Devlal Choudhary & Ors vs The State Of Bihar & Anr on 27 July, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.45296 of 2011
Arising Out of P.S.Case No. -0 Year- null Thana -null District- NAWADA

1. Devlal Choudhary S/O Late Karem Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.

2. Umesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.

3. Dinesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.

4. Naresh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.

5. Ganesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.

6. Devanti Devi W/O Devlal Choudhary Resident Of Mohalla- Dhania Bagicha,
Police Station- Delha, District- Gaya.

7. Kunadan Choudhary S/O Dev Nandan Choudhary Resident Of Mohalla- Tulsi
Gali Rajgir, Police Station- Rajgir, District- Nalanda

8. Arvind Choudhary S/O Harihar Choudhary Resident Of – Dhanwa, Police
Station- Hasua, District- Nawada.

…. …. Petitioners
Versus

1. The State Of Bihar

2. Shiv Shankar Choudhary S/O Late Kishun Choudhary Resident Of Village-
Panchu Surdhi Tola, Police Station- Hisua, District- Nawada.

…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Pramod Kumar, Advocate
For the Opposite Parties : Mr. Akshay Lal Pandit, APP

CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 27-07-2017

This application under Section 482 of the Cr.P.C. has been

filed to quash the order dated 02.08.2011passed by the learned

Judicial Magistrate, Ist Class, Nawada in Complaint Case No.926 of

2010 wherein and whereunder the learned Magistrate finding prima-

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facie case for the offence under Sections 323, 341 and 379 of the IPC
Patna High Court Cr.Misc. No.45296 of 2011 dt.27-07-2017

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summoned the petitioners.

2. Heard Mr. Pramod Kumar, counsel for the petitioners

and Mr. Akshay Lal Pandit, APP for the State.

3. The facts in brief is that the Opposite Party No.2 filed a

complaint case on the file of CJM against the petitioners who are

none-else than his own father-in-law, son-in-laws and relatives of his

father-in-law. It has been alleged that on the date of occurrence, they

came at his residence and enquired as to why he has sent his wife to

Maika. The complainant Opposite Party No.2 refuted and replied that

his wife has gone to her Maika to her own desire. He has further

alleged that on 26.07.2010 at about 4 .00 O’ clock he woke up and

saw all the petitioner running away with his belonging and when he

raised protest, the petitioners assaulted by fist and slaps. On the alarm

of complainant, the local persons assembled and thereafter the

petitioners fled away.

4. It has been submitted that the Opposite Party No.2 has

filed a complaint case with false and frivolous allegation only to

counter the Complaint Case No.1518 of 2008 which has been filed by

the daughter of petitioner no.1. The petitioner nos.1 and 2 being the

father-in-law and brother-in-law of the complainant are witnesses in

the complaint case No.1518 of 2008. Besides that the daughter of

petitioner no.1 has filed a Maintenance Case No.34 of 2010 before the
Patna High Court Cr.Misc. No.45296 of 2011 dt.27-07-2017

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court of Principal Judge, Family Court, Gaya wherein the learned

Principal Judge has directed the Opposite Party No.2 to pay an

amount of Rs.1600/- per month as interim maintenance. The Opposite

Party No.2 did not comply the said order for which distress warrant

has been issued against the Opposite Party No.2. It has been further

submitted that there are contradictions in the statement of complainant

on solemn affirmation and other witnesses recorded at the time of

enquiry. The learned court below took cognizance without applying

judicial mind and so the impugned order is fit to be quashed.

5. The learned APP opposed the submissions.

6. On perusal of impugned order, complaint petition as well

as document available on record, I find that the wife of these

petitioners had filed a complaint case no.1518 of 2008 on 06.09.2008

against her husband for the offence under Sections 498A, 379, 323

and other Sections of the IPC. The wife of Opposite Party No.2 was

residing at the place of these petitioners. The complainant in the

present case has alleged that on the date of occurrence all the

petitioners along with others came at the house of Opposite Party

No.2 assaulted him and also took away his house hold articles. The

complainant in his solemn affirmation at para-5 to the Court question

has stated that at 4 A.M. he woke up and found the house hold articles

traceless from his house and he had seen the accused (petitioners)
Patna High Court Cr.Misc. No.45296 of 2011 dt.27-07-2017

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while escaping from his house. The petitioners had slept outside the

house on the date of occurrence. He has further stated that the

petitioners were not at visiting term at the place of complainant

Opposite Party No.2. There are contradictions also in the statement of

witnesses. The present case has been lodged after the complaint case

of his wife out of vengeance as submitted by learned counsel for the

petitioners.

7. In view of the aforesaid facts, the order dated 02.08.2011

passed by Judicial Magistrate, Ist Class, Nawada in Complaint Case

No.926 of 2010 is not sustainable and is accordingly quashed. This

application is allowed.

(Sanjay Kumar, J)

B.Kr./-

AFR/NAFR NAFR
CAV DATE
Uploading Date 01.08.2017
Transmission 01.08.2017
Date

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