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Filed to harass, Section 406 record Quashed

HIGH COURT OF UTTARAKHAND

Bench: JUSTICE S.K. Gupta

Ashutosh Pandey Ors
vs.
Smt. Anupama Pandey Ors. On 11 Nov 2011

JUDGEMENT

1. By approach of this petition changed underneath Section 482 Cr.P.C., a request has been modernized to stifle a whole record of a rapist censure box no. 331 of 2006, patrician as Smt. Anupama Pandey Vs. Ashutosh Pandey, tentative before a justice of Judicial Magistrate, Rudrapur, District Udham Singh Nagar. It has also been prayed to stifle a sequence of knowledge antiquated 31.3.2006, seeking all a petitioners to mount for hearing for a corruption of Section 406 IPC. Having listened a schooled warn of possibly parties, a significant matrix, in a focus of this petition, pertains to a matrimonial dispute. Smt. Anupama Pandey espoused with Ashoutosh Pandey on 9.7.2000 during Kanpur (Uttar Pradesh). It is impending to discuss that Bhairav Prasad Pandey and Smt. Meena Pandey are a relatives of Ashutosh Pandey. Having inspected roughly 31/2 years of blithe matrimonial life, a differences between a integrate erupted and those took a critical and critical spin on 5.3.2004, when Smt. Anupama Pandey was forced to leave her matrimonial chateau during Kanpur along with her twin sons, Madhav and Kartikeya. It has been purported by postulant that on a applicable date 5.3.2004, her father O.S. Mishra, accompanied with 7-8 persons, with a assistance of a Sub Inspector of Police, came to fetch Smt. Anupama Pandey from her matrimonial chateau during Kanpur, on that she left a chateau with all her effects in a deficiency of Ashutosh Pandey, given during that supportive moment, he was bustling in a internal nursing home during Kanpur, where one of his dual sons was certified in a critical condition of ailment. No earlier did Sri Ashutosh Pandey accept a information that Sri O.S. Mishra has reached during his chateau to fetch his daughter (Smt. Anupama Pandey) and she is withdrawal from there, he rushed to his house, though by that time, she had left her matrimonial home, as staid above, and reached during a nursing home where a son was admitted. There, she got her son liberated from that nursing home in deficiency of postulant and thus, left for all a times to reside during Pant Nagar with her relatives and given then, she is staid during Pant Nagar. Later on, she was employed as a Lecturer and now is operative as an Associate Professor in Pant Nagar University. It is impending to discuss here that her father O.S. Mishra was a Registrar of a University during that time (now retired).

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2. Learned warn for a petitioners has argued that ever given a solemnization of a marriage, a purpose of complainant’s father O.S. Mishra had always been of involvement in a personal affairs of Ashutosh Pandey and his mother Smt. Anupama Pandey, inasmuch as, he used to inspire Anupama Pandey in such a fashion, as to disquiet a pacific and gentle matrimonial life of a couple. On one occasion, on being objected, O.S. Mishra furnished an attempt (annexure 4 to a petition) that henceforth, he would not miscarry in a personal affairs of a integrate and that Anupama Pandey will revisit his chateau usually and usually with a before agree of her husband.

3. Learned warn for a petitioners has strived to advert that a unchanging and determined attempt was done on a partial of Ashutosh Pandey to lead to happy and gentle life with his mother Anupama Pandey and in this regard, minute antiquated 28.3.2005 (Annexure 11 to a petition) is estimable to be seen. Despite to receiving this letter, created on 28.3.2005, Smt. Anupama Pandey did not resume her family life with her husband, substantially for a reason that she had been good staid after securing a large salaried pursuit of an Assistant Professor in a University. So helplessly, Ashutosh Pandey filed a petition for divorce u/s 13 of Hindu Marriage Act on 8.4.2005 during Kanpur. The same, during a instance of Anupama Pandey, was eliminated to a Family Court, U.S. Nagar by a sequence of a Hon’ble Apex Court, where it was intended on 10.4.2009. In that judgment, a Principal Judge, Family Court has commented that there was no justification to uncover any team-work on a partial of mother to lead a happy matrimonial life and that she has forlorn her father for no reason. As such, a Judge, Family Court intended a petition of divorce in foster of Ashutosh Pandey, that has been inspected in a interest too.

4. It is applicable to discuss here that Smt. Anupama Pandey also filed a apart petition no. 244 of 2007 underneath Sections 25 and 27 of a Hindu Marriage Act for receiving a permanent alimony, besides a skill presented during a time of marriage. The pronounced petition was discharged with costs on antiquated 13.5.2010 by a Family Court. However, when a pronounced visualisation was appealed, this High Court vide visualisation antiquated 22.4.2011, has awarded Rs. 8.00 lacs towards ‘Stridhan’ and Rs. 10.00 lacs towards a permanent alimony. This Court has been familiar that a pronounced visualisation has been challenged by Ashutosh Pandey before a Hon’ble Apex Court, wherein a final adjudication is awaited, theme to a remuneration of Rs 4.00 lacs to Smt. Anupama Pandey.

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5. Learned warn for a respondent no. 3- Anupama Pandey has argued that even awarding of ‘Stridhan’ to a balance of Rs. 8.00 lacs and permanent subsistence of Rs. 10.00 lacs will not answer a impugned sequence of knowledge inspected by a schooled Magistrate on a censure of Smt. Anupama Pandey u/s 406 IPC given ‘Stridhan’, that has been narrated in a list annexed with a complaint, is something opposite than that of a skill presented during a time of, marriage, as has been envisaged u/s 27 of a Hindu Marriage Act. This evidence on interest of Smt. Anupama Pandey, even if supposed for a moment, is of no avail, in perspective of a last, divide of a notice sent by her possess disciple to Ashutosh Pandey on antiquated 3.12.2005, wherein she has evaluated a cost of her whole ‘Stridhan’ carrying a financial value of Rs. 8.00 lacs.

6. The second point, lifted on interest of a petitioners, is that a censure in doubt lacks territorial office in perspective of a fact that ‘Stridhan’, if any, had already been taken divided by Smt. Anupama Pandey on 5.3.2004 when she left her matrimonial chateau along with her father, upheld by 7-8 persons in participation of Police Sub Inspector. Even otherwise, a same was given during a time of wedlock on 9.7.2000 during Kanpur, where a marriage was solemnized and it was kept and defended during Kanpur, so a Court during U.S. Nagar lacks territorial jurisdiction. In his support, he placed faith on a visualisation of a Hon’ble Apex Court in a box of “Y. Abraham Ajith and others Vs. Inspector of Police, Chennai and another” reported in (2004) 8 SCC 100. The pronounced conform pertains to Section 498A and 406 IPC r/w Section 4 of Dowry Prohibition Act, wherein a censure was filed by a mother where she had come to stay after withdrawal her husband’s house. She had come to stay during place “C” while a place of her chateau was “N”. The Hon’ble Apex Court hold that a pronounced offences were not stability ones, hence no partial of means of movement arose during place “C”. Hence, a Magistrate during place “C” had no office to understanding with a matter.

7. Learned warn of Smt. Anupama Pandey has rebutted this evidence by fixation faith on an of late conform of a Hon’ble Apex Court in a box of “Sunita Kumari Kashyap Vs. State of Bihar ‘and another reported in AIR 2011 S.C. 1674”. In a pronounced case, a mother left her husband’s chateau located during Ranchi (Jharkhand) and came to live with her relatives during Gaya (Bihar). She filed a censure during Gaya for a corruption of Section 498A IPC, afterwards a Hon’ble Apex Court was of a perspective that in light of Sections 178 and 179 Cr.P.C., this corruption is a stability one and a Court during Gaya will have a territorial office to hear a same. The conform relied on by schooled warn of Smt. Anupama Pandey, is no answer to a corruption of Section 406 IPC, in as most as, a pronounced conform usually deals with a eventuality of Section 498A IPC and that has been hold to be a stability offence, though a contribution of delegation or a misappropriation of a property, presented in a matrimony, has not been dealt with in a pronounced precedent.

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8. Learned warn of Smt. Anupama Pandey has also drawn a courtesy of a Court towards Section 181(4) Cr.P.C. that reads as under:-

“281 (4).-Any corruption of rapist misappropriation or of rapist crack of trust might be inquired into or attempted by a justice within whose internal office a corruption was committed or any partial of a skill that is a theme of a corruption was perceived or retained, or was compulsory to be returned or accounted for, by a indicted person.”
9. While fixation faith on a pronounced sub-section, schooled warn attempted to appreciate a difference “was compulsory to be returned or accounted for’. In perspective of this Court, a construction of this word should be done to review it as a whole, along with a phrases, that have been used by a Legislature hitherto. The territorial office by a complainant can't be stretched to any place opposite a country/continent where he/she is settled. Under a clothe of this phrase, that has been used and relied on by a schooled warn for Smt. Anupama Pandey, a sub-section, as a whole, has to be review and a definition and interpretation can't be discerned in a Utopian fashion, as to give autocracy to a complainant to record a censure during any place opposite a globe, seeking her skill to be returned where she is settled. As such, this sub-section is also of no assistance to Smt. Anupama Pandey.

10. In perspective of a above discussion, this Court is of a perspective that a impugned censure aims only to perfect nuisance of Sri Ashutosh Pandey and his relatives and thus, a same deserves to be quashed. For a reasons as aforesaid, a C 482 petition is allowed. Proceedings of censure box no. 331 of 2006 as good as a sequence of knowledge antiquated 31.3.2006, aforementioned, is hereby quashed..

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