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2012 DIGILAW 833 (PAT)

Bharat Prasad v. State of Bihar

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
Judgment This petition has been filed by the petitioners under Section 482 of the Cr.P.C. for quashing the order dated 19.11.2011 passed by Sub-Divisional Judicial Magistrate, Nalanda at Biharsharif in Complaint Case No. 496C of 2011 by which and where under he having conducted an enquiry found prima facie case under Sections 323, 379, 498A of the Indian Penal Code and 3/4 of Dowry Prohibition Act against the petitioners and ordered to issue summons against them for procuring their attendance to face trial. 2. The brief fact, which lies to file this quashing petition, is that Opposite Party No.2, namely, Lakshmi Devi filed complaint case bearing Complaint Case No. 496C of 2011 against the petitioners in the Court of learned Chief Judicial Magistrate, Nalanda at Biharsharif alleging therein that her marriage was solemnized with the petitioner no.1 on 18.11.2009 according to Hindu Rites and Rituals and at the time of marriage, her father" spent near about one lac sixty five thousand and also gave ornaments, fridge, television etc. and furthermore, he agreed to give a motorcycle after solemnization of the marriage. She went to her in-laws house and remained there for near about fifteen days but between the aforesaid period, petitioners being her in-laws used to pressurize her for bringing the motorcycle. She came back to her parental house and narrated the above stated, fact to her parents and while she was at her natal place, petitioners came there and again pressurized her as well as her natal people for the above stated motorcycle. It is further alleged that on 25.12.2010, petitioner no. 3 came at her parental house and took her to her in-laws' house but she was' again subjected to cruelty by her in-laws and after that her father gave a petition to the concerned police station where petitioners executed a compromise deed but they did not change their behaviour and she also came to know that petitioner no. 1 has established, illicit relation with one Pinky Kumari. At Para-8 of complaint petition, she specifically alleged that on 14.5.2011, petitioners tried to commit her murder but she, anyhow, eluded from the clutches of her in-laws and came to her parental house and after that on 26.5.2011, she filed the above stated complaint case in the Court of Chief Judicial Magistrate, Nalanda, Biharsharif. 3. At Para-8 of complaint petition, she specifically alleged that on 14.5.2011, petitioners tried to commit her murder but she, anyhow, eluded from the clutches of her in-laws and came to her parental house and after that on 26.5.2011, she filed the above stated complaint case in the Court of Chief Judicial Magistrate, Nalanda, Biharsharif. 3. It would appear from the impugned order dated 19.11.2011 that an enquiry under Section 202 of the Cr.P.C. was conducted and in course of enquiry witnesses were examined and having conducted the aforesaid enquiry, a prima facie case under Sections 323, 379, 498 A of the Indian Penal Code and 3/4 of Dowry Prohibition Act was found and summons were ordered to be issued against the petitioners vide impugned order dated 19.11.2011 as stated above. 4. This petition was admitted for hearing on 6.3.2012 and during the pendency of this petition, Opposite Party No. 2 appeared through her counsel and filed a petition for vacating the order dated 6.3.2012 passed by this Court on 4.5.2012. The matter was heard and at the time of hearing, learned counsel for the petitioners was present but none had appeared on behalf of the Opposite Party No.2. 5. It has been contended on behalf of the petitioners that prior to filing of above stated Complaint Case No. 496C of 2011, the Opposite Party No.2 had lodged Peterwar P.S. Case No. 47 of 2011 on the same facts for the offences under Sections 498A of the Indian Penal Code and 3/4 of Dowry Prohibition Act in the State of Jharkhand against the petitioner no. 1 only. The aforesaid case was lodged on 23.4.2011 and in the aforesaid case, the allegation of torturing as well as assault has been levelled only against petitioner no. 1. It is further contended by him that in the above stated case, petitioner no. 1 was arrested and remanded in judicial custody on 24.4.2011 by the Court of Sri Y.C. Verma, Judicial Magistrate, 1st Class, Tenughat and after that by the order of learned Sessions Judge, Bokaro, petitioner was released on bail on 9.5.2011 and after release of the petitioner from judicial custody, the Opposite Party No.2 again filed the present complaint case implicating the entire family members of petitioner no. 1. 1. It is further contended by him that in the present case, she stated that she was ousted from her matrimonial home on 14.5.2011 whereas in Peterwar P.S. Case No. 47 of 2011 she stated that she was ousted from her matrimonial home on 23.4.2011. It is further contended on behalf of the petitioners that the present complaint case bearing Complaint Case No. 496C of 2011 has been filed for almost similar occurrence for which the above stated Peterwar P.S. Case No. 47 of 2011 has been lodged and moreover, the continuance of proceeding of complaint Case No. 496C of 2011 would amount to, be double jeopardy which is not permissible under Section 300 of the Cr.P.C. 6. On the other hand, learned Additional Public Prosecutor supported the impugned order arguing that the offence of Section 498A is a continuing offence and, therefore, even after institution of Peterwar P.S. Case No. 47 of 2011 the Opposite Party No. 2 was entitled to lodge the present complaint case. 7. Certain facts are admitted. It is an admitted position that Opposite Party No.2 lodged Peterwar P.S. Case No. 47 of 2011 against petitioner no. 1 only for the offences under Sections 498A of the Indian Penal Code and 3/4 of Dowry Prohibition Act on 23.4.2011 and in the aforesaid case, petitioner no. 1 was released from judicial custody on 9.5.2011 by the order of learned Sessions Judge, Bokaro. It is also an admitted position that the present complaint case bearing Complaint Case No. 496C of 2011 was filed on 16.5.2011 i.e. within a week after release of the petitioner from judicial custody. 8. The perusal of the photostat copy of first information report of Peterwar P.S. Case No. 47 of 2011 as well as photostat copy of Complaint Case No. 496C of 2011 would show that in both the cases facts are almost similar in nature with minor differences. In complaint case, the Opposite Party No. 2 states that she was ousted from her matrimonial home on 14.5.2011 whereas in Peterwar P.S. Case No 47 of 2011 she states that she was ousted from her matrimonial home on 23.4.2011. In Peterwar P.S. Case No. 47 of 2011, she has levelled allegation of demand and torturing against petitioner no. 1 only whereas in present complaint case, she has levelled general allegation of demand and torturing against all the petitioners. 9. In Peterwar P.S. Case No. 47 of 2011, she has levelled allegation of demand and torturing against petitioner no. 1 only whereas in present complaint case, she has levelled general allegation of demand and torturing against all the petitioners. 9. The above stated facts clearly go to show that the present complaint case has been filed by the Opposite Party No.2 with mala fide intention and the Apex Court of this country has held in several decisions that if a case is filed with mala fide intention, the court can exercise its power vested under Section 482 of the Cr.P.C. 10. The above stated discussions suggest that it is a fit case in which this Court should exercise its extraordinary power vested under Section 482 of the Cr.P.C. 11. Accordingly, in view of the aforesaid discussions as well as facts and circumstances of the case, this quashing petition is allowed and the order dated 19.11.2011 passed by learned Sub-Divisional Judicial Magistrate, Nalanda, Biharsharif in Complaint Case No. 496C of 2011 is, hereby, quashed. 12. However, it is made clear that the findings/observations given in this order shall not affect the merit of Peterwar P.S. Case No. 47 of 2011 pending in the Court of Sri Y.C. Verma, Judicial Magistrate, 1st Class, Tenughat. 13. In the aforesaid manner, this petition stands disposed of.