Ajay Kumar @ Laddu @ Laddu Mallik @ … vs State Of Bihar & Anr on 27 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.47931 of 2014
Arising Out of PS.Case No. -2169 Yea r- 2009 Thana -WEST CHAMPARAN COMPLAINT Distri ct-
WESTCHAMPARAN(BETTIAH)

1. Ajay Kumar @ Laddu @ Laddu Mallik @ Ajay Kumar Mallik, Son of
Late Sona Mallik

2. Vidya Devi, Wife of Late Sona Mallik

3. Pramod Mallik, son of Late Sona Mallik, All Resident of Naurangabad
Dom Toli, P.S.- Bettiah Nagar, District- West Champaran
…. …. Petitioners
Versus

1. The State of Bihar

2. Mina Devi, Daughter of Mangali Mallik, Resident of Village-
Fuldarwa, P.S. Jagdishpur, District- West Champaran
…. …. Opposite Party

Appearance :

For the Petitioners : Dr. Amrendra Kumar, Advocate
For the OP No. 2 : Mr. Sanjeev Kumar, Advocate
For the State : Mr. Brujendra Nath Pandey, APP

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 27-11-2017

Heard learned counsel for the petitioners,

learned counsel representing the complainant-Opposite

Party No. 2 as also learned Additional Public Prosecutor for

the State.

2. Petitioner No. 1 is the husband, whereas

petitioner Nos. 2 3 are mother-in-law and Dewar
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

2

respectively of the complainant-Opposite Party No. 2.

3. All these petitioners are seeking quashing of

the order dated 23.07.2012 passed by learned Sub-Divisional

Judicial Magistrate, Bettiah, West Champaran in Complaint

Case No. 2169(C) of 2009 by which learned Magistrate has

taken cognizance of the offences under Section 498A of the

Indian Penal Code and 3/4 of the Dowry Prohibition Act and

issued summon to the petitioners-accused.

4. Learned counsel for the petitioner submits

that a bare perusal of the statement made in the complaint

petition would show that the marriage, in the present case,

between the petitioner No. 1 and the complainant-Opposite

Party No. 2 took place 10 years ago in accordance with Hindu

rights and customs. It is admitted by the complainant-

Opposite Party No. 2 that after marriage for few years the

behaviour of the accused persons were good and there was

no complaint against them. The complainant-Opposite Party

No. 2 gave birth to one son and one daughter who were aged

about 7 years and 3 years respectively at the time of lodging

of the complaint. The allegation comes at this stage, as

according to the complainant-Opposite Party No. 2 after
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

3

birth of the two children, all the accused persons were

pressurizing her to demand one colour Television and

Motorcycle from her father which the complainant-Opposite

Party No. 2 was protesting. It is further alleged that on denial

by the complainant-Opposite Party No. 2, the accused

persons were torturing her mentally and physically in

different ways. The complainant-Opposite Party No. 2

alleged that on the provocation or abetment of accused No.

2 3, the accused No. 1 assaulted her causing fracture in

one of her fingers of the left hand. It is also alleged that on

the abetment of accused Nos. 2 to 4, the accused No. 1

solemnized a second marriage two years ago and after the

said second marriage his behaviour went from bad to worse.

There are further allegations that accused No. 2 poured

kerosene oil on the body of the complainant-Opposite Party

No. 2, accused No. 3 to 5 put her down on the floor and were

pressing her neck, whereas accused No. 1 was going to burn

her by using matchbox, but, on raising hulla, the neighbours

ran to her place and in this way the complainant-Opposite

Party No. 2 could be saved. It is alleged that the accused

persons assaulted the complainant-Opposite Party No. 2 and
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

4

snatched her money which has been quantified as about Rs.

20,000/-. The complainant-Opposite Party No. 2 along with

her daughter was allegedly thrown out of her house on

01.01.2009, thereafter on many occasions Panchayati were

held but ultimately the accused persons refused to keep the

complainant-Opposite Party No. 2.

5. The complainant-Opposite Party No. 2

herself states that she has lodged a F.I.R. in this respect in

the Police Station but the same was lodged only against the

accused No. 1. it is stated that pursuant to the said F.I.R., the

accused No. 1, when applied for anticipatory bail in the court

of learned Sessions Judge, gave an undertaking to keep the

complainant-Opposite Party No. 2 with full dignity and care,

but after keeping her for about 15 days, on the provocation

of accused No. 5, the complainant-Opposite Party No. 2 was

being tortured physically and mentally.

6. It is alleged that on 20.05.2009, the accused

No. 1 came in a drunken condition in the house and

assaulted the complainant-Opposite Party No. 2 and further

threw her cloths etc. out of the house. Accused Nos. 2 to 5

are said to have threatened the complainant-Opposite Party
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

5

No. 2 by saying that she would not take any effort to enter in

the house.

7. Learned counsel for the petitioners has

drawn my attention towards the F.I.R. dated 15.02.2009, as

contained in Annexure-5 to the present application. A

written complaint of the present complainant-Opposite Party

No. 2 on the basis of which F.I.R. was lodged under Section

341, 323, 504 and 498A of the I.P.C. is virtually the anchor-

sheet of the argument of the learned counsel representing

the petitioners. Learned counsel submits that in the F.I.R.

there is no whisper of allegations against the petitioner Nos.

2 3. The whole thrust of the allegations in the F.I.R. are

directed against the petitioner No. 1 alone. Thus, according

to learned counsel, in the present complaint petition, she has

apparently improved upon the allegations made in the F.I.R.

and this time a false story has been narrated by making

flimsy allegations against petitioner Nos. 2 3 as well.

8. Learned counsel further submits that in fact

the motive behind filing of the present complaint is also

reflected in the complaint petition, when complainant-

Opposite Party No. 2 herself says at one stage that she had
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

6

lodged the F.I.R. under Section 498A I.P.C., but the case was

lodged only against accused No. 1.

9. Thus, according to learned counsel, it is

evident that only to falsely implicate the other family

members, who are closely related to the husband of the

complainant-Opposite Party No. 2, the present case has been

lodged.

10. It is further pointed out that the complaint

case has been lodged on or about 14.09.2009 by setting up

an occurrence by way of further cause of action shown to

have taken place on 20.05.2009 when allegedly the husband

of the complainant-Opposite Party No. 2 came in a drunken

condition in the house and assaulted her. At this stage, no

act or omission causing any torture either physically or

mentally has been alleged against petitioner Nos. 2 3.

11. Learned counsel for the petitioners,

therefore, submits that although in his submission the whole

case has been lodged on a false and flimsy allegations and

the order taking cognizance and issuance of summons are fit

to be quashed in respect of all the petitioners, but in any

case his submission would be that so far as petitioner Nos. 2
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

7

3 are concerned, they have been implicated only because

they happened to be the kith and kin of the husband. This is

apparent from the fact that F.I.R. lodged on 26.02.2009 did

not contain a single word of allegation against these

petitioners Nos. 2 3. In this regard, reliance has been

placed on the judgment of the Hon’ble Supreme Court in the

case of Geeta Mehrotra vs. State of U.P. Another reported

in 2012 (10) SCC 741 and in the case of Pritam Ashok

Sadaphule and Others vs. State of Maharashtra and

Another reported in 2015 (11) SCC 769.

12. On the other hand, learned counsel

representing the complainant-Opposite Party No. 2 submits

that the allegations made in the complaint petition and the

deposition of the enquiry witnesses sufficiently indicate the

materials available on the record for taking a prima facie

view and the learned Magistrate has committed no error by

issuing summons to the petitioners.

13. In course of argument, learned counsel

for the complainant-Opposite Party No. 2 has however fairly

submitted to this extent that so far as petitioner Nos. 2 3

are concerned, their cases may be distinguishable with the
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

8

case of petitioner No. 1, and in their case the judgment of

the Hon’ble Supreme Court may perhaps be useful.

14. I have heard learned counsel for the

parties and perused the record. It is apparent from the facts

and circumstances of the present case that, on 15.02.2009,

when the F.I.R. was lodged by the present complainant-

Opposite Party No. 2, giving rise to Bettiah Town P.S. Case

No. 37/2009, no allegation at all was made against petitioner

Nos. 2 3. In the said F.I.R., the entire allegations have been

specifically made against her husband. The complainant-

Opposite Party No. 2 has stated that she was living well with

her husband earlier but for the last about one year he had

started abusing and torturing her. It is apparent from the

F.I.R. that the dispute between the husband and the wife

started about one year prior to lodging of the F.I.R. In the

F.I.R., there is no allegation at all either of demand of dowry

or of causing any provocation by petitioner Nos. 2 3 in the

act of torture allegedly committed by the husband. If the

allegations made in the F.I.R. and the present complaint

petition are considered side by side, it is evident that while

drafting the complaint petition a story has been made out
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

9

against the petitioner Nos. 2 3 vaguely stating that they

were causing provocation to the husband for the offences

alleged and they had done certain acts and omissions which

may bring them within the purview of the offences alleged.

15. To me, it is very clear that allegations

made against petitioner Nos. 2 3 in the complaint petition

are false story and have been made purposely by way of

improvement upon the first version of the complainant, this

was done in order to implicate petitioner Nos. 2 3 who

happened to be the mother and younger brother of

petitioner No. 1.

16. In the facts and circumstances apparent

from the records, I am of the considered opinion that so far

as petitioner No. 1 is concerned, since the entire thrust of

allegations are against him, it is not a fit case for interference

with the order issuing summon as against petitioner No. 1

and the prayer made by him for quashing of the impugned

order is hereby rejected.

17. As has been held hereinabove, the

allegations against petitioner Nos. 2 3 in the complaint

petition are by way of improvement and have been made
Patna High Court Cr.M isc. No.47931 of 2014 dt.27-11-2017

10

vaguely only subsequently after lodging of the F.I.R. in which

there was no whisper of allegations against them, I am of the

view that the continuance of the proceeding against

petitioner Nos. 2 3 is only be an abuse of the process of

the Court. This view is duly strengthen from the

pronouncement of the Hon’ble Supreme Court in the case of

Geeta Mehrotra (Supra) and the judgment rendered in the

case of Pritam Ashok Sadaphule and Others vs. State of

Maharashtra and Another reported in 2015 (11) SCC 769;

where Hon’ble Supreme Court has been pleased to set aside

the criminal proceedings launched against the close relatives

of the husband on vague allegations.

18. In the result, the order taking cognizance

and issuance of summons in so far as it relates to petitioner

Nos. 2 3 is hereby quashed.

19. This application is, thus, partly allowed.

Rajeev/- (Rajeev Ranjan Prasad, J.)

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.11.2017
Transmission Date 28.11.2017

Leave a Comment

Your email address will not be published. Required fields are marked *