PRIYANKA SHARMA Vs. HARIOM SHARMA

JUDGEMENT

(1.) This petition under Section 482 of CrPC has been preferred by the petitioners against the order dated 6.5.2019 passed by Judicial Magistrate First Class (JMFC), District Gwalior in Case No. 1943/2019, whereby cognizance has been taken against the petitioner under Section 420 read with Section 448 of IPC.

(2.) Brief facts of the case are that the complainant filed a complaint against the respondent No.1. The present petitioner preferred an application for grant of anticipatory bail under Section 438 of CrPC before this Court, which was allowed vide order dated 17.2.2021 passed in Misc. Cri. Case No.865/2021. It is further submitted that the respondent No.1 married with the present petitioner No.1 on 13.7.2016. After solemnization of marriage, the respondent No.1 started committing cruelty with the petitioner No.1. On 17.1.2017 petitioner No.1 lodged report against the respondent No.1 for the offence under Section 498A of IPC read with Section of Dowry Prohibition Act. The matter was sent to Parivar Paramarsh Kendra, wherein the respondent No.1 alleged that the petitioner No.1 does not possess female characteristic and, therefore, the respondent No.1 wants medical examination of petitioners. On the basis of aforesaid allegation of respondent No.1, the petitioner was medically examined by JA Group of Hospitals, Gwalior but nothing was found adverse on the basis of which it could be said that the petitioner does not possess female characteristic. It is further submitted that in order to create pressure, the respondent No.1 on 2.8.2017 filed an application under Section 156(3) of CrPC, along with private complaint against the petitioner alleging that the respondent No.1 has been cheated since at the time of solemnization of marriage it was not informed to the respondent No.1 that the petitioner No.1 does not possess female characteristic. The trial Court vide order dated 23.9.2017 rejected the application filed under Section 156(3) of CrPC on the ground that no document of any kind has been submitted, by which it could be gathered that the petitioner No.1 does not possess female characteristic. While dismissing the application under Section 156(3) it is specifically observed by the trial Court that no medical document has been filed by the respondent No.1, which could prima facie demonstrate the fact that the petitioner No.1 does not possess female characteristic. The trial Court recorded statements of respondent No.1 and his sister under Section 200 of CrPC. On the basis of above, the trial Court has registered complaint against the present petitioner for commission of offence punishable under Section 420 read with Section 448 of IPC.

(3.) Learned counsel for the petitioners has submitted that the order passed by the Court below is manifest illegal, arbitrary, contrary to law and deserves to be set aside. There was no medical evidence before the trial Court, therefore, no case is made out for commission of offence of cheating, despite only on the basis of statements recorded the trial Court erred in taking cognizance against the present petitioners. Hence, prays for quashing of the order impugned dated 6.5.2019.