Santosh vs State Of Rajasthan
2021 Latest Caselaw 12620 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              S.B. Criminal Misc(Pet.) No. 486/2019

Santosh D/o Ladhu Ram, Aged About 34 Years, By Caste Jat,
Resident Of Khatu Badi, Tehsil Jayal, District Nagaur.
                                                                   ----Petitioner
                                   Versus
1.     State Of Rajasthan, Through PP
2.     Rameshwari      Devi      D/o      Shrawan          Ram,   Resident    Of
       Chandki, P.S. Degana, District Nagaur.
                                                                ----Respondents


For Petitioner(s)        :     Mr. Ravindra Acharya.
For Respondent(s)        :     Mr. B.R. Bishnoi, AGC.
                               Mr. Aidan Choudhary.



           HON'BLE MR. JUSTICE SANDEEP MEHTA

                             JUDGMENT

Judgment pronounced on                 :::             12/08/2021
Judgment reserved on                   :::             05/08/2021



BY THE COURT :

1. The instant misc. petition under Section 482 Cr.P.C. has been

filed by the accused petitioner Santosh for assailing the order

dated 20.12.2018 passed by the learned Sessions Judge, Merta,

District Nagaur in Criminal Revision No.188/2018 affirming the

order dated 12.09.2018 passed by the learned ACJM, Degana,

District Nagaur directing framing of charges against the petitioner

for the offences under Sections 498A and 406 of the IPC.

2. Briefly stated, the facts relevant and essential for disposal of

the misc. petition are noted herein below:

                                          (2 of 7)                   [CRLMP-486/2019]



     The      respondent      No.2       complainant             Rameshwari     Devi

submitted a report at the Police Station Degana on 23.04.2016

alleging inter alia that she was wedded to Shri Prahlad Ram in

Samvat 2045. The 'Muklawa' ceremony was performed after four

years and at that time, significant dowry articles were given to the

husband and the other matrimonial family members. However, the

complainant was continuously maltreated in the matrimonial home

on account of demands of dowry. She gave birth to a daughter

named Paras in the year 2004 and a son named Kuldeep in the

year 2006. But despite that, the accused persons continued their

cruel behaviour towards the complainant. Prahlad was selected as

a Teacher under the Prabodhak Recruitment Services Rules, 2008

whereafter, the demand of the accused increased. The

complainant was continuously pressurized to bring more dowry

from her parents who requested the accused persons from

stopping their cruel behaviour but they did not relent. The accused

hatched a conspiracy and in furtherance thereof, the accused

Prahlad contracted a second marriage with Santosh D/o Ladhu

Ram (the petitioner herein). The complainant protested against

this grossly illegal act on which, she was threatened with dire

consequences. The complainant was turned out of the matrimonial

home by snatching her dowry articles.

On the basis of this report, an FIR No.77/2016 came to be

registered at the Police Station Degana, District Nagaur and

investigation was commenced. During the course of investigation,

statements of various witnesses were recorded who alleged that

the complainant was turned out of the matrimonial home and that

the accused Prahlad had contracted a second marriage with

Santosh. It was also alleged that a Panchayat was convened to

(3 of 7) [CRLMP-486/2019]

resolve the dispute and the husband gave a written undertaking

offering to maintain and to pay subsistence money to the

complainant Rameshwari Devi but thereafter, he resiled from his

promise. The FIR came to be lodged as a conequence. After filing

of charge-sheet, the trial court proceeded to frame charge against

all the accused persons including the present petitioner for the

offences under Sections 498A and 406 IPC by the order dated

12.09.2018 which is reproduced hereinbelow for the sake of ready

reference:

"eqyfte izgyknjke o larks'k cj tekur e; vf/koDrk miA cgl pktZ lquh xbZ] vkjksi i`Fkd ls fojfpr dj eqyfteku dks lquk;s o le>k;s x;s rks eqyfte us vkjksi vLohdkj dj vUoh{kk pkghA lkŒ vŒ esa xokg lŒ 1 ls 5 tfj;s lEeu ls ryc gksdj i=koyh okLrs lkŒ vŒ gsrq fnŒ [email protected]@18 dks is"k gksA"

The revision preferred against the order framing charge has

also been dismissed by the revisional court by order dated

20.12.2018 assigning the following reasons:

"6& n.M izfØ;k lafgrk dh /kkjk 239 ,oa 240 ds vuqlkj iqfyl izfrosnu ,oa mlls layXu izys[kksa ij gh lE;d~ :i ls fopkj djus ds i"pkr~ vkijkf/kd U;k;ky; vfHk;qDr dks mUeksfpr dj ldrh gS vFkok vfHk;qDr ds fo:) vkjksi fojfpr dj ldrh gSA i=koyh ds voyksdu ls Li'V gS fd vuqla/kku ds nkSjku xokg jkenso] jkedSyk"k] vk"kkjke ,oa QsQknsoh ds n.M izfØ;k lafgrk dh /kkjk 161 ds vUrxZr ys[kc) c;kuksa dks n`f'Vxr j[krs gq, izkfFkZ;[email protected]{k.kdrkZ larks'k ds fo:) Hkkjrh; n.M lafgrk ds /kkjk 498 , rFkk 406 ds vijk/k esa vkjksi fojfpr djus ds i;kZIr vk/kkj gSA vr% vkyksP; vkns"k esa fdlh izdkj dh v"kq)rk] voS/krk ,oa vfu;ferrk ifjyf{kr ugha gksrh gSA fu'd'kZr% fo}ku~ v/khuLFk U;k;ky; }kjk ikfjr vkns"k fof/k laxr gksus ds dkj.k izkfFkZ;[email protected]{k.kdrkZ dk iqujh{k.k izkFkZuk i= fujLr fd;s tkus ;ksX; gSA"

(4 of 7) [CRLMP-486/2019]

Being aggrieved by the aforesaid two orders, the petitioner

has approached this Court through this petition under Section 482

Cr.P.C.

3. Shri Ravindra Acharya, learned counsel representing the

petitioner, vehemently and fervently contended that the entire

prosecution case is false and fabricated. As per the admitted case

of the complainant, the petitioner could not have been treated as

legally wedded to Prahlad and as such, she would not having the

legal status of a wife nor could she be said to be in any kind of

relationship with Prahlad. He thus urges that the order framing

charge against the petitioner is absolutely illegal because she

cannot be termed to be "a relative of the husband" within the

meaning of Section 498A IPC so as to permit her prosecution in

the case. He further urged that admittedly, no entrustment of any

dowry articles of the complainant was ever made to the petitioner

and thus, she could not have been charged for the offence under

Section 406 IPC as well. He thus implored the Court to set aside

the impugned orders while accepting the misc. petition.

4. Per contra, Shri Aidan Choudhary, learned counsel

representing the complainant, vehemently and fervently opposed

the submissions advanced by the petitioner's counsel. He

submitted that the complainant Rameshwari Devi has categorically

asserted in the FIR as well as in her statement recorded under

Section 161 Cr.P.C. that during the subsisting marriage, the

accused Prahlad remarried the accused petitioner Santosh on

20.07.2015. He thus urged that this Court should refrain from

(5 of 7) [CRLMP-486/2019]

interfering in the impugned orders because at the stage of framing

of charge, the trial court is not required to enter into a detailed

discussion of evidence and a mere opinion that the accused is

prima facie responsible for the offences alleged is sufficient to

justify framing of charge. On these grounds, Shri Choudhary

implored the Court to dismiss the misc. petition while affirming

the impugned order.

Learned Public Prosecutor has also supported the arguments

advanced by Shri Choudhary.

5. I have given my thoughtful consideration to the submissions

advanced at bar and have gone through the impugned orders as

well as the material available on record.

6. For the sake of ready reference, Section 498A IPC is

reproduced herein below:

"498A. Husband or relative of husband of a woman subjecting her to cruelty.-- Whoever, being the husband or "the relative of the husband of a woman", subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation.--For the purpose of this section, "cruelty" means--

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or

(6 of 7) [CRLMP-486/2019]

valuable security or is on account of failure by her or any person related to her to meet such demand."

(Emphasis Supplied).

7. Manifestly thus, the person who can be prosecuted under

this provision, should be either the husband or his relative.

If the statement of the complainant is seen, she categorically

stated that her legally wedded status with the accused Prahlad

subsisted but despite that, he entered into a second marriage with

the present petitioner. Manifestly thus, the so-called marriage of

Prahlad with the present petitioner would not give the status of

wife to the petitioner as the marriage itself is void. Hence, the

petitioner cannot be termed to be a relative of the husband. That

apart, it is the ipse dixit of the complainant that her husband

Prahlad had married the present petitioner. The investigating

officer did not collect any photographs etc. of the marriage nor

was any witness, who was present in the alleged second marriage

ceremony, examined so as to substantiate this allegation. Even

going by the admitted statement of the complainant, she never

entrusted any of her dowry articles to the petitioner herein and

thus, ex-facie there was no occasion for framing charge against

the accused petitioner for the offence under Section 406 IPC. For

framing charge against an accused in a warrant triable case

instituted on a police report, the Magistrate has to form an

opinion, as per Section 240 Cr.P.C., that there is a ground for

presuming that the accused has committed an offence triable

under Chapter XIX which such Magistrate is competent to try and

which in his opinion could be adequately punished by him and only

thereafter, the charge can be framed against the accused. If the

(7 of 7) [CRLMP-486/2019]

order dated 12.09.2018 passed by the trial court is perused, it is

apparent that no such opinion as is mandatorily required to be

formulated by Section 240 Cr.P.C., was expressed by the

Magistrate before directing framing of charges against the accused

petitioner for the above offences. Even the revisional court, while

deciding the revision, acted in a totally laconic manner and made

a bald reference that the witnesses examined under Section 161

Cr.P.C. had stated against the accused. The glaring illegality

regarding non-permissibility of prosecution of the accused

petitioner for the offences alleged was never examined by the

revisional court.

8. In wake of the discussion made herein above, I am of the

firm opinion that allowing trial of the petitioner in the case for the

offences punishable under Sections 498A and 406 IPC would be

nothing short of a gross abuse of process of law and hence, the

impugned orders cannot be sustained qua the petitioner.

9. As a consequence, the misc. petition deserves to be and is

hereby allowed. The impugned order dated 20.12.2018 passed by

the learned Sessions Judge, Merta, District Nagaur and the order

dated 12.09.2018 passed by the ACJM, Degana, District Nagaur

and all proceedings sought to be taken thereunder are quashed

qua the petitioner. However, the trial of the other accused persons

shall continue as per law. Stay application is disposed of.

(SANDEEP MEHTA),J

74-Tikam/-

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