Naima Ara & Ors vs The State Of Bihar on 18 September, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.13938 of 2014
Arising Out of P.S.Case No. -990 Year- 2006 Thana -GAYA COMPLAINT CASE District- GAYA

1. Naima Ara Wife Of Md. Shamsh Alam, Daughter of Md. Safique Alam @
Shafique.

2. Md. Safique Alam @ Shafiquer Son of Md. Hussain

3. Afroz Jahan Ara @ Afroz Jahan Wife of Md. Safique Alam @ Shafique

4. Md. Akhtar @ Akhtar Alam Son Of Md. Hussain

5. Md. Alisher @ Alisher Son of Md. Hussain

6. Soni @ Nasima Ara Daughter of Md. Safique Alam @ Shafique

7. Maqsood Alam Son of Md. Safique Alam @ Shafique.

8. Shibhu @ Mahboob Alam Son Of Md. Safique Alam @ Shafique All Resident
Of Village- Mahuli, Police Station- Duddhi, District- Sonbhadra.

9. Noor Jahan Khatoon Wife of Akhatar Abbas, Resident of Village- Duddhi,
Police Station- Duddhi, District- Sonbhadra.

10. Md. Zubair Alam @ Zubair Alam Son Of Late Ummat Rasool Resident of
Fivestar Vastralaya, Dumaria, Police Station- Dumaria, District- Gaya

11. Md. Sabir @ Sabir Alam Son of Md. Ummat Rasool

12. Md. Manzoor Alam @ Manzoor Alam Son of Late Ummat Rasool Both
Resident of Village- Manjhooli, Police Station- Dumaria, District- Gaya.

…. …. Petitioners
Versus

1. The State of Bihar

2. Md. Kalim, son of late Abdul Karim, resident of Mohalla-Makhlotganj,
Marufganj, Police Station-Kotwali, District-Gaya

…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. S.A.Nasim, Advocate
For the Opposite Party No.2 : Mr. Anisur Rahman, Advocate
For the State : Mr. Shantanu Kumar, APP

CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 18-09-2017

This criminal miscellaneous application under Section 482

of the Cr.P.C. has been filed to quash the order dated 04.01.2007

passed in Complaint Case No.990 of 2006 passed by Judicial

Magistrate, Ist Class, Gaya whereby and whereunder the learned
Patna High Court Cr.Misc. No.13938 of 2014 dt.18-09-2017

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Magistrate took cognizance against the petitioners for the offence

under Sections 147, 323, 452, 504 and 380 of the IPC.

2. Heard learned counsel for the petitioners, learned counsel

for the Opposite Party No.2 as well as learned APP for the State.

3. The Opposite Party No.2 is father-in-law of petitioner

no.1. The remaining petitioners are parents, uncle, aunt, brothers and

sisters of the petitioner no.1. The father-in-law has filed this

complaint case after filing of the complaint petition of petitioner no.1

for the offence under Sections 498A and 406 of the IPC and Section

3/4 of the Dowry Prohibition Act. The petitioner no.1 was married

with the son of Opposite Party No.2 on 17.10.2003 and after marriage

petitioner no.1 started residing at Patna along with her husband. It has

been alleged the son of complainant was made traceless by his wife as

he could not find his son with the petitioner no.1 at Patna whenever he

visited after 2005. The allegation of making the son of Opposite Party

No.2 traceless and allegation of demand of Rs.50,000/- has been

disbelieved by the court below and the Magistrate took cognizance

only for the offence under Sections 147, 323, 452, 504 and 380 of the

IPC. Out of 12 petitioners, nine are residents of village-Buddhi,

District-Sonbhadra (Uttar Pradesh) and Opposite Party No.2 is the

resident of Mohalla-Maroofganj, P.S. Kotwali, District-Gaya. It does

not appear probable that 12 persons in a jeep will come from UP to
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the residence of complainant (Opposite Party No.2) at Gaya to assault

and take away three boxes and other articles. The present complainant

case has been filed after two days of the occurrence of alleged assault

at Gaya Town and after more than seven months of making the son of

complainant traceless from Patna. The petitioner no.1 has filed

complaint case against her husband and his family members including

the Opposite Party No.2 for torture and assault caused by them in the

matrimonial house. The complaint case was lodged for about much

earlier, i.e., more than eighteen months of the complaint case of

Opposite Party. The allegation of assault and taking away house hold

articles appears omnibus.

4. The principles relating to exercise of jurisdiction under

section 482 of the Cr.P.C. to quash the complaint and criminal

prosecution have been considered by the Apex Court in several

decision. In spite of Haryana and others vs. Bhajan Lal and others

[1992 Supp (1) SCC 335] certain parameters have been pointed out in

paragraph 102 by the Supreme Court under which prosecution

launched in a complaint or FIR may be quashed in exercise of

jurisdiction under section 482 of the Cr.P.C.. It reads as under:-

“102. In the backdrop of the interpretation of the various
relevant provisions of the Code under Chapter XIV and of the
principles of law enunciated by this Court in a series of decisions
relating to the exercise of the extraordinary power under
Article 226
or the inherent powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following categories of
cases by way of illustration wherein such power could be exercised
either to prevent abuse of the process of any court or otherwise to
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secure the ends of justice, though it may not be possible to lay down
any precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an exhaustive list
of myriad kinds of cases wherein such power should be exercised:

(1) Where the allegations made in the first information report
or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any
offence or make out a case against the accused.
(2) Where the allegations in the first information report and
other materials, if any, accompanying the FIR do not disclose
a cognizable offence, justifying an investigation by police
officers under
Section 156(1) of the Code except under an
order of a Magistrate within the purview of
Section 155(2) of
the Code.

(3) Where the uncontroverted allegations made in the FIR or
complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out a
case against the accused.

(4) Where, the allegations in the FIR do not constitute a
cognizable offence but constitute only a non- cognizable
offence, no investigation is permitted by a police officer
without an order of a Magistrate as contemplated under
Section 155(2) of the Code.

(5) Where the allegations made in the FIR or complaint are so
absurd and inherently improbable on the basis of which no
prudent person can ever reach a just conclusion that there is
sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the
provisions
of the Code or the concerned Act (under which a
criminal proceeding is instituted) to the institution and
continuance of the proceedings and/or where there is a specific
provision in
the Code or the concerned Act, providing
efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with
mala fide and/or where the proceeding is maliciously
instituted with an ulterior motive for wreaking vengeance on
the accused and with a view to spite him due to private and
personal grudge.”

5. As discussed above, the Opposite Party No.2 has filed

the complaint case after filing of the complaint case of petitioner no.1

against the Opposite Party No.2 and others for the offence under

Sections 498A and 406 of the IPC and Sections 3/4 of the Dowry

Prohibition Act. The case of Opposite Party No.2 appears absurd and
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improbable. The facts of the present case is quite similar to the case

decided by the Apex Court in Eicher Tractor Ltd. Others Vs.

Harihar Singh (supra) and also squarely covered by guidelines given

at sub-para 5 and 7 of para 102 of the case in State of Haryana and

others vs. Bhajan Lal and others.

6. Therefore in view of principles laid down by the Supreme

Court as discussed above, the order dated 04.01.2007 passed in

Complaint Case No. 990 of 2006 and the criminal prosecution of

these petitioners in said case is quashed.

7. This application is, accordingly, allowed.

(Sanjay Kumar, J)

B.Kr./-

AFR/NAFR NAFR
CAV DATE
Uploading Date 22.09.2017
Transmission 22.09.2017
Date

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