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Abhishek Kumar Singh @ Abhishek … vs State Of Bihar & Anr on 11 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.16192 of 2014
Arising Out of PS. Case No.-56 Year-2011 Thana- MOTIHARI TOWN District- East
Champaran

1. Abhishek Kumar Singh @ Abhishek Kumar S/O Bharat Singh

2. Bharat Singh S/O Late Ram Bachchan Singh

3. Radhika Devi W/O Bharat Singh

4. Seema Kumari D/O Bharat Singh All Are Resident Of Village
Horila Chhapra, Police Station Malahi, District East Champaran.

… … Petitioner/s
Versus

1. The State Of Bihar.

2. Reena Devi D/O Dashrath Singh Resident Of Mohalla Balwanawa, Police
Station Town Motihari, District East Champaran.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Anil Kumar
For the Opposite Party/s : Mr. C.Sen Pd.Singh(App)

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
C.A.V. JUDGMENT

Date : 11-04-2018

Heard learned counsels for the parties.

Petitioners, by means of this application under

section 482 of the Code of Criminal Procedure, have invoked

the inherent jurisdiction of this Court with prayer to quash the

order dated 16.01.2012, passed by the learned Chief Judicial

Magistrate, East Champaran at Motihari in connection with
Patna High Court Cr.Misc. No.16192 of 2014 dt.11-04-2018
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Town (Motihari) P.S. Case No. 56 of 2011, whereby and

whereunder cognizance has been taken against the petitioners

for the offence under sections 498A, 307 of the Indian Penal

Code and sections 3/4 of the Dowry Prohibition Act.

It is alleged that on giving gifts by the father of

the informant as per capacity, the date of marriage of the

informant with petitioner no. 1 was fixed. But, just before

marriage, further demand of rupees two lakhs cash was made.

Father of the informant gave Rs. 50,000/- and on assurance that

the rest amount will be given after marriage, marriage was

solemnized. After marriage, the accused persons started

torturing the informant. On 30.12.2010, the accused persons tied

the informant and assaulted her with fists and slaps. Petitioner

no. 2 ordered to kill her upon which the petitioner no.3 brought

kerosene oil and gave in the hand of petitioner no. 4. Petitioner

no. 4 after opening the same handed over to co-accused Amresh

Singh, who sprinkled the same on the body of the informant.

Co-accused Sanjay Singh gave match box to petitioner no. 1 for

setting her body on fire. In the meantime, informant raised

alarm on which neighbours came and some how her life could

be saved.

Learned counsel appearing for the petitioners
Patna High Court Cr.Misc. No.16192 of 2014 dt.11-04-2018
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submits that the present case is a bundle of false allegations and

a legal engineering for making a serious case under the Indian

Penal code as also the Dowry Prohibition Act. There is neither

any injury report on the record nor any evidence to substantiate

that the accused persons either assaulted the informant or tried

to set her on fire. Learned counsel further submits that petitioner

is fully complying the order of this Court dated 25.10.2011

passed in Cr. Misc. No. 35365 of 2011 and is paying Rs. 2000/-

per month to the informant which would be evident from the

bank receipts contained in Annexure-4. Besides the present

case, opposite party no. 2 has also filed D.V. Case No. 06 of

2011, Maintenance Case No. 108 of 2011 and Town Motihari

P.S. Case No. 108 of 2017. As a matter of fact, the opposite

party no. 2 is an undisciplined lady and she always used to

misbehave with her in-laws. In course of hearing of Divorce

Case No. 285 of 2010, she even assaulted the petitioner with her

footwear in open Court at Family Court, Motihari. In that

connection, petitioner also filed application before the Court

below for his protection. The counsel of the petitioner was also

threatened by the opposite party no. 2 and her associates. He has

also filed an application in that respect in the Court below.

Learned counsel has brought on record the copies of the
Patna High Court Cr.Misc. No.16192 of 2014 dt.11-04-2018
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aforesaid applications and the order dated 17.11.2011 as

Annexure-5 (series) to the present application. It is lastly

contended that the sister of the petitioner no. 1, who is a

handicapped aged more than 40 years unmarried lady, has been

made accused in the present case, which shows the falsity of the

allegations levelled. In the background of the above

submissions, learned counsel prays for quashing of the order

taking cognizance.

Considering the materials available on record and

the facts and circumstances of the case, this Court finds

substance in the submissions advanced on behalf of the

petitioner and agrees with the same. Opposite party no. 2 has

filed the present Complaint case against the accused persons

under sections 498A and 307 of the Indian Penal Code and

section ¾ of the Dowry Prohibition Act without there being any

Injury Report., which was later on forwarded to the police under

section 156(3) Cr. P.C. where it was registered as Town Motihari

P.S. Case No. 56 of 2011. After investigation, police submitted

charge-sheet against four accused persons i.e. the present

petitioners only under section 498A I.P.C.

Learned Magistrate differing with the police

report took cognizance against all nine accused persons under
Patna High Court Cr.Misc. No.16192 of 2014 dt.11-04-2018
5/6

sections 498A 307 of the Indian Penal Code and Sections 3/4

of the Dowry Prohibition Act. Code of Criminal Procedure gives

the Magistrate the power of differing with the Police report, but

the Magistrate has to give reasons as to what are the materials in

the diary on basis of which he has differed with the Police

Report. Apparently, the present case has been registered under

section 307 IPC without there being any Injury Report. The part

of the Complaint which relates to Section 307 I.P.C. is prima

facie an absurd story. It has been alleged that accused persons

caught the informant and tied her. Thereafter, petitioner nos. 3

4 with the help of Babli Devi (accused no. 7 in complaint) tied

her with the leg of Chowki and all started assaulting her with

fists and slaps. Petitioner no. 2 ordered to kill her and asked

petitioner no. 3 to bring kerosene oil upon which petitioner no. 3

brought kerosene oil and gave in the hand of petitioner no. 4

who after opening the gallon handed over the same to co-

accused Amresh Singh (accused no. 6 in complaint), who

sprinkled the same on the body of the informant. Accused

Sanjay Singh (accused no. 8 in complaint) gave match box to

petitioner no. 1 and asked him to kill the informant by setting

her on fire. The allegations on the face of it, in absence of any

injury or any specific material, shows how tactically on
Patna High Court Cr.Misc. No.16192 of 2014 dt.11-04-2018
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allegations of committing a crime entire family members are

implicated. The part of the Complaint which relates to Section

307 I.P.C. is prima facie an absurd story.

Further, in the present case in absence of any

Injury Report learned Magistrate without referring to any

specific paragraph of the case diary wherein he found materials

against the accused persons has differed with the police report

and has taken cognizance of the offence under section 307 of the

Indian Penal Code, which is a misuse of the process of the

Court. Accordingly, the order dated 16.01.2012, passed by the

learned Chief Judicial Magistrate, East Champaran at Motihari

in connection with Town (Motihari) P.S. Case No. 56 of 2011,

whereby and whereunder cognizance has been taken against the

petitioners for the offence under sections 498A, 307 of the

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

Act is, hereby, quashed.

The application, thus, stands allowed.

(Arvind Srivastava, J)
mcv/-

AFR/NAFR NAFR
CAV DATE 05.12.2017
Uploading Date 12.04.2018
Transmission Date 12.04.2018

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