DR JITENDER MEHTA Vs. SHIVANI MEHTA AND ANOTHER

JUDGEMENT

(1.) Impugned in this petition, preferred under Section 561-A of the Code of Criminal Procedure (Cr.P.C.), is the order dated 25th November 2006, passed by the court of the learned Municipal Magistrate, Jammu, (for brevity the "Trial Magistrate"), directing that the process be issued against the petitioner and the respondent no.2 for the commission of an offence punishable under Section 498-A of the Ranbir Penal Code (RPC). Quashment of the complaint titled Shivani Mehta v. Dr Jitender Mehta and others is as well implored for by the petitioners.

(2.) The case set up by the petitioner is that he is a doctor by profession and holding the post of the Registrar in the Government Medical College, Jammu. He married the respondent no.1 on 29th October 2001 at Jammu, but she never agreed to reside with the parents of the petitioner at Srinagar as he is a resident of Saidpora, Shopian, Kashmir. In order to keep the respondent no.1 happy and to make the petitioner's life comfortable, the father of the petitioner purchased a piece of land at Udeywala Bohri, Jammu, and constructed a house for the petitioner with a view that the petitioner and the respondent no.1 should live happily in the said house, whereas all the family members of the petitioner including the parents, sisters and brother are residing at Saidpora, Shopian, Kashmir, so is stated by the petitioner in the instant petition. The petitioner also postulates that even on account of the turmoil in the Kashmir Valley, the parents of the petitioner did not migrate to Jammu so that the respondent no.1 may not feel that she has to live in a joint family. The petitioner claims that the behaviour of the respondent no.1 towards the petitioner was never cordial and on account of the indifferent attitude on her part, she used to pick up quarrels with the petitioner without any rhyme and reason. A son, namely, Madhav, was born out of the wedlock on 11th August 2002, however, thereafter the respondent no.1 left the matrimonial fold on her own accord to take refuge in her parental house without any consent and knowledge of the petitioner, leaving the small child, Madhav, with the parents of the petitioner at Kashmir. The petitioner, finding it difficult to keep the child without mother, took the child to the respondent no.1, but she refused to accept the child and enunciated that she would take the child through court or police, so that the maximum harassment is caused to the petitioner and his parents. Ultimately under the forced circumstances, the petitioner took the child back to Kashmir where his family and the parents are residing permanently and he left the child in their custody. As a counter to this and with an ulterior motive to harass the petitioner and his family members, the respondent no.1 and her family in the month of September 2003 filed a complaint under Section 498-A and 403 RPC in the court of the learned Chief Judicial Magistrate, Jammu, who, however, after taking into account the vituperations contained in the complaint thought it appropriate not to take cognizance and as a sequel thereto, sent it to the Women Police Station Canal Road, Jammu, for the investigation. FIR no.11/2003, against the petitioner, his two sisters and his mother, who permanently reside and work in Kashmir, alleging therein that they have committed an offence punishable under Section 498-A RPC at Subhash Nagar, Jammu, was registered.

(3.) It is also contended that prior to the lodgement of the aforesaid FIR, a petition under the Guardian and Wards Act was filed by the respondent no.1 in the court of the learned Additional District Judge (Matrimonial Cases) Jammu, which the petitioner contested. The petitioner and his entire family were subjected to harassment at the hands of the police station Women Cell Jammu and ultimately the petitioner and his family were bailed out by the learned Additional District Judge, Jammu, on 31st October 200 From 12th September 2003 to 31st October 2003, the petitioner and his family were appearing before the Investigating Officer regularly, all the way from Kashmir, where the petitioner was subjected to immense harassment and humiliation at the instance of the respondent no.1. The investigation was being conducted by a Selection Grade Constable in the Women Police Station. Sensing that the investigation was not being conducted fairly and properly and he, his sisters and mother were going to be wrongly challaned in a false case, the petitioner approached the Director General of Police, with a request to conduct the investigation afresh in a just and fair manner, on merits, so that the truth might come out because the investigation was being conducted under the influence of the respondent no.1 and her father, who was an influential and well to do person of the town, being an Executive Engineer. Subsequent to this, the Director General of Police asked the Senior Superintendent of Police, Jammu, to look into the matter under law, who by finding that the investigation was not conducted properly, directed to get the investigation conducted by an officer of a gazetted rank and thus directed SDPO City West to conduct the investigation afresh. The SDPO City West summoned the respondent no.1 and her witnesses, who initially avoided to appear and testify in the false case, subsequent to which the SDPO summoned the complainant in the FIR and three of the seven witnesses in the police case, who appeared before the SDPO. The SDPO came to the conclusion that a false and frivolous case was registered against the petitioner. The SDPO, investigating the FIR, submitted the closure report with the recommendation that the proceedings under Section 182 RPC be initiated against the complainant in the FIR, i.e. the respondent no.1. The respondent no.1, without waiting for the result of the previous complaint, filed a fresh complaint on 6th July 2005 in the court of the learned Chief Judicial Magistrate, Jammu, on the basis of the same facts as were made use of in the previous complaint under Section 498-A, 403 and 406 RPC, against the petitioner, the proforma respondent and the sisters, who are residing and working at Srinagar permanently. The learned Trial Magistrate, to whom the second complaint was transferred by the learned Chief Judicial Magistrate, Jammu, for disposal, deemed it proper to stay its proceedings and to wait for the ongoing investigation of the police and further directed the Special Prosecuting Officer of the Court to seek the report from the police with regard to the investigation conducted in the earlier complaint. The learned Magistrate declined to pass orders on the second complaint, either to take cognizance or to dismiss the complaint, but from 6th May 2005 till 30th June 2006, the ongoing investigation in the earlier complaint was monitored by the learned Trial Magistrate regularly from time to time. The closure report, according to the petitioner, was submitted by the police on 30th June 2006 and the learned Trial Magistrate did not coincide fully with the police report/ investigating agency and took cognizance against the petitioner and the proforma respondent under Section 498-A RPC, vide order dated 25th November 2006. It is maintained by the petitioner that since 25th November 2006, i.e. the date of taking cognizance against the petitioner and his mother, the proforma respondent, no summons were served upon the petitioner even though the petitioner was always available in the Government Medical College, Jammu, and it is only when the respondent no.1 came to know about the sponsorship of the petitioner for undergoing the Post Graduate Course at All India Institute of Medical Sciences at New Delhi vide Government Order dated 7th March 2008, she got the summons in the second complaint served upon the petitioner on 12th March 2008, with a sole motive to harass and sabotage the petitioner after earlier ruining his life. The learned Trial Magistrate, while not coinciding with the investigating officer, took the cognizance itself without any cogent reason.