Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 1554 (PAT)

Smt. Rani Kanti Sinha v. State Of Bihar

2010-07-15

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 12.2.1999 passed by Sri R. Prakash, Judicial Magistrate, Bhagalpur in Complaint case No. C-27 of 1996 by which the learned Magistrate has refused to discharge the petitioner. 2. Short fact of the case is that the opposite party No. 2 filed aforesaid complaint disclosing therein that she was married with one Sri Pashupati Prasad on 22.1.1990, according to Baidik rites in the Deoghar temple and thereafter, she went to the village Dharhara. It was specifically made clear in the complaint petition that accused Pashupati Prasad by way of suppression of the fact that the present petitioner, who was his first wife, solemnized marriage with the complainant on 22.1.1990. It was further alleged that after the marriage, Pashupati Prasad, who was made accused No. 1 in Complaint case No. C-27 of 1996, started to put pressure on the complainant for bringing dowry. As per complaint petition in the marriage itself, the accused Pashupati Prasad was adequately given dowry. However, the accused persons started torturing the complainant. The complainant disclosed that the present petitioner, who was first wife of accused Pashupati Prasad, was doing the job of Nurse and she was posted at Gaya and when she came back, she also joined along with her husband in torturing the complainant. In the complaint petition, it was also disclosed that the accused Pashupati Prasad was contemplating to sell out the house where the complainant was residing and subsequently, mother of the complainant intervened and agreement was entered in between the mother of the complainant and Pashupati Prasad that he will sell the house, which was at village Dharhara to the mother of complainant on a consideration amount of Rs. 80,000/-, which was paid by the mother of the complainant to the accused. However, subsequently, the accused Pashupati Prasad retreated from his earlier agreement. 3. The complainant disclosed in the complaint petition that in the year 1994 on one day the accused Pashupati Prasad along with this petitioner and others forcibly tried to lift the complainant from the house and they started to drag her to a car, which was standing outside the house, but in meanwhile, after the alarm was raised by the complainant, several villagers assembled and rescued the complainant. For this occurrence as stated in paragraph 6 of the complaint petition, the complainant filed a complaint in the Court of Chief Judicial Magistrate, Munger, which was transferred to the police. However, the police did not take any action in the case. However, subsequently, due to torture the complainant left the house of her husband and started to reside at Bhagalpur with her mother and thereafter, complaint petition viae Complaint case No. C-27 of 1996 was filed by the opposite party No. 2 (complainant) in the Court of Chief Judicial Magistrate, Bhagalpur for offence under Sections 494, 495, 452, 464, 466, 420, 406, 489, 148, 149, 498-A, 109 and 114 of the Indian Penal Code as also 380, 120-B of the Indian Penal Code and 27 of the Arms Act. 4. After filing of the complaint petition, the complainant was examined on SA and some witnesses were examined as enquiry witness in support of the complainant and thereafter, by order dated 25.5.1996, the learned Magistrate took cognizance of the offence under Sections 323, 380, 406, 494, 494/109 and 498-A of the Indian Penal Code. Subsequently, at the stage of charge, petitions were filed by accused persons for their discharge and by the impugned order, the discharge petition was rejected. 5. Aggrieved with the order dated 12.2.1999, the petitioner approached this Court by filing the present petition. On 2.6.1999 on an interlocutory petition filed on behalf of the petitioner, an interim order for taking no coercive step against the petitioner was passed. On 31.8.1999, this Court directed for issuance of notice to opposite party No. 2 and in the meanwhile, it was directed that further proceeding as regards the petitioner in Complaint case No. C-27 of 1996 pending in the Court below shall remain stayed and on 18.11.1999. the petition was admitted for hearing and it was directed that interim order dated 31.8.1999, staying the further proceeding as regards the petition in Complaint case No. C-27 of 1996 pending in the Court below shall continue and order of stay is still continuing. 6. the petition was admitted for hearing and it was directed that interim order dated 31.8.1999, staying the further proceeding as regards the petition in Complaint case No. C-27 of 1996 pending in the Court below shall continue and order of stay is still continuing. 6. Shri Ajay Kumar Thakur, learned counsel appearing on behalf of the petitioner, while making a prayer for quashing of the impugned order as well as entire proceeding so far petitioner is concerned, argued that the learned Chief Judicial Magistrate at Bhagalpur was not having any jurisdiction to take cognizance of the offence in a case where no cause of action arose within his territorial jurisdiction. It was submitted that even for the time being, if it is assumed that alleged offence was committed, the entire occurrence had taken place in the village Dharhara, which is in the district of Munger and as such the Chief Judicial Magistrate, Bhagalpur was not competent to proceed and try the petitioner and, accordingly, the entire prosecution is vitiated on the ground of its jurisdiction. 7. Shri Thakur has further argued that it was the complainant herself, who ad solemnized second marriage with Pashupati Prasad during the life time of his first wife, who was non else, but this petitioner. It was submitted that if the stand of complainant is accepted, a case of 109 read with 494 of the Indian Penal Code is made out against the complainant and the husband of the petitioner. Learned counsel for the petitioner has also argued that two distinct offences as alleged in the complaint petition cannot be tried together. It was argued that so far as this petitioner is concerned, no offence is made out and as such the learned Magistrate, by its order dated 12.2.1999, has committed a serious mistake and said order along with entire proceeding so far as petitioner is concerned is liable to be set aside. 8. The opposite party No. 2 has not preferred to appear in the present case either in person or through her advocate. However, Shri Shailendra Kumar, learned Additional Public Prosecutor appeared on behalf of the State and he opposed the prayer of the petitioner. 9. Besides hearing learned counsel for the petitioner and State, I have also perused the materials available on record. In this case, Lower Court Record has been received and I have also perused the same. However, Shri Shailendra Kumar, learned Additional Public Prosecutor appeared on behalf of the State and he opposed the prayer of the petitioner. 9. Besides hearing learned counsel for the petitioner and State, I have also perused the materials available on record. In this case, Lower Court Record has been received and I have also perused the same. From the Lower Court Record, it transpires that after the order of cognizance i.e. after 25.5.1996, the complainant stopped her interest in the case and as such by order dated 26.9.1997, evidence before the charge was directed to be closed by the learned Magistrate. Subsequently, at a belated stage on 20.1.1998, a petition was filed on behalf of the complainant to recall the order dated 26.9.1997 and thereafter, the learned Magistrate, for the ends of justice after imposing cost of Rs. 200/-, allowed the petition and directed the complainant to examine witnesses before charge. Thereafter, a petition for discharge was filed by the petitioner and other accused persons. However, by the impugned order, the learned Magistrate rejected the same. 10. On perusal of the complaint petition itself, the Court is satisfied that prosecution of the petitioner was unwarranted. Whatever allegation was made in the complaint petition cannot be considered sufficient for proceeding against the petitioner, who was non else, but the first wife of so-called husband of the complainant. In the complaint petition itself, the complainant has asserted that her marriage was solemnized in Deoghar temple in absence of any family members of her proposed husband i.e. accused Pashupati Prasad. In her examination, the complainant in paragraph-1 has deposed that "her father-in-law was not present in her marriage, but one Shri Ganesh Singh had pretended as her father-in-law. Dhaneshwar Gupta had participated in her marriage pretending himself to be brother of her husband". Besides this, no perusal of the complaint petition and other materials available on record, it appears that the dispute was in relation to a house at village Dharhara, which was the house of the husband of the complainant where she was residing. The dispute in between the parties arose only when the husband of the complainant proposed to sell the house. The dispute in between the parties arose only when the husband of the complainant proposed to sell the house. For just decision in the present matter, this Court is not reiterating entire fact as has emerged in the present case, but from the facts and circumstances of the present case, the Court is satisfied that there were no sufficient materials for proceeding in the present complaint case against the petitioner, who was first wife of the husband of the complainant. At the same time, the Court is also satisfied that in the present case, the entire cause of action arose in the village Dharhara which falls within the territorial jurisdiction of Munger. On the basis of materials on record, this Court is satisfied that neither there were sufficient material to proceed against the petitioner nor the prosecution in the present case was fair and honest. 11. Accordingly, in view of the facts and circumstances of the present case, I am of the opinion that allowing the prosecution of the petitioner in the present complaint will amount to allowing abuse of the process of the Court and with a view to prevent the abuse of the process of the Court, it is desirable to interfere with the impugned order. 12. Accordingly, order dated 12.2.1999 passed by the learned Magistrate in Complaint case No. C-27 of 1996, so far as it relates to the petitioner, is hereby set aside and petition stands allowed.