Ekramul Ansari Alias Ekramul Haque Vs The State Of Jharkhand And Anr.

IN THE HIGH COURT OF JHARKHAND AT RANCHI Cr.M.P. No.2193 of 2017

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Ekramul Ansari @ Ekramul Haque, Son of Late Karimuddin Ansari @ Karimuddin Haque, Resident of Village- Saharkol, P.O.- Pakur, P.S.- Pakur (T), Distt.- Pakur (Jharkhand)

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… Petitioner

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Versus

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The State of Jharkhand

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Merina Bibi @ Merina Khatun wife of Ekramul Ansari & Daughter of Sadek Sk.

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Presently, residing at Village- Tilkamanjhi Chowk, P.O.- Pakur, P.S.- Pakur (T), Distt.- Pakur (Jharkharnd)

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… Opposite Parties

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------ For the Petitioner : Mr. Amit Kr. Sinha, Advocate Md. Saman Ahmad, Advocate For the State : Mr. Santosh Kr. Shukla, Addl.P.P. For the O.P. No.2 : Md. Faruque Ansari, Advocate Md. Asadul Haque, Advocate ------ P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer to quash the order taking cognizance dated 01.04.2017 passed by the learned Chief Judicial Magistrate, Pakur in connection with Complaint Case No.329 of 2015 whereby and where under the learned Chief Judicial Magistrate, Pakur has found prima facie case for the offence punishable under Section 498A of the Indian Penal Code against the petitioner.

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The allegation against the petitioner is that the petitioner being the husband of the opposite party No.2-complainant treated her with cruelty by

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harassing the complainant by assaulting her with an intent to coerce to meet the unlawful demand of Rs.1,50,000/-. The learned Chief Judicial Magistrate, Pakur on the basis of the complaint, statement on solemn affirmation and the statement of enquiry witnesses, found prima facie case for the offence punishable under Section 498A of the Indian Penal Code against the petitioner.

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Learned counsel for the petitioner submits that no offence punishable under Section 498A of the Indian Penal Code is made out against the petitioner in the facts and circumstances of the case and earlier on 26.02.2013 on the same set of facts and allegations, the complainant’s father filed P.C.R. Case No.99 of 2013 which upon being referred to police under Section 156(3) of the Code of Criminal Procedure, Pakur (T) P.S. Case No.381 of 2013 was registered on 03.09.2013, corresponding to G.R. Case No.1018 of 2013 and vide judgment dated 02.09.2019, the learned Addl. Chief Judicial Magistrate, Pakur has acquitted the petitioner and the co-accused person of the charges punishable under Section 323, 379, 498A, 34 of the Indian Penal Code.

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Learned counsel for the petitioner next submits that as has been observed in the said judgment, the complainant is filing the repeated cases to extract money from the petitioner. Hence, the continuation of this criminal miscellaneous petition against the petitioner will amount to abuse of process of law. Therefore, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

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Learned Addl.P.P. appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer made in this Criminal Miscellaneous Petition and submits that the Pakur (T) P.S. Case No.381 of 2013 was for a different, distinct and separate occurrence which took place on 14.02.2013 at 12 Noon and 23.02.2013 at 9 AM and this occurrence is

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entirely different occurrence which took place on 15.06.2015 and 16.06.2015. Therefore, this being a separate and distinct occurrence, the offences are also separate and distinct. It is then submitted that therefore, there is no force in the contention of the petitioner that for the self-same occurrence, this case has been instituted. It is next submitted that there is direct and specific allegation against the petitioner of having treated the complainant with cruelty repeatedly by harassing her, by assaulting her with an intent to coerce her to meet the unlawful demand of Rs.1,50,000/- by the petitioner. Hence, at this nascent stage, the entire criminal prosecution ought not to be quashed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that no mini trial can be conducted by the High Court in exercise of its power under Section 482 of the Code of Criminal Procedure as has been held by the Hon’ble Supreme Court of India in the case of Uttar Pradesh & Another vs. Akhil Sharda & Others reported in 2022 LiveLaw SC 594, the relevant portion of which reads as under :-

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“ Having gone through the impugned judgment and order passed by the High court has set aside the criminal proceedings in exercise of powers under Section 482 CrPC, it appears that the High Court has virtually conducted a mini trial, which as such is not permissible at this stage and while deciding the application under Section 482CrPC. As observed and held by this court in a catena of decisions, no mini trial can be conducted by the High Court in exercise of power under Section 482CrPC, jurisdiction and at the stage of deciding the application under Section 482CrPC, the High Court cannot get into appreciation of evidence of the particular case being considering. (Emphasis supplied)”

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It is also a settled principle of law that in exercise of its power under Section 482 of the Code of Criminal Procedure, the genuine prosecution cannot be stifled with as has been held in the case of Monica Kumar (Dr. ) & Another

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vs. State of Uttar Pradesh & Others reported in (2008) 8 SCC 781 .

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Now coming to the facts of the case, there is direct and specific allegation against the petitioner of treating the complainant, who is undisputedly his wife, with cruelty by harassing her, by assaulting her and driving her out from the house, with an intent to coerce her to meet the unlawful demand of Rs.1,50,000/- of the petitioner, which is sufficient to constitute the offence punishable under Section 498A of the Indian Penal Code.

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Under such circumstances, in view of the direct and specific allegation against the petitioner and that this case being a separate and distinct offence in respect of the occurrence which took place on 15.06.2015; cannot be termed as the same case as that of Pakur (T) P.S. Case No.381 of 2013, the subject matter of which case was the occurrence which took place about two years ago; on 14.02.2013 and 23.02.2013.

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