498A Quash – No Offence out of FIR

THE HIGH COURT OF JUDICATURE AT PATNA

Cr. Misc. No. 24423 of 2004:

(1) Dinesh Kumar Lal, son of Mohin Chander Lal,

(2) Gayatri @ Nilu, wife of Dinesh Kumar Lal, both of village Kashipur, Near Dr. B.N. Prasad, PS Town, District Samastipur Petitioners. with

Cr. Misc. No. 24437 of 2004:

(1) Dr. Mukesh Kumar, son of Babu Prasad, resident of Ashirwad Apartment, 30/D, Anandpuri, Near Himgiri Apartment, PS Sri Krishnapuri, Patna. (2) Smt. Hemlata, wife of Dr. Mukesh Kumar.

(3) Goutam @ Raja, son of Dr. Mukesh Kumar Petitioners. Vs.

(1) The State of Bihar,

(2) Menka, wife of Tarak Nath, daughter of Lallu Prasad Hemant, resident of Manju Niwas, Chitragupta Nagar, Bahadurpur, Kankarbagh, Patna Opp. Parties in both the cases. For the petitioners in both the cases :

Mr. Ashwani Kumar Singh, Senior Advocate, Mr. Shivendra Kumar Sinha, Mr. Pankaj Kumar Sinha and Mr. Rakesh Kumar Sinha, Advocates.

For the State : Mr.J.K. Singh No.1, A.P.P. in Cr.Misc.No. 24423/2004. For the State : Mr. Matloob Rab, A.P.P.in Cr.Misc. No. 24437 of 2004. 23 13-1-2011 Heard learned counsel for the petitioners and the informant. Petitioners Dinesh Kumar Lal and Gayatr @ Nilu of Cr.Misc.No. 24423 of 2004 are the brother-in-law and married sister-in- law of the complainant Menka. The petitioners of Cr. Misc. No. 24437 of 2004 likewise are also the married sister-in-law, brother-in-law and their son Gautam, who was minor at the time of institution of the case. They have come to this court for quashing of the order, dated 30.1.2003 passed by the Chief Judicial Magistrate, Patna in S.K. Puri P.S. Case No.10/2002 by which cognizance has been taken for the offences under sections 313, 498, 323 and 307/34 of the Penal Code and 3/4 of the Dowry Prohibition Act.

The date of marriage of the couple is 10.5.1989 and the case has been instituted on 5.2.2002 alleging that the complainant was tortured by her husband, the in-laws including these petitioners from the 2

date of her marriage till the date of lodging of the F.I.R. On perusal of the FIR it would appear that the allegations have been made that there was a demand of TV, washing machine and a car which led to the torture of the complainant. It has also been alleged that some time in the year 1993 the complainant was assaulted by mother-in-law, father-in- law and both the sisters-in-law and their husband, which led to a miscarriage. In the year 1998 it is said that a child was born which was very under-weight and this was because of the torture meted out by her in-laws. In the complaint petition she has also alleged that she left the in-laws’ house in 1993 and returned in the summer vacation in 1998, when it is said the aforesaid incident took place. She claims to have been living with her in-laws on the date on which the FIR has been instituted.

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Counsel for the petitioners submits that the entire FIR has been exaggerated and the reasons for the break up of the marriage is incompatibility. It is submitted that the manner in which the narration has taken place indicates that it is completely false allegation considering the fact that the informant has made allegations against her in-laws relating to the years 1993 and 1998, although she had not taken any steps between the aforesaid period to lodge protest against the torture in any manner, or expressed her unhappiness to in-laws or parents or before the competent authority. It has also come on record that the husband i.e. Tarak Nath had instituted a matrimonial case on 19.1.2002 after which the present case was instituted. Before going any further I may state here that Dinesh Kumar Lal is working in the Sales Tax Department and was posted at 3

different places during the period when the marriage took place. It has specifically been asserted that Dinesh Kumar Lal was posted at Darbhanga between 1989 to 1995, Samastipur between 1995 to 2000 and at Begusarai between 2000 to 2002. His wife was living with him. Similarly Dr. Mukesh Kumar working in the Health Department since 1981 was posted at Bhagalpur in 1984, Barbigha in 1989 and at Bettiah since 1996 till 2002. The wives of the aforesaid two persons were living with them. It is also specifically stated that Dinesh Kumar Lal was married to Gayatri @ Nilu in 1983 whereas Dr. Mukesh Kumar was married to Smt. Hemlata in 1976. All these facts are not denied either in the counter affidavit filed on behalf of opposite party no.2, nor during arguments advanced in this court.

The submission on behalf of opposite party no.2 is that these persons could have easily been at the place of occurrence on the date on which Menka is said to have been assaulted. This court finds that such an argument and circumstance from which the court would infer that the sister-in-laws and their husbands were present in Patna to allegedly assault opposite party no.2 seems too far fetched vague and unbelievable. The sister-in-laws and their respective husbands are not supposed to be involved in the daily life of opposite party no.2 and her husband Tarak Nath. As such the allegation that they were present seems to be far fetched and has been included in the FIR with a view to put the entire family to harassment. Even the allegation that opposite party no.2 was assaulted by her mother-in-law, father-in-law or these petitioners which led to miscarriage seems to be unbelievable for the reason that at the time, when the said miscarriage took place or at the 4

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time when under-weight baby was born to opposite party no.2, she or the family, had not raised any protest. It is only after a period of four to seven years, that such an allegation has been made against the petitioners. I, therefore, find that the allegation under sections 313 and 307 of the Penal Code is unbelievable as far as it concerns these petitioners.

In fact, this court also finds that the allegation that there was demand of a car, washing machine and the like has not specifically been attributed to the petitioners. In the FIR it has been said that on 11.5.1989 after the opposite party no.2 went to her matrimonial home, the mother-in-law, father-in-law, brothers-in-law, elder Nand Hemlata Devi along with these petitioners had raised a demand for a car, washing machine, TV and Mixi. Except for this one statement made at the beginning of the FIR, the allegations are not repeated anywhere else in the FIR. Any demand made for a car, TV or like would be for the benefit of the husband and can hardly be attributed to the sister-in-law, brother-in-laws who are separate unit and live in a different district altogether. The Supreme court has noticed in the case of Ramesh vs. State of T.N., (2005) 3 SCC 507 that in the anxiety to make the allegations look serious, quite often a exaggerated version is put forth in the complaint petition, making vague allegations involving all close relations of the family, some times even minor boys and girls. In such circumstances it would not be proper to allow such persons to face the rigors of a trial.

I may also point out that the husband of the complainant has moved this court for quashing of the allegations against him on various 5

grounds. This court in Cr.Misc.No. 10072 of 2003 found that no offence was made out under sections 307 and 313 of the Penal Code as far as it concerned husband Tarak Nath. The order of this court, dated 31.7.2007 was challenged by filing S.L.P. No. 527 of 2005 wherein the Supreme court held that from the FIR it is clear that the offence under section 313 of the Penal Code is made out and as such the High court was not justified in quashing the prosecution of the accused persons for the aforesaid offence. A separate quashing application was filed on behalf of the father-in-law and mother-in-law which was numbered as Cr.Misc. No. 24436 of 2004 disposed of on 31.7.2007. This court again interfered and quashed the cognizance taken under sections 313 and 307 of the Penal Code as well as sections 3/4 of the Dowry Prohibition Act, against the father-in-law and the mother-in-law. The in-laws being aggrieved by the order moved the Supreme court for quashing of the allegations under sections 498A and 323 of the Penal Court. The supreme court upheld the order of the High court. In view of the orders of the Supreme court I find that in fact if the allegations under sections 313 and 307 of the Penal Code are quashed against the mother-in-law and the father-in-law, it can hardly be held that these petitioners who lived in a different town, could be responsible for the allegations mentioned in the FIR. These allegations have been made after a great delay and are unbelievable on the face of it.

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It has lastly been submitted on behalf of the petitioners that opposite party no.2 after her marriage and birth of the child was able to compete in the 41st Combined Competitive Examination and was 6

appointed as a Deputy Collector. She joined on the said post on 8.3.1999. It is submitted that her attendance register would indicate that she had only taken leave on 31.1.2002 which is the date on which she had come to institute this case. At the time of institution of this case, she was posted at Hajipur. This court cannot consider the attendance register produced on affidavit. It may be relevant for considering the probabilities of the allegations against the other accused persons during the trial. This court however may consider that opposite party no.2, as per her own case, while living with her in-laws and husband was able to prepare herself for competitive examination and succeeded and is now working in Bihar Government as Deputy Collector, which could have only been done with the cooperation of the family. In any event as far as these petitioners are concerned, this court, as already recorded above, does not find that any offence is made out against the petitioners under sections 498A, 323, 313 and 307 of the Penal code and 3/4 of the Dowry Prohibition Act. The impugned order, dated 30.1.2003 passed by the Chief Judicial Magistrate, Patna is hereby quashed so far it relates to the petitioners. These applications are allowed.

haque ( Sheema Ali Khan, J.)

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