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2007 DIGILAW 1848 (PAT)

Sunil Kumar v. State Of Bihar

2007-12-04

SADANAND MUKHERJEE

body2007
Judgment 1. This is an application for quashing the order dated 2.1.2006 passed in Complaint Case No. 3569C of 2005 under Sections 366, 506 read with Sec. 120(B) of the I.P.C. by the learned Sub-Divisional Judicial Magistrate, Patna issuing summons against the petitioners to stand trial alongwith the aforesaid case filed against the petitioners. 2. The complaint case is that the complainant was tenant in the house of the maternal uncle of accused Sunil Kumar (Petitioner No. 1) who approached the complainant to keep him as a tutor to teach Triloki Pathak and Pooja Kumari, son and daughter of the complainant. Petitioner No. 2 who is mother of petitioner No. 1, requested the complainant to keep her son as a tutor as they had no source of income. The complainant allowed petitioner No. 1 to teach Triloki and Pooja Kumari. After lapse of time, petitioner No. 1 used to talk unnecessary things with Pooja Kumari, the daughter of the complainant and the complainant on hearing the same objected whereupon petitioner No. 1 became angry and threatened that he would kidnap Pooja Kumari to marry. 3. It is alleged in the complaint that on 3.9.2004 the complainant alongwith his family members went to Ara, their native place. Pooja and her younger sister Bani Kumari were alone in their house situated at Kurji. Petitioners No. 1 and 2 alongwith petitioner accused No. 3 friend of victim Pooja the complaint came to the residence of the complainant and compelled Pooja to go with them. They took Pooja before Marriage Registrar Office and took forcibly signature on several papers and threatened her not to disclose about the said occurrence. The aforesaid victim Pooja Kumari could not tell about the occurrence to family members and she began to live with her parents with fear. On 1.12.2005 petitioner No. 1 came to the house of the complainant and began to shout saying that he had married with Pooja Kumari and asked the complainant to allow her to go with him. The complainant was shocked to know about the occurrence from petitioner No. 1. The case was accordingly lodged. 4. Notice was also issued to Opposite Party No. 2 and Opposite Party No. 3 Service was effected but they did not appear. 5. The complainant was shocked to know about the occurrence from petitioner No. 1. The case was accordingly lodged. 4. Notice was also issued to Opposite Party No. 2 and Opposite Party No. 3 Service was effected but they did not appear. 5. It has been submitted on behalf of the petitioners that Pooja Kumari, who was a major girl, and petitioner No. 1, Sunil Kumar due to love and affection between them voluntarily married themselves in the Court of Marriage Registrar-cum-District Registrar, Patna on 24.10.2004. The date of brith of the daughter of the complainant Pooja was 6.2.1984. The aforesaid Pooja Kumari also lodged an informatory petition before the Chief Judicial Magistrate, Patna stating therein that she is married with Sunil Kumar on 27.10.2004 (Annexure-6). After the marriage between Pooja Kumari and Sunil Kumar, the father of Pooja Kumari filed the present complaint petition before the Chief Judicial Magistrate, Patna on 6.12.2005. Petitioner No. 1, namely, Sunil Kumar, also lodged Matrimonial Case No. 87 of 2005 before the Principal Judge, Family Court, Patna for restitution of their conjugal life as the aforesaid marriage was disturbed and the Family Court vide its order dated 28.2.2006 directed allowing them to lead their conjugal life as husband and wife. 6. Petitioner No. 2 is the mother of petitioner No. 1, Sunil Kumar and petitioner No. 3 is niece of Sunil Kumar, petitioner No. 1. It is submitted that from the facts and circumstances stated above, no case under Sections 366, 504/120(B) I.P.C. is made out against the petitioner and it has also been stated that the statement of Pooja Kumari which was recorded during enquiry under Sec. 202 Cr.P.C. was due to the effect of pressure of her father. Both petitioner No. 1 and Pooja Kumari are living peacefully as wife and husband and their marriage is legal and valid. The complainant has implicated the petitioners falsely to insult, abuse and to blackmail for illegal motive by disturbing the peaceful conjugal right of petitioner No. 1 and Pooja Kumari. It is, therefore, submitted that this is an abuse of the process of the court to continue the case. 7. It appears from perusal of the complaint petition that allegation is levelled mainly against petitioner No. 1. It is, therefore, submitted that this is an abuse of the process of the court to continue the case. 7. It appears from perusal of the complaint petition that allegation is levelled mainly against petitioner No. 1. So far as petitioners No. 2 and 3 are concerned, the allegation levelled against them do not prima facie make out any case under Sections 366, 504 read with Sec. 120(B) I.P.C. under the aforesaid circumstances so far as petitioners No. 2 and 3 are concerned, the prosecution against them is quashed. 8. So far as petitioner No. 1, it is well settled that the complaint can be quashed where the allegation made in the complaint even if they are taken in their face value and accepted in their entirety do not prima facie constitute the offence. For this purpose the complaint has to be examined as a whole but without examining the merits of the allegation. At the time of issuance of process the court below took into notice the version of the complainant and also the victim girl, namely, Pooja Kumari and from her statement as well, the offence was prima facie made. However, on a subsequent stage on 28.2.2006 in the Matrimonial Case, Annexure-7, there was reconciliation proceeding in which Pooja expressed her desire to allow her to live with her husband, Sunil Kumar, and give protection from her parents. This, however, has not been taken into consideration and aforesaid Pooja Kumari has not come in this Court along any petition corroborating and stating about innocence of this petitioner. 9. Since under the established principle of law the case has to be looked from the complainant points of view, the aforesaid Annexure-7 can be a valid defence of petitioner No. 1 in the trial Court, in absence of the appearance of the concerned opposite party members and hence, so far as this proceeding is concerned, Annexure-7 being a part of the reconciliation proceeding the Matrimonial Case though relevant before charge cannot be taken into consideration. Petitioner No. 1 shall take the aforesaid plea in the Court below and if he is so advised to file a petition for discharge on the aforesaid ground, the court below shall take into consideration the aforesaid proceeding in the Matrimonial Case and also Annexure-7 which is part of the proceeding in the Matrimonial Case and dispose of such petition if preferred according to law. 10. With the aforesaid observation the petition so far as the petitioner No. 1 is concerned, is disposed of. This criminal miscellaneous proceeding for quashing therefore partly allowed.