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2012 DIGILAW 834 (PAT)

Manoj Kumar Sinha v. State of Bihar

2012-06-20

HEMANT KUMAR SRIVASTAVA

body2012
ORDER This petition under section 482 of the Cr.P.C has been filed by the petitioners for quashing the order dated 23.12.2011 passed by Sri Ajay Kumar, Judicial Magistrate, Ist Class, Purnia in Complaint Case no. 605/2002 by which and whereunder he rejected the petition dated 16.11.2010 filed on behalf of petitioners for their discharge from the above stated case. 2. The brief fact, which lies to file this quashing petition, is that opposite party no.2, namely, Anima Kumari Sinha filed complaint case bearing Complaint Case no. 605/2002 on 10.6.2002 against the petitioners and one Braj Nandan Prasad Sinha @ Braj Nandan Prasad alleging therein that her marriage was solemnized with petitioner no.1 on 20.6.1995 according to Hindu rites and customs but before solemnization of marriage, accused Braj Nandan Prasad Sinha, father of petitioner no.1, demanded Rs one lakh as dowry and after that her father any- how managed Rs 71,000/- and handed over the same to him and only thereafter, marriage could be solemnized on the condition of fulfillment of the rest amount within three months. After marriage, she went to her in-laws house but she was subjected to cruelty and harassment by her in-laws for bringing colour TV and cash of Rs 29,000/-. She informed her father and brother as well as other relatives regarding ill-treatment and cruelty subjected to her by her in-laws. Lastly on 9.12.1995, she was driven out by her in-laws from her matrimonial home and she came to her parental home. After the aforesaid incident, petitioner no.2, who happens to be her dewar, continued his regular visit to her parental home and assured the entire family members that the matter would be settled up very soon. Her father tried to patch up the dispute by sending her to her in-laws house several times but she was not allowed to remain at her matrimonial home. A panchyati was also held to solve the dispute of the parties but her in-laws were adamant not to allow her to stay at her matrimonial home without fulfillment of the above stated demands. A panchyati was also held to solve the dispute of the parties but her in-laws were adamant not to allow her to stay at her matrimonial home without fulfillment of the above stated demands. Furthermore, it is alleged that petitioner no.2 on pretext of settlement got written several letters by her and on the assurance of petitioner nos.2 and 5, she again went to her matrimonial home in the month of June, 2000 and lived there for about four days but she was again subjected to cruelty and harassment and ousted from there. She sent a legal notice to petitioner no.1 and after that she filed the above stated case. 3. The above stated case was enquired into and a prima facie case under section 498A of the IPC was found against the petitioners and co-accused Braj Nandan Prasad Sinha and they were summoned to face trial. 4. Petitioners and the aforesaid co-accused Braj Nandan Prasad Sinha filed criminal revision before the sessions court against the summoning order which was dismissed and thereafter petitioners filed Cr. Misc. no.30975/2004 against the order of the revisional court but the aforesaid criminal miscellaneous case was dismissed by this court vide order dated 24.11.2005 giving liberty to the petitioners to raise their points including point of previous suit at the stage of section 245 of the Cr.P.C with direction to learned trial court to consider the above stated points of the petitioners at the time of framing of the charge. 5. Petitioners filed petition for their discharge before the trial court on 16.11.2010 but the aforesaid petition was dismissed by the learned trial court passing impugned order dated 23.12.2011 against which this quashing petition has been filed. 6. At the time of hearing on the point of admission, opposite party no.2 made her appearance through her counsel and both the parties were heard on the point of admission and with consent of both the parties, this petition is being disposed off on admission stage itself. 7. Learned counsel appearing for the petitioners submits that according to case of opposite party no.2, her marriage was solemnized on 20.6.1995 and she was ousted from her matrimonial home on 9.12.1995 whereas the case has been filed on 10.6.2002 i.e. after seven years of marriage. 7. Learned counsel appearing for the petitioners submits that according to case of opposite party no.2, her marriage was solemnized on 20.6.1995 and she was ousted from her matrimonial home on 9.12.1995 whereas the case has been filed on 10.6.2002 i.e. after seven years of marriage. It is further contended by him that opposite party no.2 hardly stayed at her matrimonial home for the period of six months and after that she left her matrimonial home and started residing at her parental home. It is further pointed by him that petitioner no.1 seeing the conduct and behavior of opposite party no.2 filed matrimonial suit bearing Matrimonial suit no. 14/2002 for a decree of divorce and the aforesaid matrimonial suit was filed by petitioner no.1 on 8.2.2002 and after filing of the aforesaid matrimonial suit when opposite party no.2 got notice of the aforesaid suit, she filed the present case and the aforesaid fact clearly goes to show that opposite party no.2 has filed the present complaint case in retaliation of filing of above stated matrimonial suit. It is further contended by him that opposite party no.2 wants to harass the petitioners and that is why after seven years of her marriage she filed complaint case and, therefore, the aforesaid fact clearly indicates mala fide intention of opposite party no.2. It is further contended by him that according to case of opposite party no.2, demand was only made by the aforesaid co-accused Braj Nandan Prasad Sinha and the above stated co-accused Bijendra Prasad Sinha @ Bijendra Prasad has already died and, therefore, no charge could have framed against the petitioners. It is further contended by him that no specific overt-act has been attributed against these petitioners nor any specific date of occurrence nor any specific role which is said to have been played by the petitioners has been averred in the complaint petition or in depositions of complainant’s witnesses but in spite of that learned court below refused to discharge the petitioners from the above stated case, particularly, in the circumstance, when this court directed the learned trial court to consider all the points raised on behalf of the petitioners at the time of framing of the charge. 8. 8. Learned counsel for the petitioners referred a decision reported in (2010)7 Supreme Court Cases 667 in which it has been held by the Apex Court of this country that exaggerated version of small incidents should not be reflected in criminal complaints and allegations to be scrutinized with great circumspection, especifically against husband’s relatives who were living different cities and never visited and rarely visited matrimonial home of the complainant and furthermore, the Apex Court has held in the same decision that power should not be exercised to stifle legitimate prosecution but court’s failing to use the power for advancement of justice can also lead to grave injustice. 9. In the above stated case, married sister-in-law, unmarried brother-in-law were made accused in a case of section 498A of the IPC and it was admitted position that both were not residing at the matrimonial home of the complainant of the aforesaid case at the relevant time. In the aforesaid back drop, the Apex Court of this country held that continuance of proceeding under section 498A of the IPC against the aforesaid persons would amount to misuse of process of the law. 10. Another decision citied on behalf of the petitioners is (2009) 10 Supreme Court Cases 184 in which it has been held by the Apex Court of this country that for lodging the complaint case mere mentioning of relevant sections and language of those sections is not sufficient and what is required to be brought to the notice of the court is particular of the offence by each and every accused and the role played by each and every accused in committing of that offence. 11. 11. In the aforesaid decision, complainant brought a case of sections 498A, 406, 114 of the IPC against her husband as well as her parents-in-law but during the pendency of the case, husband of the complainant died and the parents-in-law filed criminal miscellaneous case for quashing their prosecution and the matter went to the Apex Court of this country and the Apex Court of this country found that the allegations levelled against the parents-in-law were vague and no exact date of the occurrence was given in the complaint petition and in the aforesaid scenario, the Apex Court of this country held that mere mention of the sections and the language is not the be all and end all of the matter and what is required to be brought to the notice of the court is the particulars of the offence committed by each and every accused and the role played by each and every accused in committing of that offence. 12. In the light of the above stated decisions, learned counsel for the petitioners submits that in the present case, complainant has not stated specific role played by the petitioners in committing the alleged crime rather a vague and general allegation of demand and torture has been levelled against the petitioners after seven years of marriage as well as after separation of the husband and wife and, therefore, it is urged on behalf of petitioners that continuance of the proceeding against petitioners is nothing but only an abuse of the process of the court and petitioners must be discharged from the above stated proceeding. 13. On the other hand, learned counsel appearing for opposite party no.2 submits that opposite party no.2 was ousted from her matrimonial home on account of illegal demand within a short span of time. It is contended by him that the offence of section 498A of the IPC is a continuing offence and, therefore, even if the opposite party has filed the case after seven years of her marriage, no adverse inference would be drawn against her. He further submits that according to the averments of the complainant petition, opposite party no.2 as well as her family members continuously persuaded the petitioners to settle the dispute and for the aforesaid purpose, panchyati was also held. Apart from the aforesaid Panchayati, the intervention of the well wishers was also sought for. He further submits that according to the averments of the complainant petition, opposite party no.2 as well as her family members continuously persuaded the petitioners to settle the dispute and for the aforesaid purpose, panchyati was also held. Apart from the aforesaid Panchayati, the intervention of the well wishers was also sought for. All the aforesaid facts clearly go to show that opposite party no.2 was consistently tried to settle the matter and she never deserted the petitioner no.1 rather she was compelled to reside at her natal place and, therefore, even if there is delay of seven years in filing the present complaint case, then also, it does not make any difference. 14. It is further contended by him that the averments of complaint petition as well as statements of the witnesses clearly constitute an offence under section 498A of the IPC and almost on the similar ground earlier petitioners filed Cr. Misc. Case no. 30975/2004 which was dismissed by this court and, therefore, petitioners are not entitled to raise same point again before this court. It is also contended by him that under section 245 of the Cr.P.C, the charges are framed on the basis of the materials placed before the court under section 244 of the Cr.P.C and in the present case almost all the witnesses have supported the factum of torture as well as illegal demand and, therefore, the learned trial court rightly rejected the petition filed on behalf of petitioners. 15. Having heard rival contentions of both the parties I have gone through the record. 16. Admittedly, petitioner no.1 is husband, petitioner no.2 is brother-in-law, petitioner, no.3 is mother-in-law, petitioner no.4 is sister-in-law and petitioner no.5 is Gotani of opposite party no.2. It is also an admitted position that Braj Nandan Prasad Sinha, father-in-law of the complainant has already died. It is also an admitted position that marriage of opposite party no.2 was solemnized with petitioner no.1 on 20.6.1995 and she was ousted from her matrimonial home on 9.12.1995 and, therefore, it is apparent from the averments of the complaint petition that she remain stayed at her matrimonial home for the period of six months only. 17. It is also an admitted position that marriage of opposite party no.2 was solemnized with petitioner no.1 on 20.6.1995 and she was ousted from her matrimonial home on 9.12.1995 and, therefore, it is apparent from the averments of the complaint petition that she remain stayed at her matrimonial home for the period of six months only. 17. From bare perusal of the complaint petition, it would appear that on the date of marriage, it was co-accused Braj Nandan Prasad Sinha who demanded Rs one lakh in dowry and part of the amount was paid by father of opposite party no.2 on the same day. So far as the allegation of demand is concerned, there is not a single word in the complaint petition that petitioners had made any illegal demand from the complainant and a vague statement has been made in the complaint petition that when she came at her matrimonial home, all the accused started torturing her and pressed her to bring the colour TV and remaining cash amount of Rs 29,000/-. Furthermore, there is no specific allegation of torturing against petitioner nos. 2 to 5 rather it is stated that petitioner no.2 tried to patch up the dispute of petitioner no.1 as well as opposite party no.2 and he took several attempts in that course. 18. It is also admitted position that petitioner no.1 filed Matrimonial suit no.14/2002 and after filing of the aforesaid matrimonial suit, opposite party no.2 filed the present case. Annexure 5 to this petition is photostat copy of the above stated matrimonial suit and para 2 of the aforesaid case reveals that after solemnization of marriage couple went to Delhi, Agra, Simla etc. for about l5 days for celebrating their honeymoon and when they returned, the brother of opposite party no.2 came at her matrimonial home for her Bidai and after that relations between petitioner no.1 and opposite party no.2 became strained because as per petitioner no.1 opposite party no.2 made wild allegation of his illegal relationship with his own mother. The aforesaid matrimonial suit also reveals that opposite party no.2 left her matrimonial home on 10.12.1995 and after that she never returned to her matrimonial home. The opposite party no.2 denied the aforesaid allegation in her written statement filed in the above stated matrimonial suit. The aforesaid matrimonial suit also reveals that opposite party no.2 left her matrimonial home on 10.12.1995 and after that she never returned to her matrimonial home. The opposite party no.2 denied the aforesaid allegation in her written statement filed in the above stated matrimonial suit. Therefore, averments of the complaint petition, depositions of the witnesses and other relevant documents reveal that there is allegation of cruelty and torture only against petitioner no.1. 19. It is worth to mention here that in course of hearing, learned counsel for the petitioners drew my attention towards annexure 3 to this petition which is a report said to be sent by convener of Pariwar Pramarsh to S.P, Purnea and submitted that S.P. Purnea referred the dispute of the parties to convener of Pariwar Pramarsh and the aforesaid Pariwar Pramarsh enquired into the matter and it came to light that it was opposite party no.2 who created entire problem in the family of the petitioners but in my view, no such finding has been given by convener of Pariwar Pramarsh and only on the basis of the above stated report, it can not be said that opposite party no.2 was never subjected to cruelty and torture for non-fulfillment of illegal demand and I am also of the view that the aforesaid facts need deeper verification which is only possible in course of trial. 20. As I have stated above that no specific overt-act has been attributed against petitioner nos. 2 to 5 and complaint petition and depositions of witnesses do not show any exact role played by these petitioners in the commission of the offence and it is very difficult to say that except petitioners no.1 as to which petitioner has committed what offence. Therefore, I am of the opinion that continuance of the present proceeding against petitioner nos. 2 to 5 is nothing but only an abuse of the process of law but so far as petitioner no.1 is concerned, allegation of torturing against him requires deeper investigation which is only possible in course of trial. 21. On the basis of the aforesaid discussions, this petition is partly allowed and accordingly, order dated 23.12.2011 passed by Sri Ajay Kumar, Judicial Magistrate, Ist Class, Purnia in Complaint Case no. 605/2002 is modified to this extent that aforesaid proceeding of Complaint Case no. 605/2002 against petitioner nos. 21. On the basis of the aforesaid discussions, this petition is partly allowed and accordingly, order dated 23.12.2011 passed by Sri Ajay Kumar, Judicial Magistrate, Ist Class, Purnia in Complaint Case no. 605/2002 is modified to this extent that aforesaid proceeding of Complaint Case no. 605/2002 against petitioner nos. 2 to 5 is, hereby, quashed and so far as petitioner no.1 is concerned, the impugned order dated 23.12.2011 passed by learned Judicial Magistrate, Ist Class, Purnia in the above stated Complaint Case no. 605/2002 is, hereby, confirmed. 22. In the above stated manner, this petition stands disposed off on admission stage itself. ?