IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.51839 of 2013
Arising Out of PS. Case No.-1872 Year-2010 Thana- SAHARSA COMPLAINT CASE
District- Saharsa
1. Rekha Devi Wife of Suryanarayan Chaudhary Resident of
Village- Diwanganj, P.S.- Pratapganj, District- Supaul
2. Suryanarayan Chaudhary Son of Late Ramji Chaudhary Resident
Of Village- Diwanganj, P.S.- Pratapganj, District- Supaul
3. Punam Devi Wife of Pappu Chaudhary Resident of Village-
Dharahara, P.S.- Raghopur, District- Supaul
… … Petitioner/s
Versus
1. The State of Bihar
2. Usha Kumari Wife of Ajay Chaudhary Resident of Village- Dharahara, P.S.-
Raghopur, District- Supaul
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Dinesh Maharaj
Mr. Satish Kumar Singh
For the Opposite Party no. 2 : Mr. Amarnath Jha
For the State : Mr. Jharkhandi Upadhyay.
CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date : 11-05-2018
Heard learned counsel for the petitioners, learned
counsel for the O.P. no. 2 as well as learned APP for the State.
2. This application under Section 482 of the Code
of Criminal Procedure has been filed for quashing the order
dated 05.09.2011 passed by Sub Divisional Judicial Magistrate,
Saharsa, in Complaint Case no. 1872 of 2010, whereby the
learned Magistrate finding making out prima facie case under
Section 498A of the Indian Penal Code and Section 4 of the
Dowry Prevention Act against the accused persons including the
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petitioners, ordered to issue summons against them.
3. Factual matrix of the case is that O.P. no. 2
(Usha Kumari) filed Complaint Case no. 1872 of 2010 against
seven accused persons named in the complaint petition
including the petitioners under Sections 498A, 323, 379, 504 of
the Indian Penal Code and Section 3/4 of D.P. Act with the case,
in succinct, that marriage of the O.P. no. 2 was solemnized with
accused Ajay Chaudhary on 29.04.2002. After marriage, she
went to her marital house on vidai, but the accused persons were
not satisfied with the articles and gift provided in the marriage
by her maternal people and they started passing comment and
demanded Rs. 50,000/- for running business. As her father
failed to cough up their aforesaid demand, all the accused
persons started subjecting her to various sorts of torture and
cruelty over the said demand. Subsequently, her father anyhow
managed Rs. 30,000/- and accorded to the accused persons,
whereupon they allowed the O.P. no. 2 to go with her father to
her maternal house after one year. She became pregnant couple
of times, but due to atrocity meted out to her by the accused
persons, there was miscarriage. Her husband took her to
Rajasthan at his service place, but he continuously subjected her
to torture there at the instance of the other accused persons and
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finally they drove her out of her marital house snatching her
belongings.
4. O.P. no. 2 examined herself on S.A. and also
examined three witnesses during course of inquiry.
5. Learned Magistrate after perusing the complaint
petition and material available on records, passed the impugned
order as detailed in the earlier paragraph.
6. It is submitted by learned counsel for the
petitioners that petitioner no. 1 happens to be sister-in-law while
petitioner no. 2 brother-in-law of the complainant. They are
living separately from the complainant and petitioner no. 3 is
the gotiya of the complainant and marriage of petitioner no. 3
was solemnized around three years later to the marriage of
complainant. Husband of the complainant is living in Rajasthan
in connection with his service and petitioners have no concern
with the affairs of the complainant and her husband. They never
made any demand and subjected the complainant to cruelty.
They have been falsely implicated in the case as they happen to
be relatives of husband of the complainant in order to harass
them. There is no specific allegation of any demand and torture
against them. Husband of the complainant had also filed a
petition for restitution of conjugal rights vide M.A. no. 57 of
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2010 against the complainant, but as the complainant did not
turn up in the said case, it proceeded ex parte against her.
Hence, the proceeding against the petitioners is nothing but an
abuse of process of the Court. So, the impugned order is liable
to be quashed.
7. On the other hand, learned counsel for the O.P.
no. 2 and learned APP for the State submitted that all the
accused persons including the petitioners demanded dowry and
subjected the O.P. no. 2 to various sorts of torture over the said
demand resulting miscarriage of the O.P. no. 2 couple of times.
Husband of complainant also subjected her to torture and
cruelty taking her to Rajasthan, at his place of service at the
instance of petitioners and other accused persons, and finally the
accused persons drove her out of her marital house snatching
her belongings, and learned lower court considering all the facts
and circumstances of the case, S.A. of complainant and
testimony of witnesses examined during course of inquiry, after
making proper inquiry has taken cognizance against all the
accused persons including the petitioners, which is liable to be
upheld.
8. From perusal of record, it appears that Petitioner
no. 1 happens to be married sister-in-law while petitioner no. 2
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is the brother-in-law of the complainant (O.P. no. 2) and
husband of petitioner no. 1 and they are living separately from
the complainant as her husband and his parents are resident of
village Dharahara, P.S.- Raghopur, District- Supaul
while the aforesaid two petitioners are resident of
village Diwanganj, P.S.- Pratapganj, District- Supaul
as evident from the complaint petition. Petitioner no. 3
was not in existence in the marital house of the O.P.
no. 2 at the time of initial demand of dowry and
torture meted out to the O.P. no. 2 as she was married
three years later to the aforesaid occurrence. From
perusal of complaint petition, it appears that there is
no specific allegation against the aforesaid petitioners
rather allegations are general and omnibus in nature
and they also do not appear to be beneficiary of
demand of dowry.
9. Hon’ble Apex Court in Geeta Mehrotra
and Another vs. State of U.P. and Another reported in
(2012)10 SCC 741 and Preeti Gupta and Another Vs.
State of Jharkhand and Another reported in (2010) 7
SCC 667 has been pleased to rule that there should be
a clear allegation against relatives of the husband and
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vague and omnibus allegation would not be sufficient
to compel them to undergo agony of the trial.
10. Hon’ble Apex Court in Monju Roy and
Others Vs. State of West Bengal reported in (2015) 13
SCC 693 has been pleased to observe that while we do
not find any ground to interfere with the view taken by
the courts below that the deceased was subjected to
harassment on account of non-fulfillment of dowry
demand, we do not find any merit in the submission
that possibility of naming all the family members by
way of exaggeration is not ruled out”. Hon’ble Apex
Court in Kans Raj Vs. State of Punjab reported in
(2000) 5 SCC 207 has been pleased to observe that a
tendency has, however, developed for roping in all
relations of the in-laws of the deceased wives in the
matters of dowry deaths which, if not discouraged, is
likely to affect the case of the prosecution even
against the real culprits. In their over enthusiasm and
anxiety to seek conviction for maximum people, the
parents of the deceased have been found to be making
efforts for involving other relations which ultimately
weaken the case of the prosecution even against the
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real accused as appears to have happened in the instant
case. Hon’ble Apex Court in Arnesh Kumar Vs. State
of Bihar and Another reported in (2014) 8 SCC 273
has been pleased to observe that there is a phenomenal
increase in matrimonial disputes in recent years. The
institution of marriage is greatly revered in this
country. Section 498-A IPC was introduced with
avowed object to combat the menace of harassment to
a woman at the hands of her husband and his relatives.
The fact that Section 498-A IPC is a cognizable and
non-bailable offence has lent it a dubious place of
pride amongst the provisions that are used as weapons
rather than shield by disgruntled wives. The simplest
way to harass is to get the husband and his relatives
arrested under this provision. In a quite number of
cases, bedridden grandfathers and grandmothers of the
husbands, their sisters living abroad for decades are
arrested. In the said case, the Supreme Court has
cautioned the courts with regard to proceeding against
in-laws and distant relatives of the husband of the wife
involved in the offence under Section 498-A of the IPC
and other relevant offences. This High Court in
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Brijesh Das @ Brijesh Kumar Das Ors. Vs. The
State of Bihar Anr. reported in 2012(2) PLJR 545
has also held that there is specific allegation made
against husband and no statement that other relatives
assaulted the complainant. Allegations made against
petitioner nos. 2 to 6 are vague and omnibus
allegation made against the relatives of the husband,
would not be sufficient to put them on a trial and set
aside the cognizance order against the petitioner nos. 2
to 6 who happen to be in-laws of the complaint.
11. In view of the aforesaid facts and
circumstances of the case and the aforesaid case laws,
the order taking cognizance against these petitioners,
in my considered opinion is nothing, but an abuse of
process of the Court. Accordingly, this petition is
allowed and the impugned order is quashed.
(Prakash Chandra Jaiswal, J)
rohit/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 16-05-2018
Transmission Date 16-05-2018
