Daily Archives: March 2, 2017

facts & circumstances of  case eloquently demonstrate abuse of process of Court ! 498a quashed, J&K HC 

wife of miles dowry case, strikes a compromise takes money home town, home state !! The honorurable High Court, quashes this fake case,clearly stating that the second case filed by the woman, after a compromise and after taking nine lakhs money, is an abuse of the process of the court !!

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HIGH COURT OF JAMMU AND KASHMIR AT JAMMU.            

561-A No.100 OF 2011  
Rahul Sharma and anr  Petitioners

Vs

State of J&K & anr Respondent  
!Mr. Amit Sharma, Advocate 

^Ms. Zhainab Shamas Watali, Dy.AG. Mr. M.L.Gupta, Advocate    
Mr. Justice J. P. Singh
Date: 27.12.2012 
:J U D G M E N T :
Petitioner No.1-Rahul Sharma was married to respondent No.2-Megha Kakkar on 19.02.2007 at Jodhpur. After their marriage, they resided at Gurgaon-Haryana where they were working at IBM DAKSH, Gurgaon.

Respondent No.2s father, however, brought her back to Jammu finding that petitioner No.1 and his relations had treated her with cruelty. He thereafter lodged Complaint with Police Station, Women Cell, Jammu on 10.08.2010, inter alia, indicating about the dowry items that he had given to petitioner No. 1 and his family members at the time of the marriage of his daughter. Petitioner No.1-Rahul Sharma, his mother Sarita Sharma and sister Neha Sharma were accused in the Complaint of committing domestic violence against respondent No.2.
Although Rahul Sharma is stated to have threatened Megha Kakkar not to come back to Haryana without money yet she was sent to the matrimonial home where she was again stated subjected to malnutrition besides mental and physical torture. This Complaint remained pending with Police but without registration of any FIR thereon. It is alleged by the petitioners that they were forced to enter into compromise in terms whereof marriage between Rahul Sharma and Megha Kakkar was agreed to be dissolved on payment of Rs.9.00 lac. The Compromise, however, did not mature and thereafter respondent No.2 again approached the Police Station for registration of FIR against the petitioners. The Police having not obliged the respondent, she approached a Criminal Court at Jammu with fresh Complaint on which FIR No.3/2011 was registered at Police Station, Women Cell, Jammu, under Sections 498- A/109 RPC.
The Complaint, on the basis whereof FIR was registered, impleads Rahul Sharma, his mother Sarita Sharma, Sister Neha Sharma and Lt. Col. K.K.Sharma, the maternal uncle of Rahul Sharma, as accused. It is indicated in the respondents Complaint that when the accused came to Jammu they demanded one Car of City Honda Make threatening that in case their demand was not met, the complainant would be eliminated. Petitioner No.1-Rahul Sharma, the husband and petitioner No.2-Sarita Sharma, his mother, have approached this Court seeking quashing of the FIR registered on respondent No. 2s Complaint.
Heard learned counsel for the parties and perused the material on records.
Perusal of the Complaint filed by Megha Kakkar on the basis whereof FIR was registered does not refer to any date, month or year when the complainant is stated harassed or maltreated. The manner in which she was maltreated, harassed or treated with cruelty too is missing from the Complaint. Not only that, the role played by each person accused of maltreating her, either individually or collectively, too is not there in the Complaint.
The Complaint, in short, raises general and vague allegations of maltreatment, harassment and domestic violence, without indicating the date, month or year of such alleged incidence(s) still less detailed account thereof.
Putting of Criminal Law into motion on such vague Complaint would certainly be abuse of the process of law, in that, no prosecution, in the ordinary course of things, may succeed on the basis of such type of Complaints shorn of necessary details and indicating existence of ingredients constituting penal offences. 
This apart, the second Complaint on the basis whereof the FIR was registered under Section 156 of the Code of Criminal Procedure, though pursuant to the orders of the learned Magistrate, is materially different from the initial Complaint that was lodged by the complainants father in Women Cell, Jammu and pursuant whereto an Agreement is stated to have been reached at between the two families. There is not even a whisper in the first Complaint about petitioners or any of their family members demanding Honda City Car when they came to Jammu on May 05, 2010. The event of May 05, 2010, ex facie appears to have been coined and introduced only to justify the maintainability of the Complaint at Jammu, in that, there is absolutely no mention of this event even in the Notice sent by the complainants father to petitioner No.1s Advocate in answer to the latters Notice. Had any such event happened on May 05, 2010, the event would have been referred in Notice sent by the complainants father on 17.06.2010. From the reading of the Complaint, it is explicit that all the alleged acts of omission and commission, attributed to the accused, had taken place at Gurgaon, a place outside the territory of the Jammu and Kashmir State. 
In any case, matrimonial disputes having been alleged by the petitioners to have been settled, there was absolutely no justification for the Criminal Court to have referred the respondents Complaint for registration of FIR, to compel execution of the Compromise by putting the criminal law into motion.
The facts and circumstances of the case, therefore, eloquently demonstrate abuse of the process of Court and law in registration of FIR against the petitioners. I am supported in taking the above view by what was held by Honble Supreme Court of India in Neelu Chopra & anr. v. Bharti reported as AIR 2009 SC (Supp) 2950, where while dealing with such like situation, it was observed as follows:- 5. In order to lodge a proper complaint, mere mention of the Sections and the language of those Sections is not be all and end of the matter. What is required to be brought to the notice of the Court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. When we see the complaint, the complaint is sadly vague. It does not show as to which accused has committed what offence and what is the exact roe played by these appellants in the commission of offence. There could be said something against Rajesh, as the allegations are made against him more precisely but he is no more and has already expired. Under such circumstances, it would be an abuse of process of law to allow the prosecution to continue against the aged parents of Rajesh, the present appellants herein on the basis of vague and general complaint which is silent about the precise acts of the appellants. 6. The High Court has merely mentioned that the allegation in the Complaint are of retaining jewellery articles in possession of the husband and the petitioners. Now if the articles were in the possession of the husband, there is no question of the present appellants being in possession of the appellants. This is apart from the fact that it has already been expressed by us that there is no mention of the date on which the said ornaments, if any, were entrusted to the appellants or even the date when they were demanded back and were refused to be given back by the appellants or any one of them. Insofar as the offence under Section 498A, IPC is concerned, we do not find any material or allegation worth the name against the present appellants. All the allegations appear to be against the Rajesh. The petitioners learned counsels submission that registration of FIR against the petitioners and others is abuse of the process of law is, therefore, found well merited.
This Petition, accordingly, succeeds and is, therefore, allowed quashing FIR No.3/2011 registered at Police Station, Women Cell, Jammu under Sections 498-A/109 RPC.
( J. P. Singh ) Judge JAMMU:
27.12.2012 Vinod.

Man pays 27 lakhs for freedom AFTER fighting 20+ years !! (Was also paying monthly maintenance)

Key excerpts :

“…The parties are highly in litigating terms and admittedly, both the parties are living separately since more than twenty years. The record shows that all efforts of reconciliation between the parties, either at the level of Court below, or by this Court, have only failed….”

“….on 12.01.2017, that ultimately the parties have settled their disputes amicably outside the Court and they agreed to settle all their disputes and to finally separate themselves from each other, severing all relationships, on payment of Rs. 25,00,000/-as one time permanent alimony and litigation cost of Rs. 2,00,000/-, i.e., in total Rs. 27,00,000/- to the respondent wife by the appellant husband. It was also agreed upon, that upon such severing of the relationship between the parties, the other criminal cases pending between them shall also come to an end…..”

Thus ends a LONG LONG fight for freedom !!

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

F.A. No. 138 of 2010

With

I.A. No. 1163 of 2017

Bipin Kumar Jha …… Applicant/ Appellant
Versus
Meena Jha …… Opp. Party/Respondent

With

Cr. Rev. No. 943 of 2013

Meena Jha …… Petitioner
Versus
State of Jharkhand & Anr. …… Opp. Parties/Respondents

With

Cr. Rev. No. 838 of 2013

Bipin Kumar Jha …… Petitioner
Versus
State of Jharkhand & Anr. …… Opp. Parties/Respondents

With

Cr. Rev. No. 887 of 2009

Bipin Kumar Jha …… Petitioner
Versus
State of Jharkhand & Anr. …… Opp. Parties/Respondents


CORAM :
THE HON’BLE MR. JUSTICE H. C. MISHRA

THE HON’BLE MR. JUSTICE DR. S.N.PATHAK

For the Appellant : Mr. P.P.N. Roy, Sr. Advocate.

For the Respondent : Mr. Jay Prakash Jha, Sr. Advocate

Order No.16 dated 8.2.2017

F.A. No. 138 of 2010 and I.A. No. 1163 of 2017

  1. Heard learned counsel for the appellant and learned counsel for the respondent, who are also the parties in the connected Criminal Revisions.
  2. The appellant Bipin Kumar Jha is aggrieved by the Judgment and Decree dated 26.05.2010 passed by the learned Principal Judge, Family Court, Chaibasa, in Matrimonial Suit No. 21 of 2006, whereby the suit filed by the appellant for dissolution of marriage between the parties by a decree of divorce under Section 13 (1) (i-a) (i-b) of the Hindu Marriage Act, on the ground of alleged cruelty and desertion by the respondent, has been dismissed by the Court below, finding that the suit was barred by the principles of res judicata, as both the grounds had been decided between the parties in the earlier round of litigation up to the High Court. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  3. During the pendency of this appeal, efforts for conciliation between the parties were made, but the same failed. The parties are highly in litigating terms and admittedly, both the parties are living separately since more than twenty years. The record shows that all efforts of reconciliation between the parties, either at the level of Court below, or by this Court, have only failed.

  4. It was submitted by the learned counsels for both the sides on the last occasion on 12.01.2017, that ultimately the parties have settled their disputes amicably outside the Court and they agreed to settle all their disputes and to finally separate themselves from each other, severing all relationships, on payment of Rs. 25,00,000/-as one time permanent alimony and litigation cost of Rs. 2,00,000/-, i.e., in total Rs. 27,00,000/- to the respondent wife by the appellant husband. It was also agreed upon, that upon such severing of the relationship between the parties, the other criminal cases pending between them shall also come to an end.

  5. In view of the submissions made by learned counsels for both the sides, the matter was adjourned for today, enabling learned counsels for both the parties to file joint compromise petition in the aforesaid terms. Pursuant thereto, a joint compromise petition has been filed in I.A. No. 1163 of 2017, in which the affidavit is sworn by both the parties, reiterating the aforesaid terms. Pursuant to the agreement between the parties, two bank drafts drawn upon S.B.I. bearing Nos.731734 and 718423 for the amount of Rs. 18,00,000/- and Rs. 9,00,000/- respectively, totaling Rs. 27,00,000/-, have been handed over to the respondent by the appellant in the Court, which the respondent has accepted and she has also acknowledged the same in the order-sheet of this Court. Since, as agreed upon by both the parties, the amount of permanent alimony and the cost of litigation have been paid by the appellant to the respondent in the Court, the marriage between the parties, i.e., Bipin Kumar Jha and Meena Jha, is hereby, dissolved by a decree of divorce.

  6. Let the decree be prepared accordingly, with the joint compromise petition in I.A. No. 1163 of 2017, forming part of the decree.

  7. This appeal accordingly, stands disposed of in the terms of joint compromise petition filed in I.A. No. 1163 of 2017. The interlocutory application I.A. No. 1163 of 2017 also stands disposed of.

Cr. Rev. No. 943 of 2013 and Cr. Rev. No. 838 of 2013

  1. We are informed that the appellant was making payment of Rs. 4,000/- per month as maintenance to the respondent and the respondent had filed Cri. Misc. No. 12 of 2009 for enhancement of the maintenance amount, which was enhanced to Rs. 6,000/- per month by order dated 15.06.2013 passed by the Family Court, Bokaro, in the said case. Against the said order, both the parties have filed Criminal Revisions in this Court. The husband has challenged the enhancement of the amount in Cri. Rev. No. 838 of 2013 (Bipin Kumar Jha Vs. State of Jharkhand & Anr.), and the wife has filed Cri Rev. No. 943 of 2013 (Meena Jha Vs. State of Jharkhand & Anr.), for further enhancement of the maintenance amount. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  2. Since, as agreed upon between the parties, the amount of permanent one time alimony has been paid to the respondent, the appellant is hereby, absolved from the responsibilities of the making the payment of any monthly maintenance to the respondent henceforth, and accordingly, in view of the agreement reached between the parties, the order dated 15.06.2013 in Cri. Misc. No. 12 of 2009, passed by the learned Principal Judge, Family Court, Bokaro, is hereby, set aside.

  3. Since the appellant is absolved from the responsibilities of making payment of any monthly maintenance to the respondent henceforth, there shall be no deduction of the amount of monthly maintenance from the salary of the appellant from the month of February, 2017.

  4. Both these Criminal Revisions stand disposed of with the directions as above.

Cr. Rev. No. 887 of 2009

  1. This Criminal Revision pending between the parties as the appellant husband was convicted for the offence under Section 498-A of the Indian Penal Code in a criminal case filed by respondent wife, by the Judgment of conviction and Order of sentence dated 30.08.2007 passed by the learned SDJM, Bokaro, in G.R. Case No. 99 of 1996 / Tr. No. 06 of 2007. The said Judgment of conviction and Order of sentence were maintained by the learned Additional Sessions Judge, FTC-I, Bokaro, by Judgment dated 31.07.2009 passed in Cri. Appeal No. 97 of 2007 / Cri. Appeal No. 115 of 2007, against which this Cri. Revision No. 887 of 2009 has been filed by the husband, which is pending in this Court.

  2. Since, this criminal case arises out of the matrimonial dispute between the parties which has been amicably settled by them, severing all their relationships, and the amount of permanent one time alimony and the cost of litigation have also been paid by the husband to the wife in the Court, we are of the considered view that for securing the ends of justice, this criminal case also must come an end.

  3. Even though the offence under Section 498-A IPC is not compoundable in nature, taking a cue from the decision of the Hon’ble Supreme Court in Gian Singh Vrs. State of Punjab & Anr., reported in (2012) 10 SCC 303, we, in exercise of the inherent power conferred under Section 482 of the Cr.P.C., in order to secure the ends of justice, set aside the Judgment of conviction and Order of sentence dated 30.08.2007 passed by the learned SDJM, Bokaro, in G.R. Case No. 99 of 1996 / Tr. No. 06 of 2007, as also the Judgment dated 31.07.2009 passed in Criminal Appeal No. 97 of 2007 / Cri. Appeal No. 115 of 2007, passed by the learned Addl. Sessions Judge, FTC-I, Bokaro. Consequently, the petitioner in Cr. Rev. No. 887 of 2009 is acquitted of the charge and is discharged from the liabilities of his bail bond. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; https://twitter.com/ATMwithDick

  4. Accordingly, Cr. Rev. No. 887 of 2009 also stands disposed of.

(H. C. Mishra, J.)

(Dr. S.N. Pathak, J.)

kunal/punit


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