Nawal Sharma & Ors vs State Of Bihar & Anr on 1 November, 2017


Criminal Miscellaneous No.48044 of 2013

1. Nawal Sharma Son of Late Yadubir Singh

2. Urmila Devi Wife of Nawal Sharma
Resident of East Lohanipur, Pustkalaya Lane, Kadam Kuan, P.S. Kadam Kuan,
Distt.- Patna

3. Rozi Devi @ Rozi Kumar @ Rajo Devi Wife of Santosh Sharma

4. Santosh Sharma @ Santosh Kumar Son of Shambhu Singh
Both Resident of East Lohanipur, Pustkalaya Lane, Kadam Kuan, P.S. Kadam
Kuan, Distt.- Patna. Presently Residing At Ashok Nagar Road No. 8, P.S.
Kankarbagh, Dist. Patna

5. Nikki Kumar @ Nikki Tasha, Daughter of Onkar Sharma @ Onkar Nath
Sharma Wife of Barun Kumar, Resident of East Lohanipur, Pustkalaya Lane,
Kadam Kuan, P.S. Kadam Kuan, Distt.- Patna, Presently residing at Village
Maghra, P.S. Biharsharif, Distt. Nalanda
…. …. Petitioner/s

1. The State Of Bihar

2. Suman Devi Wife of Onkar Sharma Daughter of Kedar Singh Resident of
Village- Babhangama, P.S.- Lakhisarai, District- Lakhisarai
…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Ansul, Advocate.

Mr. Uma Shankar Sharma, Advocate.

For the State : Mr. Navin Kumar Pandey, A.P.P.
For the OP No. 2 : Mr. S.M.Shabbir Alam, Advocate.

Date: 01-11-2017

Heard learned counsel for the petitioners, learned

counsel for the State and learned counsel for the O.P. No. 2.

2. Petitioners, by filing this application, under Section

482 of the Code of Criminal Procedure, 1973, seeks quashing of

cognizance order dated 20.02.2013 passed by the Chief Judicial

Magistrate, Lakhisarai in Mahila P.S. Case No. 26 of 2012 thereby

taking cognizance of offence under Sections 498A and 406/34 of the
Patna High Court Cr.Misc. No.48044 of 2013 dt.01-11-2017


Indian Penal Code differing with final report submitted by Police

finding dispute civil in nature so not sent up the accused for trial.

3. A short fact giving rise to the case is that initially a

complaint was filed by the informant, later on sent to the police under

Section 156(3) of the Cr.P.C. for institution of the FIR accordingly

police case was registered. The fact alleged in the complaint is that

complainant’s marriage was solemnized with Onkar Sharma, son of

the petitioners no. 1 and 2, on 28th April 1999, in a temple. After

marriage, accused persons started making demand of dowry when she

started residing in matrimonial home. Due to harassment and cruelty

committed by the petitioners, she used to leave matrimonial home and

used to return back after some persuasion. While she was living at her

parent’s home, her husband visited there and reiterated demand of

dowry. Ultimately, on 20.08.2012, she was kicked out from her

matrimonial home. Police, after institution of the FIR, completed

investigation and submitted final report finding the dispute civil in

nature consequently case of under Section 498A was not found true.

4. Learned counsel for the petitioners assails the

impugned order of taking cognizance on the ground that in a

mechanical way, the impugned order was passed, no reference of any

evidence against the petitioners is mentioned in the impugned order

showing their prima facie involvement in the offence. In view of
Patna High Court Cr.Misc. No.48044 of 2013 dt.01-11-2017


settled proposition of law, learned Magistrate requires to mention the

material available in the case diary, in particular, while differing with

the opinion of the police. In support of his case, learned counsel

placed reliance on several decisions, M/s Pepsi Foods Ltd. and Anr.

v. Special Judicial Magistrate and Ors. reported in AIR 1998 SC

128; of Kailash Chaudhary vs. State of U.P. reported in 1994 Cri.

L.J. 66 (para 11 and 12) and on other unreported judgments passed by

a Co-ordinate Bench of this Court in case of Kaushlendra Narayan @

Lalan and Anr. vs. The State of Bihar Ors. passed in Cr. Misc.

No. 41409 of 2008 dated 03.08.2010; Anand Kumar Khatri vs. The

State of Bihar passed in Cr. Misc. No. 5979 of 2004 dated 18.09.2014

and Shiv Nandan Keshari and Ors. vs. The State of Bihar passed in

Cr. Misc. No. 14941 of 2007 dated 20.08.2009. Learned counsel

further submits that petitioners no. 1 and 2 are parents of the husband

of the informant and petitioner no. 2, mother-in-law of the informant,

is dead and petitioners no. 3 and 4 are married Nanad and her husband

and petitioner no. 5 is the step daughter of the informant, who is also

married and they all are living separately at distant places. He further

submits that it was the second marriage of the informant solemnized

in a temple, so there is no question of making any demand of further


5. Contrary to that, learned counsel appearing on behalf
Patna High Court Cr.Misc. No.48044 of 2013 dt.01-11-2017


of the O.P. No. 2 submits that there is sufficient materials in the case

diary to take cognizance of offence, however, he concedes that there

is no such reference in the impugned order.

6. Having considered the rival submissions of the parties

and on perusal of record, the Court finds that it is settled principle of

law that a court may differ with the final report submitted by the

police after investigation but the impugned order taking cognizance

while differing with the police report must reflect the application of

mind that a Magistrate looked over the materials or evidence collected

during investigation indicating the same showing prima facie

involvement of the accused persons in the alleged offence. The Apex

Court in the Case of M/s Pepsi Foods Ltd. (supra) has observed as


“28. Summoning of an accused in a criminal case is a
serious matter. Criminal law cannot be set into motion as
a matter of course. It is not that the complainant has to
bring only two witnesses to support his allegations in the
complaint to have the criminal law set into motion. The
order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case
and the law applicable thereto. He has to examine the
nature of allegations made in the complaint and the
evidence both oral and documentary in support thereof
and would that be sufficient for the complainant to
succeed in bringing charge home to the accused. It is not
that the Magistrate is a silent spectator at the time of
recording of preliminary evidence before summoning of
Patna High Court Cr.Misc. No.48044 of 2013 dt.01-11-2017


the accused. Magistrate has to carefully scrutinize the
evidence brought on record and may even himself put
questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or
otherwise and then examine if any offence is prima facie
committed by all or any of the accused”.

7. The Court, having considered the material on record,

finds that the impugned order passed by the Chief Judicial Magistrate,

Lakhisarai, does not reflect any application of judicial mind to reason

out what transpired him to differ with the opinion of the Investigating

Officer filing final form in the case. Cognizance order requires to

reflect the evidence collected during investigation showing prima

facie involvement of the accused persons in the alleged offence but

there is complete absence of such material in the impugned order.

Hence, order taking cognizance dated 20.02.2013 passed by the Chief

Judicial Magistrate, Lakhisarai in Mahila P.S.Case No. 26 of 2012 is

set aside. However, this order shall not preclude the court below to

pass a fresh order in accordance with law.

The application stands allowed.

(Arun Kumar, J)

Uploading Date 07.11.2017
Transmission 07.11.2017

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