Ganesh Kumar & Ors vs State Of Bihar & Anr on 29 November, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.48181 of 2014
Arising Out of PS.Case No. -33 Y ear- 2013 Thana – MAHILA P.S. District- NALANDA (BIHARSHARIFF)

1. Ganesh Kumar

2. Surya Mani Kumar Both son of Raja Ram Prasad Yadav

3. Raja Ram Prasad Yadav @ Raja Ram Yadav S/o Late
Mahavir Yadav

4. Shakuntala Devi W/o Raja Ram Prasad Yadav

5. Sulochana Devi

6. Munchun Devi Both D/o Raja Ram Prasad Yadav

7. Sangita Devi W/o Surya Mani Kumar

8. Phula Devi W/o Bhshan Yadav All are resident of village
Katchara, P.S. Bena, District – Nalanda.

9. Ram Janam Yadav S/o Sanju Yadav R/o village Mosimpur,
P.S. Chandi, District – Nalanda.

…. …. Petitioners
Versus
1. The State of Bihar.

2. Pinki Kumari D/o Suresh Prasad R/o village – Mushahri, P.S.
Chero, District – Nalanda.

…. …. Opposite Parties
With

Criminal Miscellaneous No. 3196 of 2016
Arising Out of PS.Case No. -1434 Year- 2013 Thana -PATNA COMPLAINT CASE District- PATNA

1. Ganesh Kumar, S/o Shri Raja Ram Prasad Yadav.

2. Suryamani Kumar, S/o Shri Raja Ram Prasad Yadav.

3. Rajaram Prasad Yadav @ Raja Ram Prasad Yadav. S/o Late
Mahabir Yadav, All are resident of Village- Kachra, P.S.- Bena,
District- Nalanda.

…. …. Petitioners
Versus

Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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1. The State of Bihar.

2. Pinki Devi @ Pinki Kumari, D/o Sri Suresh Prasad, W/o Sri
Ganesh Kumar, R/o Village- Musahari, P.S- Harnaut, District-
Nalanda, at present Railway Colony, Qtr. No. -199-K,
Mahendrughat, P.S.- Pirbahore, District- Patna.

…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Din Bandhu Singh, Advocate
For the State : Mr. Satyendra Nr. Singh, APP
For the Opposite Party/s : Mr. Durgesh Nandan, Advocate
Mrs. Manisha Prakash, Advocate

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 29-11-2017

Heard learned counsel for the petitioners,

learned counsel representing the complainant-Opposite

Party No. 2 and learned Additional Public Prosecutor for

the State.

2. Cr. Misc. No. 48181/2014 has been filed

by the husband (petitioner No.1), his brother (petitioner

No.2), the father and mother (petitioner Nos. 3 and 4),

two married sisters (petitioner Nos. 5 6), wife of elder

brother and younger brother (petitioner Nos. 7 8) and

the mediator (petitioner No.9), who had participated at the

time of negotiation of marriage between the petitioner No.

1 and the complainant-Opposite Party No. 2.

3. All these petitioners are seeking quashing
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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of the order dated 06.02.2014 passed by learned Sub-

Divisional Judicial Magistrate, Biharsharif, Nalanda in

connection with Mahila P.S. Case No. 33/2013, by which

learned Magistrate took cognizance of the offence under

Sections 498A, 541, 323, 504, 506/34 R/W section 3/4 of

the Dowry Prohibition Act and summoned the petitioners.

4. Cr. Misc. No. 3196/2016 has been filed by

the husband, his elder brother and father being petitioner

Nos. 2 3 respectively for quashing of the order dated

23.09.2013, passed by learned Judicial Magistrate, 1st

Class, Patna, in Complaint Case No. 1434(C) of 2013, by

which the learned Magistrate has taken cognizance of the

offences under Sections 498A/323 I.P.C. and issued

summons to the petitioners.

5. Earlier, when Cr. Misc. No. 48181/2014

was heard on 18.10.2017, in view of the argument

advanced on behalf of the parties an issue came to be

considered as to how two cases may be allowed to

continue at two different places on the same set of

allegations, the relevant part of the order dated

18.10.2017 is quoted hereunder for ready reference: –

“In course of argument, in view of the
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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submission advanced at the bar particularly
when an issue came to be considered as to
how two cases may be allowed to continue
at two different places on the same set of
allegations. Learned counsel for the
Opposite Party No. 2 made a submission
that the cognizance taken in the complaint
case may be quashed and the present order
taking cognizance need not be interfered
with, as it is his submission that even
though this case was registered later on,
but it was the result of the on going
correspondences which were being pursued
by the informant and the complaint case
was filed later on though on the same set of
allegations. Once this submission has come
from the learned counsel representing the
Opposite Party No. 2, learned counsel for
the petitioners submits that the same may
be considered by this court as he will have
no objection to the same.

This being the position emerging from the
submissions made from both the sides, in
the opinion of this Court the present
application is required to be heard along
with Cr. Misc. No. 3196/2016 in which the
order taking cognizance in the complaint
case is under challenge.”

Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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6. In view of the submissions made on behalf

of the parties which have been taken note of

hereinabove, the order taking cognizance and issuance

of summons dated 23.09.2013 passed by learned Judicial

Magistrate, 1 st Class, Patna in Complaint Case No.

1434(C) of 2013 is hereby quashed.

7. Let it be reiterated that the Opposite Party

No. 2 has made it very clear that she would proceed with

the police case only and not the complaint case, and,

therefore, what was recorded earlier has been once again

taken note of for the purpose of quashing of the order

taking cognizance in the complaint case. Cr. Misc. No.

3196/2016 is allowed.

Cr. Misc. No. 48181 of 2014

8. Now, coming to the order taking

cognizance in the police case in Mahila P.S. Case No.

33/2013, learned counsel for the petitioners has placed

before me the contents of the written complaint which

form basis of the F.I.R. It is his submission that on a

totally vague and omnibus kind of allegations the entire

family members of the husband have been falsely

implicated in the criminal case. In this case, this Court
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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had also called for the case diary which has been

received and the learned Additional Public Prosecutor

has assisted the Court by reading some of the relevant

paragraphs of the case diary.

9. It has come in course of investigation that

the marriage between petitioner no. 1 and the

complainant was solemnized, when the father of the

complainant promised to provide a job to the petitioner

no. 1 and because he failed to provide the said job, a

dispute arose and allegedly demand of a piece of land

was being made by the petitioners. The allegation is that

on non-fulfillment of the demand, the complainant was

being tortured physically and mentally.

10. Learned counsel for the petitioners

submit that in view of what has come in course of

investigation the impleadment of the entire family is

apparently a mala fide prosecution, and in a number of

judicial pronouncements, the Hon’ble Supreme Court has

held that this has now been a tendency to prosecute the

entire family of the husband on the strength of vague and

omnibus allegations. References in this regard have been

made to the judgment of the Hon’ble Supreme Court in
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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the cases of Geeta Mehrotra vs. State of U.P.

Another reported in 2012 (10) SCC 741 and Pritam

Ashok Sadaphule and Others vs. State of

Maharashtra and Another reported in 2015 (11) SCC

769.

11. Submission is that from a bare reading

of the F.I.R. it will appear that even though thrust of the

allegation is against the husband, his elder brother, wives

of the elder and younger brother, married sisters, mother

and father. All have been brought within the purview of

the prosecution, therefore, it has been submitted that the

case of the family members (petitioner Nos. 2 to 8) and

the mediator, against whom there is no allegation at all

(petitioner no. 9), should be considered on a different

footing, and if this Court is not inclined to interfere with

the order taking cognizance as respect the husband

(petitioner no. 1), the order taking cognizance, in so far as

it relates to the family members and the mediator, need to

be quashed. It is his submission that prosecution of the

family members and mediator is definitely an abuse of the

process of Court.

12. On the other hand, learned counsel
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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representing the complainant-Opposite Party No. 2

submits that, in the F.I.R., there are allegations against all

the family members, as it has been stated that they were

mentally and physically torturing the complainant-

Opposite Party No. 2, and sometimes the Opposite Party

No. 2 was not being provided food and her signature was

obtained on a blank-sheet of paper.

13. Learned counsel further submits that the

complainant-Opposite Party No. 2 was being

administered medicines causing her intoxication. It is the

submission of learned counsel representing the Opposite

Party No. 2, while it is true that the view of the Hon’ble

Supreme Court is that the case of the family members be

considered differently, but, at the same time, the Hon’ble

Supreme Court has also held that if there are allegations

against the family members, then, the prosecution should

not be quashed. In this regard, learned counsel relies

upon the judgment in the case of Taramani Parakh vs.

State of M.P. reported in (2015) 11 SCC 260.

14. Learned counsel for the complainant-

Opposite Party No. 2 has, however, fairly submitted at

least to this extent that there are no specific allegations
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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against the female members of the family who are named

in the F.I.R. and, therefore, this Court may, if at all, willing

to consider the case of the female members on a different

footing, the case of the female members may only be

considered to that extent.

15. Learned Additional Public Prosecutor

representing the State has read out the statements made

in the case diary. In course of investigation, police has

recorded the statement of the informant, her father and

brother and she was also sent for medical examination,

but, in the case diary, no injury has been reported to be

present on the body of the informant. There are some

independent witnesses whose statements are recorded in

paragraphs 36 and 37 of the case diary. According to

which the marriage between the petitioner no. 1 and the

informant was solemnized only because the father of the

informant promised a job to the unemployed boy and

because after marriage he could not provide the job,

therefore, there was a demand for the land.

16. I have considered the submissions

made at the bar and have perused the records. A perusal

of the F.I.R. coupled with the statements of the witnesses
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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recorded in the case diary, as has been read out by the

learned Additional Public Prosecutor, would show that the

matrimonial dispute between the parties have arisen

because of the alleged promise said to have been made

by the father of the informant to petitioner No.1. There are

allegations of demand of a piece of land, but so far as

allegations against the family members, which I have

taken note of in the submissions of the parties in detail

hereinabove are concerned, those are not specific, at

least against the family members. The allegations are

vague and have been apparently made with an intention

to implicate them in the present case. It has been seen

that in the complaint petition, which was filed later on

while correspondences giving rise to the present police

case was still going on, the cognizance and summoning

order was passed only against the husband, father-in-law

and brother-in-law. The learned Magistrate while taking

cognizance in the complaint case had not even prima

facie believed the other story. The statement of the

independent witnesses in the case diary, which have

been taken note of hereinabove, also go to show that, so

far as family members are concerned, as also the
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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mediator, they have been named in the F.I.R. without

there being any specific allegations of commission of any

overt act causing any torture to the complainant-Opposite

Party No. 2. What has been alleged in the F.I.R. is

completely vague and not sufficient to proceed against

them. The judgment on which reliance has been placed

by the learned counsel for the petitioners fully support the

contention advanced on behalf of the petitioners Nos. 2 to

9.

17. In view of what has been found or could

be gathered from the materials available on the record, I

am of the considered opinion that the prosecution of the

family members including the female members and the

mediator is only an abuse of the process of the Court and

the order taking cognizance and issuance of summon in

so far as it relates to petitioner Nos. 2 to 9 needs to be

quashed in the interest of justice, and the same is hereby

quashed with respect to petitioner Nos. 2 to 9. So far as

petitioner No. 1 is concerned, he being the husband and

against him there are allegations, I am not inclined to

interfere with the impugned order against petitioner No.1,

the prayer on his behalf is, accordingly, rejected.
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017

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18. In the result, Cr. Misc. No. 48181/2014

is partly allowed to the extent indicated above.

(Rajeev Ranjan Prasad, J.)
Rajeev/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.12.2017
Transmission Date 01.12.2017

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