Research › Search › Judgment

Patna High Court · body

2012 DIGILAW 740 (PAT)

Ravi Shanker Jha v. State of Bihar

2012-05-07

ASHWANI KUMAR SINGH

body2012
Judgment 1. A supplementary affidavit has been filed on behalf of the petitioners. Let it be kept on record. 2. Heard learned counsel for the petitioners and learned counsel appearing on behalf of the State. Despite valid service of notice no one has chosen to appear on behalf of the complainant-opposite party no. 2. 3. The petitioners have come against the order dated 18.1.2007 passed by learned Additional Chief Judicial Magistrate, Benipur in C.R. No. 185 of 2006 corresponding to Tr. No. 33 of 2006 by which he has dismissed the petition filed on behalf of the petitioners under Section 245 of the Code of Criminal Procedure for discharging them from the case. The further prayer made on behalf of the petitioners is that there is absolutely no material on record against them to proceed further and, thus, the entire criminal proceedings pending against them in the court below in the aforesaid case be quashed. 4. The prosecution case in brief is that Madhav Jha (opposite party no. 2) filed a complaint being C.R. No. 91 of 2000 before the learned Additional Chief Judicial Magistrate, on 27.6.2000 alleging therein inter alia that his daughter Kiran Kumari was married to the petitioner no. 1 on 27.4.1990. Since the complainant had some land dispute with petitioner no. 4, who happens to be father of brother-in-law of petitioner no. 1, the petitioners in conspiracy to each ether started demanding Rs.1,00,000/-(Rs. One lakh) as dowry from the complainant and threatened that his daughter would be ousted from her matrimonial home if the demand of dowry is not fulfilled. The complainant has also alleged that a Panchayati took place and pursuant to Panchayati the daughter of the complainant was taken back to her matrimonial home on 1.3.1999 but again she was being subjected to cruelty in various ways for non-fulfilment of demand of dowry. Ultimately, on 9.3.1999 the petitioners after assaulting the daughter of the complainant and after retaining her belongings kicked her out from their house. The complainant made several attempts to pacify the matter but in vain. 5. The learned Additional Chief Judicial Magistrate referred the complaint instituted by the complainant to police in exercise of powers conferred under Section 156(3) of the Cr.P.C. and, accordingly, Bahera P.S. Case No.152 of 2002 dated 6.7.2000 was instituted under Sections 341, 323, 379 and 498A/34 of the Indian Penal Code against the petitioners. 6. 5. The learned Additional Chief Judicial Magistrate referred the complaint instituted by the complainant to police in exercise of powers conferred under Section 156(3) of the Cr.P.C. and, accordingly, Bahera P.S. Case No.152 of 2002 dated 6.7.2000 was instituted under Sections 341, 323, 379 and 498A/34 of the Indian Penal Code against the petitioners. 6. The police upon conclusion of investigation found accusation against the petitioners false and thus, submitted a final report dated 10.10.2000 in the Court of learned Additional Chief Judicial Magistrate, Benipur. After submission of the final report, by order dated 28.11.2000, the learned Magistrate accepted the police report and directed that a separate complaint case be initiated on the basis of protest petition filed on behalf of the informant. In terms of the order passed by the learned Additional Chief Judicial Magistrate the protest petition was registered as a complaint being C.R. No. 185 of 2000 and on 9.11.2000 the complainant was examined on solemn affirmation. In course of enquiry four witnesses were examined under Section 202 of the Cr.P.C. They are Kiran Jha (victim), Pradeep Jha (brother of the victim), Bala Nand Jha (a co-villager) and Ashok Jha (another co-villager). The learned Additional Chief Judicial Magistrate, Benipur, by order dated 6.12.2000, found a prima facie case to be made out under Sections 341, 323 and 498A of the Indian Penal Code and, accordingly, ordered for issuance of summons against the petitioners for their appearance in the case. At the stage of framing of charge a petition under Section 245 Cr.P.C. was filed on behalf of the petitioners on 17.10.2006 which was dismissed by the learned Additional Chief Judicial Magistrate by order dated 18.1.2007 against which order the present application has been filed under Section 482 Cr.P.C. before this court. 7. It is submitted on behalf of the petitioners that petitioner no. 1 had never been married to Kiran Jha the daughter of the complainant. This fact was verified by the police in course of investigation and after examining several witnesses the police had submitted final report. The sister of petitioner no. 1 was married to one Amarnath Jha who is a co-villager of the complainant. As the petitioner no. 1 occasionally used to visit the house of his brother-in-law, he got acquainted with the complainant and his son Pradeep Jha. The sister of petitioner no. 1 was married to one Amarnath Jha who is a co-villager of the complainant. As the petitioner no. 1 occasionally used to visit the house of his brother-in-law, he got acquainted with the complainant and his son Pradeep Jha. The complainant and his son taking advantage of the situation started claiming that the victim Kiran Jha was married to petitioner no. 1. When this fact came to the knowledge of petitioner no. 1, he filed a title suit on 12.10.1999 before the learned Sub-Judge, Benipur vide Title Suit No. 25 of 1999. In the said Title Suit he prayed, inter alia, on adjudication of the facts it be declared that Kiran Kumari was never married to petitioner no. 1 and there is no legal status of husband and wife. In the title suit further prayer was that the defendant be permanently injuncted by a decree restraining from proclaiming and asserting that defendant no. 1 (daughter of the complainant) is legally wedded wife of the plaintiff (petitioner no. 1) and claiming any benefit as such. Notices in the Title Suit No. 29 of 1999 were served on the complainant (opposite party no. 2) and his daughter Kiran Kumari on 22.11.1999 which was received by them. They appeared in the suit and filed their written statement. After receiving notice in the title suit filed by the petitioner no. 1, the complainant filed the present case against the petitioners. In the said suit the defendants appeared and contested by filing separate written statement. The witnesses were examined and documents were filed from both sides. After considering the evidence and papers filed on behalf of the parties, the learned Sub-Judge-1, Benipur by order dated 29.9.2008 declared that defendant no.1 (Kiran Kumari) was never married to the plaintiff (petitioner no. 1) and there is no legal status of husband and wife between them and, as such, the defendants were permanently restrained from proclaiming, asserting and claiming that defendant no. 1 (Kiran Kumari) is wedded wife of the plaintiff (petitioner no.1) and, accordingly, a final decree was also prepared on 23.10.2008 which has been brought on record as Annexure-6 to the supplementary affidavit filed on behalf of the petitioners. It is submitted that the said judgment dated 29.9.2008 and decree dated 23.10.2008 passed in the Title Suit has not been challenged by the complainant or his daughter. 8. It is submitted that the said judgment dated 29.9.2008 and decree dated 23.10.2008 passed in the Title Suit has not been challenged by the complainant or his daughter. 8. It is submitted that the petitioner no. 1 is the alleged husband of the daughter of the complainant, petitioner no. 2 is brother of petitioner no. 1, petitioner no. 3 is father of petitioner no. 1, petitioner no. 4 is father of brother-in-law of petitioner no. 1 and petitioner no. 5 is wife of petitioner no. 4. 9. Advancing his argument learned counsel for the petitionersh submits that the prosecution case is false and, concocted would also appear from the facts that according to the case of the complainant marriage of his daughter was solemnized on 27.4.1990. She did not visit her matrimonial home soon after the marriage even as per prosecution case. She remained at her parental home. Her Duragman was made on 1.3.1999 and allegedly she was turned out from her matrimonial home on 9.3.1999 and after 9.3.1999 she is living with the complainant. Thus, as per the complainant his daughter remained at her matrimonial home for a very short period from 1.3.1999 to 2.3.1999 (sic-9.3.1999 ?) during her 16 years of alleged marriage life. It is further argued that for the first time a complaint was filed on 19.5.2000 in the court. The same got dismissed on 13.6.2000 for want of prosecution. The second complaint was filed on 27.6.2000 which was sent to the police for investigation. The police found the allegation false and submitted final report. The final report got accepted by the learned Magistrate. The case proceeded on the basis of protest petition which was treated as a complaint. 10. Considering the facts and circumstances of the case as well as the fact that in spite of notice being validly served upon the complainant no one has appeared to contest the case before this court. Apparently, in the light of findings given in the aforesaid Title Suit by which it has been declared that the daughter of the complainant was never married to the petitioner, in my view allowing the present prosecution to continue would amount to a gross misuse of the process of court. When a probable misuse of the process of court is brought to the notice of the court, it is paramount duty of the court to prevent such abuse at its threshold. When a probable misuse of the process of court is brought to the notice of the court, it is paramount duty of the court to prevent such abuse at its threshold. Such is a duty cast upon this court in terms of Section 483 of the Code of Criminal Procedure in order to maintain purity in administration of justice. 11. In the result, the application stands allowed. The order dated 18.1.2007 passed by the learned Additional Chief Judicial Magistrate, Benipur in C.R.No.185 of 2000 corresponding to Tr. No. 33 of 2006 as also the entire prosecution relating to C.R. No. 185 of 2000 is hereby quashed.