IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No.41 of 2005
Over Siar Dwivedi .... Petitioner
Versus
The State of Jharkhand & another .... Opposite Parties
Coram : The Hon'ble Mr. Justice Narendra Nath Tiwari
For the Petitioner : Mr. R.S. Mazumdar, Advocate
For the State : APP
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03/ 07.01.2009
In this petition, the petitioner has prayed for quashing the
order dated 8.12.2004 passed by learned Sessions Judge, Jamtara
in Cr. Revision No.26 of 2004 whereby learned court below has set
aside the order dated 17.8.2004 passed by learned Judicial
Magistrate, 1st Class, Jamtara and held that a prima facie case
under Sections 323, 498A and 420 of the Indian Penal Code is
made out and the court had wrongly taken cognizance of the
offence under Section 447 of the Indian Penal Code.
Mr. Mazumdar, learned counsel appearing on behalf of the
petitioner has taken a very short point and submitted that from the
entire allegation, no offence under sections 498A and 420 of the
Indian Penal Code is made out in this case but the learned
Revisional court has erroneously held that a prima facie case under
Sections 323 and 498A has been made out.
Learned counsel appearing on behalf of the Opposite Party
though admitted that there is no allegation of any demand which is
one of the ingredients constituting the offence under Section 498A
I.P.C. but submitted that since there is a relationship between wife
and husband, the Revisional Court has made such observation. He
further submitted that the trial before the learned court below is at
the concluding stage and if such points are available to the
petitioner, he can take those points before the court below.
I have heard the learned counsel and considered the
submissions as also the facts and materials on record. From the
complaint petition, there does not appear to be any allegation of
demand by the petitioner. Mere allegation of harassment in the
complaint does not constitute an offence under Section 498A I.P.C.
The Said section though provides for punishment to the husband or
relatives of the husband of women if there is allegation of cruelty
by the woman but in the explanation-B attached to the section,
cruelty has been distinctly defined. According to the said
explanation, cruelty/ harassment must be for coercing her or any
person related to her to meet any unlawful demand for any
property or valuable security or is on account of failure by her or
any person related to her to meet such demand.
It has been submitted by learned counsel for the petitioner
that since there is no allegation of any demand and harassment for
not meeting such demand, the allegation does not constitute the
offence under Section 498A. He further submitted that there is no
ingredient of Section 420 of the I.P.C. as well and that offence is
also not constituted. Section 420 of the Indian Penal Code
prescribes punishment for cheating and dishonesty inducing
delivery of property.
Cheating has been defined under Section 415 of the Indian
Penal Code. Section 415 I.P.C. is reproduced herein below:
“415. Cheating.- Whoever, by deceiving any person,
fraudulently or dishonestly induces the persons so
deceived to deliver any property to any person, or to
consent that any person shall retain any property, or
intentionally induces the person so deceived to do or
omit to do anything which he would not do or omit if he
were not so deceived, and which act or omission causes
or is likely to cause damage or harm to that person in
body, mind, reputation or property, is said to “cheat”.”
Mr. Mazumdar, learned counsel for the petitioner submitted
that there is no allegation of deceiving the complainant fraudulently
and dishonestly inducing her to deliver any property to any person
or consenting that any person shall retain any property or
intentionally inducing the complainant to do or omit to do anything
which she would not have done or omitted if not so deceived. The
allegation of suppression of facts also does not come within the
ambit of cheating as defined under section 415 of the Indian Penal
Code.
Though, there is substance in the submissions made by
learned counsel for the petitioner, it has been informed that the
case is at the stage of final disposal before the court below. The
petitioner can take the aforesaid grounds before the trial court.
This petition is, thus, disposed of allowing the petitioner to
raise all the points before the trial court. Learned court below shall
consider the points so raised and pass appropriate order in
accordance with law.
(Narendra Nath Tiwari, J.)
R.Kumar