Heard learned counsel for the revisionist and learned AGA for the State.
No notice is issued to private opposite party in view of the order proposed to be passed today, however, liberty is reserved for private opposite party to apply for variation or modification of this order if he feels so aggrieved.
This revision is directed against the order dated 6.8.2010 passed by the C.J.M. Jhansi in Case No. 4917 of 2006, State of U.P. Vs. Lok Ranjan Goswami, under Sections 498A, 323, 352, 504, 506 IPC, P.S. Mahila Thana Nawabad, Jhansi, whereby the application of accused-revisionist for discharge was rejected.
Learned counsel for the revisionist submitted that learned Magistrate has not applied his judicial mind to the facts of the case and there was no sufficient material on record for framing charge under Section 498A IPC against the revisionist. There was a domestic quarrel between the husband and wife, which does not amount to cruelty or harassment and the proceedings against the revisionist were an abuse of process of law. Matrimonial dispute is pending between the parties before the Family Court, Jhansi.
Learned AGA supported the impugned order.
The revisionist and opposite party no. 2 are husband and wife. FIR was lodged by opposite party no. 2 against her husband (revisionist) and son Mohit on 5.5.2006 at 5.p.m. At Mahila Thana Nawabad, Jhansi alleging therein that she had filed an application against her husband under the provisions of Domestic Violence Act on 13.10.2005. Thereafter Domestic Violence and cruelty of the husband had reached its extreme. Her husband has also involved his son in these activities. On 28.11.2005 at 7.30. a.m., when opposite party no. 2 was preparing to go to the office, her husband came to her share of the house fixed by administration and started abusing and beating her and tried to turn her out of the house and also attempted to throw her down the stairs, She raised alarm but before the neighbours and daughter of the complainant could come to help, her husband and son turned her out of the house. She re-entered the house with the help of neighbours.
After investigation, the police submitted charge-sheet. The statements of complainant and her daughter Km. Pragya recorded under Section 161 Cr.P.C., have corroborated the version given in the FIR. In these circumstances, this Court finds that there was sufficient material on record and the case diary to frame charges against the revisionist and co-accused Mohit under Sections 498A, 323, 352, 504, 506 IPC and the application of the revisionist for discharge was rightly rejected by the Magistrate.
Learned counsel for the revisionist has relied upon in 2009 (3) JIC 451 (SC), Bhaskar Lal Sharma & another Vs. Monika wherein the Apex Court held that kicking the lady with leg and saying that her mother is liar does not amount to cruelty under Section 498A IPC. This ruling does not help the revisionist in any manner. There are specific allegations that the revisionist and his son abused the complainant, beat her and turned her out of the house. Subsequently, she re-entered the house with the help of neighbours and her version was supported by the daughter of the revisionist.
Another decision relied upon by revisionist is Shivanand Mollappa Koti Vs. State of Karnatala, 2007 (3) ACR 3219 (S.C.) wherein it was held that if no evidence for any demand for property or valuable security is present, Section 498A IPC would not be applicable. This ruling also does not help the revisionist. Under Section 498A IPC, the woman must be subjected to cruelty either of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman by her husband with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand. In the instance case, it is apparent that the case under Domestic Violence Act is pending against the revisionist. The administration has fixed a specific portion of the house for her use and from the allegations made in the FIR, it is also apparent that the accused person tried to forcibly evict her from the portion under her possession. Therefore such act may be covered under Section 498A IPC but at this stage I do not propose to given any definite finding on the subject as it may prejudice the revisionist during trial but it is obvious that there are grounds for framing charges against the revisionist.
The order passed by the learned Magistrate is fully justified and does not suffer from any error or illegality.
The revision is devoid of merit and is accordingly dismissed.
Order Date :- 21.10.2010 KU