Om Prakash Jha & Anr vs State Of Bihar & Anr on 9 August, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.46668 of 2013
Arising Out of Complaint.Case No. -825 Year- 2012 District- MADHUBANI

1. Om Prakash Jha, Son Of Late Ram Lakhan Jha

2. Doli Jha @ Dauli Jha, W/O Om Prakash Jha
Both Resident Of Village- Bhit Bhagwanpur, P.S. Madhepur, District- Madhubani,
Presently Residing At Mohalla- Kalibari Near I.C.I.C.I. Bank, Village P.O.
Karnajara, P.S. Raiganj, District- North Dinajpur (West Bengal)

…. …. Petitioner/s
Versus

1. The State Of Bihar

2. Smt. Nirmala Jha, W/O Sri Om Prakash Jha, Resident Of Village- Bhit
Bhagwanpur, P.S. Madhepur, District- Madhubani.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Anwar Karim, Adv.

For the Opposite Party no.2 : Mr. Nawal Kishore Prasad, Adv.

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
CAV JUDGMENT
Date: 09-08-2017

Learned counsel for the petitioners and learned counsel

for the opposite party no.2 were heard on 03.08.2017. No one

appeared for the State.

2. At the time of hearing of this application, learned

counsel for the petitioners informed this Court that the Accused No.1-

petitioner no.1 died during the pendency of the present application

and, therefore, the learned counsel has pressed this application only in

respect to the petitioner no.2.

3. The petitioner no.2 is praying for quashing of the

order dated 09.05.2013 passed by learned Sub-Divisional Judicial
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 2

Magistrate (in short „S.D.J.M.‟), Jhanjharpur in complaint case

bearing C.R.No.825 of 2012 by which the learned Magistrate has

taken cognizance of the offences under Section 498(A), 380 and 494

of the Indian Penal Code and issued summon to the petitioners for

appearance.

4. The petitioner no.2 is the second wife of one Om

Prakash Jha (petitioner no.1, since deceased). The opposite party no.2,

who filed the present complaint giving rise to Complaint Case No.825

of 2012 in the court of learned Additional Chief Judicial Magistrate,

Jhanjharpur, alleged that she was married to accused no.1 (the

deceased petitioner no.1) in the year 1984 in accordance with Hindu

Rights and Customs. After her marriage, she started living in her

Sasural as her husband was posted at Raiganj in the State of West

Bengal. It is further alleged that the complainant was living with her

husband and had given birth to two sons namely Ajay Kumar Jha and

Ajit Kumar Jha and also one daughter Ritu Kumari.

5. Further allegations are that all of a sudden in the

year 2003, the complainant found change in the nature of accused

no.1 as he was getting angry on minor things and sometimes he was

also scolding the complainant in anger. This fact was allegedly

brought to the notice of the mother-in-law. It is alleged that on 15th

August 2003, the husband of the complainant on the pretext of ill-
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 3

health of his mother brought the complainant and her children to

village Bhit Bhagwanpur and after staying there for sometime he left

the village saying that he would come back after Durga Puja to take

the complainant to Raiganj. It is alleged that when the accused no.1

did not come back, the complainant along with her brother reached

Raiganj and there she found an unknown lady living with her

husband. It is alleged that accused no.1 abused the complainant and

told in anger that he had solemnized 2nd marriage and he would not

keep the complainant with him. It is alleged that the neighbours also

assembled on hearing Hulla, but the complainant, her children and her

brother were ousted from the house. The complainant came back to

her Sasural in village Bhit Bhagwanpur and informed this to her

mother-in-law, but no effect could be found on her husband. All of a

sudden, it is alleged that, in the year 2004 the mother-in-law of the

complainant fell ill, this was informed to her husband and both

accused visited the village Bhit Bhagwanpur and took away her

mother-in-law and the complainant to Raiganj where her mother-in-

law was treated and got well.

6. It is further alleged that at Raiganj it was suggested

to the accused no.1 to send half of his salary to the complainant and

the name of the complainant should be entered in the records of the

Government for getting all facilities, but the accused no.1 did not
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 4

agree to the suggestion given to him by his mother. Thereafter, the

mother-in-law of the complainant executed a Will dated 24.09.2004 in

favour of her both grandsons namely Ajay Kumar Jha and Ajit Kumar

Jha. The complainant returned with her children to village Bhit

Bhagwanpur. It is further alleged that the mother-in-law of the

complainant was getting pension and that was the source of livelihood

for the complainant and her children, but in the year 2009 the mother-

in-law of the complainant died and the complainant had to face a lot

of trouble in taking care of her children. The accused nos. 1 and 2

both visited the village, but refused to take care of the maintenance of

the complainant and her children and were indulged in cruelty by

beating her. The complainant allegedly remained silent and went on

bearing with the torture. It is alleged that the accused persons were

visiting the village time to time and were torturing the complainant.

On 14.08.2012, the accused persons came to village by Car and asked

the complainant to hand over the land documents and ornaments kept

by mother-in-law of the complainant and on denial by the

complainant she was abused, the key was forcibly snatched from her

and they took away the gold and silver ornaments and Rs.5,00,000/-

from the Almirah. It is further alleged that during the night the

complainant was locked in the house and the accused persons went

away by car. It is also alleged that the accused persons threatened the
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 5

complainant that on filing any case they will get her killed. Thus, the

whole case of the complainant is that she was tortured and the accused

no.1 solemnized the second marriage during the lifetime of the first

wife and also took away the ornaments which the complainant had got

from her mother-in-law and, therefore, the present case.

7. The complainant was examined on oath where she

has admitted that there was a dispute between the complainant and her

husband since the year 2003. She further replied in an answer to a

Court‟s question that information of the alleged occurrence was not

given to the police station. She admitted that village is in the

Panchayat, but the alleged occurrence was not informed to the

Mukhiya and Sarpanch of the Panchayat. It is also not informed to the

Chowkidar. She further stated that there is no documentary evidence

of marriage of Doli Jha. The complaint was supported by one Gopal

Thakur, Ajay Kumar Jha and Prabhakar Jha. There are other witnesses

who have supported the case of the complainant that her husband had

married, but there was no proof of the marriage.

8. The learned SDJM, Jhanjharpur vide his order dated

09.05.2013, which is impugned in the present application, took

cognizance of the offences under Sections 498(A), 380 and 494 of the

I.P.C. and decided to issue summons against the accused persons

noted in the complaint petition.

Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 6

9. Learned counsel for the petitioner no.2 submits that

the present complaint has been filed only to pressurize the petitioner,

firstly, not to raise objection against the alleged “Deed of Will” said to

have been executed by the deceased mother-in-law of the

complainant-opposite party no.2 and secondly, to compel the husband

(since deceased) to execute a registered deed transferring all of his

landed properties and the house situated in village Bhit Bhagwanpur

in favour of the complainant and her two sons only. Learned counsel

submits that it is a mala fide complaint filed on the basis of false,

concocted and cooked-up story setting out the alleged date of

occurrence of visiting the village by car and then taking away the gold

and silver ornaments and also a sum of Rs.5,00,000/- and allegation of

torture are all baseless story. It is submitted that, in fact, the deceased

husband (petitioner no.1) was under training from 03.07.2012 to

03.08.2012 in Service Computer Training for the officials of

Directorate of Commercial Taxes, West Bengal and since 06.08.2012

to 24.08.2012 they had gone for another training course of ACTO

held at Directorate of Commercial Taxes, Beliaghata Building (HRD

Cell, 3rd Building 7th Floor) conducted by the HRD Cell of the

Directorate of Commercial Taxes, West Bengal. In support of his

contention the learned counsel has relied upon the Railway Journey

Reservation Ticket of the petitioner no.1 dated 28.07.2012 vide PNR
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 7

No.660-4327655 from Raiganj to Kolkata by Train No.13146

Radhikapur Express, certificate of 1st training course of petitioner no.1

held between 30.07.2012 to 03.08.2012 granted by the Director,

Administrative Training Institute, Government of West Bengal,

another training certificate of the petitioner no.1 which training was

attended between 6th August, 2012 to 24th August, 2012 for the

training course of ACTO and after completion, the training certificate

was issued by the Additional Commissioner, Commercial Taxes,

HRD Cell, West Bengal and lastly he has relied upon the return

railway journey reservation ticket of the petitioner no.1 dated

24.08.2012 vide PNR No.660-5911556, train no.13145 from Kolkata

to Raiganj by which after completion of training the petitioner no.1

came back to Raiganj from Kolkata. These documents have been

annexed as Annexure-2, 3, 4 and 5 respectively. Learned counsel for

the petitioner no.2 has further relied upon some money order receipts,

as contained in Annexure-6 series, to show that the petitioner no.1

was always taking care of maintenance of the complainant. It is the

case of the petitioner no.1 that he got second marriage with the

petitioner no.2 in the year 1993 with consent of the complainant

which is well within her knowledge and from his second wife in the

year 1996 he got one daughter and in the year 1998 one son, whereas

from the first wife the petitioner no.1 had two sons and one daughter.
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 8

Out of them one son and daughter have already been married and one

son has completed his graduation and recently joined a service. It is

further stated that this son has been living since beginning with the

petitioners at Raiganj and as such the entire prosecution story is false,

concocted and baseless.

10. On the other hand, learned counsel for the

complainant-opposite party no.2 has opposed the application and

submitted that in the facts and circumstances of the case learned

SDJM, Jhanjharpur has found a prima facie case against the petitioner

therefore, this Court should not interfere with the order taking

cognizance and issuance of summons.

11. In the present case, the complainant-opposite party

no.2 was noticed vide order dated 19.11.2013 and she appeared

through vakalatnama on 19.02.2014. However, the complainant-

opposite party no.2 has not filed any affidavit disputing the

genuineness and correctness of the documents such as training

certificates, railway journey tickets and the receipts of money orders

which have been enclosed with the present application to support the

contention that the allegations brought by the complainant-opposite

party no.2, at this stage, setting out the date of occurrence on

14.08.2012 is out and out false story with sole intention to initiate a

mala fide prosecution for some oblique reason. Since the genuineness
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 9

of the documents brought on record by the applicants/petitioners are

not in dispute, this Court would rely upon the judgments of the

Hon‟ble Apex Court, one of them being in the case of Rajiv Thapar

Ors. Vs. Madan Lal Kapoor reported in AIR 2013 SC (Cri)

659. Paragraph 23 of the said judgment reads as under:-

“Based on the factors canvassed in the foregoing
paragraphs, we would delineate the following steps to
determine the veracity of a prayer for quashing, raised
by an accused by invoking the power vested in the
High Court under Section 482 of the Cr.P.C.:-

(i) Step one, whether the material relied upon by
the accused is sound, reasonable, and indubitable, i.e.,
the material is of sterling and impeccable quality?

(ii) Step two, whether the material relied upon by
the accused, would rule out the assertions contained in
the charges leveled against the accused, i.e., the
material is sufficient to reject and overrule the factual
assertions contained in the complaint, i.e., the material
is such, as would persuade a reasonable person to
dismiss and condemn the factual basis of the
accusations as false?

(iii) Step three, whether the material relied upon by
the accused, has not been refuted by the
prosecution/complainant; and/or the material is such,
that it cannot be justifiably refuted by the
prosecution/complainant?

(iv) Step four, whether proceeding with the trial
would result in an abuse of process of the court, and
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 10

would not serve the ends of justice?

If the answer to all the steps is in the affirmative,
judicial conscience of the High Court should persuade
it to quash such criminal proceedings, in exercise of
power vested in it under Section 482 of the Cr.P.C.
Such exercise of power, besides doing justice to the
accused, would save precious court time, which would
otherwise be wasted in holding such a trial (as well as,
proceedings arising therefrom) specially when, it is
clear that the same would not conclude in the
conviction of the accused.”

12. This Court finds that the documents enclosed are

uncontroverted and in absence of any dispute the Court has reasons to

believe that those are worth reliable.

13. A perusal of the complaint petition itself shows that

according to the complainant she found her husband living with the

petitioner no.2 when she visited Raiganj in the year 2003, her husband

told her that he had married with the petitioner no.2 and thereafter the

complainant did not lodge any complaint. Complainant admits that

during treatment of her mother-in-law at Raiganj she had also gone

and stayed. No allegation of torture is made during this period.

Admittedly, the complainant was living with her mother-in-law in

village Bhit Bhagwanpur where she was depending upon the pension

amount which her mother-in-law was getting. The last part of the
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 11

allegation that on 14.08.2012 the accused persons came by car,

entered into the house and after abusing and beating the complainant

took away gold and silver ornaments and Rs.5,00,000/- in cash, in the

opinion of the Court, stands falsified on the face of the documentary

evidences which are uncontroverted by the opposite party no.2. On

the alleged date dated 14.08.2012 the petitioner no.1 was engaged in

training which is evident from the certificate granted by the

Additional Commissioner, Commercial Taxes Human Resource

Development Cell, Beliaghat Road, Kolkata which certifies as under:-

” Certified that SRI OM PRAKASH JHA, ACTO
// RG CHARGE, has successfully completed the
Induction Training Course of ACTO held at
Directorate of Commercial Taxes, Beliaghata Building
(HRD Cell, 3rd Building, 7th Floor), conducted by the
HRD Cell of the Directorate of Commercial Taxes,
West Bengal from 6th August, 2012 to 24th August,
2012.”

14. Further, in answer to the Court‟s query during the

solemn affirmation complainant admits that this occurrence was not

reported to the Mukhiya and Sarpanch of her Panchayat, further she

admits that the alleged occurrence was not informed even to the

chowkidar. These are some overwhelming circumstances which

strengthen the submission of the petitioner no.2 that the allegations
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 12

are not true.

15. A reading of the complaint petition itself suggests

that issue of second marriage had settled down between the parties

and the receipts showing remission of money (Annexure-6 series)

would show that the husband of the opposite party no.2 was sending

some money sometimes in her name and sometimes in the name of

her sons.

16. Section 498(A) IPC reads as under:-

498A. Husband or relative of husband of a
woman subjecting her to cruelty.–Whoever, being the
husband or the relative of the husband of a woman,
subjects such woman to cruelty shall be punished with
imprisonment for a term which may extend to three
years and shall also be liable to fine.

Explanation.-For the purposes of this section,
“cruelty” means-

(a) any wilful conduct which is of such a nature
as is likely to drive the woman to commit suicide or to
cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or

(b) harassment of the woman where such
harassment is with a view to coercing her or any
person related to her to meet any unlawful demand for
any property or valuable security or is on account of
failure by her or any person related to her to meet such
demand.]
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 13

17. However, Section 380 and Section 494 are also

quoted herein under for easy reference:-

380. Theft in dwelling house, etc.–Whoever
commits theft in any building, tent or vessel, which
building, tent or vessel is used as a human dwelling, or
used for the custody of property, shall be punished with
imprisonment of either description for a term which
may extend to seven years, and shall also be liable to
fine.

494. Marrying again during lifetime of husband
or wife.–Whoever, having a husband or wife living,
marries in any case in which such marriage is void by
reason of its taking place during the life of such
husband or wife, shall be punished with imprisonment
of either description for a term which may extend to
seven years, and shall also be liable to fine.

Exception.-This section does not extend to any
person whose marriage with such husband or wife has
been declared void by a Court of competent
jurisdiction, nor to any person who contracts a
marriage during the life of a former husband or wife, if
such husband or wife, at the time of the subsequent
marriage, shall have been continually absent from
such person for the space of seven years, and shall not
have been heard of by such person as being alive
within that time provided the person contracting such
subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is
contracted of the real state of facts so far as the same
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 14

are within his or her knowledge.

18. So far as Section 494 IPC is concerned it would not

be attracted against the petitioner no.2 because she has not re-married

despite having her husband. The allegation of bigamy under Section

494 IPC would at best be attracted against the deceased husband of

the complainant. However, the husband of complainant-opposite party

no.2 has died. The allegations under Section 498(A) and Section 380

IPC would equally be not made out against the petitioner no.2 on

vague allegations as there is no specific allegation of committing any

overt act of torture by the petitioner no.2 or even of committing theft.

The story of entering into the village house on 14.08.2012 and taking

away the gold and silver ornaments and Rs.5,00,000/- are not

believable for two reasons, firstly, because of uncontroverted

documentary evidences brought by the petitioners in the present case

to show that on the alleged date of occurrence the petitioner no.1 was

under going the training programme and secondly, for the reason that

complainant herself states in the petition that after death of her

mother-in-law in the year 2009 she was facing very difficult time in

maintaining herself and her children and she was somehow carrying

out her responsibilities, if it was the position, then nobody can

believe that she was having gold and silver ornaments and
Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 15

Rs.5,00,000/- in cash kept in the Almirah which were allegedly taken

away by the accused persons. The allegations are highly improbable

and unbelievable in the facts of the present case. In the complaint

petition, the complainant has stated about execution of a Will by her

mother-in-law in favour of her two sons and, therefore, the

submission of petitioner no.2 is that the present complaint was filed

only to put pressure upon the accused persons not to raise any

objection against the executed Will and then to compel the petitioner

no.1 (since deceased) to execute a transfer deed in favour of the sons

of the opposite party no.2 with respect to village properties. From the

tone and tenor of the story alleged in the complaint petition this Court

is of the opinion that the case as setout by the complainant-opposite

party no.2 is not believable and the same is highly improbable on the

face of the positive assertions of the petitioners, not denied by

opposite party no.2 and the uncontroverted documentary evidences

brought by the petitioners. It cannot be believed that an occurrence as

alleged would not even be brought to the notice of the chowkidar of

the village or to the Panchayat. The facts mentioned in the complaint

themselves suggest that the issue of 2nd marriage by her husband had

settled down; however due to dispute over the inheritance of

properties led to filing of the present complaint setting out a story

with a date (14.08.2012).

Patna High Court Cr.Misc. No.46668 of 2013 dt.09-08-2017 16

19. For the reasons mentioned above, in the opinion of

this Court, the complaint is mala fide complaint and hence it is

covered under one of the illustrations in the judgment rendered by the

Hon‟ble Apex Court in the case of State of Haryana Ors. Vs.

Bhajan Lal reported in 1992 Supp. (1) SCC 335.

20. The order issuing process against petitioner no.2

has been passed in a routine manner. Thus, the order taking

cognizance and issuance of summons dated 09.05.2013 passed by the

learned SDJM, Jhanjharpur in complaint case bearing C.R.No.825 of

2012, as against petitioner no.2, is hereby quashed.

21. The application stands allowed.

(Rajeev Ranjan Prasad, J)

Arvind/-

AFR/NAFR AFR
CAV DATE 03.08.2017
Uploading Date 10.08.2017
Transmission 10.08.2017
Date

Leave a Comment

Your email address will not be published. Required fields are marked *