
petitioners, the respondent State in respective cases and the O.P.No.2.
2. In both the petitions, a common complaint case as well as
the order taking cognizance are under challenge and in view of that, both
these petitions are being heard together with consent of the parties.
3. These petitions have been filed for quashing of the entire
criminal proceeding as well as the order dated 11.03.2014 arising out of
Complaint Case No.C/1-2464/12 pending in the court of learned Judicial
Magistrate, First Class, at Jamshedpur.
4. The O.P.No.2 has filed the complaint case alleging therein in
nutshell is that on 21.7.2012 at about 7.30 p.m. all the accused persons
alongwith 2-3 unknown persons forcefully entered into the house of O.P.No.2
and on the point of pistol they threatened the inmates of the house. It has
been alleged by complainant that accused Bibha Kumari opened her almirah
and took her valuable belongings including ornaments and loaded them in
Sumo and fled away. On the basis of these allegations instant case has been
filed.
5. Mr. Kalyan Roy, the learned counsel appearing on behalf of
the petitioners submits that the petitioner namely, Bibha Kumari @ Vibha
Devi in Cr.M.P. No.2108 of 2014 is daughter in law of the O.P.No.2. He
submits that rest of the petitioner in Cr.M.P. No.795 of 2015 are mother,
brother and sister. He further submit that Bibha Kumari @ Vibha Devi has
earlier instituted the case being C/1 Case No.239 of 2012 on 25.01.2012
against the O.P.No.2 and others under section 498A of the IPC and
subsequently she has also filed Misc.Case No.28 of 2012 under section 125
Cr.P.C against the son of the O.P.No.2 who happened to be husband of the
petitioner namely Bibha Kumari @ Vibha Devi. He submits that time and
again the cases have been lodged by the O.P.No.2. He further submits that
O.P.No.2 earlier filed criminal case against the petitioners and others being
Complaint Case No.502 of 2012 on 22.02.2012 and after for investigation the
same was registered in view of section 156 (3)Cr.P.C and accordingly Sakchi
P.S.Case No.114 of 2012 dated 04.06.2012 was instituted by the police
whereas the final form has been submitted stating that on account of
wrecking vengeance the case has been lodged and the recommendation has
been made for prosecution under section 182/ 211 of the IPC against the
O.P.No.2. He submits that another case has been registered at the behest of
O.P.No.2 under section 107 Cr.P.C against the brother of the petitioner
namely Shailendra Kumar. In the said 107 Cr.P.C proceeding also the police
has found the case as false and recommendation was further made under
section 182/211 IPC against the O.P.No.2. He submits that this case was
maliciously lodged against the petitioners. He further submits that husband
of the Bibha Kumari @ Vibha Devi has filed divorced case which was
dismissed and in the High Court also the order of the family court was
affirmed and, subsequently the same was challenged before the Hon'ble
Supreme Court, however, the same matter is now pending before the Hon'ble
Supreme Court. He submits that in malicious prosecution the Court can
exercise its power under section 482 Cr.P.C. He submits that the case of the
petitioners is covered by the judgment of Hon'ble Supreme Court in the case
of State of Haryana and Others v. Bhajan Lal and Others, 1992
Supp.(1)SCC 335. He further submits that the alleged occurrence is said to
be dated 21.07.2012 whereas the complaint case is filed on 14.09.2012 after
two months and there is no explanation of lodging it belatedly and to
buttress his above argument, he relied in the case of Deo Lakhan Paswan
v. State of Jharkhand and Another, 2012 (1) JLJR 206 (SC). On these
grounds, he submits that the entire criminal proceeding may kindly be
quashed. He further submits that even the order taking cognizance is not in
accordance with law and there is no satisfaction of the learned court and the
order taking cognizance is also fit to be interfered with.
6. Mr. Amit Kumar the learned counsel for the O.P.No.2 submits
that the case is made out and rightly the learned court has taken cognizance
looking into the solemn affirmation as well as the enquiry witnesses. He
submits that section 482 Cr.P.C orders may be passed by the High Court with
circumspection and in view of that this Court may not interfere with the
matter.
7. The learned counsels appearing on behalf of the respondent
State in respective cases jointly submit that out of the complaint the learned
court has taken cognizance.
8. It is admitted position that the said occurrence is said to be
made on 21.07.2012 whereas the complaint case is lodged on 14.09.2012
without any explanation of filing such complaint case on such delay and if
such a situation is there, the case of the petitioners is covered in view of the
judgment of the Hon'ble Supreme Court in the case of Deo Lakhan
Paswan v. State of Jharkhand and Another (supra). Further it is an
admitted position that the O.P.No.2 has earlier filed the complaint case which
was registered as Sakchi P.S. Case No.114 of 2012 wherein final form has
been submitted stating that on account of wrecking vengeance the case has
been registered and recommendation was made for prosecution under
section 182 and 211 IPC. Further the proceeding under section 107 Cr.PC
was drawn by the O.P.No.2 and in the same also the police recommended to
take action against the O.P.No.2 under section 182 and 211 IPC. It is further
admitted position that earlier the case was filed by Bibha Kumari @ Vibha
Devi under section 498A IPC and subsequently all these cases have been
filed by the O.P.No.2 which clearly suggest that maliciously case after case
has been lodged by the O.P.No.2 against the petitioners. The ornaments are
stree dhan of any married woman as held by the Hon'ble Supreme Court in
the case of Smt. Rashmi Kumar v. Mahesh Kumar Bhada, AIR Online
1996 SC 699 and it is an admitted position that till date the divorce is not
taken place, however, up to the High Court the divorce petition filed by the
husband of Bibha Kumari @ Vibha Devi has already been rejected and the
same is pending before the Hon'ble Supreme Court. If such a situation is
there taking away the ornaments by Bibha Kumari @ Vibha Devi which is
stree dhan of any married woman no case under IPC section can be made
out.
9. In this background, if the matter is brought to the knowledge
of the High Court, particularly on the ulterior motive for wrecking vengeance
even in such a situation the Court is posed with a duty to look into the FIR
more carefully. Once the complainant decides to proceed against the accused
with ulterior motive for wrecking personal vengeance etc. then he could
ensure that the F.I.R /complaint is very well drafted with all necessary
pleadings. The complainant would ensure that averments made in the
complaint /F.IR are such that they would disclose the necessary ingredients
to constitute the alleged offence. In view of that the Court is required to read
the things in between the lines as held by the Hon'ble Supreme Court in the
case of Haji Iqbal @ Bala through S.P.O.A. v. State of Uttar Pradesh
and Others, 2023 SCC Online SC 946. Further the Court finds that the
order taking cognizance is also not in accordance with law. If such a situation
is there, and the learned Court is decided to proceed in the case, at least,
the prima facie materials are required to be disclosed in the order taking
cognizance which is lacking in the order taking cognizance dated 11.3.2014.
There is no doubt that the a longer order is not the requirement of passing
the order on the point of cognizance however prima facie materials are the
requirement for passing such order. The argument of Mr. Amit Kumar, the
learned counsel for the O.P.No.2 with regard to section 482 Cr.PC is not in
dispute as the said power is being utilized by the High Court with
circumspection however if a malicious case is brought to the knowledge of
the High Court, not applying its power will amount to injustice to the
aggrieved persons. In view of above facts, reasons and analysis, if the Court
would allow the proceeding to proceed further will amount to abuse of
process of law.
9. Accordingly, and hence, the entire criminal proceeding as
well as the order dated 11.03.2014 arising out of Complaint Case No.C/1-
2464/12 pending in the court of learned Judicial Magistrate, First Class, at
Jamshedpur are quashed.
10. Both these matters are allowed and disposed of.
11. Any proceeding pending between the parties will be decided
in accordance with law without prejudice to this order as this order is passed
as per the parameters of section 482 Cr.P.C.
( Sanjay Kumar Dwivedi, J.)
SI/, A.F.R.
