Md. Izharul & Anr vs State Of Bihar & Anr on 1 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36312 of 2014
Arising Out of PS.Case No. -178 Year- 2013 Thana -PRANPUR District- KATIHAR

1. Md. Izharul Son of Md. Riyajuddin Ansari @ Md. Riyajuddin

2. Md. Riyajuddin Ansari @ Md. Riyajuddin son of Late Safar Ali
Ansari
Both are resident of Village : Baina , Police Station : Pranpur ,
District – Katihar
…. …. Petitioners
Versus

1. The State of Bihar

2. Jahanoor Khatoon wife of Md. Ushman Ansari resident of
Village : Baina , Police Station : Pranpur , District – Katihar
…. …. Opposite Parties

Appearance :

For the Petitioner/s : Mr. Bimal Kumar, Advocate
For the Opposite Party/s : Mr. Md. Fahimuddin, APP

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 01-11-2017

Heard learned counsel for the petitioners and

learned Additional Public Prosecutor for the State. No one

appears on behalf of the informant-Opposite Party No. 2.

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

quashing of the order dated 17.12.2013, passed by learned

Chief Judicial Magistrate, Katihar in Pranpur P.S. Case No.

178/2013 by which the learned Chief Judicial Magistrate,

Katihar, has taken cognizance of the offences under Section

498A/34 of the Indian Penal Code and Section 3/4 of the

Dowry Prohibition Act, and decided to issue summon against

the three accused persons including the present petitioners.
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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3. In this case, petitioner no. 1 is said to be the father-

in-law and petitioner no. 2 is the elder brother of husband of

the informant-Opposite Party No. 2. Husband of Opposite

Party No. 2 had also moved this court for quashing of the

order taking cognizance vide Cr. Misc. No. 38624/2014, but

the same was withdrawn.

4. Learned counsel for the petitioners submits that in

the present case these two petitioners are being prosecuted

only because they happened to be the father-in-law and elder

brother of the husband Md. Usman Ansari with whom the

informant is claiming her fourth marriage. Learned counsel

submits that in the written report submitted to the Officer-in-

Charge of the police station giving rise to the present case.

The informant claimed that her marriage was solemnized

with Md. Usman Ansari according to Muslim rights and

customs on 29.07.2013. She has further alleged that

immediately after her Nikah her husband, Bhaisur and father-

in-law started putting pressure upon her to bring a dowry of

Rs. 1 Lac and a motorcycle. It is alleged that when she told

the accused that her father being a poor person cannot

arrange this much amount, the accused persons started

torturing the informant and despite attempts made to
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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reconcile the issues she was thrown out of the house on

20.08.2013 by the accused persons and since then she was

residing in her Maike.

5. Learned counsel for the petitioners submits that a

bare perusal of the written report dated 03.10.2013 would

show that there is a vague, general and omnibus allegations

against these petitioners as no specific act of any torture has

been alleged. Learned counsel submits that in fact the present

case has been lodged with a mala fide intention to harass the

entire family of Md. Usman Ansari and the entire prosecution

story is nothing but a bundle of lie. Learned counsel submits

on the strength of Annexure-2 which is miscellaneous

petition no. 190/2013 filed in the court of learned Chief

Judicial Magistrate, Katihar on 26.07.2013 by Md. Usman

Ansari against the Opposite Party No. 2 and her family

members that in this petition he had brought to the notice of

the learned Chief Judicial Magistrate, Katihar that Opposite

Party No. 2 had formerly married with Budun Ansari, son of

late Mobhad Ansari, a resident of village – Ratwa, P.S. –

Ratwa, District – Maldah (W/B) and then she solemnized 2nd

marriage with Md. Arif and again she married with one

Abdul Mannan, son of Md. Safil Ansari, resident of village –
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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Baina, P.S. – Pranpur, District – Katihar. She had a fourth

marriage with one Jahbaz in the village itself which is evident

from list of BPL person issued under the signature of Block

Development Officer and Sub-Divisional Officer. The

Opposite Party No. 2 is also getting Laxmi Bai Social Safety

Pension from the State Government being a widow. Learned

counsel has placed Annexures-3 4 of the present petition as

well showing from the extract of the BPL list and the pension

paper that the Opposite Party No. 2 was married to Late

Jahbaz. In the miscellaneous petition filed before the learned

Chief Judicial Magistrate, Katihar, Md. Usman Ansari

informed the court that the Opposite Party No. 2 is putting

pressure upon him to marry her otherwise he would be

involved in a rape case.

6. Learned counsel for the petitioners submits that

father and other family members of Opposite Party No. 2

kidnapped the son of the petitioner no. 2 and forcibly

prepared a Nikahnama for which he filed a complaint case in

the court of learned Chief Judicial Magistrate, Katihar on

01.08.2013 vide Annexure-5, and thereafter again the

Opposite Party No. 2 lodged a case giving rise to Pranpur

P.S. Case no. 14/2014 against the accused persons.
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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7. In the present case, case diary was also called for

and the same has been received. Learned Additional Public

Prosecutor for the State submits that the allegations against

these petitioners have been found true, therefore, a charge-

sheet was filed against them as well and the learned Chief

Judicial Magistrate, Katihar has rightly taken cognizance, but

on perusal of the case diary, he pointed out that witnesses

examined by the police are all family members of the

Opposite Party No. 2. There is no independent witness in

support of the alleged marriage and demand of dowry or act

of torture.

8. Learned counsel for the petitioners at this stage

also submits that even in course of investigation no material

has come to support the allegation of demand of dowry

and/or the alleged torture. He submits that in the nature of

allegation where the informant herself says that the alleged

marriage took place on 29.07.2013 and the miscellaneous

petition filed by Md. Usman Ansari and the complaint case

(Annexure-5) are dated 01.08.2013, it cannot be believed that

the allegations of demand of dowry or torture are prima facie

made out.

9. Learned counsel further submits that even in the
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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case diary it has come that the Opposite Party No. 2 had

earlier married thrice and all the marriages have broken

down. He, therefore, submits that in absence of any materials

against these two petitioners, there prosecution is an abuse of

the process of court and in the totality of the circumstances,

the order taking cognizance and issuance of summon, in so

far as it relates to these two petitioners, is fit to be quashed.

10. I have perused the materials available on the

record and have heard learned counsel for the petitioners as

well as learned Additional Public Prosecutor for the State.

From the uncontroverted and unimpeachable documents on

the record, it is evident that Opposite Party No. 2 had at least

three earlier marriages and she has been availing the

pensionary benefit as a widow. It is further evident that on

01.08.2013, Md. Usman Ansari had submitted a

miscellaneous petition in the court of learned Chief Judicial

Magistrate, Katihar in which he had narrated the story of his

kidnapping on the strength of arms and ammunitions by the

father and family members of the Opposite Party No. 2. In

the said miscellaneous petition he had also narrated that how

he was made to sign on a Nikahnama. Without going into the

merit of the allegations and counter allegations, one thing is
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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very clear from the materials available on the record, which

are uncontroverted materials, that even if the alleged

marriage had taken place on 29.07.2013, the same is not

admitted, which is evident from the fact that on 01.08.2013

itself, son of petitioner no. 1 had submitted his application

before the learned Chief Judicial Magistrate, Katihar, and a

complaint case was also filed with respect to his kidnapping,

neither in the written report nor in the case diary any material

has come to support the allegation of demand of dowry

and/or the alleged torture. The materials on the record are

clearly showing the circumstances whereunder the family

members like the petitioners are facing this prosecution

without there being any specific allegation or material against

them.

11. In the opinion of this court, in the totality of the

circumstances and the materials available on the record, it is

a case of mala fide prosecution of the petitioners by Opposite

Party No. 2. The order taking cognizance in so far as it relates

to the present petitioners is hereby quashed.

12. It is made clear that any discussion or observation

with respect to the allegations and counter allegations

between the parties have been made only for the purposes of
Patna High Court Cr.Misc. No.36312 of 2014 dt.01-11-2017

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this case and the same shall not be used by the parties against

each other in any other proceeding.

13. This application is, accordingly, allowed in

respect of the present petitioners.

(Rajeev Ranjan Prasad, J.)
Rajeev/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 02.11.2017
Transmission 02.11.2017
Date

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