Judgment 1. This application by petitioner has been filed for quashing complaint case No. 1122 of 2003 alongwith cognizance order dated 27.9.2003 pending in the Court of Shri P S Yadav, Judicial Magistrate, Bhagalpur. 2. The case of petitioner is that Naz Perween, opposite party No. 2 filed a complaint case No. 1122 of 2003 under Sections 147, 148, 149, 452, 323, 504, 380, 354, 427, 120B read with Section 34 of Indian Penai Code against the petitioners in the Court of Chief Judicial Magistrate, Bhagalpur alleging therein that petitioner No. 5 Bibi Asafia Khanam @ Simu @ Arfa Khanam was married on 10.6.2001 to her Devar Md. Rafi Azam. The further case of opposite party No. 2 is that her husband has got two brothers Md. Maki Azam and Rafi Azam and her husband Md. Maki Azam is running a cycle shop at Tatarpur whereas their third brother is running a cycle shop at Nath Nagar Bazar and they all are joint and they all are living jointly and in the morning, after taking breakfast, they go to their respective cycle shops for returning in the evening leaving behind the complainant, her old in-law and unmarried Nanad. The wife of Rafi Azam, since her arrival in her Sasural, destroyed the peace of family because she was pressing her husband to separate his businees and mess from his brothers but her husband did not agree to her proposal and he also did not agree to her alternative proposal for going to Azimganj for managing a shop. Her further case was that petitioner, who include Asafia and her relations became annoyed with her Devar and gave him threatening that they would send her Devar and his brothers to jail by implicating them in false cases. Petitioner No. 5 Asafia started quarreling with the members of her Sasural and her husband and used to give threatening that she would implicate the entire members of her Sasural in false cases and she also from time to time used to talk on telephone with the members of family of her parents. Opposite party No. 2, further alleged that on 14.8.2003 at about 8 A.M. when her husband and his two brothers left the house for going to their respective shops, and on the previous night, her in-laws said that they would go to Brahpura to see a girl. Opposite party No. 2, further alleged that on 14.8.2003 at about 8 A.M. when her husband and his two brothers left the house for going to their respective shops, and on the previous night, her in-laws said that they would go to Brahpura to see a girl. This information was heard by Asafia who passed on this information to the members of family of her parents. On 14.8.2003 at about 9 oclock, in-laws and Nanad of opposite party No. 2 left for Brahpura leaving behind opposite party No. 2 and Asafia and on that day at about 12 oclock, petitioner No. 1 to 4 alongwith one Sub Inspector and four constables forming an unlawful assembly armed with weapons unauthorisedly entered the house of complainant and opposite party No. 2, was terrorised by their presence but Asafia started laughing and petitioners No. 1 told Asafia that there was no cause of any fear and asked her to collect all her ornaments belonging to her and given to her by her husband and further asked her to collect the money and clothes kept in her room and all other necessary articles saying that he had brought a jeep and police with him. Thereafter, all petitioners entered the room of Devar of opposite party No. 2 and on protest by her, petitioner No.4 Md. Ansar Khan took out a countrymade pistol and put it on her and asked her to keep quiet otherwise she would be killed and in the meantime, Asafia collected ornaments, cash, money, clothes etc. and putting in attache came out from room and while leaving also carried away a television. Petitioner No. 1 asked opposite party No. 2 to become ready for going to jail and opposite party No. 2 coming out from the house raised hulla on which a number of villagers assembled there and they also asked petitioners not to commit crime and they also requested the police not to do such high-handedness in absence of any male member and further requested not to take articles from the house. The police replied that it was conscious of its duty. Opposite party No. 2 sent information of this occurrence to her husband and Devar who came to house at about 4 PM and came to know about the occurrence and found that ornaments, cash amount of Rs.8,000/-, costly clothes and colour television had been taken away by Asafia. The police replied that it was conscious of its duty. Opposite party No. 2 sent information of this occurrence to her husband and Devar who came to house at about 4 PM and came to know about the occurrence and found that ornaments, cash amount of Rs.8,000/-, costly clothes and colour television had been taken away by Asafia. Matter was reported to police but no action was taken and opposite party No. 2 then filed complaint petition in the Court of Chief Judicial Magistrate, Bhagalpur who transferred the case to the Court of Shri P S Yadav, Judicial Magistrate, Bhagalpur who, after holding enquiry under Section 202 of Code of Criminal Procedure, passed orders for issuing summons to petitioners for facing trial. 3. The case of petitioners is that as a matter of fact petitioner No. 5 Asafia Khanam @ Simu @ Arfa Khanam is daughter of petitioner No. 1 Md. Ibrar Khan who was married to Md. Rafi Azam, Devar of opposite party No. 2 on 10.6.2003 and after marriage, she went to her Sasurai where from the very first day, she was tortured by her husband, his brothers and opposite party No. 2 for not bringing handsome dowry and after marriage, petitioner No. 1 went to Sasural of his daughter for her Rukhsati, she was not allowed to go with him and Rafi Azam, his brother Mati Azam and opposite party No. 2 demanded colour television and said that unless their demand would be fulfilled, they would not agree for Rukhsati. Petitioner No. 1 and his wife, petitioner No. 2, again went to Bhagalpur and persuaded Rafi Azam and his family members and Bidagiri was done. After one month, Rafi Azam came to the house of petitioners for Bidai and again made demand for colour television. Mental and physical torture on Asafia Khanam by Rafi Azam, his brothers and complainant continued and when Asafia Khanam became pregnant, her husband forcibly administered some medicine to her resulting in miscarriage and after receiving information of the condition of his daughter, petitioner No. 1 went to Sasurai of his daughter, and brought her to Kharagpur where she started living with him. After some time, Rafi Azam came to Kharagpur and after Bidagiri, Asafia went to Sasurai but her torture continued there and petitioner No. 1 lodged a Sanha on 7.2.2003 before Chief Judical Magistrate, Munger narrating all the facts (Annexure-1). After some time, Rafi Azam came to Kharagpur and after Bidagiri, Asafia went to Sasurai but her torture continued there and petitioner No. 1 lodged a Sanha on 7.2.2003 before Chief Judical Magistrate, Munger narrating all the facts (Annexure-1). On 3.3.2003, he lodged another Sanha before the Court of Chief Judcial Magistrate, Munger stating therein that, being father of a daughter, he was trying to materialise the dispute so that his daughter may reside peacefully but he was not being allowed to meet his daughter (Annexure-2). Petitioner No. 1 ultimately filed a complaint case No. 376C of 2003 before the learned Chief Judicial Magistrate, Munger against Rafi Azam, opposite party No. 2 and other members of that family under Sections 498A, 313, 384, 342, 420, 120B of Indian Penal Code and Sections 3/4 of Dowry Prohibition Act (Annexure-3). The learned Chief Judicial Magistrate, Munger sent the complaint petition of petitioner No. 1 to police for instituting a case and for investigation under Section 156(3) of Criminal Procedure Code (In short "Cr P C"). Petitioner No.1 filed a petition before the Court of learned Chief Judicial Magistrate, Munger for issuance of search warrant for recovery of Asafia Khanam from her Sasural and for her production in the Court (Annexure-4). This petition was heard by learned Subdivisional Judicial Magistrate, Munger on 25.7.2003 who ordered for issuing of search warrant for recovery of Asafia Khanam (Annexure-5) but since this search warrant was not properly executed, therefore, petitioner No. 1 again filed a petition before learned Subdivisional Judicial Magistrate, Munger for issuing search warrant and the learned Subdivisional Judicial Magistrate, Munger vide his order dated 4.8.2003 directed its office to issue such warrant for recovery of Asafia Khanam (Annexure-6). In compliance of this order, a search warrant was properly executed by Officer-in-charge, Nath Nagar Police Station, Bhagalpur on 14.8.2003 and Asafia Khanam was recovered from the custody of her Sasural and on the same day, she was produced before the Court of learned Subdivisional Judicial Magistrate, Munger and she expressed her desire to go with petitioner No. 1 and she was handed over to petitioner No. 1 (Annexure-7). 4. According to petitioners, opposite party No. 2 has filed the present petition as a counterblast after execution of a search warrant issued by competent Court. 4. According to petitioners, opposite party No. 2 has filed the present petition as a counterblast after execution of a search warrant issued by competent Court. Petitioners have prayed for quashing complaint case No. 1122C of 2003 alongwith cognizance order dated 27.9.2003 filed against them and which is presently pending in the Court of Shri P S Yadav, Judicial Magistrate, Bhagalpur. 5. Opposite party No. 2 has appeared through her lawyer who has opposed the prayer of petitioners by filing the show cause stating therein that the application of petitioners is misconceived, not maintainable and is fit to be dismissed. It has further been stated that the cognizance order passed by Court below is quite valid and absolutely no illegality or infirmity has been done and it does not require any interference by this Court at least at this stage. The further case of opposite party No. 2 is that in enquiry held under Section 202 of Cr. PC, sufficient evidence has come on record to prosecute the petitioners and a prima facie case is made out. Opposite party No. 2 has admitted marriage of petitioner No. 5 Asafia Khanam with Rafi Azam but according to her, the date of marriage was 10.6.2001 instead of 10.6.2003 as submitted by petitioners. According to opposite party No. 2, after marriage, petitioner No. 5 was residing in her Sasural with full dignity and no demand for dowry was ever made and she was not subjected to torture and in fact, she started pressurising her husband and in-laws to get the property divided so that she, alongwith her husband, may be separated and when her demand was not fulfilled, she started creating panic in the family and also tortured mentally and physically her husband and other members of her Sasural for which her father-in-law lodged a Sanha in the Court of Chief Judicial Magistrate, Bhagalpur (Annexure-A). The further case of opposite party No. 2 is that petitioners, by misrepresentation of facts and fraud played upon learned Subdivisional Judicial Magistrate, Munger got a search warrant issued and by bringing the local police in their collusion, brought their daughter from her Sasural against the will of family members of Sasural of petitioner No. 5 and in garb of such warrant, they committed theft and other offences of assault etc. About search warrant, counsel of opposite party No. 2 submitted that police executed the search warrant in violation of mandatory provisions of Sections 97 and 100 of Cr. P.C. and no person was asked to become a witness of the seizure and the police party, which allegedly conducted the raid in the house of opposite party No. 2 by colourable exercise of power, was actively connived and abetted by the accused persons in committing crime. About petitioner No. 5, submission of counsel of opposite party No. 2 is that although she has tortured and harassed her husband and his relations but still her husband is ready to forgive her past conduct and keep her with full dignity and honour. Opposite party No. 2 has prayed for dismissing the application filed by the petitioners which is under consideration again emphasizing that at this initial stage, there is no scope of considering the case on the basis of broad probability and the defence of accused and Magistrate taking cognizance and issuing processes getting sufficient materials and evidence on record, came to the conclusion that prima facie case is made out against the petitioners. 6. From the submissions made on behalf of both the parties, it is admitted that petitioner No. 5 was married to Devat of opposite party No. 2. It is also admitted that a search warrant by a Court was issued for recovery of petitioner No. 5 from her Sasural. It is also admitted that the search warrant was executed on 14.8.2003 although according to opposite party No. 2, execution was not proper and legal because search warrant was obtained by miscarriage of facts and fraud played on the Court and in fact on 14.8.2003, an offence was committed in the guise of execution of search warrant. From Annexure-6, which is an order dated 14.8.2003 passed by Subdivisional Judicial Magistrate, Munger, it appears that on a petition filed by complainant of complaint case No. 376C of 2003, a search warrant was issued for recovery of Asafia Khanam, daughter of complainant. Annexure-3 is the complaint petition filed by petitioner No. 1 against opposite party No. 2 and others which was numbered as 376C of 2003 meaning thereby that search warrant on 14.8.2003 was issued in this case on a petition filed by petitioner No. 1. Annexure-3 is the complaint petition filed by petitioner No. 1 against opposite party No. 2 and others which was numbered as 376C of 2003 meaning thereby that search warrant on 14.8.2003 was issued in this case on a petition filed by petitioner No. 1. Annexure-7 is the copy of order dated 14.8.2003 of the Court of Subdivisional Judicial, Magistrate, Munger showing that petitioner No. 5 Asafia Khanam was produced before Court by security forces and it further shows that Asafia Khanam, by filing a petition on the same day, made prayer for permission to go with her father petitioner No. 1 and the Court, after observing that victim petitioner No. 5 at her own will, expressed the desire to go with her father petitioner No. 1 to her Naihar, permitted her to go to her Naihar with petitioner No, 1. The order dated 14.8.2003 of learned Subdivisional Judicial Magistrate, Munger further shows that later on on the same day, petitioner No. 1 gave a written undertaking for taking the entire responsibility of his daughter Asafia Khanam and he was directed that he will produce Asafia Khanam in Court when ordered by Court to do so. 7. From the aforesaid facts, it is clear that before filing of the case by opposite party No. 2 against the petitioners, petitioner No. 1 had already filed a complaint case against opposite party No. 2 and her other family members for torture on his daughter Asafia Khanam who was married to Devar of opposite party No. 2 on account of demand of dowry. Annexure-6 and 7 filed by petitioners which are copies of orders passed by the Subdivisional Judicial Magistrate, Munger show that on a petition filed by petitioner No.1, a search warrant for the recovery of Asafia Khanam from her Sasural was issued which was executed on 14.8.2003 and on the same day, Asafia Khanam was produced before the Court of learned Subdivisional Judicial Magistrate, Munger where on the written prayer of Asafia Khanam for going to her Naihar with petitioner No.1, she was permitted to go and petitioner No.1 took her entire responsibility. 8. From the certified copy of complaint case No. 1122C of 2003 filed by opposite party No.2 against the petitioners. 8. From the certified copy of complaint case No. 1122C of 2003 filed by opposite party No.2 against the petitioners. I find that besides petitioners, one Daroga (Police Inspector) and four constables have also been made accused and this complaint petition further shows that at the time of occurrence, petitioners, alongwith Police Inspector and four constables, had entered the house of opposite party No.2. Besides this, in show cause reply, opposite party No.2 has admitted that on 14.8.2003 which, according to her, is the date of occurrence, a search warrant was executed. The learned counsel appearing on behalf of opposite party No.2 has submitted that after execution of search warrant, victim Asafia Khanam, as per iaw, should have been produced in a Court at Bhagalpur because she was recovered from the house of opposite party No.2 which fails within the jurisdiction of Bhagalpur Courts but she was straightway taken to Munger and, therefore, on this ground as well as on the ground that search warrant was procured by practicing fraud on Court below, the execution of search warrant cannot be held legal. It has not been made clear that what type of fraud was played by the petitioners in making prayer for issuing search warrant for recovery of Asafia Khanam from her Sasural. No doubt, after enquiry under Section 202 of Cr. P C, order for issuing processes against the petitioners for facing trial has been passed but, admittedly, at that time, it was not brought to the knowledge of the Court by opposite party No.2 that on 14.8.2003, a search warrant issued by a competent Court was executed. In her complaint petition, opposite party No. 2 has given a different picture that on 14.8.2003, petitioners No.1 to 4 alongwith a Police Inspector and four constables trespassed the house of opposite party No.2 and asked petitioner No.5 to collect articles from the house and, thereafter, they all took away petitioner No.5 and articles with them. In her complaint petition, opposite party No. 2 has given a different picture that on 14.8.2003, petitioners No.1 to 4 alongwith a Police Inspector and four constables trespassed the house of opposite party No.2 and asked petitioner No.5 to collect articles from the house and, thereafter, they all took away petitioner No.5 and articles with them. No doubt, a case in which summons have been issued for prosecution of an accused cannot be at initial stage itself decided taking into consideration the version of defence but then if from the facts brought on record, it is found that the prosecution is without any basis and order of issuing summons for prosecution of an accused has been obtained by suppressing some facts from consideration of which, no case is made out against an accused, such type of prosecution cannot be allowed to continue because it will be an abuse of process of iaw. In the present case, admittedly, petitioner No.5 was recovered from har Sasural in execution of a search warrant which was issued by a Court where case against opposite party No.2 and others was pending and after recovery of petitioner No.5, she was produced in the Court which had issued such warrant and after considering her prayer to go to her Naihar with petitioner No.1, she was allowed to go with petitioner No.1 who, in writing, took her entire responsibility. 9. I, therefore, find that complaint case filed by opposite party No.2 against the petitioners is without any basis. 10. The learned counsel of opposite party No.2 submits that while leaving the house, petitioner No.5 took away some articles and money which did not exclusively belong to her but were property of other members of her Sasural. If it was so then proper course for opposite party no.2 or her family members was to bring this fact in the knowledge of the Court which had issued search warrant in a case which was pending against them. 11. Considering the entire facts on record, this application is allowed and complaint case No. 1122C of 2003 pending in the Court of Shri P S Yadav, Judicial Magistrate, Bhagalpur or, if in the meantime transferred, to any other Court alongwith cognizance order dated 27.9.2003 is hereby quashed.