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2009 DIGILAW 1116 (PAT)

Subhash Kumar v. State Of Bihar

2009-08-19

ABHIJIT SINHA

body2009
JUDGEMENT Abhijit Sinha, J. 1. The petitioner who has been arrayed as one of the accused in Complaint Case No. 1258 (C) of 2005 has prayed for the quashing of the order dated 6.12.2006 passed therein by the learned Sub-Divisional Judicial Magistrate, Nalanda at Biharsharif, whereby he has taken cognizance under Sections 304-B/34 and 201/34, IPC against all the accused including the petitioner and has directed the office to issue non-bailable warrants against the accused. 2. The aforesaid complaint case was filed on 5.12.2005 by one Kamlesh Kumar Sharma, impleaded as OP. No. 2 herein, for an occurrence allegedly taking place on the night of 8.11.2005. It was stated inter alia that the marriage of the complainants sister Baby Kumari was solemnized some five years back at the complainants house at Harnaut Bazar whereat Rs. 3.75 lakhs in cash, gold and silver ornaments worth Rs. 1,00,000/- and household goods and furnitures worth Rs. 50,000/- were given to her in-laws. It is alleged that after Baby Kumari entered into her matrimonial home at Araria, notwithstanding the gifts given, her in-laws were not happy with the same and they demanded one Maruti Car from the complainant. It is further alleged that when after 1-1/2 months the complainant went to Araria to bring back his sister he was told by her about the demand and during the stay there the petitioner, his mother, Rewati Sharma and his brothers, Sunil Kumar and Pintu Kumar, reiterated their demand for the Maruti Car to which the complainant expressed his inability to meet the demand. However, he brought back his sister to his home. It is also alleged that some three months later, on the occasion of duragaman demand for the Maruti Car was reiterated by the persons who had come to fetch Baby Kumari and on the assurance given by the complainant to meet their demand the duragaman was performed. At the matrimonial home Baby Kumari was subjected to torture, both physically and mentally, for non-fulfillment of the dowry demand. She was abused frequently and taunted. She was not supplied with essential articles like clothes and medicines and was threatened with dire consequences if the demand was not met and Subhash would be married else where. Baby Kumari is said to have communicated her tales of woe to the complainant over telephone. She was abused frequently and taunted. She was not supplied with essential articles like clothes and medicines and was threatened with dire consequences if the demand was not met and Subhash would be married else where. Baby Kumari is said to have communicated her tales of woe to the complainant over telephone. The complainant went to the matrimonial home of Baby Kumari and found the happenings narrated by Baby to be true and it was in his presence that they abused and misbehaved with her for non-supply of Maruti Car and also chided her for complaining to her brother and the mother-in-law and two dewars said that if he wanted his sister to live in peace then the car demanded should be provided. The complainant is said to have reasoned and pleaded with the accused which had no effect on them and as the health of Baby Kumari had fast deteriorated he brought her back to his house. Subsequently, the accused persons refused to take Baby Kumari but on persuasion by the people they again took back Baby to Araria where her torture continued and information thereof was given to the complainant who paid frequent visits to his sisters sasural in course of which he would plead and reason with Babys in-laws. It is said that prior to February, 2005, Baby had come to her parental home followed by her husband and two dewars who came and reiterated their demand for the vehicle and in the presence of the complainant and his family members they abused and assaulted Baby. They also misbehaved with the complainant and his family members and also abused them. The complainant took loan of Rs. 50,000/- and gave the same to accused with assurance to pay the balance amount later whereupon the bidai of Baby was again performed and at the matrimonial home she was again subjected to cruelty and torture and complainant would occasionally go to plead and reason with them. It is further said that on the night of 8.11.2005 at about 10 P.M. Baby informed him over the phone that the accused were going to kill her and she had been kept locked and that he should come immediately. The complainant went to Araria on the following morning and found that his sister had been killed by the accused persons and the dead body was surreptitiously burnt in the night of 8/9.11.2005. The complainant went to Araria on the following morning and found that his sister had been killed by the accused persons and the dead body was surreptitiously burnt in the night of 8/9.11.2005. He was also threatened to leave the place. The complainant approached the police who refused to lodge a complaint, hence, the complaint petition. 3. It has been submitted on behalf of the petitioner that he is separated from his brothers, Pintu Kumar and Sunil Kumar by meets and bounds and that the allegation against all the family members were general and omnibus in nature without any specific allegation being attributed to any of the accused. Grievance has also been made against the inordinate delay of 27 days in filing the complaint with mala fide intention which is apparent from the fact that the date of marriage is not disclosed either in the complaint petition or in the deposition of the witnesses. It has merely. been asserted that marriage took place five years back only to bring the offence within the ambit of an offence under Section 304-B, IPC. In this connection, it was submitted that the marriage actually took place on 6.12.1997 which would be apparent from perusal of the invitation cards of both the sides as also from the photographs and video cassettes of the marriage. It was also submitted that on the contrary Baby Kumari was leading a very happy married life which would be apparent from the letter written by her to her husband at Chennai on 17.9.1997. Babys name was also enrolled in the voters list of Araria Legislative Assembly In the year 1998 but unfortunately her name was printed as Devi Kumari but the name of the husband had been rightly inserted. 4. The further submission on behalf of the petitioner is that Baby was suffering from Chronic Asthama resulting in acute breathlessness and chest problems for which she was regularly treated and it was in the night of 20/21.10.2005 that Baby suffered repeated attacks of breathlessness for which she was given medical assistance by Dr. K.P. Shah and eventually she died on the morning of 9. 11.2005. Several other issues have been raised. 5. K.P. Shah and eventually she died on the morning of 9. 11.2005. Several other issues have been raised. 5. It has finally been submitted that the Court at Nalanda at Biharsharif had no jurisdiction to entertain the complaint and take cognizance since no part of the cause of action took place within its jurisdiction and admittedly all cause of action took place at Araria. 6. It will appear from the perusal of the complaint petition specially paragraph-5 that when the accused had come to the parental home of Baby Kumari to take her back they had reiterated their demand for Maruti car and it was only an assurance given by the complainant that the duragaman was performed. Then again on February, 2005, the petitioner with his two brothers had come to Harnaut and reiterated their demand and abused and assaulted Baby in the presence of complainant and his family members and had also abused and misbehaved with the complainant and his family members. It was also after payment of Rs. 50,000/- that the duragaman of Baby was performed. It would thus appear that the cause of action apart from Araria also took place within the jurisdiction of the Court at Nalanda and thus provisions of Section 178, Cr PC would come into play which provides that where cause of action taken place at two or more places any of the Courts having jurisdiction over these locations could try that case. Therefore, the submission of Court at Nalanda at Bihar- tharif having no jurisdiction cannot be accepted. 7. There is another aspect of the matter. All the submissions that have been advanced by the learned counsel for the petitioner with reference to facts based on documents clearly involves looking into disputed questions of facts which cannot be done at this stage in a proceeding under Section 482, Cr PC and can be properly examined in course of a full dressed trial where these facts can be proved by leading cogent evidence or these issues can be raised at the time of framing of charge. 8. In view of the facts and the circumstances of the case as also the discussions made above, I find no merit in this application which is dismissed.