Shiv Prasad @ Shankar & Ors vs State Of Bihar & Anr on 31 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.45012 of 2014
Arising Out of PS.Case No. -305 Year- 2012 Thana -SAMASTIPUR COMPLAINT CASE District-
SAMASTIPUR

1. Shiv Prasad @ Shankar son of Sri Baldeo Singh

2. Baldeo Singh son of Late Dhodhai Singh

3. Chita Devi wife of Baldeo Singh

4. Shambhu Prasad son of Baldeo Singh

5. Sunita Devi wife of Shambu Singh

6. Kailash Prasad son of Baldeo Singh

7. Subhash Prasad son of Baldeo Singh, All are resident of Village- Belari, P.S.-
Ujiarpur, District- Samastipur

…. …. Petitioners
Versus

1. The State of Bihar

2. Meena Kumari W/o Shiv Prasad @ Shankar daughter of Ramdil Singh, resident
of Village- Patailee, P.S.- Ujiarpur, District- Samastipur

…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Sanjay Kumar Mishra, Advocate
For the Opposite Parties : Mr. Humayu Ahmad Khan, APP

CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 31-10-2017

This application under Section 482 of the Cr.P.C. has been

filed to quash the order dated 24.08.2012 passed by SDJM,

Dalsinghsarai in Trial No.1174 of 2014 arising out of Complaint Case

No.305 of 2012 whereby and whereunder the learned Magistrate

finding prima-facie case for the offence under Section 498A of the

IPC and Section 4 of the Dowry Prohibition Act took cognizance

against the petitioners.

2. Heard learned counsel for the petitioners and learned

APP for the State.

Patna High Court Cr.Misc. No.45012 of 2014 dt.31-10-2017

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3. The Opposite Party No.2 filed a complaint case on the

file of ACJM, Dalsinghsarai against the petitioners for the offence

under Sections 323, 342, 379, 504 and 498A of the IPC and Section

3/4 of the Dowry Prohibition Act. The learned Magistrate held

enquiry and finding prima-facie case took cognizance as per

impugned order. The learned counsel for the petitioners submits that

the Opposite Party No.2 is not willing to live with her as husband. The

husband had filed a Matrimonial Suit No.266 of 2012 for Restitution

of Conjugal Right but on the assurance of Opposite Party No.2 and

her father to this effect that the wife will lead conjugal life, the said

case was withdrawn by the husband as per order dated 16.06.2013.

The Opposite Party No.2 without dissolution of existing marriage tie

has married with Ramesh Mahto, son of Sundeshwar Mahto, resident

of village-Jitwariya, P.S. Kalayanur, District-Samastipur on

28.05.2014. The petitioner has filed a petition to this effect before the

court below on 25.06.2015 but the Opposite Party No.2 even after

passing over a period of two years has not filed any rejoinder. She has

left taking interest in the case before the court below which is

apparent from the report of court below as submitted vide letter

no.425 dated 16.10.2017. It was also submitted that the husband was

granted anticipatory bail by this Court on 04.03.2014 in

Cr.Misc.No.23067 of 2013 with a direction to the husband to deposit
Patna High Court Cr.Misc. No.45012 of 2014 dt.31-10-2017

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Rs.750/- per month in the court below giving liberty to the wife to

withdraw the said amount without prejudice the right of the parties.

The petitioner (husband) is depositing the said amount since the date

of order but the Opposite Party No.2 has not withdrawn the said

amount. The allegation of demand of Rs.1,00000/- and torture on

account of non-payment is omnibus. The Opposite Party No.2 hardly

resided nine days at the matrimonial house and the present case has

been lodged only to harass the petitioner. The criminal prosecution of

these petitioners in the above background is misuse of the process of

the Court and so the same is fit to be quashed.

4. The learned APP on the other hand opposed the

submissions.

5. On perusal of complaint petition and documents

produced by the petitioner which is part of a supplementary affidavit,

it appears that after filing of the complaint case, she has married with

Ramesh Mahto. This fact finds support by Annexure-5 of the

application (i.e. marriage certificate duly granted by Gram

Panchayat). The allegation of torture in connection with demand of

Rs.1,00000/- appears omnibus. From the record, it further appears that

the Opposite Party No.2 resided only nine days at the place of the

petitioner. The Opposite Party No.2 was noticed and in spite of

service of notice she did not appear to oppose the submissions. From
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the report of the learned court below, it appears that a petition to this

effect is pending since June, 2015. The Opposite Party No.2 has left

taking interest and she has not filed any rejoinder to the petition filed

on behalf of the husband before the court below. In such

circumstances, the criminal prosecution of the petitioners appears to

be abuse of the process of the Court.

6. In view of above discussions, this criminal miscellaneous

application is allowed and the order dated 24.08.2012 taking

cognizance against the petitioners is hereby quashed.

(Sanjay Kumar, J)

B.Kr./-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 02.11.2017
Transmission 02.11.2017
Date

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