S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 1 IN THE HIGH COURT OF JUDICATUARE FOR RAJASTHAN AT JODHPUR. JUDGMENT Dr. Mani Thomas vs. The State of Raj. & anr. S.B.Criminal Misc. Petition No.243/2003 under Section 482, Cr.P.C. against the judgment dated 29.1.2003 passed by the learned Addl. Chief Judicial Magistrate(Fast Track), Bikaner in Criminal Case No.62/03(24/2000) Date of Judgment: July 07, 2008. PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr. H.S.S.Kharalia for the petitioner. Mr. J.P.S.Choudhary, P.P. for the State. Mr. Anand Purohit and Mr. Pappu Sangwa for the respondent. BY THE COURT : The petitioner has preferred this petition under Section 482, Cr.P.C. for quashing Criminal Case No.62/03(24/2000) pending in the court of Addl. Chief Judicial Magistrate(Fast Track), Bikaner. In said case, charge was also framed against the petitioner by the court on 29.1.2003 for the offence under S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 2 Sections 406 and 494, IPC. The petitioner also sought relief for quashing of the said charge. Brief facts of the case are that an FIR No.64/97 was registered at the Police Station, Kotwali Bikaner on 19.6.1997 for offence under Sections 494 and 406, IPC against the petitioner. The FIR was registered in view of the fact that respondent no.2 Sheela Oman on 19.6.1997 submitted a private complaint in the court of Addl. Chief Judicial Magistrate No.1, Bikaner which was forwarded by the learned Magistrate under Section 156(3), Cr.P.C. to the concerned Police Station for investigation. In the complaint dated 19.6.1997, the complainant Sheela Oman stated that her marriage took place with the accused-petitioner as back as on 29.10.1979 at Kerala. To join government duty at Rajasthan, she came to Rajasthan( without disclosing, in which year) and started serving in government service in Rajasthan and she was posted at Bikaner at the time of filing of the complaint and she was working as Medical Officer at Bikaner. In the S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 3 complaint, she stated that in recent time(obviously in the year 1997), she came to know that the accused-petitioner has contracted second marriage with accused no.2 Elizabeth Thomas. She stated that marriage of complainant was known to accused no.2 also. In view of the above, according to the complainant, the accused-petitioner and his new wife accused no.2 committed offence under Sections 494, IPC. The complainant also stated that the accused-no.1-petitioner assured her that he will return her goods at Bikaner( without disclosing where and when this assurance was given). Since the goods were not returned, therefore, the complainant gave a notice through her advocate to accused no.1-petitioner on 10.5.1997. Inspite of said notice, the goods were not returned, therefore, the accused has committed offence for Section 406, IPC. This very brief complaint was forwarded to the concerned Police Station under Section 156(3),Cr.P.C. The concern investigating officer reached to the conclusion that no cause of action accrued to the complaint in his territorial jurisdiction. Upon finding so, the complainant approached S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 4 the Superintendent of police Bikaner and at his instance the investigation started. During investigation, the complainant gave her statement and statements of V.Thomas K. Jecob, who is son of elder father of the complainant, another witness O.J. Abraha, who is also son of elder father of the complainant and Marriyam, who is also relative of the complainant, were recorded. The petitioner was arrested at Kerala and the arrest memo dated 23.10.1997 was prepared in presence of the witness V. Thomas K Jecob and O.J. Abraha. In the trial court, the petitioner submitted an application with certain documents and after his marriage with complainant, to show that as back as on 9.1.1987, the complainant's advocate Mr. Joshaf Ibrahim sent a notice and demanded the cash and gold ornaments from the petitioner- accused. Said notice was replied by the petitioner-accused though his counsel on 22.1.1987, clearly stating that neither the ornaments of the complainant nor any money of the complainant is lying with the petitioner. Thereafter, the complainant did not initiate any proceeding against the S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 5 petitioner for long more than 10 years. The petitioner took the plea of bar of time also by placing on record a copy of the notice dated 9.1.1987 and the reply to the notice dated 22.2.1987. He stated that he did not contract second marriage and the allegation of second marriage is absolutely false. The counter allegations are also there but they are not relevant. The complainant replied to the petitioner's application and denied giving notice in the year 1987. The complainant in her statement under Section 161, Cr.P.C. stated that her marriage with the petitioner took place in the year 1979 and she was turned out by her husband in the year 1981 and thereafter she joined the government service at Bikaner. She further stated that her husband contracted second marriage in the year 1989 and she came to know about this fact just 2-3 months thereafter. For not taking any action against the accused for his alleged said offence, the reason given is that the complainant's father died in the year 1989 and, therefore, the complainant was perturbed. In view of the above fact, it is clear that the S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 6 complainant's happy marriage, if it was there, it was upto 1981 and since 1981 she is living in the Rajasthan after leaving the State of Kerala. She also stated that her husband contracted marriage in the year 1989. Her husband's second marriage came in her knowledge within 2-3 months only. In that situation, her non-mentioning of this fact that when she was assured by her husband that the ornaments and money will be returned by him at Bikaner, is very relevant. Her saying that she came to know about her husband's marriage just before filing the criminal complainant in the trial court is contradicted by her own statement given under Section 161, Cr.P.C. when she admitted that her husband contracted second marriage in the year 1989 and she came to know about this fact just 2-3 months after the marriage. The other witnesses who are close relatives of the complainant, also only stated that the complainant's marriage took place in the year 1979 with the petitioner and the complainant was turned out by the petitioner-husband in the year 1981 and then she left Kerala and settled in the Rajasthan. The prosecution S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 7 witness-the complainant's close relative, in his statement stated that when his sister-complainant, was turned out from the petitioner's house, she demanded her jewelery and Rs,3,00,000/-, which were denied by the petitioner. Therefore, the complainant's witness made it clear that the incident of demanding and refusal was in the year 1981 or at the nearby time. The same is the statement of other witness O.J. Abraha. So far as contracting second marriage is concerned, the complainant herself was not witness to the marriage as she shifted to the Rajasthan from Kerala long before the said marriage. There appears to be no eye-witness to the alleged marriage and initiating criminal proceedings against the complainant's husband after about 8 years, without explaining inordinate long delay itself clearly shows that the prosecution has been launched by abuse of process of court law. The learned counsel for the petitioners relied upon several judgments of the Hon'ble Apex Court in support of his S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 8 contention that no cause of action accrued in the State of Rajasthan at all what to say of accrual of cause of action in the jurisdiction of the trial court at Bikaner. In support of his contention the learned counsel for the petitioner relied upon the judgments of the Hon'ble Supreme Court reported in the case of Manish Ratan & ors. v. State of M.P. & anr. (2007(1) SCC 262) and Y. Abraham Ajit vs. Insp. Of Police, Chennai (2004 Cri.L.J. 4180) as well as judgment of Punjab and Haryana High Court delivered in the case of Harjeet Singh Ahluwalia vs. State of Punjab (1987(1) Crimes 277) and the judgment of this Court delivered int he case of Kishan Lal & anr. vs. The State of Rajasthan( 2005(8) RDD 3251). The learned counsel for the petitioner also relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Dilawar Singh vs. The State of Delhi (AIR 2007 SC 3234) and submitted that in a case when a private complainant in relation to a non-cognizable offence is sent to the police for investigation under Section 156(3) and the challan is filed then that is a case not as a private complaint case but is a S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 9 State case if the congizance is taken on police report then the case under Section 494, IPC is not maintainable which could be initiated, lodged and continued only by the complainant and as private complaint case. I need not to go into all those legal issues in view of the fact that from the facts mentioned above, it is clear that the marriage of the complainant took place with the accused in the year 1979 and according to the complainant, she was turned out in the year 1981 and as per the statement of one of the prosecution witness Marriyam, the complainant was even turned out by the accused in the year 1980 and the complainant settled in the State of Rajasthan and she in her own statement, clearly stated that when she left the house of the accused-petitioner, she demanded return of the goods and the money from the accused which were denied by the petitioner there and then,i.e, in the year 1981. Lodging the criminal case in the year 1997 on the basis of said facts in the State of Rajasthan against the person who is residing at S.B.Cr.Misc.Petition No.243/2003 Dr.Mani Thomas vs. The State & anr. 10 Kerala, certainly amounts to abuse of process of court and there is no explanation for not taking the action by the complainant at any time for any of the offence, either for offence under Section 494, IPC or Section 406, IPC. The evidence placed on record by the prosecution is not sufficient for proceeding against the accused-petitioner in any manner. In view of the above reason, the misc. Petition is allowed and the prosecution by case no.62/03 (24/2000) is quashed. (PRAKASH TATIA),J. mlt