Research › Search › Judgment

Patna High Court · body

2010 DIGILAW 769 (PAT)

Sona Mani Devi v. State Of Bihar

2010-04-15

RAKESH KUMAR

body2010
JUDGEMENT Rakesh Kumar, J. 1. Five petitioners, while invoking inherent jurisdiction of this court under Sec.482 of the Code of Criminal Procedure, have prayed for quashing of the order dated 4.8.1998 passed by Sri a. K. Shrivastava, Judicial Magistrate, Hilsa in Complaint Case no.474 (C)of 1997. By the said order, the learned Magistrate has taken cognizance of offence under Sec.380 of the Indian Penal code. 2. The short fact of the case is that on 11.12.1997 opp. Party no.2 , who was the father-in-law of petitioner no.1, filed a complaint vide Complaint Case No.474c of 1997 arraying all the petitioners as accused in the said case. In sum and substance in the complaint petition, it was alleged that on 19.7.1997 while petitioner no.1, who was daughter-in-law of the complainant, was staying in her in-laws house, petitioner nos.2 to 5 conspiring with petitioner no.1 committed a theft in the house of the complainant. It was alleged that ornaments and other house-hold articles were stolen by the accused persons. In the complaint petition, it was also alleged that petitioner no.1 had re-married and also on the date of occurrence, accused persons had assaulted the complainant. In the said complaint, the complainant was examined on S. A. and in support of the complaint three witnesses were examined, who supported the case of the complainant and thereafter the learned Magistrate vide order dated 4.8.1998 took cognizance only for the offence under Sec.380 of the Indian Penal code. It is made clear that in the complaint petition, allegation was made that accused persons had committed offences under Sections 323,494, 341, 504, 380 of the Indian Penal Code. 3. After the order of cognizance , petitioners approached this Court by filing the present petition and on 8.2.1999 while issuing notice to Opp. Party no.2, this Court had directed that in the meantime , further proceedings in Complaint Case No.474 (C) of 1997 pending in the court below shall remain stayed. Subsequently on 12.4.1999, this petition was admitted for hearing and it was directed that the interim order passed on 8.2.1999 shall continue till disposal of this application. 4. When the case was called out, none has appeared on behalf of Opp. Party no.2. 5. Subsequently on 12.4.1999, this petition was admitted for hearing and it was directed that the interim order passed on 8.2.1999 shall continue till disposal of this application. 4. When the case was called out, none has appeared on behalf of Opp. Party no.2. 5. Learned counsel for the petitioners, while challenging the order of cognizance submits that the order of cognizance has been passed on a complaint petition, which was apparently filed maliciously and with oblique motive. He further submits that prior to filing of this complaint on 22.7.1997, petitioner no.1 who was the daughter-in-law of complainant-Opp. Party no.2 after being tortured for dowry filed a complaint case vide Complaint Case No.273 (C) of 1997. The said complaint petition was referred to the police for its investigation under Sec.156 (3) of the Code of Criminal Procedure and thereafter on the basis of complaint petition, an F. I. R. vide ekangarsarai P. S. Case No.339 of 1997 was registered on 7.11.1997 for the offence under Sections 498a, 494, 323/34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. In the complaint petition filed by petitioner no.1, it was also alleged that son of the complainant during the life time of his wife, i. e. petitioner no.1, had re-married and in the complaint, there was also allegation of assault. The police after registering the F. I. R. vide Ekangarsarai P. S. Case No.339 of 1997 investigated the case thoroughly and thereafter chargesheet was submitted against the complainant and other family members including husband of petitioner no.1. He submits that after filing of the complaint by petitioner no.1, which was filed on 22.7.1997, on 11.12.1997 opp. Party no.2 filed the present petition making an allegation of commission of theft, which was alleged to be committed on 19.7.1997. He further submits that the date of occurrence in the complaint petition filed by the complainant ( Opp. Party no.2) was calculatedly mentioned as 19.7.1997 since the petitioner no.1 had filed her complaint on 22.7.1997. Learned counsel for the petitioners submits that the complaint petition itself was filed by complainant-Opp. Party no.2 in the month of December, 1997 for an alleged occurrence, which was committed on 19.7.1997. He submits that this shows that in calculated way, the present complaint petition was filed. Learned counsel for the petitioners submits that the complaint petition itself was filed by complainant-Opp. Party no.2 in the month of December, 1997 for an alleged occurrence, which was committed on 19.7.1997. He submits that this shows that in calculated way, the present complaint petition was filed. He further submits that the complaint petition against the petitioners was filed by the complainant with a view to create defence in a police case, which was registered on the complaint made by petitioner no.1. He submits that allowing the proceeding on the basis of such complaint will amount to allowing the abuse of the process of the court and accordingly he prays for quashing of the order of cognizance as well as subsequent proceeding in the complaint petition so far as it relates to the petitioners. 6. Sri Amrendra Prasad, learned Addl. Public Prosecutor has appeared on behalf of the State. He has submitted that at this stage this Court may not interfere with the order of cognizance and he has prayed for rejection of the present petition. 7. Besides hearing counsel for the parties, I have also examined the materials available on the record. It is true that while exercising power under Sec.482 of the Code of Criminal Procedure, this Court is not required to look into the documents, which have been annexed with the petition without the same being legally proved. However, in view of the peculiar facts and circumstances of the present case, I am of the view that for the ends of justice it is necessary to examine those materials. The complaint petition, which was filed by petitioner no.1, was subsequently registered as Ekangarsarai P. S. Case no.339 of 1997. In the F. I. R. , which contains the complaint petition, it was categorically stated by petitioner no.1 that she was ousted from the house of her in-laws and on 19.7.1997 petitioner no.1 along with her father and other witnesses had gone to the house of the husband of petitioner no.1 with a request to keep the petitioner no.1 in her in-laws house, but it was refused. In the present complaint, which was filed by opp. Party no.2 in the month of December, 1997, the date of occurrence was purposely mentioned as 19.7.1997. In the present complaint, which was filed by opp. Party no.2 in the month of December, 1997, the date of occurrence was purposely mentioned as 19.7.1997. This shows that the present complaint was filed maliciously and with a view to create his defence in the case, in which the petitioners and their family members were already chargehseeted. Otherwise there was no reason to file a complaint in the month of December, 1997 for an alleged occurrence, which had taken place on 19.7.1997. It appears from the F. I. R. of this petitioner that date i. e.19.7.1997 was adopted due to the reasons that in paragraph 13 of the complaint Case No.273 (C) of 1997, petitioner no.1 had disclosed that on 19.7.1997 she along with her father and other witnesses had gone to the house of complainant. Prima facie, I am satisfied that the complainant had not approached the Court with clean hands but in a designed manner the complaint petition was filed. 8. In view of the facts and circumstances as indicated above I am of the opinion that allowing further proceeding pursuant to the complaint filed by Opp. Party no.2 will certainly amount to abuse of the process of the Court and, as such, with a view to prevent abuse of the process of the Court, it is necessary to exercise jurisdiction under section 482 of the Code of Criminal Procedure in favour of petitioners, which is to be exercised in exceptional cases. 9. In view of the facts and circumstances as indicated above, I am of the opinion that the present case comes under the category of exceptional case and, as such, the order of cognizance dated 4.8.1998 is hereby set aside and the petition stands allowed.