Shiv Shankar Dubey & Ors vs State Of Bihar & Anr on 13 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36447 of 2014
Arising Out of PS.Case No. -662 Year- 2012 Thana -ROHTAS COMPLAINT CASE District- SASARAM (ROHTAS)

1. Shiv Shankar Dubey s/o Ramanuj Dubey

2. Ramanuj Dubey s/o Jagdeo Dubey

3. Satyendra Dubey, son of Shiv Shankar Dubey All R/o Village-
Sikrona, P.S.- Itarhi, District- Buxar
…. …. Petitioners
Versus

1. The State of Bihar

2. Shyam Narayan Tiwary, S/o Bhuneshwar Tiwari, R/o Village-
Sawandihri, Post Balthari, P.S.- Kochas, District- Rohtas (Sasaram)
…. …. Opposite Party

Appearance :

For the Petitioner/s : Mr. Dharmendra Kumar, Advocate
For the Opposite Party/s : Mr. Amitesh Kumar, Additional Public Prosecutor

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 13-09-2017

Heard Sri Yogesh Chandra Verma, learned Senior

counsel as well as learned counsel representing the

petitioners, learned counsel representing the

complainant/Opposite Party No. 2 and learned Additional

Public Prosecutor for the State.

2. The petitioners, in the present case, are seeking

quashing of the order taking cognizance dated 15.04.2013

passed in Complaint Case No. 662/2012 by learned Sub-

Divisional Judicial Magistrate, Sasaram (Rohtas) by which

learned Magistrate has taken cognizance of the offence
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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under Section 406 IPC read with Section 4 of the Dowry

Prohibition Act, 1961.

3. Learned Senior counsel representing the petitioners

would submit that from perusal of the complaint petition,

which is annexure-1 to the present application, it would

appear that due to failure of negotiation for marriage

between the daughter of the complainant and the accused

no. 1 namely, Satyendra Dubey, the present complaint has

been brought with false and flimsy allegations.

4. Learned Senior counsel submit that in the complaint

petition, although there are allegations that the complainant

had handed over a sum of Rs. 3,00,000/- in cash to accused

no. 3 and one gold chain worth Rs. 40,000/- for accused no.

1, Satyendra Dubey and a sum of Rs. 8 lacs in cash and one

Alto Car was demanded by accused persons after ‘Cheka’ as

a condition for marriage, but according to learned Senior

counsel, the allegations are vague and there is not even a

prima facie evidence to support the prosecution. According

to him, no offence under Section 406 IPC and/or Section 4 of

the Dowry Prohibition Act, 1961 is made out from a reading

of the complaint petition, therefore, the order taking
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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cognizance is bad in law.

5. Reliance has been placed in support of the

submissions by learned Senior counsel for the petitioners on

the judgments in the case of Vijay Sharma Anr. Vs. State

of Bihar reported in 2011 (1) PLJR 780; Mishri Ram Vs. State

of Bihar reported in 2002 (4) PLJR 197 and Employees’ State

Insurance Corporation Vs. S.K. Aggarwal reported in 1998

CRL. L. J. 4027. Further submission is that even if allegations

are taken to be true for the arguments sake, Dowry

Prohibition Act itself says that an agreement for giving and

taking of dowry shall be void, therefore, the complainant

cannot prosecute the accused persons for taking dowry, and

as such, the cognizance under Section 4 of the Dowry

Prohibition Act is bad in law.

6. On the other hand learned counsel representing

the complainant/Opposite Party No. 2 submits that the

learned Magistrate has taken cognizance of the offences as

alleged on the basis of the statements of the complainant on

oath as well as the statements of the inquiry witnesses under

Section 202 Cr.P.C.

7. A counter affidavit has been filed on behalf of
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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complainant/Opposite Party No. 2 with which certain

photographs have been attached to show that the

negotiations had already taken place between the parties

and it is only after some kind of ring ceremony (Cheka),

which is evident from the photographs, the money and Alto

Car was demanded, the accused persons broke the

negotiation and refused to return the cash Rs. 300,000/- and

gold chain which were handed over to accused no. 3

Ramanuj Dubey as per negotiation for marriage and thereby

committed an offence under Section 406 of the Indian Penal

Code read with section 4 of Dowry Prohibition Act. Further

submission of learned counsel for the complainant/Opposite

Party No. 2 is that no doubt Section 5 of the Dowry

Prohibition Act says that any agreement for giving or taking

dowry shall be void, but the scheme of Dowry Prohibition Act

is different from other statute, that provision cannot be

construed to mean and understand that the accused persons

who have demanded dowry, if proved, shall not be punished,

therefore, the submission of learned Senior counsel for the

petitioners that by virtue of agreement being a void

agreement no offence is made out is a total
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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misunderstanding of law on this behalf.

8. Learned counsel representing the complainant

/Opposite Party No. 2 submits that the photographs, which

he has attached with the counter affidavit filed before this

Court, are very much part of the record before the learned

Judicial Magistrate who has taken cognizance only after

appreciation of the materials available on the record and

based on a prima facie view for the purpose of cognizance.

The photographs have not been enclosed with the complaint

petition filed by the present petitioner as Annexure-1 to the

present application, further the accused-petitioners have not

brought on record the deposition of enquiry witnesses, and,

therefore, all such documents which were against the

petitioners have not been placed before this Court. He

further submits depositions of enquiry witnesses have been

brought on record by him with his counter affidavit, a perusal

thereof would show that the witnesses have supported the

case of the complainant. Thus, according to him, this Court

need not exercise it’s inherent jurisdiction to quash the

present proceeding.

9. This Court has considered the rival submission at
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the Bar. The judgments referred on behalf of the petitioners

have also been perused. In the case of Employees’ State

Insurance Corporation Vs. S.K. Aggarwal since reported in

1998 CRL. L. J. 4027; the issue, which had fallen for

consideration before the Hon’ble Supreme Court, was as to

whether a criminal proceeding can be lodged against the

Director of a limited company taking him as a principal

employer liable to pay contribution under Section 40 of the

Employee’s State Insurance Act, 1948. The Hon’ble Supreme

Court upheld the judgment of the Hon’ble Calcutta High

Court taking a view that the Director shall not be personally

liable for the contributions not deposited by the Company.

10. In the case of Mishri Ram Vs. State of Bihar since

reported in 2002 (4) PLJR 197, a coordinate Bench of this

Court was considering a criminal revision application which

arose out of an order of conviction passed under Section 409

of the Indian Penal Code, whereby a sentence of two years

simple imprisonment and to pay a fine of Rs. 1000/- in

default was awarded to the accused. The argument of the

petitioner in the said case was that there was no evidence

about entrustment of the property and misappropriation
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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thereof, and therefore, the case of the petitioner would not

fall within the mischief of Section 409 of the Indian Penal

Code.

11. The Court, in Mishri Ram’s case, came to a

conclusion in the facts of that case that though there were

evidence about entrustment of property to the petitioner

but there was no evidence to show that he had dishonestly

misappropriated the property and converted to the property

to his own use, therefore, mere refusal to return the

property which was entrusted to him was held not to

constitute an offence under Section 406 of the Indian Penal

Code.

12. In the case of Vijay Sharma Anr. Vs. State of

Bihar since reported in 2011 (1) PLJR 780; this Court quashed

a criminal proceeding under Section 406 of the Indian Penal

Code taking note of the facts that it was admitted case of the

complainant/Opposite Party No. 2, that he had given money

to the petitioner no. 1 for obtaining an employment for his

son. On the assurance of the accused that he will obtain a job

for his son in police force, the complainant/Opposite Party

No. 2 had given a sum of Rs. 65,000/- to the accused. In the
Patna High Court Cr.Misc. No.36447 of 2014 dt.13-09-2017

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facts of that case, a coordinate Bench of this Court noticed

Section 23 of the Indian Contract Act, which declares void a

contract, which is contrary to the law or opposed to the

public policy, but the submission of the complainant relying

upon Section 65 of the Indian Contract Act that he may still

file a money claim was left open. In ultimate analysis, the

criminal proceeding in the said case was quashed by learned

Single Judge of this Court concluding that the allegations

were false, frivolous and vexatious as a vendata and to divert

the attention of the petitioners to prevent them from

actively pursuing the criminal case which was brought by the

petitioner against the complainant of the case under Section

304(B) IPC. The quashment of criminal proceeding is not on

the ground as is being pleaded in the present case.

13. On consideration of the submissions of the parties

as regards cognizance under Section 4 of the Dowry

Prohibition Act, 1961, this Court is of the opinion that a case

brought by the present complainant/Opposite Party No. 2

alleging that accused persons demanded dowry after

receiving part of the agreed amount and the gold chain

cannot be allowed to be closed down or quashed on the
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ground that the agreement for giving and taking of dowry is

a void agreement. This is the only plea taken by the

petitioner. The legislatures being fully aware of what they

have prescribed in Section 5 of the Dowry Prohibition Act,

whereunder an agreement to give or take dowry has been

declared a void agreement did not include the persons giving

dowry within the scope of Section 4 of the Dowry Prohibition

Act, though under section 3 of the said Act ‘giver of dowry

shall also be punished’ scope of sections 3 and 4 are different

and distinct.

14. On the applicability of Section 406 of the Indian

Penal Code, none of the judgments referred by the learned

Senior counsel for the petitioners would help because those

judgments as noted above have been rendered in totally

different fact situation. The Hon’ble Supreme Court has

cautioned time and again that a judgment should not be

cited like an euclid’s theorem because a slightest of change

in the facts of the case may result in a sea difference in the

judgment of the Court and the law.

15. In the present case, the photographs which have

been brought on record with the counter affidavit were not
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enclosed by the present petitioners with complaint petition

which has been enclosed as Annexure-1 which seems

purposely done to withheld the documents which were

relied upon by the learned Judicial Magistrate for the

purposes of taking cognizance. Photographs as well as the

statements made in complaint and deposition of the enquiry

witnesses in support that the accused persons after receiving

part of the agreed amount and the gold chain demanded a

sum of Rs. 8 Lakhs in cash and a Alto Car, which have been

brought by the complainant/Opposite Party No. 2 on record,

prima facie satisfies this Court with the correctness of the

order taking cognizance passed by the learned Judicial

Magistrate. The inherent power of this Court to quash the

criminal proceeding cannot be exercised in favour of the

petitioners in the present case.

16. This court is, therefore, not inclined to interfere

with the order taking cognizance and issuance of summons.

The accused-petitioners are at liberty to raise all such pleas

which are available to them at the time of framing of charge

in the court below which will be considered by the court

below on it’s own merit without being prejudice by the
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observation of this Court, here-in-above.

17. This application is dismissed. No order as to costs.

(Rajeev Ranjan Prasad, J.)
Rajeev/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 15.09.2017
Transmission Date 15.09.2017

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