IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Crl. Misc. Application No. 948 of 2007 Dayal Joshi S/o late Sri Chandra Mani Joshi R/o Village Talli Mirai, P.s. Dwarhat, District Almora Present Address Posted as Operator in Hindustan Zinc Limited Dwari Samalte -Colony, H.No. 217 -B/4, Udaipur, Rajasthan. ...…………. Petitioner Versus 1. State of Uttarakhand 2. Smt. Uma Joshi W/o Dayal Joshi D/o Sri Bhola Dutt Harbola R/o Anchalpur, Haripur Road Haripur, Nanak Colony, Haldwani, Nainital. ...…………. Respondents Mr. A.M. Saklani, Advocate for the petitioner. Mr. Prabhakar Joshi, Brief Holder for respondent State. Mr. Amit Kapri, Advocate for respondent No. 2 / complainant. Hon’ble Prafulla C. Pant, J. By means of this petition, moved under Section 482 of the Code of Criminal Procedure, 1973 (for brevity hereinafter referred as Cr.P.C.), the petitioner has sought quashing of the proceedings of Criminal Case No. 1770 of 2007; State Vs. Dayal Joshi, relating to offences punishable under Section 498-A and 506 of I.P.C., and one punishable under Section 3/4 of the 2 Dowry Prohibition Act, 1961, police station Haldwani, District Nainital, pending in the court of Addl. Chief Judicial Magistrate, Haldwani. 2) Heard learned counsel for the parties and perused the affidavit, counter affidavit and rejoinder affidavit filed on behalf of the parties. 3) Brief facts of the case are that the petitioner Dayal Joshi got married to respondent No. 2 Uma Joshi on 24.04.1992. After marriage a daughter named Khusboo was born out of the wedlock. Since the petitioner was working in Rajasthan with Hindustan Zinc Limited, the respondent No. 2 / complainant lived there for sometime. After the birth of the daughter, it appears that the relations between the parties to matrimony soured, and the respondent No. 2 / complainant started living in her parental house. It is pleaded in the petition by the present petitioner that she is living in her parental house at Haldwani, since 1996. The first information report appears to have been lodged after about 10 years on 28.04.2006, by the complainant against her husband Dayal Joshi (present petitioner) and his sister Bimla. The proceedings of the criminal case based on the charge sheet, have been challenged by the petitioner on the ground that the same are abuse of process of law on the part of the respondent No. 2 / complainant. 3 4) Admittedly, the marriage between the petitioner Dayal Joshi and respondent No. 2 Uma Joshi took place in the year 1992. It is also not disputed that in the year 1995, their daughter Khusboo born. It is also not disputed that the petitioner is living in Rajasthan, while the respondent No. 2 is living at Haldwani (District Nainital). Learned counsel for the petitioner drew attention of this Court to the fact that the petitioner filed a divorce petition against respondent No. 2 on first of April 2006, in Udaipur, Rajasthan. It is contended that the first information report in question was lodged as a counter blast to the divorce petition on 28.04.2006, which is apparent from the record. It is not disputed by respondent No. 2 that the divorce petition was not filed by her husband before the first information was lodged. It is surprising that for ten years the respondent No. 2 / complainant did not make a complaint relating to demand of dowry or harassment due to such demand, and suddenly filed a first information report at the end of April 2006, after the divorce petition is filed. Prima facie, it appears to be a case of abuse of process of law. Section 498-A of the Indian Penal Code, 1880, reads as under: “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. 4 Explanation. –For the purposes 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 valuable security is on account of failure by her or any person related to her to meet such demand.” 5) Learned counsel for respondent No. 2 submitted that the petitioner has kept another woman with him and he had treated the respondent No. 2 with cruelty. The definition of cruelty is clear from the provision of law, quoted above. The conduct alleged against the petitioner does not constitute the ‘cruelty’ as defined in Section 498-A of I.P.C., quoted above. It is not mentioned in the first information report that what was the demand of dowry made by the petitioner. Learned counsel for the petitioner pointed out that after investigation the police submitted final report, but the Magistrate did not accept the same on protest petition, and directed to re-investigate on which charge sheet was filed. In the opinion of this Court the powers conferred on the Magistrate under Cr.P.C. empowers 5 him either to accept the final report or reject it, and to take cognizance on the basis of the evidence collected by the Investigating Officer, and summon the accused. The third option for the Magistrate was to treat the protest petition as criminal complaint and record the statement of the complainant under Section 200 of Cr.P.C., then to proceed further. A Magistrate cannot direct the Investigating Officer to reinvestigate just to make him to file charge sheet. 6) Having considered submissions of learned counsel for the parties and after going through the papers on record, this Court is of the opinion that it is a clear case of abuse of process of law, and as such, the proceedings of the criminal case No. 1770 of 2007; State Vs. Dayal Joshi, relating to offences punishable under Section 498-A and 506 of I.P.C., and one punishable under Section 3/4 of the Dowry Prohibition Act, 1961, police station Haldwani, District Nainital, pending in the court of Addl. Chief Judicial Magistrate, Haldwani, are liable to be quashed. Accordingly, the petition under Section 482 of Cr.P.C is allowed, and the aforesaid proceedings are quashed. (Prafulla C. Pant, J.) Dt. March 10, 2010. H. Negi