IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.37688 of 2013
Arising Out of PS.Case No. -null Year- null Thana -null District- PATNA

1. Damodar Prasad Singh Son Of Late Jagat Narayan Singh Resident Of Mohalla –
Yadav Lane, Inforit Of Patna College, Maa Gayatri Girls Lodge, P.S. –
Pirbahore, District-Patna (Bihar)

2. Daya Devi Wife Of Damodar Prasad Singh Resident Of Mohalla – Yadav Lane,
Inforit Of Patna College, Maa Gayatri Girls Lodge, P.S. – Pirbahore, District-
Patna (Bihar)

…. …. Petitioner/s
Versus

1. State Of Bihar

2. Savita Devi Wife Of Kumar Dayanand Prasad Singh Resident Of Mohalla –
Yadav Lane, Infront Of Patna

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Sushil Kumar Singh, Advocate
For the Opposite Party/s : Mr. Shyam Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date: 14-09-2017

Heard learned counsel for the petitioner and the State.

No one appears on behalf of Opposite Party No.2 though

appearance has been filed.

2. The petitioners are parents of the husband of Opposite

Party No.2 Savita Devi. Opposite Party No.2 filed a complaint case

bearing Complaint Case No.3373(C) of 2011 against the petitioners

only alleging therein demand of dowry and torture for the same

since after marriage of the complainant with Kumar Dayanand

Prasad Singh in the year 1992. However, the complainant

continued to bear the torturing under social pressure. Hence, delay

in filing of the complaint case.

3. By the impugned order dated 20.06.2012 passed in the
Patna High Court Cr.Misc. No.37688 of 2013 dt.14-09-2017

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aforesaid complaint case; the learned Court-below has taken

cognizance against the petitioners for the offence under Section

498A/34 Of the Indian Penal Code.

4. Learned counsel for the petitioners submits that the

complaint petition suffers from malice and the impugned order

suffers from non-application of judicial mind. Hence, the entire

criminal prosecution against the petitioners is fit to be quashed.

Learned counsel for the petitioner further submits that husband of

the complainant was married earlier with another lady, who died

leaving behind son and daughters. The children were residing with

the petitioners. Thereafter, the son of the petitioners Kumar

Dayanannd Singh married with the complainant in the year 1992.

Since some property were acquired by the mother from her parent’s

side wherein name of the husband of the complainant was recorded

due to love and affection as he was a minor. The complainant

started pressurizing her husband to get share in those properties

also and family disputes was created. Thereafter the petitioners

filed Title Suit No.115 of 2011 before the learned Sub-Judge-I,

Munger, against the husband of the complainant, ventilating their

absolute claim on the suit property and narrating the entire story

including the first marriage of the husband of the complainant and

death of the first wife leaving the children, who reside with the

petitioners, vide copy of the plaint at Annexure-3.

5. In Gita Mehrotra and another V. the State of U.P.
Patna High Court Cr.Misc. No.37688 of 2013 dt.14-09-2017

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and Another reported in 2013 (1) P.L.J.R. SC Page-10 the

Hon’ble Supreme Court held that now a days tendency has

developed in general to rope all the family members in a case under

Section 498A of the Indian Penal Code in order to unduly harass the

family members by merely giving casual reference of the name of

the family members of the matrimonial house with general and

vague allegation of their involvement in the harassment.

In Pepsi Foods Limited V. Judicial Magistrate reported

in (1998)5 SCC 749, the Hon’ble Apex Court observed as follows

regarding duty of the Magistrate while summoning the accused;

“Summoning of an accused in a criminal

case is a serious matter. Criminal law cannot be set

into motion as a matter of course. It is not that the

complainant has to bring only two witnesses to support

his allegations in the complaint to have the criminal

law set into motion. The order of the magistrate

summoning the accused must reflect that he has applied

his mind to the facts of the case and the law applicable

thereto. He has to examine the nature of allegations

made in the complaint and the evidence both oral and

documentary in support thereof and would that be

sufficient for the complainant to succeed in bringing

charge home to the accused. It is not that the

Magistrate is a silent spectator at the time of recording
Patna High Court Cr.Misc. No.37688 of 2013 dt.14-09-2017

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of preliminary evidence before summoning of the

accused. Magistrate has to carefully scrutinize the

evidence brought on record and may even himself put

questions to the complainant and his witnesses to elicit

answers to find out the truthfulness of the allegations or

otherwise and then examine if any offence is prima

facie committed by all or any of the accused.”

6. Learned counsel for the State-respondent opposed the

prayer. However, does not dispute the factual position of the case

appearing on the record.

7. Considering the aforesaid law as well as the

background of the allegation against the petitioners and the fact that

the husband is not an accused in the case, the complaint petition

apparently shows to have been filed with motive to harass and

pressurize the petitioners in the property dispute. The learned Court-

below has not considered the background of the allegation. Hence,

the impugned order is not sustainable in law. Accordingly, the same is

quashed and this application stands allowed.

(Birendra Kumar, J)

Mkr./-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 19.09.2017
Transmission 19.09.2017
Date