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2006 DIGILAW 465 (PAT)

Asha Devi v. State Of Bihar

2006-05-16

J.N.BHATT

body2006
Judgment J.N.Bhatt, J. 1. This is an application u/s. 482 of the Code of Criminal Procedure. 1973 (In short "the Code"), by which the petitioners have made a prayer for quashment of the order dated 21.3.2005 of Sub Divisional Judicial Magistrate, Barh, (sic) passed in Complaint Case No. 184/2005 by which the learned Court below has taken cognizance of the offence under Secs. 323, 341, 498A of the Indian Penal Code, and Secs. 3/4 of the Dowry Prohibition Act against the petitioners. The petitioners have also prayed for quashing of the entire criminal prosecution against the petitioners. 2. The instant trial arises out of a complaint filed by the complainant-wife against her husband, Nunulal Paswan (petitioner No. 10) and nine others alleging, inter alia, that she was married with petitioner No. 10 in 1996 but soon after the marriage, the husband and other accused persons started the complainant torturing and giving threat to kill, leading to filing a complaint by the complainant before the Additional Chief Judicial Magistrate. However, a compromise between the parties was arrived at and on 11.9.2004 the accused persons were acquitted. Thereafter complainant began to live with her husband. But again the accused persons started torturing her and making a demand of Rs. 1,50,000.00 and a colour TV. Though the complainant expressed her inability saying that her parents are too poor but the accused persons did not accede to her request and continued to put pressure and torture her and also assaulted her. On 10.12.2004. petitioner Nos. 4 and 5 took the complainant to some place with a view to kill her but she fled from there and came to her parents. On 29.12.2004 petitioner Nos. 9 and 10 came to the father of the complainant and took her for the matrimonial house giving assurance that they would keep her properly but on the way, at a lonely place, they attempted to kill her by pressing her neck whereupon she raised alarm. However, with the intervention of the passersby her life could be saved. Thereafter, the instant complaint petition has been filed. 3. Learned Counsels for the parties have been heard. The Police papers and record emerging from the present case have also been examined. 4. However, with the intervention of the passersby her life could be saved. Thereafter, the instant complaint petition has been filed. 3. Learned Counsels for the parties have been heard. The Police papers and record emerging from the present case have also been examined. 4. In order to avail the inherent powers of the High Court u/s. 482 of the Code for quashment of the Criminal Proceedings, it has to be shown that there is exceptional case for exercise of such powers. While exercising the jurisdiction u/s. 482 of the Code, the High Court would not embark upon a fresh inquiry - whether the allegations against the petitioners in the complaint is likely to be established or not. The power u/s. 482 of the Code, as per the settled proposition of law, has to be exercised sparingly. Such powers are extra-ordinary powers and are designed to help those persons against whom, on plain reading of the complaint petition or relevant papers, no offence is made out or constituted. The interference in minor matters with the help of Sec. 482 of the Code would be warranted only when the complaint or the first information report or the Police papers do not, even on plain perusal, constitute, prima facie, any offence against the accused persons. 5. In the recent decision in the case of Mohd. Malek Mondal V/s. Pranjal Bardalal and Anr. (2005) 10 SCC 608 , the Hon ble Apex Court has highlighted. once again, the principles for the purpose of exercising powers u/s. 482 of the Code for quashing the criminal proceedings. When and how such powers should be excercised are also articulated and expounded. Obviously, such powers are to be exercised sparingly and with caution and not to stifle legitimate prosecution. Such powers could only be exercised in a case where the complaint does not disclose any offence and it is brought to the notice of the Court that it is frivolous, excessive, vexatious or oppressive. At that stage of quashment of the proceedings, meticulous appreciation of evidence or quality of the material or detailed analysis is not warranted. 6. In the instant case, upon consideration of the facts profile, as well as, the legal set up highlighted herein above, and the record, it is noticed that except against petitioner Nos. 9 and 10, there are no clear and direct allegations against other petitioners. 6. In the instant case, upon consideration of the facts profile, as well as, the legal set up highlighted herein above, and the record, it is noticed that except against petitioner Nos. 9 and 10, there are no clear and direct allegations against other petitioners. Other petitioners are also not residing with the husband-petitioner No. 10. All the family members have been impleaded as accused persons and allegations are made same way as it had been made in the first complaint in which by virtue of the judgment of the trial court, the accused persons came to be acquitted on 11.9.2004. 7. The second complaint, virtually, for the same offence came to be filed 31.12.2004, It means even only after 2 and 1/2 months of the acquittal of the petitioners of the same charges, whether the second complaint against petitioner Nos. 9 and 10 will be maintainable or not will be a question to be decided by the trial court upon facutal investigation. Therefore, without entering into that aspect at present, so far as petitioner Nos. 1 to 8 are concerned, no specific allegation appears to have been made. Apart from unusual and uncommon attitude of the complainant wife, all family members came to be involved in the second complaint. Admittedly, there is no any allegation or averment against most of the petitioners. 8. Petitioner No. 1 is the married sister of petitioner No. 10, husband of the complainant, petitioner No. 2 is the husband of petitioner No. 1, petitioner No. 3 is another married sister of the petitioner No. 10. petitioner No. 4 is widow mother of the petitioner No. 10, petitioner No. 5 is wife of the brother of petitioner No. 10, and petitioner Nos. 6, 7, 8 and 9 are the brothers of petitioner No. 10, who as aforesaid, is the husband of the complainant. 9. Considering the peculiar facts and special circumstances obtainable in the present case, which is the second complaint petition filed by the wife before the magistrate, within a period of 2 and 1/2 months of the acquittal of the petitioners of the same charges, making omnibus general unsupported allegations, which ordinarily in such dispute would not be obtainable, no person should be allowed to misuse the process of Court for harassing all the members of the family of the husband, who are distantly related to the complainant. Most of them are not residing jointly. Acquittal order in the earlier complaint came to be recorded on 11.9.2004 by the competent trial court. All these facts and circumstances, as well as, averments made in the complaint do not prima facie, disclose any offence against petitioner Nos. 1 to 8. Obviously, therefore, no arm of law can be allowed to misuse or defeat process of law and to harass the relatives of the husband - petitioner No. 10. Therefore, the impugned order of cognizance dated 21.3.2005 passed by the Subdivisional Judicial Magistrate, Barh, (sic) in Complaint Case No. 613(C) /04 Tr. No. 184/2005, so far as petitioner Nos. 1 to 8 are concerned, is quashed. It will, however, be open for petitioner Nos. 9 and 10 to raise the question about maintainability of the second complaint petition before the trial Court. 10. In the result, the petition shall stand partly allowed. Rule is made absolute to that extent.