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2004 DIGILAW 919 (PAT)

Manita Devi v. State Of Bihar

2004-09-08

RADHA MOHAN PRASAD

body2004
Judgment 1. Heard learned counsel for the petitioner, learned counsel for O. Ps. No. 2 and 3 and also learned counsel for the State. 2. The present miscellaneous application is directed against the order dated 3.9.2001 passed by the 1st Addl. Sessions Judge, Kaimur (Bhabhua) in Cr. Revision No. 49/22 of 2000 arising out of Complaint Case No. 4/2000, Tr. No. 786/2000, whereby and whereunder the order dated 5.2.2000 taking cognizance under section 498A of the Indian Penal Code and 3 of the Dowry Prohibition Act (Annexure 2) against the accused persons has been set aside. 3. It appears that the petitioner filed Complaint Case No. 4(C)/2000 against the mother-in-law, Kalawati Devi and Shyam Sunder Singh, S/o Ram Lagan Singh to the effect that she was married to Akhileshwar Singh S/o Lalmuni Singh and after two years, both the accused persons tortured her and her husband Akhileshwar Singh and also to her father-in-law Lalmuni Singh and demanded Rs. 10,000/- as dowry. It appears that three witnesses were examined in course of enquiry who supported the prosecution case and the Sub-divisional Judicial Magistrate took cognizance under section 498A of the Indian Penal Code and 3 of the Dowry Prohibition Act against the said accused persons vide order dated 5.2.2000 and directed for issuance of process. Shyam Sunder Singh (O.P.No. 3) challenged the validity of the said order in Cr. Revision No. 49/22 of 2000 which has been allowed by the learned 1st Addl. Sessions Judge and the order taking cognizance by the learned Magistrate has been set aside by the impugned order. 4. Shyam Sunder Singh (O.P.No. 3) challenged the validity of the said order in Cr. Revision No. 49/22 of 2000 which has been allowed by the learned 1st Addl. Sessions Judge and the order taking cognizance by the learned Magistrate has been set aside by the impugned order. 4. It has been contended by the learned counsel for the petitioner that the learned Sessions Judge has set aside the order taking cognizance mainly on the ground that Shyam Sunder Singh does not appear relative of Akhileshwar Singh, the husband of the victim girl and thus, no cognizance under section 498A I.P.C. and 3 of the Dowry Prohibition Act is maintainable which on the face of it is wrong as is evident from the counter affidavit filed on behalf of O.R No. 3 which has wrongly been typed as 2, to which a copy of the plaint in T.S.No. 218 of 2001 filed in the court of Sub-Judge Bhabhua has been annexed as Annexure A. He contended that it is true that the said title suit was filed by the husband of the complainant and the genealogy given at page 6 would show that Shyam Sunder Singh is the son of Ramlagan Singh, who is own brother of Ramsanehi Singh (grand father of the husband of the complainant). Learned counsel for the petitioner submitted that the said genealogy has not been disputed by O.R No. 3 in the counter affidavit. He further submitted that in the enquiry the husband of the complainant, Akhileshwar Singh, also stated that O.R No. 3 is his uncle. In this regard he referred to the evidence of Akhileshwar Singh during enquiry which is at Annexure 4. Learned counsel for the petitioner has further contended that even though no revision was filed by the other co-accused Kalawati Devi but the learned Sessions Judge has quashed the entire order taking cognizance including against her obviously for extraneous reason. 5. Learned counsel for the State has fairly submitted that the impugned order of the learned Sessions Judge cannot be sustained on the face of the complaint and the evidence examined during enquiry. He also agreed that the reason assigned by the learned Sessions Judge for setting aside the order taking cognizance is bad in the facts and circumstances aforementioned. 6. Learned counsel for O.Ps. He also agreed that the reason assigned by the learned Sessions Judge for setting aside the order taking cognizance is bad in the facts and circumstances aforementioned. 6. Learned counsel for O.Ps. No. 2 and 3, however, submitted that the entire complaint on the face of it is malafide and misuse of the process. He submitted that in the complaint the mother-in-law has been made accused and the husband has deposed against his own mother during enquiry which itself shows that the complainant was herself a dominating woman. According to the learned counsel, the husband has supported the version of the complainant against his own mother which shows that the entire allegation is cooked up and absurd. He also contended that the complainant in her complaint has said that her father-in-law is very simple man whereas the husband of the complainant who filed T.S. No. 218/2001 stated that his father was a clever as well as characterless person. He contended that the husband of the petitioner himself in paragraph 6 of the plaint in the aforementioned suit which was filed on 17.1.2001 admitted that his mother Kalawati Devi has died. Thus, according to him, there is no valid reason for interfering with the impugned order. 7. I am unable to appreciate the said submission of the learned counsel for O. Ps. No. 2 and 3, who has filed Vakalatnama for both the opposite parties. As such, I am unable to appreciate as to how he has placed reliance on the statement made in paragraph 6 of the plaint filed by the husband of the petitioner wherein it is stated that Kalawati Devi died in the year 2000. However, as genealogy given in the plaint (Annexure A) is not disputed in the counter affidavit, filed by the O. Ps., this Court finds it difficult to accept the reason given by the learned Sessions Judge that Shyam Sunder Singh does not appear relative of Akhileshwar Singh, the husband of the victim girl. Apart from this, this Court finds that the learned Magistrate took cognizance vide order dated 5.2.2000, contained in Annexure 2, on perusal of the complaint, S.A. of the complainant and the deposition of the enquiry witnesses one of whom is Akhileshwar Singh, who in his deposition (Annexure 4) stated that Shyam Sunder Singh is his uncle. Apart from this, this Court finds that the learned Magistrate took cognizance vide order dated 5.2.2000, contained in Annexure 2, on perusal of the complaint, S.A. of the complainant and the deposition of the enquiry witnesses one of whom is Akhileshwar Singh, who in his deposition (Annexure 4) stated that Shyam Sunder Singh is his uncle. Moreover, this Court finds that the learned Sessions Judge while exercising his jurisdiction has erred in coming to the conclusion that the story of the complainant prima facie appears to be absurd and improbable. In fact the learned Sessions Judge, in my opinion, has not only exceeded his jurisdiction but has acted for extraneous reasons as is evident from the fact that the other co-accused Kalawati Devi had not even challenged the order taking cognizance against her in the said revision and yet he set aside the entire order. 8. Learned counsel for the petitioner has pointed out that pursuant to the said order the learned Sub-divisional Judicial Magistrate vide order dated 10.9.2001 has dropped the entire case and directed for sending information to the concerned Officer in-charge. 9. In the facts and circumstances aforementioned, the impugned order of the learned 1st Addl. Sessions Judge as well as the consequential order dated 10.9.2001 passed by the Sub-divisional Judicial Magistrate are set aside. This Court directs the learned Sub-divisional Judicial Magistrate, Kaimur (Bhabhua) to proceed in the matter accordingly. The criminal miscellaneous application is thus allowed. 10. In the facts and circumstances aforementioned, let a copy of this order be placed on the administrative side before the Standing Committee for consideration and appropriate action against the learned Sessions Judge concerned.