SMT. PRABHA SAXENA Vs. JAGDISH PRASAD

JUDGEMENT

(1.) This is really an unfortunate case in which on the complaint of the husband cognizance u/s 380, Penal Code has been taken by the learned Magistrate against the accused petitioner.

(2.) The accused-petitioner is M. A., Ph D. in Hindi and is a senior lecturer in Kanodia Girls College, Jaipur. The marriage of the accused petitioner with the non petitioner Jagdish Prasad Saxena took place on 10-2-70 and out of the wedlock one boy, who is aged about six years now, was born. Both the accused petitioner and her husband, Jagdish Prasad Saxena, in the year 1978 were residing as tenants in the house No. 143 Dayanand Marg. Tilaknagar, Jaipur, of which ore Dinesh Kumir Sharma is the landlord. It appears that for some time the relations between the accused-petitioner and the husband were strained to a great extent and since the year 1975 there has been exchange of letters. The accused-petitioner is also a writer of short stories. The non-petitioner Jagdish Prasad Saxena has his parental house in Brahmpuri, Jaipur, which is at a distance of 5-6 Kms. from Tilaknagar. It is alleged that on 13-5-78, the said Jagdish Prasad had gone to his father in Brahmpuri and stayed there during the night. On 14-5-78, at about 5 or 5.30 p. m. when he reached his house, No. 143 Dayanad Marg, Tilaknagar, Jaipur, it was noticed by him that the house occupied by him and his wife, the accused petitioner, was lying vacant, and the house-hold goods were not there. He lodged a complaint against the accused-petitioner, his own wife, and her father Rambahadur, her brothers Amar Rai and Naresh Rai, Dinesh Chandra Sharma, the owner of the house in Tilaknagar, and one Radhey Shyam Pushkarna, Deputy Registrar, Rajasthan University, Jaipur, on 21-6-78. The learned Magistrate recorded the statement of the complaint u/s 200, Cr. P. C. and also recorded the statements of Ramdayal Sharma (PW 2), Ashok Saxena (PW3) and Shabbir Ahmed (PW 4) u/s 202, Cr. P. C. There after, he sent the complaint u/s 202, Cr. P. C., vide his order dated 12-7-78, to the S. H. O., Adarshnagar, Jaipur, to enquire into the question of possession of the accused of the alleged stolen property. In P. S. Adarshnagar, the statements of Raghubir Prasad and one Sayeed were recorded and the police submitted the result of the investigation to the learned Magistrate. The learned Magistrate, thereafter, vide his order dated 18-5-79, took cognizance of an offence u/s 380 Penal Code against the accused petitioner only, and ordered the issue of process.

(3.) The accused-petitioner has challenged the order of taking cognizance of an offence against her as well as issuing process, and, according to the learned Advocate for the accused-petitioner, even if the complaint and the evidence collected in support of it is taken at is face value, the essential ingredients of an offence u/s 308, Penal Code are not made out and thus the order taking cognizance of the offence amounts to abuse of the Process of the court and should be quashed.