Excerpt:
Jharkhand High Court
Om Prakash Yadav vs The State Of Jharkhand And Anr on 27 November, 2017
      IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   Cr. Rev. No.977 of 2015
      Om Prakash Yadav                                      .....Petitioner
                               Versus
      1. The State of Jharkhand.
      2. Khusboo Kumari                                     ....Opposite Parties
                               -----
      Coram: HON'BLE MR JUSTICE RONGON MUKHOPADHYAY
                               -----
      For the Petitioner       : Mr. A.K. Choudhary, Advocate
      For the State            : APP
      for the O.P. No.2        : none

                             ----
08/27.11.2017

: Heard learned counsel for the petitioner and learned Addl. P.P. for State. However, no one appears on behalf of Opp. Party No.2.

This criminal revision application is directed against the order dated 09.07.2015 passed in Madhupur P.S. Case No.101 of 2014 (G.R. No.212 of 2014 and T.R. No.1051 of 2015) by learned Sub Divisional Judicial Magistrate, Madhupur whereby and whereunder, application for discharge preferred by the petitioner has been rejected.

It has been stated by learned counsel for the petitioner that prior to institution of the Complaint Case, on a suit filed by the petitioner under Section 13(B) of the Hindu Marriage Act, the marriage between the petitioner and the Opp. Party No.2 was dissolved vide order dated 16.02.2014. Learned counsel for the petitioner further submits that surprisingly, the judgment passed by learned Principal Judge, Family Court, Deoghar has been challenged before learned Sub Divisional Judicial Magistrate, Madhupur by filing a suit and for its dismissal, application has already been preferred by the petitioner.

Learned counsel for the petitioner submits that since the marriage between both the parties has been dissolved and the complaint filed is an event, which was subsequent to the judgment passed by learned Principal Judge, Family Court, Deoghar, the complaint case filed by the Opp. Party No.2 is a malicious prosecution and deserves to be quashed and set aside.

The complaint petition was filed on 25.03.2014, which, on being referred to the Police under Section 156(3) Cr.P.C. got registered as FIR being Madhupur P.S. Case No.101 of 2014 on 04.04.2014 for the offence punishable under Sections 147, 148, 149, 323, 341, 452, 498(A) of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. However, charge sheet was submitted by the police only under Sections 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act.

The complaint petition reveals an act of torture and demand made by the accused persons as also termination of pregnancy on account of physical assault. It also reveals that on 21.03.2014, the accused persons by forming unlawful assembly had assaulted the complainant and her father and have refused to like back the complainant until demand of Rs.50,000/- is made. The complaint petition appears to be in two parts:- the 1 st part is with respect to the incident, which had been taken place prior to the dissolution of the marriage between the petitioner and the Opp. Party No.2 and the 2nd part is for the occurrence dated 21.03.2014.

The complainant, as it seems, did not have any grievance with respect to the 1st part of the of the occurrence, as no complaint case was earlier instituted as she had willingly agreed to file an application under Section 13(B) of the Hindu Marriage Act for dissolving the marriage between the petitioner and her husband, which ultimately resulted in judgment being passed on 16.02.2014 by the learned Principal Judge, Family Court, Deoghar.

Perusal of the judgment dated 16.02.2016 also reveals that none of the parties were agreeable to stay together and even after six months’ time frame given, there was no change in the circumstances arrived at between the parties and the complainant has stated that she does not want to stay with the petitioner and that she does not have any demand for maintenance or on any other aspects. The malafide intention of the complainant is evident from the fact that just after the marriage between the petitioner and the complainant was dissolved, she has filed a complaint petition on 25.03.2014, making allegation that on 21.03.2014 she and her father were subjected to physical assault and the petitioner did not want to keep the complainant with him until and unless the demand is met.

On the date of incident, admittedly, there was no valid marriage subsisting between the petitioner and the complainant and in fact, police has submitted final form and charge sheet has been submitted only under Section 498A of the Indian Penal Code and Section 3/4 of the D.P. Act. It further appears that a suit has been filed by Opp. Party No.2 that too before the learned Sub Divisional Judicial Magistrate, Madhupur for setting aside the judgment passed in Matrimonial Suit No.119 of 2013, which was disposed of by learned Principal Judge, Family Court, Deoghar. The petitioner has already been taken steps to get the said suit dismissed, as he has already filed an application under Order V Rule11 (1(d) C.P.C.

Thus, the narration of event, as has been made by this Court, in the preceding paragraphs, do lead to a conclusion that filing of the present case is a malicious prosecution on the part of the Opp. Party No.2.

Learned court below, at the time of hearing of the discharge application preferred by the petitioner, has merely relied upon some prescriptions in order to come to a conclusion that sufficient grounds is existing for framing of charge under Section 498A of the Indian Penal Code, without resorting to the background of the case, which would clearly prove that filing of the complaint case itself was malafide on the part of the Opp. Party No.2.

Accordingly, in view of what has been stated above, this application is allowed and the impugned order dated 09.07.2015 passed in Madhupur P.S. Case No.101 of 2014 (G.R. No.212 of 2014 and T.R. No.1051 of 2015) by learned Sub Divisional Judicial Magistrate, Madhupur is hereby quashed and set side.

The petitioner is discharged from the criminal prosecution.

(Rongon Mukhopadhyay,J) Ravi/-

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