Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.11815 of 2011 ====================================================== Pramod Kumar .... .... Petitioner/s Versus The State Of Bihar .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr.Daya Nand Singh,Adv. Mrs. Sucheta Yadv, Adv. For Opposite Party No.2 : Mr. Mr. Suraj NarainYadav ,Adv. Mr.Pramod Rajpati,Adv. For the State :. Mr. S.C.Mishra, APP. ====================================================== CORAM: HONOURABLE MR. JUSTICE SHIVAJI PANDEY ORAL ORDER 4 27-11-2012 Heard learned counsel for the petitioner, for the O.P.No.2 and for the State. In this case, petitioner is challenging the FIR of Maner P.S.Case No. 37 of 2011 dated 14th February 2011 for the offences [STATUTE] ¾ of D.P.Act. The present FIR has been lodged by the O.P.No.2 in which allegation has been made against the petitioner that the marriage of O.P.No.2 was solemnized with him on 5th May 2007 as per Hindu rites and rituals and to the capacity of parents, substantial gifts worth Rs.2,00,000/- was given to him. After some time, the accused persons started torturing her and were demanding Rs.1,00,000/- and when it was refused, they threatened for dire consequences, which led to filing of the present case. Patna High Court Cr.Misc. No.11815 of 2011 (4) dt.27-11-2012 2 / 4 2 Counsel for the petitioner submitted, the FIR was instituted on 14th February 2011 and the decree of divorce was passed on 17th January 2011 and that too, a consented decree of divorce was passed where the O.P. had appeared through lawyer and as such the present criminal case is an abuse of process of the court. In support of his contention, counsel for the petitioner has relied on the judgment reported in 2006(2) PLJR 26 Dr. Ajeya Verma v. State of Bihar). Counsel for the petitioner submits that when the decree of divorce has been passed, there is no justification for continuation of criminal proceeding. If the O.P. was any way aggrieved, she could have filed an appeal as provided under the Family Court Act. Counsel for the O.P. has vehemently opposed the submission of the petitioner and submitted that the marriage was solemnized on 5th May 2007 and the decree of divorce was passed on 21st January 2011. It has further been submitted that two addresses were given in the body of the petition but no notice was ever served upon the O.P.No.2. It has further been submitted that when the O.P. could know about decree of divorce, a Misc. Case, vide Misc.Case No.4 of 2011 was filed for setting aside the same and notice has been issued on 8th August 2011 whereupon the Patna High Court Cr.Misc. No.11815 of 2011 (4) dt.27-11-2012 3 / 4 3 petitioner has appeared on 29th July 2011 and also filed a show cause on 6th January 2012. Counsel for the O.P. No.2 has submitted that the petitioner has obtained the decree of divorce fraudulently and, as such, judgment relied on by the counsel for the petitioner is not applicable so much so that the allegation made against the petitioner are prior to obtaining decree of divorce and, as such, any judgment in divorce case will have no relevance. Having considered the rival contention of the parties, when there is allegation of fraudulent act on the part of petitioner, that too, especially when he filed the present petition, purposely did not bring on the record the factum of filing Misc. case for setting aside the decree of divorce and his appearance in the case is a material suppression of fact, itself is sufficient for dismissal of the petition. It is well settled principle of law that a judgment/order obtained by playing fraud is a nullity .Every court or forum has jurisdiction to declare its order nullity, if the same has been obtained by fraud. In this view of the matter, this petition does not survive and is, accordingly dismissed. Counsel for the petitioner makes oral prayer for leave to move before the Hon’ble Supreme Court. This Court is of the view that it is not such a case where leave should be granted to Patna High Court Cr.Misc. No.11815 of 2011 (4) dt.27-11-2012 4 / 4 4 the petitioner to move the Hon’ble Supreme Court, when there is allegation of playing fraud with the court. Jay/- (Shivaji Pandey, J)

Applicable IPC Section: 380

Statute Text:
Section 380 of the Indian Penal Code. Theft in a building, tent or vessel. Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.