Tribhuwan Thakur vs State Of Bihar & Anr on 16 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.49683 of 2014
Arising Out of PS.Case No. -28 Year- 2013 Thana -JALE District- DARBHANGA

1. Tribhuwan Thakur Son Jageshwar Thakur

2. Kusum Devi w/o Tribhuwan Thakur
Both resident of Village Hasanpur, P.S. Jale, District-Darbhanga.

…. …. Petitioner/s
Versus

1. State of Bihar

2. Durgi Devi, d/o Kusum Thakur, resident of Village Simri P.S. – Bisfi, District-
Madhubani
…. …. Opposite Party/s

Appearance:

For the Petitioner/s : Mr. Md. Soban Asghar, Advocate.
For the State: Mr. Parmeshwar Mehta, A.P.P.

For the Opposite Party no.2 : Mr. Dharmendra Jha, Advocat.e

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 16-10-2017

Heard learned counsel for the petitioners and learned

counsel representing the opposite party no. 2 as also learned A.P.P.

for the State.

2. Petitioner no. 1 is the elder brother of the husband of the

informant – opposite party no. 2 and petitioner no. 2 is the wife of the

petitioner no. 1. Both these petitioners are seeking quashing of the

order dated 26.08.2013 passed by learned Chief Judicial Magistrate,

Darbhanga in connection with Jale P.S. Case No. 28/2013 registered

on 03.04.2013 by which the learned Chief Judicial Magistrate,

Darbhanga has taken cognizance of the offences under Sections 498A
Patna High Court Cr.Misc. No.49683 of 2014 dt.16-10-2017

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and 348 IPC read with Sections 3 / 4 of the D.P. Act and decided to

issue summons to all the eight accused persons including the present

petitioners.

3. Learned counsel for the petitioners submits that on the

same allegations the informant had earlier lodged a complaint case

giving rise to C.R. No. 230/2013 in the court of the learned Chief

Judicial Magistrate, Madhubani against six accused named in the

Complaint Petition. These two petitioners were not named in the

complaint case. Learned counsel for the petitioners submits that a

perusal of the Complaint Petition (Annexurew-3 to the present

application) would show that it contains the allegation of demand of

dowry as well as torture meted out to her by the accused persons and

there is also an instance of commission of certain acts by the accused

named in the complaint on 04.03.2013. Learned counsel has drawn

my attention towards the Complaint Petition and then has placed

Annexure-1, which is the written report dated 03.04.2013 submitted

by the informant – opposite party no. 2, who is the complainant in

C.R. No. 230/2013. In the written report submitted to the Officer-in-

charge, Jale Police Station, this time the name of these two petitioners

have also been added as accused without there being any specific

allegation against them. In fact, a comparison between the two

documents, i.e., the Complaint Petition and the F.I.R. would show that
Patna High Court Cr.Misc. No.49683 of 2014 dt.16-10-2017

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the same allegations and instance have been repeated for purpose of

lodging an F.I.R. Learned counsel submits that the petitioner no. 1 is

Bhaisur and the petitioner no. 2 is Gotni and they are always residing

in Kolkatta as the petitioner no. 1 is an employee in the Railway. The

petitioners have brought on record copies of the Identity Card and the

Attendance Register showing that on the alleged date the petitioner

no. 1 was on duty. The emphasis is on the submission that it is a case

of mala fide prosecution of the entire family members. The Complaint

Petition and the F.I.R. for the same allegations without there being

any specific allegation against these petitioners are conclusively

indicating towards false prosecution of these petitioners.

4. On the other hand, learned counsel for the opposite

party no. 2 has opposed the prayer for setting aside of the impugned

order as regards the present petitioners.

5. A pointed question has been asked to the learned

counsel representing the opposite party no. 2 as to whether there is

any specific allegation against these petitioners, learned counsel for

the opposite party no. 2 is unable to show that there is any specific

allegation against these two petitioners. There is also no explanation

as to why the names of these petitioners were added in the F.I.R.

lodged on 03.04.2013 when in the Complaint Petition they were not

accused and no allegations of demand of dowry or torture were made
Patna High Court Cr.Misc. No.49683 of 2014 dt.16-10-2017

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against them.

6. This Court has perused the materials available on

record. The Complaint Petition (Annexure-3 to the present petition)

was filed only against six accused, these petitioners were not named

there. No allegation at all was made against these petitioners in the

Complaint Petition filed on 07.03.2013.

7. The F.I.R. has been lodged on 03.04.2013 but without

there being any specific allegation against these petitioners. The only

difference is that the names of these petitioners have been added in the

F.I.R. in the column of the accused with an intention to make them

accused on the strength of general and omnibus allegations which

were earlier made against the accused persons named in the

Complaint Petition only.

8. There is another uncontroverted and unimpeachable

document in form of the Identity Card of the petitioner no. 1 showing

that he is working as a Driver, Grade I in South Eastern Railways, the

Attendance Register enclosed as part of Annexure-2 also shows that

he was on duty during the period these Complaint and the F.I.R. have

been lodged. As the Court comes to a finding that these petitioners

have been only implicated because they happen to be the family

members of the husband and there is no allegation at all against them,

rather their names have been brought in the F.I.R. at a later stage
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when the complainant – opposite party no. 2 did not make any

allegation against them in the first complaint, it is a clear case of mala

fide prosecution of these petitioners.

9. This being the position, continuance of the criminal

proceedings against these petitioners would be only an abuse of the

process of court and the same needs to be set aside in the interest of

justice.

10. The impugned order insofar as it relates to the present

petitioners is hereby set aside and the application is allowed.

(Rajeev Ranjan Prasad, J)
Dilip, AR

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 16.10.2017
Transmission 16.10.2017
Date

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