Bishundeo Mishra & Ors vs The State Of Bihar & Anr on 3 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.38737 of 2011
Arising Out of PS.Case No. -0 Year- null Thana -null District- BEGUSARAI

1. Bishundeo Mishra, son of late Tamol Mishra

2. Dilip Kumar Mishra @ Dilip Mishra, son of Bishundeo Mishra

3. Guriya Devi @ Archana Mishra, W/o Dilip Mishra

4. Usha Mishra, W/o Arvind Mishra.

All resident of village- Harrakh, P.S.- Begusarai Town, Distt- Begusarai.

5. Asha Jha, W/o Pramod Kumar Jha, resident of village- Sanhaula, P.S.-
Sanhaula, District- Bhagalpur.

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Shabanam Kumari, W/o Binod Mishra, resident of village- Harrakh, P.S.-
Begusarai Town, Distt- Begusarai at present D/o Ram Chandra Mishra, resident
of village- Sabour, P.S.- Barauni, District- Begusarai.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Dr. Amrendra Kumar, Advocate.

Mr. Ravi-S-Pankaj, Advocate.

For the State : Mr. Ajay Kumar No. 1, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
Date: 03-10-2017

Heard learned counsel for the petitioners and learned

counsel for the State.

2. The petitioners have filed this quashing application

under Section 482 of the Code of Criminal Procedure for setting aside

order dated 11.05.2011 passed by the Judicial Magistrate, 1 st Class,

Begusarai in Complaint Case No. 2012C of 2010 whereby he has

taken cognizance of offence against the petitioners under Section

498A of the Indian Penal Code directing for issuance of summons to

stand on trial in the case.

Patna High Court Cr.Misc. No.38737 of 2011 dt.03-10-2017

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3. The petitioners are accused in the aforesaid complaint

lodged by Shabnam Kumari, O.P. No. 2, against father-in-law and

others excluding husband.

4. Brief fact, as stated in complaint, is that complainant’s

marriage was solemnized in the year 1991 with Vinod Mishra, son of

Kishundeo Mishra (petitioner No. 1). The family was a joint family

but after marriage accused persons started making demand of

Rs. 50,000/- cash and a motorcycle in dowry and used to torture her in

that connection. It is alleged that her husband is a lawyer by

profession and he always used to protest such conduct of his family

members and lost his mental balance 7-8 years back and on

10.06.2010, all accused, being unanimous, driven her out along with

her children from matrimonial home.

5. Learned counsel for the petitioners submits that infact

marriage of the complainant was solemnized with her husband

approximately 20 years back, even the eldest daughter was married in

year 2009 so there is no question of any further demand of dowry and

torture and there is no allegation that at the time of marriage any

demand of dowry was made. He submits that peculiar fact of case is

that husband is not made accused by the wife/complainant because of

the reason that there was no any torture rather complaint is filed with

ulterior motive to take personal vengeance for the reason that
Patna High Court Cr.Misc. No.38737 of 2011 dt.03-10-2017

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petitioners no. 1 to 4 have filed a partition suit being Partition Suit No.

38 of 2010 for partition of the joint property in which husband of the

complainant, son of the petitioner no. 1, is one of the defendants.

There is neither any specific allegation of overt act committed by the

accused persons relating to torture and harassment, nor any specific

allegation of such act is mentioned in the complaint.

6. None appears on behalf of the O.P. No. 2. Learned

counsel for the State supports the impugned order.

7. Having considered the rival submissions and on

perusal of record, the Court finds that allegation of demand of further

dowry is alleged against the petitioners, who are father-in-law, brother

of the husband, married Nanads and wife of the brother of the

husband but there is no any allegation against the husband, so he is

also not an accused in this case. There is complete omission of any

specific overt act or specific act of torture or harassment committed

by the petitioners; even married Nanads (petitioners no. 4 and 5) have

been made accused in this case. It is also reflected that the petitioners

no. 1 to 4 have filed Partition Suit No. 38 of 2010, being plaintiffs, in

the case in which the husband of the complainant is one of the

defendants and present complaint is filed after expiry of a decade

since the marriage, so existence of civil litigation is apparent in the

shape of partition suit in between the petitioners no. 1 to 4 and the
Patna High Court Cr.Misc. No.38737 of 2011 dt.03-10-2017

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husband of the complainant.

8. so the present complaint appears to have been filed

by the complainant to take personal vengeance in order to settle the

score in civil dispute, hence order taking cognizance dated

11.05.2011 passed by the Judicial Magistrate, 1st Class, Begusarai in

Complaint Case No. 2012C of 2010 and subsequent criminal

proceeding against all the petitioners is hereby set aside.

9. The application stands allowed.

(Arun Kumar, J)

Sujit/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.10.2017
Transmission 07.10.2017
Date

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