IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.24010 of 2007 RAMESH MANDAL Versus STATE OF BIHAR & ANR ----------- For the Petitioner: M/s. Pramod Kumar Sinha, Rakesh Kumar Sinha and Arvind Kumar Sharma No.1, Advocates. For the State : Mr. Jharkhandi Upadhyaya, A.P.P. For O.P. No.2 : M/s. Ganpati Trivedi and Tarkeshwar Prasad Verma, Advocates. --------------- O R D E R The petitioner through this application under Section 482 Cr.P.C. has prayed for the quashing of the entire criminal prosecution arising out of Complaint Case No.842(C) of 2006 including the order dated 19.2.2007 passed by the learned Sub Divisional Judicial Magistrate, Munger, whereby and whereunder he has taken cognizance of offences under Sections 498A/323 I.P.C. and has directed for issuance of process. The complainant, Sushma Devi, O.P. No.2 herein, filed the aforesaid complaint against the sole petitioner inter alia stating that her marriage with the accused was solemnized on 15.6.1980 and out of the said wedlock a daughter was born. It is alleged that the complainant being the only daughter of her father, the petitioner became greedy and in order to grab the property of the father-in-law he resorted to torturing the complainant. It is stated that even earlier the petitioner had assaulted the complainant for which Kotwali P.S. Case No.159 of 1984 under Sections 307,342/34 I.P.C. was lodged - 2 - and petitioner was convicted and sentenced for three years in the resultant Sessions Trial No.488 of 1984. It has further been alleged that the complainant with financial help from her father brought up and got married their daughter, Sulekha, who had by then reached the age of marriage. It is also alleged that fed-up with the threats extended by the petitioner and perceiving no change in him she filed Divorce Case No.18 of 1997 which ended in compromise. It has further been stated that the complainant thereafter has been living in her matrimonial home for the last five years and as she did not keep good health and the petitioner neglected her she came to her parental home. It is also alleged that at around 9 A.M. on 28.8.2006 the petitioner came to the parental home of the complainant and requested her to return to the matrimonial home and as she refused the petitioner caught hold of her hair and assaulted her and when her father came to her rescue the petitioner threw a ‘Baithi’ (Sickle) at him which missed the mark and instead hit the complainant on her hand causing injury and seeing the same the petitioner ran away. Assailing the impugned order it was sought to be submitted on behalf of the petitioner that he was falsely sought to be implicated as he had refused to condescend to the wishes of the complainant and her father of making him a Ghar –Jamai , she being his only daughter. It has submitted that in this background when the petitioner had gone out of his house on 23.8.2006 the complainant without informing the petitioner went to her parental home and when the petitioner returned on 27.8.2006 he was informed of the departure of - 3 - the complainant by his mother and of her return on 29.8.2006 but when she did not return the petitioner had gone to his Sasural where he was manhandled and assaulted by the father-in-law whereafter he came back with a request to send back the complainant. It has further been submitted that when she did not come back he sent a legal notice by registered post on 31.8.2006 to his father-in-law which infuriated him and has resulted in the instant complaint with concocted facts and statements. It was further sought to be submitted that on 21.11.2006 the petitioner had filed Title Suit No.92 of 2006 before the Principal Judge, Family Court, Munger under Section 9 of the Hindu Marriage Act for restitution of conjugal rights wherein a joint written statement had been filed by the complainant and her father who had been made defendants therein and by order dated 20.4.2007 a decree of divorce was granted on admission as the complainant had refused to live with the petitioner. Section 498-A I.P.C. reads as follows: Section 498-A I.P.C.: 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 purposes of this Section, ‘cruelty’ means- (a). Any willful 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 - 4 - (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 valuable security is on account of failure by her or any person related to her to meet such demand. Section 498-A I.P.C. was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands and she was subjected to cruelty by them. The term ‘cruelty’ is defined under the explanation. In the instant case, according to the complaint petition, the wife-complainant for the last five years preceding the filing of the complaint was living in her matrimonial home but as she was not maintaining good health and was not being cared for properly by the husband she left the matrimonial home to live with her parents. Obviously, during this period there was no mention at all of any demand being made or her being subjected to cruelty, mental or physical, and even harassment which was with a view to coerce her or any person related to her to meet the unlawful demand for any property or valuable security or was on account of failure by her or any person related to her to meet such demand. That apart no specific instance of any overt act or acts have been divulged to show that the complainant had been subjected to any form of cruelty. From a plain reading of the complaint petition and the statement of the witnesses recorded in course of inquiry under Section 202 Cr.P.C., I am of the opinion that no offence under Section 498-A - 5 - I.P.C, appears to have been made out against the petitioner and his prosecution thereunder would be an abuse of the process of the court. However, offence under Section 323 I.P.C. does appear to have been made out and the petitioner will have to face the trial for the same. In the result, the application is allowed in part and cognizance taken under Section 498-A I.P.C. is hereby quashed. The court will, however, proceed in respect of the offence under Section 323 I.P.C. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 18th of July, 2008. Pradeep Srivastava/A.F.R.