DHARMENDRA KUMAR TIWARI Vs. STATE OF U.P.

JUDGEMENT

(1.) This application u/s 482 of Cr.P.C. has been filed by Dharmendra Kumar Tiwari against State of U.P. and Ajit Kumar Pandey with a prayer to quash impugned judgment and order dated 16.1.2019, passed by C.J.M., Bhadohi at Gyanpur, along with entire proceeding of Criminal Case No. 2596 of 2015, State Vs. Dilwar Tiwari and others, pending before above court, arising out of Case Crime No. 147 of 2013, u/s 498A, 504, 506 I.P.C. and 3/ 4 D.P. Act, P.S. Gopiganj, District Sant Ravidas Nagar (Bhadohi), because of being beyond jurisdiction of above Court, as per provisions of sections 177 and 178 of Cr.P.C.

(2.) Learned counsel for applicant argued that Dharmendra Kumar Tiwari was married with Madhulika, daughter of O.P. No. 2 on 2.12.2007, as per Hindu rituals. Child Ansh Tiwari was born on 7.1.2011 at Bangluru, where his parents were residing. On 2.11.2011 Sohan Lal Pandey, father of O.P. No. 2 and grandfather of Madhulika, took Madhulika, leaving behind a tiny child of ten months at Bangluru, to Mungra Badshahpur, District Jaunpur, where O.P. No. 2 was residing, because of being at job of Manager at Hawkins Company, Sathariya, Mungra Badshahpur, District Jaunpur. It was a journey by Flight, born by applicant. Then after Smt. Madhulika refused to cohabitate with applicant at Bangluru. Letters, dated 13/14.6.2013 as well as 1.7.2013, were written for and on behalf of applicant to Smt. Madhulika, requesting her to resume her marital obligations, but she was not amenable. Rather this case crime number was got registered at Police Station Gopiganj, District Sant Ravidas Nagar Bhadohi, with a concocted story on 7.3.2013. A Criminal Misc. Writ Petition No. 14704 of 2013 was filed before this court, with a prayer for quashing of F.I.R. of Case Crime No. 147 of 2013 and it was decided on 5.8.2014. Subsequently, a case for maintenance u/s 125 Cr.P.C. being Case No. 70/21 of 2013, was filed by Madhulika before the Court of Judicial Magistrate Bhadohi and it was decided on 4.12.2017 by the court of Principal Judge, Family Court, Bhadhohi, wherein a restoration application was moved and was decided on 28.8.2018. Investigation resulted in submission of charge sheet for offences punishable u/s 498A, 504, 506 I.P.C. and 3/ 4 D.P. Act, whereas no part of offence ever accrued within the territorial jurisdiction of Sessions Division Bhadohi or Police Station Gopiganj, because just after marriage Madhulika went with applicant at Bangluru, where she resided and from there she was taken by her grandfather to Mungra Badhshahpur, District Jaunpur. Hence cause of action, if any, may be said to have accrued either within the territorial area of Court of Bangluru or Jaunpur. But without any jurisdiction this case crime number was filed and cognizance was taken. This trial was in utter disregard to provisions of sections 177 and 178 of Cr.P.C. and thereby it was beyond jurisdiction of Court of C.J.M., Bhadohi. Madhulika, in her testimony, recorded as PW1 before Court of Additional Judge, Family Court, Bhadohi at Gyanpur, in Case No. 70 of 2013 u/s 125 Cr.P.C., has categorically stated that she was residing with her father at Mungra Badshahpur, District Jaunpur, and this piece of evidence was an evidence under section 3 of the Evidence Act. A proceeding u/s 482 No. 29730 of 2015, Dharmendra Kumar Tiwari and four others Vs. State of U.P. and another, was filed with a prayer to quash the proceeding of aforesaid criminal case, wherein, leaving applicant, for remaining accused persons, accusation was quashed. Then after applicant appeared before Court, wherein he was granted bail. Trial proceeded. Again a proceeding u/s 482 Cr.P.C. was filed before this court with a prayer for quashing proceeding because of devoid of jurisdiction and it was dismissed with an observation of moving discharge application before trial court. Thereafter discharge application was moved before trial court and those facts were mentioned. But the trial court dismissed above application without applying its judicial mind and giving reason for the same. Hence this application has been filed with above prayer for ends of justice and avoiding misuse of process of law.

(3.) Learned counsel for O.P. No. 2 has vehemently opposed the application by pressing counter affidavit, filed by O.P. No. 2, that it was a marriage solemnized in between applicant and Madhulika at parental house situated at Village Bhawanipur, within the area of P.S. Gopiganj, and Sessions Division Bhadohi at Gyanpur. Dowry, as per rituals, were given, then after Smt. Madhulika was taken to Bangluru, where persistent demand of dowry, in form of Rs. Five lacs, and cruelty with regard to it was there. Sometimes, it was partly fulfilled and persuasion with request was being made for not doing such cruelty. In between child Ansh was born. Then after cruelty accelerated. The grandfather of Madhulika brought her from Bangluru to Delhi and from Delhi to Mungra Badshahpur, District Jaunpur, where father of Madhulika was at job as Manager in Hawkins Company, Sathariya, District Jaunpur and was residing there at. Subsequently she was taken by applicant, her child was snatched and she was brought by Bolero and was thrashed, abused and left over near a tubewell of village Bhawanipur, P.S. Gopiganj, District Bhadohi, at 9.00 A.M. of 01.6.2013, from where she went to her ancestral house in above village and this report was got lodged, wherein two times proceedings were challenged in applications moved u/s 482 Cr.P.C. and this fact was taken by applicant. For husband both of applications were dismissed and this was not accepted by this court in above proceedings u/s 482 Cr.P.C. Though, an option for moving discharge application at appropriate stage was given. But the charge was already framed and trial was proceeding, wherein three witnesses including victim were examined and then after an application u/s 239 Cr.P.C. was moved with same repetition of allegations and vide impugned order it was rejected. This order is a reasoned and elaborate order. Offence punishable u/s 498A I.P.C. is a continuing offence. Admittedly, marriage was performed at Village Bhawanipur, within the area of P.S. Gopiganj, and of Sessions Division Bhadohi at Gyanpur, and since marriage, performed on 2.12.2007, there was persistent demand of dowry coupled with cruelty with regard to it. The sequence of cruelty was there, including one occurrence wherein grandfather of Madhulika had brought her to Jaunpur. This occurrence of 1.6.2013 was the last cruelty made by applicant and his relatives and this occurred as a part of cruelty at above village of Bhawanipur within the area of Sessions Division Bhadohi at Gyanpur. Hence this application is of no force, be dismissed.