Allowed

Biri Bhagat v. The State Of Jharkhand

Jharkhand HC20 Jul 2023Cr.Rev./95/2017

Case brief

AI extract

What is this about?

In a criminal revision concerning divorce and matrimonial disputes, the High Court allowed the petition and acquitted the petitioner of 498A charges. This was done based on a compromise between parties and Supreme Court precedents emphasizing settlement in marital disputes, setting aside the conviction despite non-compoundable nature of the offence.

What did the court decide?

Cr. Revision No.95 of 2017 allowed; impugned judgment affirming conviction under Section 498A IPC set aside; petitioner acquitted of offence under Section 498A IPC.

Biri Bhagat Vs The State Of Jharkhand — Matrimonial and Divorce | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 95 of 2017

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Biri Bhagat	……Petitioner Versus
1. State of Jharkhand
2.Sumitra Toppo	…….Opp. Parties
	---------
CORAM:HON’BL	E MR. JUSTICE SANJAY PRASAD ----------
For the Petitioner	: Mr. Gautam Kumar, Advocate : Mr. Kismanti Minz, Advocate
For the State	: Mr. Shweta Singh, APP
For the O.P. No.2	: Mr. Rajesh Kumar, Advocate -----------

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Oral Judgment in Court 10/Dated: 20^th July, 2023

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This Criminal Revision application has been filed on behalf of the petitioner challenging the judgment dated 10.01.2017 passed in Cr. Appeal No.45 of 2016 by Sri Rajeev Anand, the learned Additional Sessions Judge-II, Lodhardaga by which the appeal preferred by the petitioner has been dismissed thereby affirming the judgment of conviction and order of sentence dated 16.07.2016 passed by Sri Raj Kumar Mishra, learned CJM, Lohardaga in connection with Lohardaga (Mahila) P.S Case No.36/2014, corresponding to GR Case No.446/2014 and Tr. No.205/2016 by which the learned CJM, Lohardaga has convicted the petitioner for the offence under 498A of the IPC and sentenced him to undergo RI for three (03) years and pay the fine of Rs.5,000/- and in default of fine he has been further sentenced to undergo SI for three months under section 498A IPC. However, the learned court below has acquitted the petitioner for the offence under section 323, 341 and 494 of the IPC.

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The prosecution case, in brief, is that the marriage of the complainant was solemnized with the petitioner on 19.05.2013 as per Oraon custom at village Akashi Kharu Matu and after marriage

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the complainant-O.P. No.2 went to her matrimonial home where she learnt that the petitioner-Biri Bhagat was already married with one Asha Jyoti Toppo and said Asha Jyoti Toppo was posted as a Nurse at village Garwali. It has been alleged that the relationship between the petitioner and his first wife Asha Jyoti Toppo became tense and due to regular physical and mental torture of the petitioner, the first wife Asha Jyoti became lunatic and the petitioner was able to break his relationship with his first wife Asha Jyoti. Later on, the petitioner was married with this complainant who was working as Teacher in Government School. However, after the marriage he demanded salary from the complainant and threaten her to kill her.

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Heard Mr. Gauram Kumar, learned counsel for the petitioner and Mr. Rajesh Kumar, learned counsel for the O.P. No.2 and Mrs. Shweta Singh, learned APP for the State. 4. Learned counsel for the petitioner has submitted that the impugned judgments and orders passed by the learned courts below are not sustainable in the eye of law. It is submitted that the learned court below has not appreciated the evidence of the prosecution witnesses properly. It is submitted that general and omnibus allegation has been leveled against the petitioner for demanding dowry, salary of the complainant and for torturing her. It is submitted that P.W-1, P.W-2, P.W-3, P.W-4 and P.W-5 namely Prakash Oraon, Kishun Oraon, Jaleshwar Oraon, Somdeo Oraon and Domna Oraon are not reliable as they had not seen this petitioner for torturing upon O.P. No.2. It is submitted that O.P. No.2 wanted to get rid of this petitioner and hence she has filed this false case. It is submitted that the P.W-7 is the I.O of this case who has not made proper investigation of this case. It is submitted that the P.W-6 is the complainant herself.

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Learned counsel for the petitioner has also submitted that he will not claim Motorcycle No.JH08C-6951 which was earlier purchased in her name by the O.P. No.2. However, the same has been handed over to the O.P. No.2 and the necessary papers for transfer in the name of O.P. No.2 has been filed before the District Transport Officer, Lohardaga and the petitioner will not claim any such papers from the O.P. No.2. 5. It has further been submitted by the learned counsel for the petitioner that after filing of Criminal Revision Application there was compromise between the petitioner and the O.P. No.2 before the Mediation Centre, Civil Court, Lohardaga in Mediation Case No.74/2018/ OSC-40/17 and on 22.05.2018 a compromise had taken place between the petitioner and the O.P. No.2 which has been enclosed as Annexure-2 in the supplementary affidavit dated 19.10.2022 filed on behalf of the petitioner and as per the said compromise it has been admitted by both the sides that they want to dissolve the relationship of husband and wife and a detailed compromise petition has been filed which has been signed by both the sides including the petitioner Biri Bhagat and the O.P. No.2Sumitra Toppo and even the witnesses of both the sides have put their signatures. It is submitted that in view of the above, both petitioner and the O.P. No.2 do not want to live as husband and wife and hence the petitioner may be acquitted for the offence under section 498A and this Criminal Revision may be allowed. 6. On the other hand, learned APP has opposed the prayer, however, has submitted that necessary order may be passed in the light of the settlement between the parties. 7. Learned counsel for the O.P. No.2 has also admitted the factum of compromise between the petitioner and O.P. No.2 before the Mediation Centre, Civil Court, Lohardaga on 22.05.2018. However, it is submitted that P.W-1, P.W-2, P.W-3, P.W-4 and

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P.W-5 namely Prakash Oraon, Kishun Oraon, Jaleshwar Oraon, Somdeo Oraon and Domna Oraon respectively have supported the allegation against the petitioner and P.W-6 is the complainant herself and she has fully supported her case. However, learned counsel for the O.P. No.2 has submitted that the compromise has taken place between the parties.

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Perused the Lower Court Records and the supplementary affidavit dated 19.10.2022. 9. Paragraph nos.7, 8, 9, 10 and 11 of the supplementary affidavit filed on behalf of the petitioner dated 19.10.2022, read as under:

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“Para 7:That, the informant namely Sumitra Toppo had filed one Original Suit being Matrimonial Title Case No.40 of 2017, before the court of the learned Principal Judge, Family Court, Lohardaga on 23.11.2017 under section 07 of the Family Court Act for declaration of divorce with the petitioner. Para 8:That, during the pendency of the aforesaid suit, the matter was referred to Mediation Centre, Civil Court, Lohardaga, which was numbered as Mediation Case No.74 of 2018 and the aforesaid case in presence of both the parties i.e. the petitioner and the informant/Opposite Party the mediation was taken place and on certain terms and conditions, the mediation got successful, where it is held that, the informant will withdraw the cases which are pending before this Hon‟ble Court and furthermore the informant will provide co-operation to the petitioner in disposal of Criminal Revision No.95 of 2017 i.e. the present case.

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Para 9:That, it is further needs to state that, on the aforesaid terms and condition, since the matter was settled in between the parties, the informant withdrawn the Original Suit No.40 of 2017, therefore it was dismissed as withdrawn vide Order dated 20.06.2018 passed by the court of the learned principal Judge, Family Court, Lohardaga.

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Para 10:That, it is also relevant to state that, now the informant is married to one Bandhu Oraon in the month of July, 2018 and living happily with said Bandhu Oraon and in that view of the matter the Mukhiya and other authorities have issued a Certificate as the informant married to Bandhu Oraon.

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Para 11:That, in view of the aforesaid facts and circumstances and the changes taken place in situation as the matter has been compromised between the parties, the present application is fit to be allowed and the petitioner be acquitted from the charges of the offence under section 498A of the Indian Penal Code.”

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The petitioner has also enclosed certified copy of the order sheet dated 22.05.2018 prepared before the Mediation Center, Lohardaga in Mediation Case No.74/2018 pursuant to the order passed by the learned Principal Judge, Family Court, Lohardaga in O.S Case No.40 of 2017 wherein both the parties were agreed on certain terms, which reads as under:

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“ le>krk ,djkjukekS

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1- ;g fd nksuksa i{k vc ,d nwljs ds lkFk ifr iRuh ds :i esa jguk ugha pkgrs vkSj lEcU/k foPNsn gsrq LosPNk ls jkth gSaA

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2- ;g fd nksuksa i{k ekuuh; fopkj.k U;k;ky; esa fu/kkZfjr frfFk dks Lo;a mifLFkr gksdj rykd gsrq nk;j okn dh lekfIr gsrq lg;ksx djsaxsA

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3- ;g fd orZeku okn dh vkosfndk@iRuh lqfe=k VksIiks tks ekuuh; mPp U;k;ky; esa fØfeuy fjfotu okn la[;k 1009@17 nk;j dh gS mls okil ys ysxhA rFkk nks"k fl) ifr chjh mjkao us vihy la[;k 45@16 ds fo:) ekuuh; mPp U;k;ky;] >kj[k.M esa tks Criminal Revision nk;j fd;k gS ftldh la[;k 95@2017 gS ftlesa orZeku vkosfndk lqfe=k VksIiks mifLFkr gks pqdh gSA mDr okn esa lqfe=k VksIiks fojks/k ugha djsaxs rFkk bl e/;LFkrk le>kSrk ds vk/kkj ij mDr okn ds fu"iknu esa lg;ksx djsxhA

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4- ;g fd vc nksuksa i{k jkth [kq'kh ls vyx&vyx 'kkafr iwoZd jgsaxsA

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5- ;g fd orZeku vkosfndk iRuh vius iSls ls tks eks0 lk0 jft0 la0 JH08C6951 vius ifr chjh Hkxr ds uke ij Ø; dh Fkh mls chjh Hkxr LosPNk ls rFkk rRdky lqfe=k VksIiks ds uke gLrkarj.k dj nsaxsA rFkk xkM+h dk Insurance update djk nsaxsA

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6- ;g fd mHk; i{kksa ds lxs lEcU/kh x.k Hkh bl lqygukek ij viuk gLrk{kj cuk,axs tks lk{; jgsA

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7- ;g fd mHk; i{kksa us izLrqr le>kSrkukek dh 'krksZa dks i<+ dj le>dj LosPNk ls fcuk fdlh tksj&ncko ds viuk&viuk gLrk{kj vius vf/koDrk egksn; dh mifLFkfr esa cuk;k rkfd lk{; jgsA

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8- ;g fd e/;LFkrk fu;ekuqlkj izLrqr le>kSrkukek dk 'krZ mHk; i{k ij ck/;dkjh gS ,oa 'krksZ dks ekuus ds fy, dkuwuh :i ls ck/; gS

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mHk; i{kksa dks le>kSrkukek dh Nk;kizfr rRdky fu%'kqYd iznku dj nh xbZ gSA

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le>kSrkukek dks ekuuh; fopkj.k U;k;ky; esa lfpo] ftyk fof/kd lsok izkf/kdkj] yksgjnxk ds ek/;e ls lQy e/;LFkrk ds lkFk okil dh tkrh gSA ”

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It has been held in the judgment rendered by the Hon’ble Supreme Court in the case of B. S. Joshi and Others and State of Haryana and Another reported in (2003) 4 SCC 675 of para13 and 14 as follows:-

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“ Para-13 :- The observations made by this Court, though in a slightly different context, in G.V. Rao v. L.H.V. Prasad are very apt for determining the approach required to be kept in view in matrimonial dispute by the courts. It was said that there has been an outburst of matrimonial disputes in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different courts.

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Para-14 :- There is no doubt that the object of introducing Chapter XX-A containing Section 498-A in the Indian Penal Code was to prevent the torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper-technical view would be counterproductive and would act against interests of women and against the object for which this provision was added. There is every likelihood that non-exercise of inherent power to quash the proceedings to meet the ends of justice would prevent women from settling earlier. That is not the object of Chapter XXA of Indian Penal Code.”

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It has been held in the judgment rendered by the Hon’ble Supreme Court in the case of Rajiv Thapar and Others Vs. Madan Lal Kapoor reported in (2013) 3 SCC 330 at para-23 and 24 and 25 as follows:-

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“ Para-23:- The submission advanced on behalf of Madan Lal Kapoor (the respondent- complainant) before the High Court, was accepted. The High Court arrived at the conclusion, that the Additional Sessions Judge, Delhi had erroneously placed reliance on the decision rendered by this Court in Satish Mehra Vs. Delhi Admn., which had already been overruled by

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the judgment rendered by a larger Bench in State of Orissa Vs. Debendra Nath Padhi. While considering the contention advanced on behalf of the appellants/accused, the High Court concluded, that the material/documents/record which the complainant was placing reliance on, did not fall within the ambit and scope of the term “record of the case” contained in Section 227 of the Cr.P.C. According to the High Court, the record of the case referred to in Section 227 of the Cr.P.C. was only such record, documents and articles which, on consideration by the Magistrate, are sent to the Court of Sessions, consequent upon passing an order of commitment. The material and documents relied upon by the appellants/accused in the present controversy would, therefore, not fall within the zone of consideration at the hands of the Court of Session under Section 227 of the Cr.P.C. Accordingly, the submissions advanced at the behest of the appellants/accused were declined. For the aforesaid reasons, the High Court accepted the Criminal Revision Petition filed by Madan Lal Kapoor (the respondent-complainant). The order dated 7.8.1999 passed by the Additional Sessions Judge, Delhi was accordingly quashed. The parties were accordingly directed to participate in the further proceedings before the Court of Session.

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Para-24:- We have considered the submissions advanced at the behest of the rival parties. We are of the view, that in the facts and circumstances of this case, the High Court had before it an exhaustive and detailed order passed by the Additional Sessions Judge, Delhi, it ought to, therefore, have examined the controversy, while keeping in mind the inherent power vested in it under Section 482 of the Cr.P.C. specially because the Additional Sessions Judge in his order dated 7.8.1999, had concluded, on the basis of the material relied upon by the accused, that no case was made out against the accused. This according to learned counsel, was permissible in view of the inherent jurisdiction vested in the High Court under Section 482 of the Cr.P.C.

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Para-25:- Section 482 of the Cr.P.C. is being extracted hereunder:-

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“482. Saving of inherent power of High Court.Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.”

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The discretion vested in a High Court under Section 482 of the Cr.P.C. can be exercised suo-moto to prevent the abuse of process of a court, and/or to secure the ends of justice.”

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It has been held in the judgment rendered by the Patna High Court (Ranchi Bench) in the case of Jai Prakash

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Chaurasia Vs. State of Bihar and Anr. reported in (1994) 2 BLJR 825 at para-4 and 5 as follows:-

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“ Para-4:- In this case, the petitioner is also prosecuted under Section 494 of the I.P.C. as per Section 198 of the Cr. P. C. I find that the prosecution under Section 494 of the IPC can only be initiated on the complaint made by the aggrieved party. Here, the complainant has come forward in this application before this Court showing her willingness not to proceed with the matter. I find that the offence under Sections 498-A, 406 and 494 of the IPC are not compoundable.

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Para 5:- Counsel for the parties have placed reliance in Mahesh Chand and another v. State of Rajasthan, AIR 1988 SC 2111. In Mahesh Chand (supra) I find that the offence was under Section 307 of the I. P. C. and since the parties had come to an agreement and good sense had prevailed upon them, the Supreme Court directed the Court below to permit the parties to compound the offence.”

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It has been held in the judgment rendered by the Hon’ble Supreme Court in the case of Kahkashan Kausar @ Sonam and

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Ors. Versus State of Bihar and Others reported in (2022) 6 SCC 599 at para 13, 14, 15 and 17 as follows:-

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“ Para 13 . Previously, in the landmark judgment of this Court in Arnesh Kumar v. State of Bihar [Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273 : (2014) 3 SCC (Cri) 449] , it was also observed : (SCC p. 276, para 4)

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“4. There is a phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A IPC is a cognizable and non-bailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In quite a number of cases, bedridden grandfathers and grandmothers of the husbands, their sisters living abroad for decades are arrested.”

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Para 14 . Further in Preeti Gupta v. State of Jharkhand [Preeti Gupta v. State of Jharkhand, (2010) 7 SCC 667 : (2010) 3 SCC (Cri) 473] , it has also been observed : (SCC pp. 676-77, paras 32-36)

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“32. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such

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complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.

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33. The learned members of the Bar have enormous social responsibility and obligation to ensure that the social fibre of family life is not ruined or demolished. They must ensure that exaggerated versions of small incidents should not be reflected in the criminal complaints. Majority of the complaints are filed either on their advice or with their concurrence. The learned members of the Bar who belong to a noble profession must maintain its noble traditions and should treat every complaint under Section 498-A as a basic human problem and must make serious endeavour to help the parties in arriving at an amicable resolution of that human problem. They must discharge their duties to the best of their abilities to ensure that social fibre, peace and tranquility of the society remains intact. The members of the Bar should also ensure that one complaint should not lead to multiple cases.

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34. Unfortunately, at the time of filing of the complaint the implications and consequences are not properly visualised by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant, accused and his close relations.

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35. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband's close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinised with great care and circumspection.

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36. Experience reveals that long and protracted criminal trials lead to rancour, acrimony and bitterness in the relationship amongst the parties. It is also a matter of common knowledge that in cases filed by the complainant if the husband or the husband's relations had to remain in jail even for a few days, it would ruin the chances of an amicable settlement altogether. The process of suffering is extremely long and painful.”

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Para 15:- In Geeta Mehrotra v. State of U.P. [Geeta Mehrotra v. State of U.P., (2012) 10 SCC 741 : (2013) 1 SCC (Civ) 212 : (2013) 1 SCC (Cri) 120] it was observed : (SCC p. 749, para 21)

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“21. It would be relevant at this stage to take note of an apt observation of this Court recorded in G.V. Rao v. L.H.V. Prasad [G.V. Rao v. L.H.V. Prasad, (2000) 3 SCC 693 : 2000 SCC (Cri) 733] wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that : (SCC p. 698, para 12)

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„12. … There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their “young” days in chasing their cases in different courts.‟

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The view taken by the Judges in this matter was that the courts would not encourage such disputes.”

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Para 17:- The abovementioned decisions clearly demonstrate that this Court has at numerous instances -17- expressed concern over the misuse of Section 498-A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long-term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this Court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them.”

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It transpires that the matter has been compromised between the petitioner and the opposite party before the court below and both the sides have dissolved their matrimonial wedlock and they have taken divorce. It further appears that O.P. NO.2 has married with one Bandhu Oraon, son of Faghuwa Oraon and the marriage of O.P. No.2 has not been disputed by the learned counsel for the petitioner. No supplementary counter

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affidavit has been filed on behalf of the O.P. No.2 disputing the averments made in the supplementary affidavit dated 19.10.2022.

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In view of the law laid down by the Hon’ble Supreme Court and in view of the compromise entered into between the parties, Cr. Revision No.95 of 2017 is allowed and the impugned judgment dated 10.01.2017 passed in Cr. Appeal No.45/2016 by Sri Rajeev Anand, learned Additional Sessions Judge, II, Lohardaga, affirming the judgment of conviction and order of sentence dated 16.07.2016 passed by Sri Raj Kumar Mishra, learned CJM, Lohardaga in connection with Lohardaga (Mahila) P.S Case No.36/2014, corresponding to GR Case No.446/2014 and Tr. No.205/2016 by which the learned CJM, Lohardaga has convicted the petitioner for the offence under 498A of the IPC and sentenced him to undergo RI for three (03) years and pay fine of Rs.5,000/and in default of fine he has been further sentenced to undergo SI for three months under section 498A IPC are set aside and the petitioner is acquitted for the offence under section 498A IPC. 17. Accordingly, Cr. Revision No.95 of 2017 is allowed in terms of compromise between the parties.

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(Sanjay Prasad, J.)

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Saket/-

Biri Bhagat v. The State Of Jharkhand

Case brief

What is this about?

What did the court decide?

Biri Bhagat v. The State Of Jharkhand

Case brief

What is this about?

What did the court decide?

What the court decided

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