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2008 DIGILAW 411 (PAT)

Surendra Nath Choubey v. State of Bihar

2008-02-26

body2008
ORDER This is an application filed under section 482 of the Code of Criminal Procedure for quashing the order dated 30th May, 2007 passed by SDJM, Saran at Chapra in Trial No. 958 of 2007 rejecting the petition of the petitioners accused filed under section 239 of the Code of Criminal Procedure for their discharge. 2. Kanchan Ojha filed a petition of complaint dated 7th February, 2002 giving rise to the present case, against her husband and three others who are petitioners here, alleging therein that she was married to the accused Sumit Chaubey on 1st December, 1999. It is alleged that at the time of Bidagiri her husband and father in law advanced a demand for a Maruti Car. Her father showed his inability. However, on the request of the relations and neighbors Bidagiri was taken. In the Sasural she lived peacefully for sometime. After sometime her mother-in-law and Devar started giving taunts to her for the non-fulfilment of a demand of Maruti Car and also threatened for the second marriage of her husband. They started committing atrocities. Her father went there and he brought her to his residence at Chapra on 2.5.2000 and thereafter she started living in her Naiher. It is alleged that on 5th September, 2000, she gave birth to a male child but no one came from her Sasural. However, father-in-law took her Bidaee on 21st April, 2001. The attitude of the accused persons remained the same and they started committing atrocities upon her. Lastly on 20th January, 2002 accused persons assaulted her and after keeping her ornaments and taking her signature on a blank piece of paper turned her out from the house. After inquiry the learned Magistrate took cognizance of the offence on 28.10.2005 under sections 498A, 323, 406 of the Indian Penal Code and 3/4 of Dowry Prohibition Act. 3. Against the order of cognizance, petitioners filed Misc. Case No.158 of 2006 (Annexure-4) under section 482 of the Code of Criminal Procedure for quashing the said order. He submits that this Court rejected the Misc. case but the petitioners were given liberty to raise the factual aspect of the case at the time of framing of the charge. 3. Against the order of cognizance, petitioners filed Misc. Case No.158 of 2006 (Annexure-4) under section 482 of the Code of Criminal Procedure for quashing the said order. He submits that this Court rejected the Misc. case but the petitioners were given liberty to raise the factual aspect of the case at the time of framing of the charge. So, at the time of framing of the charge petitioners filed a petition under section 239 of the Code of Criminal Procedure for their discharge but under the impugned order dated 30.5.2007 their petition was rejected. Against that order, petitioners have come before this Court. 4. Learned lawyer for the petitioners submits that from the very beginning the behaviour of the complainant was abnormal. Thereafter they came to know that the complainant was suffering from mental insanity from before the marriage and she was undergoing treatment in the Central Institute of Psychiatry, Kanke, Ranchi. She was taken there. Her brother also came there. He submits that without knowledge of the petitioners, her brother got discharged the complainant from the hospital and took her to his house at Chapra. He submits that Dr. Manish Dhingra of Central Institute of Phychiatry, Kanke, Ranchi diagnosed the disease as Herberfrenic Schizophrenia which is incurable and his diagnosis was confirmed by Dr. A Das. He submits that in this situation the husband Sumit Chaubey who is an Engineer, filed a case of divorce vide Divorce Case No.45 of 2001 (Annexure-5) in the Court of District Judge, Buxar on 20.12.2001. He submits that the husband Sumit Chaubey lives alone at the place of his employment and it was not possible for him to lead a conjugal life with a girl suffering from insanity, incurable in nature. He submits that after getting knowledge of the divorce case the complainant filed a petition of complaint vide Complaint Case No.201 of 2002 on 29.1.2002. He submits that during the pendency of that complaint case she again filed another complaint bearing No. 257 of 2002 on 7.4.2002 giving rise to the present case. He submits that earlier complaint was dismissed by the learned Magistrate. He further submits that divorce suit, on contest, has been decreed by the judgment dated 31.8.2006 by the Additional Sessions Judge, Fast Track Court No. V, Buxar on the ground of insanity, incurable in nature. He submits that earlier complaint was dismissed by the learned Magistrate. He further submits that divorce suit, on contest, has been decreed by the judgment dated 31.8.2006 by the Additional Sessions Judge, Fast Track Court No. V, Buxar on the ground of insanity, incurable in nature. He submits that the complainant has filed a malicious prosecution having no grain of truth in the allegation. So, he prays that the miscellaneous case be allowed. 5. Learned lawyer for the petitioners placed reliance on the decisions in the case of Mahjabeen Quasim alias Jhinto and Others Vs. State of Bihar & Another, reported in 2008(1) PLJR 495 and in the case of Arjun Ram Vs. State of Jharkhand and Another, reported in 2004 Cr. L.J. 2989. He submits that the facts in the aforesaid cases are same and in those cases, criminal miscellaneous cases have been allowed. 6. The learned lawyer appearing on behalf of the informant submits that divorce case of the petitioner husband is not to be looked into at this stage. He submits that whatever material is available in the record and the case diary is to be looked into and not beyond that. In support of his contention he referred to a decision. He, therefore, submits that if the matter is considered as available in the case record and the case diary, the miscellaneous case is liable to be dismissed. 7. Considering the rival submissions made, I am of the view that this is a fit case for invoking the inherent jurisdiction in the ends of justice so as to prevent the abuse the process of the court. 8. In the result, the miscellaneous case is allowed and the impugned order is quashed.