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2006 DIGILAW 590 (PAT)

Navin Mishra v. State Of Bihar

2006-07-12

MRIDULA MISHRA

body2006
Judgment 1. Heard the counsel for the petitioners and the counsel appearing for opposite party no. 2. 2. Petitioners have filed this application for quashing the first information report of Samastipur Railway P.S. Case No. 54 of 2003 instituted on 8.7.200 against the petitioners for offence under Sections 498A and 376/34 of the Indian Penal Code. Further prayer of the petitioner is for quashing the order, dated 28.4.2004, passed by the Judicial Magistrate, Railway, Samastipur, whereby cognizance has been taken against the petitioners under Sections 498A and 376 of the Indian Penal Code. Petitioners counsel has submitted that the present case is a glaring example of malicious prosecution. In support of this fact, he has drawn my attention towards different com plaint cases and police cases instituted by opposite party no. 2 against the petitioners. The complainant-opposite party no. 2, in the present case, has alleged that she had gone to purchase spice in Muktapur Bazar Samiti alongwith several persons. After she met with the petitioners on way to Samiti, they asked her to stop, but she wanted to board the train. She felt thirst and get down of the train to fetch some water. In the meantime, train left the station and she was left on the platform. The accused Navin Mishra and Surendra Mishra started teasing her. They pressurized her to come with them to Rosera and forcibly she was taken towards bush and there she was raped by both the accused persons. On the basis of such allegations cognizance has been taken against the petitioners. 3. My attention has been drawn by the petitioners counsel towards the deposition of opposite party no. 2 in Cr. No. 151/T.R. No. 247 of 2003 where she has admitted that she is wife of Navin Mishra, petitioner no. 1, and she has admitted that though she was earlier married to Surendra Mishra, petitioner no. 2, but now she has started living as husband and wife with Navin Mishra. This case has been filed under Sec. 498A of the Indian Penal Code. Against petitioner no. 2, Surendra Mishra, opposite party no. 2 has also filed Maintenance Case No. 3 of 2000 for allowing maintenance under Sec.125 of the Criminal Procedure Code. Subsequently, she compromised this case, but again she filed a case under Sec.323 and 498A of the Indian Penal Code against petitioner, Navin Mishra. Against petitioner no. 2, Surendra Mishra, opposite party no. 2 has also filed Maintenance Case No. 3 of 2000 for allowing maintenance under Sec.125 of the Criminal Procedure Code. Subsequently, she compromised this case, but again she filed a case under Sec.323 and 498A of the Indian Penal Code against petitioner, Navin Mishra. This case was filed, in the year 2000. In the year 2004, opposite party no. 2 filed Complaint Case No. 653 of 2004 against Navin Paswan. This case was filed under Sections 313, 314, 323, 324, 379 and 498A of the Indian Penal Code. Counsel for the petitioners submits that from the facts stated above, it is apparent that opposite party no. 2 is under the habit of filing false cases against the petitioners and other persons. Simultaneously, she is claiming to be the wife of petitioner no. 1, Navin Mishra, she has filed complaint case under Sec. 498A of the Indian Penal Code against them, which is not possible. Considering that she cannot be a legally married wife of two persons at the same time, it has been submitted by the petitioners counsel that without considering the fact cognizance has been taken against the petitioners, which is a malicious prosecution. It has also been submitted that petitioner no. 2, Surendra Mishra, is the husband of opposite party no. 2, it can not be a case under Sec.376 of the Indian Penal Code. However, it has been submitted that as on affidavit opposite party no. 2 has admitted that she is wife of petitioner no. 1, Navin Mishra, she cannot file case under sec. 498A of the Indian Penal Code against him. 4. Counsel appearing for opposite party no. 2 has admitted that this case has been filed by opposite party no. 2. This is a case in which the Court should take action against opposite party no. 2 for filing false cases. 5. Entire criminal proceeding of Samastipur Railway P.S. Case No. 54 of 2003 as well as order, dated 28.4.2004, passed by the Judicial Magistrate, Railway, Samastipur, in connection with G.R.P. (S.P.J.) Case No. 54 of 2003 is quashed. 6. Accordingly, this application is allowed.