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2013 DIGILAW 743 (PAT)

Shiv Kumar Rai @ Shiv Kumar v. State of Bihar

2013-07-02

GOPAL PRASAD

body2013
ORDER 1. Heard learned counsel for the petitioners, the State and the Opposite Party No. 2. 2. This is a petition for quashing the order dated 20.09.2010 passed by Sri Santosh Kumar Gupta, learned Judicial Magistrate-1st Class, Patna in Complaint Case No. 101(C) of 2008 by which the learned court below took cognizance for the offences punishable under Sections 498A, 448 and 323 of the Indian Penal Code as also for quashing the entire criminal proceeding pending against the petitioners. 3. The prosecution case as alleged in the complaint is that the complainant/opposite party no. 2 solemnized marriage with accused-petitioner no. 1 about 8 years ago and the in-laws people were not satisfied with the gifted articles at the time of marriage and hence, there is allegation of demand of dowry of Rs.50,000/- and subjecting cruelty and the petitioners ousted her from the matrimonial house on 24.12.2006 for which she filed a case bearing Nayagaon P.S. Case No. 68 of 2006 for the offence under Sections 498A, 323 of the Indian Penal Code as well as Sections 3/4 of the Dowry Prohibition Act. It has further been alleged that on 07.01.2008, the petitioner no. 1, husband-accused, Shiv Kumar Rai @ Shiv Kumar went to his Sasural at Diara, Kurji, Patna and abused complainant/opposite party no. 2 and her parents and repeated earlier demand and subjected her to cruelty. It is further alleged that her father went to Patliputra Police Station and narrated the whole story but the police did not record the First Information Report, hence, the present complaint. 4. On the complaint, the complainant and witnesses have been examined on oath and the cognizance has been taken as mentioned above against the husband, father-in-law, mother-in-law, Bhaisur, Gotani and Dewar of the complainant/opposite party no. 2. 5. However, the complainant/opposite party no. 2 preferred a revision before the learned Additional Sessions Judge-VII, Patna and the revision is allowed. Subsequently, thereafter the cognizance was taken against the other family members, hence, prayer has been made to quash the order taking cognizance dated 20.09.2010 as well as the entire criminal proceeding of the Complaint Case No. 101(C) of 2008. 6. 2 preferred a revision before the learned Additional Sessions Judge-VII, Patna and the revision is allowed. Subsequently, thereafter the cognizance was taken against the other family members, hence, prayer has been made to quash the order taking cognizance dated 20.09.2010 as well as the entire criminal proceeding of the Complaint Case No. 101(C) of 2008. 6. Learned counsel for the petitioners submits that prior to institution of this case a case was lodged bearing Nayagoan P. S. Case No. 68 of 2006 dated 25.12.2006 in which final form was submitted but the case was proceeded on the basis of Protest-Cum-Complaint. On the protest the complainant/opposite party no. 2 was examined on oath on 06.02.2008 and supported the prosecution case. However, in the said complaint the other witnesses were also examined and cognizance was taken against the petitioner no. 1/husband of the complainant/opposite party no. 2. 7. Learned counsel for the petitioners further submits that though the present complaint case has been filed with regard to the occurrence dated 07.01.2008 but the complainant/ opposite party no. 2 in her solemn affirmation in the Protest-Cum-Complaint before the learned Chief Judicial Magistrate, Chapra has not stated about the allegations made in this complaint and hence, contended that the present complaint before the Patna Court is really in continuation of the earlier complaint filed by the complainant/opposite party no. 2 before Chapra Court and she having not stated the fact mentioned in this complaint, it may be presumed that this is a false case and the case has maliciously been filed to harass the petitioners. It has further been contended that in the complaint petition, out of which this Criminal Miscellaneous arises, there is no allegation whatsoever against the parents and the other family members of the petitioner no. 1/husband and the only allegation made in the complaint is against the petitioner no. 1 and hence, the order taking cognizance against the petitioner no. 1 as well as against the other family members is not sustainable and allowing the prosecution to continue is an abuse of process of the court. 8. Learned counsel for the complainant/opposite party no. 2 submits that though there is allegation of demand and subjecting cruelty against the other family members which is general and omnibus but there is specific allegation against the petitioner no. 8. Learned counsel for the complainant/opposite party no. 2 submits that though there is allegation of demand and subjecting cruelty against the other family members which is general and omnibus but there is specific allegation against the petitioner no. 1 with regard to the occurrence dated 07.01.2008 which is not the subject matter of the complaint filed at Chapra. 9. However, taking into consideration the respective submissions of the parties, the question for consideration is whether the order taking cognizance against the petitioner no. 1 and his other family members is sustainable. 10. Earlier an First Information Report was registered at Saran at Chapra alleging demand of dowry and subjecting cruelty in the year 2006 with regard to the occurrence between 14.12.2006 to 24.12.2006 which is Annexure – 2. However, in Complaint Case No. 101(C) of 2008, it has been stated that earlier the complainant/opposite party no. 2 filed a case at Saran at Chapra bearing Nayagaon P.S. Case No. 68 of 2006. 11. However, the allegation against the other family members is without any specific act of commission and omission except the petitioner no. 1 and further in paragraph 4 of the complaint, she has specifically stated that on 07.01.2008 the petitioner no. 1 came at his Sasural at Diara, Kurji, Patna and abused, demanded dowry and subjected her to cruelty by assaulting her and hence, there is specific averment made against the petitioner no. 1 in the complaint petition. In the solemn affirmation of the complainant/opposite party no. 2 also she has not specifically stated anything about the other family members, except the petitioner no. 1 and hence, the allegation against the other family members is without any specific overt act of commission and omission. 12. However, the assertion of the learned counsel for the petitioners is that in this case whatever the allegations have been made is only an allegation in continuation of the allegation made in Nayagaon P.S. Case No. 68 of 2006, i.e., the earlier case and allowing the prosecution to continue is an abuse of process of the court. However, the allegation made in the present case, this case is with regard to the specific allegation regarding the occurrence dated 07.01.2008. However, the allegation made in the present case, this case is with regard to the specific allegation regarding the occurrence dated 07.01.2008. However, the earlier case Nayagaon P. S. Case No. 68 of 2006 with regard to the occurrence in between 14.12.2006 to 24.12.2006 and hence, the two cases are quite different with regard to the distinct cause of action at distinct place of occurrence. Hence, the two cases are not prohibited by law. 13. Learned counsel for the petitioners, however, placed reliance upon a decision in the case of Dinesh Singh @ Dinesh Kumar Singh Versus State of Bihar reported in 2007(1) BLJ 59 PHC. However, the decision relied by the learned counsel for the petitioners is not applicable in the facts and circumstances of the case as in the decision relied upon by the learned counsel for the petitioners is with regard to an occurrence for the same time and same place of occurrence. Two First Information Reports were registered with regard to same occurrence and then it was held that two First Information Reports with regard to the same time and place of occurrence cannot be allowed to continue as second First Information Report with regard to same occurrence is hit by Section 162 Cr.P.C. However, here the fact is quite different as the two offences are not the same, though the complainant/opposite party no. 2 and the accused may be the same but the time and place of occurrence are different. 14. Learned counsel for the petitioners further relied upon a decision in the case of Madhavrao Jiwaji Rao Scindia and another, etc. v. Sambhajirao Chandraojirao Angre and others, etc., reported in A.I.R. 1988 S.C. 709. The observation made in paragraph no. 7 is not applicable as it has been observed that the legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the Court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. However, this was a case in which it was submitted by the learned counsel for the complainant that a case of breach of trust is both a civil wrong and a criminal offence. There would be certain situations where it would predominantly be a civil wrong and may or may not amount to a criminal offence. The Supreme Court took the view that this case is one of that type where, if at all, the facts may constitute a civil wrong and the ingredients of the criminal offences are wanting. Hence, on the allegation it was held that criminal offence is made out. 17. Hence, not applicable to the facts and circumstances of the present case at hand. 15. However, reverting back to the present facts and circumstances of the case, there is specific allegation that on 07.01.2008 the petitioner no. 1 came to his Sasural at Diara, Kurji, Patna abused, demanded and assaulted the complainant/opposite party no. 2 and hence, the allegation specifically made, makes out an offence against the husband-petitioner no. 1 and not against any other family members. 16. However, this Court at this stage cannot meticulously go into the question whether the allegations made are true or false which is the jurisdiction of the trial court, hence, when there is specific allegation of demand and subjecting cruelty offence is made out against the husband-petitioner no. 1 but not against the other family members. 17. Hence, having regard to the facts and circumstances of the case since there is specific allegation against the petitioner no. 1, I am not inclined to interfere with the order taking cognizance against the husband-petitioner no. 1. 18. However, so far the other family members i.e. the petitioner nos. 2 to 8 are concerned, who are father-in-law, mother-in-law, Bhaisur, Gotanies and Dewar of the complainant/opposite party no. 2, there is no specific allegation against them nor there is any specific role attributed to them either in the complaint petition or in the statement of the complainant/opposite party no. 2 or the witnesses in their statement on solemn affirmation under Sections 200 and 202 Cr.P.C., or even the witnesses adduced and statement recorded under. 2, there is no specific allegation against them nor there is any specific role attributed to them either in the complaint petition or in the statement of the complainant/opposite party no. 2 or the witnesses in their statement on solemn affirmation under Sections 200 and 202 Cr.P.C., or even the witnesses adduced and statement recorded under. Hence, their implication suggests agony of petitioners to rope in as many of the husband relation as possible. Hence, the order taking cognizance and the entire criminal proceeding against the petitioner nos. 2 to 8 to continue is an abuse of process of the court and hence, order taking cognizance and entire criminal prosecution against the petitioner nos. 2 to 8 are hereby quashed. 19. Accordingly, this quashing application is allowed in part.