IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.36256 of 2008 PRIYANKA HANSA & ORS Versus STATE OF BIHAR & ANR ----------- Counsel for the Petitioners :- Mr. Alok Kumar Agrawal, Advocate Counsel for the Opposite :- Mr. Yogesh Chandra Verma, Party No. 2 Senior Advocate. Virendra Kumar, Advocate. Counsel for the State :- Mr. Nirbhay Kumar Singh, APP 04/ 19.08.2009 Heard counsel for the parties. This application has been filed challenging the order dated 09.08.2008 passed by the Additional Sessions Judge – IV, Patna in Cr. Revision No. 266 of 2008 and order dated 23.04.2008 passed by Sri Deepak Kumar Singh, Judicial Magistrate, Ist Class, Patna in Complaint Case No. 2214(c) of 2006 wherein the learned courts below have refused to discharge the petitioners for the offences under Sections 420, 406, 379, 323, 211 and 120B of the Indian Penal Code. The facts that are relevant to decide the issue in this case are as follows:- The petitioner no. 1 Priyanka Hansa had instituted the First Information Report alleging torture by her husband, father-in-law and mother-in-law after her marriage. In the said First Information Report, it has been stated that the petitioner was married with Rajeev Ranjan Priyadarshi on 8th July, 2003. 2 The reception took place on 12th July 2003 and she left for Patna to appear in the Library & Science Examination on 13.07.2003. Between 13.07.2003 and the date on which this case was filed i.e. on 14.09.2003, her husband Rajeev Ranjan Priyadarshi, Petitioner No. 1 and her father-in-law visited her father’s house on two occasions. It is alleged that Rajeev Ranjan Priyadarshi assaulted Priyanka Hansa on the night of the reception and at the time he visited her father’s house at Patna. The assault was made by the husband of Priyanka Hansa to pressurize her to accede to his demand of Rs.2 lacs and one motor cycle. Priyanka Hansa told her father in law about the unreasonable behaviour and demand made by her husband, but her father in law also supported the demand made by her husband, Rajeev Ranjan Priyadarshi. On the basis of the aforesaid allegation, charge sheet was submitted, cognizance taken and the case has been committed to the Court of Sessions for trial. Rajeev Ranjan Priyadarshi filed an application for restitution of conjugal rights numbered as Matrimonial Suit No. 07 of 2004 in which he has stated at paragraph 16 as follows :- “That the petitioner and respondent lastly co- 3 habitated on 11.07.2008”. This aspect is being emphasized in view of the stand of Rajiv Ranjan in the Divorce Case and the present case. It has been stated on behalf of the petitioner that after Rajeev Ranjan Priyadarshi was granted bail, he withdrew the suit for restitution of conjugal rights and filed Matrimonial Case No. 48 of 2005 of divorce before the Court of Principal Judge, Family Court, Bokaro on 25.04.2005 on the ground that his wife has deserted him. In this background the Court will examine the allegations made in present complaint case for the purpose of examining whether the court below was justified in rejecting the discharge petition filed on behalf of the petitioners. The present Complaint case No. 2214 (c) of 2006 was filed on 7.8.2007 by Smt. Pushpa Hansa i.e. mother-in- law of petitioner no. 1 in which the main allegations are as follows :- (a) That Priyanka Hansa is impotent and unfit for sexual inter-course and is unable to perform marital obligation. As per doctor’s report she is suffering from Dyspareunia i.e. unfit for sexual inter-course. (b) It is alleged that affidavit was filed in Hon’ble 4 High Court, Patna wherein it has been stated that Priyanka Hansa’s father paid Rs.50,000/- to Laxmi Narayan Sah and Pushpa Lata Devi on 04.07.2003 which is not true. A legal notice was sent to the concerned bank with regard to the issue of bank draft of Rs.50,000/- in favour of Laxmi Narayan Sah and Pushpa Lata Devi. The bank replied that draft nos. 0908633013 (Rs.10,000/-), 090633014 (Rs.20,000/-) and 090633015 (Rs.20,000/-) were prepared on 05.07.2005 which shows that no draft was prepared on 04.07.2003. (c) It is alleged that after the institution of the criminal case, the accused Dev Nandan received Rs.1,75,000/- from her husband at the intervention of well wishers for obtaining a mutual divorce but dishonestly he along with other accused persons did not file any such petition and deceived the complainant and her family members. Learned counsel for the petitioner submits that on the basis of the aforesaid allegations, no offence could be made out under Sections 420, 406, 379, 323, 211, 210B of the Indian Penal Code and the charges framed under these 5 sections are erroneous. Besides which, it has been submitted that this case comes under the exception mentioned in the case of State of Haryana Vs. Bhajan Lal reported in AIR 1992 supplementary ( 1 ) page 335. The allegations made in the complaint petition, that the petitioner is not fit for sexual intercourse, is on the basis of a so called medical opinion, in which it has been alleged that Priyanka Hansa was medically examined and found to be suffering from Dyspareinia. Even if it is presumed that petitioner no. 1 was suffering from the aforesaid ailment, the aliment cannot be known to a girl before her marriage and, therefore, it cannot be said assumed that the parents or the girl in question knew that she was suffering from this particular ailment before she was married. The allegation is also not fit to be believed on the ground that Rajeev Ranjan Priyadarshi has stated in his application before the Principal Judge, Family Court, Bokaro that he co-habited with his wife on 11.07.2008. Both the statements are contradict each other and not fit to be believed as the statement that the petitioner no. 1 co-habited with her husband given before the Principal Judge would amount to an admission by him and such the allegation in the complaint 6 petition is prima facie falsified. In this context, counsel appearing on behalf of the opposite parties has drawn the court’s attention to the finding given by the Principal Judge, Family Court at Bokaro wherein the court has relied on Exhibit 1 medical prescription given by the doctor to certify that Priyanka Hansa was suffering from Dyspareinia, he has defined this disease, as difficult and painful sexual intercourse. This court can take judicial notice of the fact that the disease is curable one and can be medically treated and, therefore, it cannot be said that on this ground, the petitioner had committed fraud or had done an act which can be penalized under the Indian Penal Code. The second part of the allegation is that the petitioner has sworn an affidavit in the court to say that he had made payment of Rs.50,000/- to Laxmi Narayan Sah and Pushpa Lata Devi by bank drafts. Learned counsel for the opposite party no. 2 refers to a letter mentioned in his complaint petition addressed to the Deputy Manager, State Bank of India contained in Annexure 7 series dated 5.11.2005. It has been submitted that the Bank Manager has stated that drafts were made on 5.7.2005. Learned counsel appearing on behalf of the 7 petitioner, on the other hand, submits that the date has been wrongly mentioned as of the year 2005 on account of the fact that the letter itself was issued in the year 2005 but in fact these drafts have been prepared in the year 2003 at the time of the marriage. Learned counsel appearing on behalf of the opposite party objects that the aforesaid letters cannot be taken into consideration by this Court at this stage of the proceedings and on the ground that these documents can only be considered at the time of trial of the case. Since the complaint petition itself refers to the letter of the bank, therefore, this Court finds no difficulty in referring to the letter of the Bank Manager. Apart from which it is quite clear that these drafts were paid to Laxmi Narayan Sah and Pushpa Lata Devi and it cannot be said that payment of such a draft by itself constitute an offence. It appears that the Bank Manager has erroneously made a typing mistake in giving the date. It is also obvious by making such an allegation the complainant is perhaps trying to build up a defence in the earlier case filed by Priyanka Hansa in which the complainant and her husband are accused, wherein it is alleged that the bank drafts were given at the time of the marriage apart from a dowry amount of Rs.3.02 lac. The allegation is that the aforesaid amount is part 8 of Rs.1,75,000/- that had been paid to the father of the petitioner no. 1 i.e. by the complainant and her husband for the purpose of filing petition under Section 13(3) of the Hindu Marriage Act for mutual divorce. The said amount is said to have been paid by way of a compromise to settle the disputes. It would be apparent from annexure – 9 series that Rs.1,75,000/- was paid to Deonandan by Laxmi Narayan Sah on 3rd June, 2003. This amount appears to have been paid prior to the marriage which was solemnized on 8th July 2003. The learned counsel for the petitioner accepts that he had paid this amount to Sri Laxmi Narayan Sah through a bank draft. Since the amount was paid before the marriage itself, this Court finds that the allegation that his amount was paid by way of a compromise for filing an application for mutual divorce does not appear to be correct and as such this Court finds that the allegation is completely unsubstantiated. Having dealt with the allegations made in the complaint petition, it appears that no case is made out under Section 420 of the Indian Penal Code. The offence described above could not come within the definition of Section 415 of the Code of Criminal Procedure which defines cheating and it envisages firstly that there must be a fraudulent or dishonest 9 inducement and secondly that there must be an intention at the time when the offence is committed. The allegation that the petitioner no. 1 was suffering from disease is not borne out from the records and as stated earlier by me this disease is cureable. The question of payment of Rs.50,000/- or Rs.1,75,000/- is also not borne out from the facts as stated in the complaint petition and the documents referred to. It has been strenuously argued on behalf of opposite party no. 2 that this Court cannot look into the documents for considering whether an offence is made out in the complaint petition. The judgment in the case of Rukmini Narvekar Vs. Vijaya Satardekar & Ors. reported in (2008) 14 S.C.C. 1 wherein the Supreme Court while dealing with this aspect of the matter has laid the law as to when criminal proceedings can be quashed by the High Court in exercise of powers under Section 482 of the Code of Criminal Procedure. The Supreme Court by referring to a decision in the case of State of Orrisa Vs. Debendra Nath Padhi (2005) 1 S.C.C. 568 has held that the powers of the High Court under Section 482 of the Cr. P. C and Article 226 of the Constitution is unlimited and the High Court can make such orders as may be necessary to prevent abuse of the process of the Court or 10 otherwise to secure ends of justice within the parameters laid down in the case of Bhajan Lal and in this context the Supreme Court has also held that in some exceptional cases, the defence materials shown in the court can be looked into at the time of framing of charges or taking cognizance. Therefore, in conclusion the Apex Court has held that it cannot be said as an absolute proposition that under no circumstances can the court look into the material produced by the defence at the time of framing of charges, though this should be done in very rare cases i.e. where the defence produces some materials which convincingly demonstrates that the whole prosecution case totally absured or totally concocted. In the opinion of this court, this is one of those rare and exceptional case where this court can look into the defence materials. Strictly speaking the materials referred to by the petitioners are mentioned in the complaint petition and, therefore, I find no difficulty in referring to the materials mentioned aforesaid, for the purpose of deciding this case. Learned counsel for the opposite party has also strenuously argued that in view of the fact that the decree of divorce has been granted by the court below, this court ought 11 to hold that the petitioner no. 1 is in fact guilty of the offence as mentioned in the complaint petition. The grounds taken in the divorce petition is alleged desertion. An exparte decree of divorce was granted on 28.01.2008 Rajeev Ranjan has alleged that he was deserted by his wife, maltreated and that she was not fit for performing her sexual obligations. The petitioner no. 1 had filed her written statement but did not appear in Bokaro (Jharkhand) to defend herself and lead evidence. The argument is that the Principal Judge came to a conclusion and granted divorce on the ground of desertion and on the ground that petitioner no. 1 was suffering from a sexual disorder namely, Dyspareinia The finding of the Principal Judge is based on a medical certificate. On the basis of the aforesaid finding learned counsel for the opposite party argues that the allegation that the petitioner had a sexual dyfunction is substantiated. The allegation that the petitioners has cheated the complainant or her son, by suppressing the fact that the petitioners were suffering from Dyspareunia cannot be given much credence in view of the fact that the complainant’s son has stated in his petition for restoration for conjugal rights that he had co-habited with his wife, i.e. petitioner no. 1 on 12 11.07.2008. This statement on oath completely belies the allegations made in the complaint petition. As states earlier by me, Dyspareunia is curable and cause can be both physical and mental. It is curable and a surmountable problem even if it is presumed that it is correct. With regard to the submissions of the opposite party, learned counsel for the petitioner on the other hand submits that the petitioner no. 1 was not in a position to appear before the Court at Bokaro on each and every date and contest the case due to the distance and lack of funds and, therefore, submits that even if the findings are accepted, it cannot be said that the petitioner would be guilty for the offence as alleged in the petition. This court finds that this complaint case comes under the exception 1 and 7 as described in the case of Bhajan Lal, which are quoted hereinabove (!) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (11) Where a criminal proceeding is manifestly 13 attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. In the facts of this case this Court has found that the allegations do not prima facie constitute any offence for which charges could have been framed and also finds that the entire case has been filed maliciously because of the First Information Report filed by the petitioner no. 1 is a backlash to Budha Colony P. S. Case No. 137 of 2003 filed by petitioner no. 1 which has already been committed to the Court of Sessions alleging torture on account of demand of dowry. Learned counsel at this stage submits that he has also filed Cr. Misc. No. 42064 of 2007 for quashing the order of cognizance, which case was pending before this Court. During the pendency of the aforesaid case the present order dated 23.04.2008 refusing to discharge the petitioner was passed and as such separate application has been filed for quashing of the said order. Obviously the order taking cognizance will fuse with the order of the Judicial Magistrate Ist Class Patna 14 refusing to discharge petitioners. I accordingly quash the order dated 09.08.008 passed by the Additional Sessions Judge IV, Patna in Criminal Revision No. 262 of 2008 and the order dated 23.04.2008 passed by the Judicial Magistrate - Ist Class, Patna in Complaint Case No. 2214 (C) of 2003 rejecting the discharge petition. In the result, this application is allowed. kundan (Sheema Ali Khan, J.)