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2006 DIGILAW 613 (PAT)

Md. Mahmood @ Mahmood Alam v. State Of Bihar

2006-07-19

NAVANITI PRASAD SINGH

body2006
Judgment 1. Heard. 2. This is an application for quashing Complaint Case No. 630 of 2001 pending in. Araria Court instituted under Sections 498A, 304B and other Sections of Indian Penal Code (in short "IPC") and consequential order taking cognizance against the petitioners. It is submitted that one Md. Murtaza @ Munna who is accused No. 1 in the present case was married to the complainants daughter, namely, Shahnaz Bano. The complainant resides at Araria and the accused No. 1 resides at Darbhanga. It is pointed out that on 2.5.2001, the complainant lodged a first information report under Sections 498A, 304B, 201 and others Sections of IPC giving rise to Biraul Police Station Case No. 86 of 2001 and it was registered against Md. Murtaza @ Munna. In the said first information report, it was alleged that the informant came to know that his daughter had been killed. He had specifically alleged that it was his son-in-law who had killed his daughter. The said case was investigated and ultimately charge-sheet was submitted against the said Martoz @ Mannu. He was tried and ultimately by judgment and order dated 22.11.2003, he was acquitted. 3. That as noted above on 2.5.2001, the said first information report had been lodged at Darbhanga. It is now pointed that on 3.5.2001, the very next day, the informant returns to his home town Araria and then lodges the present complaint. This time, though his allegation is only, primarily against his son-in-law, he names various members of the family without attributing any role to them. The allegation is similar with regard to the death of his daughter. But while doing so, the present petitioners, who are nine in number, have been added as accused persons. All these petitioners are residents of Araria and not Darbhanga. The are not relations of either the husband or the complainant. In the said complaint, it is nowhere mentioned that the complainant had already instituted the police case in regard to death of his daughter. The trial Court has taken cognizance against all the accused persons named in the complaint and this is the order that is challenged by the petitioners. 4. It is first submitted that on the bare reading of the complaint, no role whatsoever is attributed to the petitioners. Petitioners belong to Araria whereas the matrimonial home of the deceased girl was Darbhanga. 4. It is first submitted that on the bare reading of the complaint, no role whatsoever is attributed to the petitioners. Petitioners belong to Araria whereas the matrimonial home of the deceased girl was Darbhanga. They are not related to the husband. They have merely been named as accused without any overt act being ascribed to them. In such a situation, it is submitted that their trial would be an abuse of process of Court. It is secondly submitted that for this very incidence, that is the death of the daughter, a substantive first information report has been lodged, investigated, charge-sheet filed, trial conducted in which the husband of deceased girl was acquitted. In the present complaint, the main allegation is only against the husband and the others, at best, come in by virtue of Sec. 120B of IPC. It is thus submitted that once the husband had been acquitted, then Sec. 120B of IPC itself would not be invoked. It is further submitted that in view of Sec. 300 of Criminal Procedure Code (in short "Cr.PC"), the husband could not be tried again and if that be so then the petitioners cannot be put to trial as they derive their liability only through the husband of the deceased. 5. I have examined the first information report and the judgment of acquittal. I have examined the complaint. I have examined the statements recorded by the learned Magistrate on solemn affirmation and in support of the complaint before the order taking cognizance. In those statements, there is no mention of the petitioners. Even in the complaint, there is no overt act whatsoever attributed to the petitioners. Petitioners are not residents of Darbhanga, the matrimonial house where, it is alleged, the girl was killed. Rather the petitioners reside in the village of the complaint himself. That in the aforesaid circumstances, I find that the complaint is clearly an abuse of process of Court for the reason that for the same incidence, another case having been instituted against the husband ending in his acquittal, the same cannot be retried on basis of the complaint. it is clear that the complaint was filed more for the purpose of harassment because there is not a whisper therein that earlier the complainant himself, in relation to the same incidence, had already lodged a police case. it is clear that the complaint was filed more for the purpose of harassment because there is not a whisper therein that earlier the complainant himself, in relation to the same incidence, had already lodged a police case. Moreover, it would be seen that the husband had been tried for the alleged offence and acquitted. In view of Section 300 of CrPC read with Article 20 of the Constitution of India, a fresh trial is barred so far as the husband is concerned. In the complaint, the allegation is primarily directed to the husband and if that is not triable then the complaint, as a whole, becomes not maintainable. 6. In that view of the matter, I have no option but to quash the prosecution of the petitioners and the consequential order taking cognizance against them. This application is, thus, allowed.