Shashi Bhushan Chaudhary @ … vs The State Of Bihar Through … on 18 March, 2017

      IN THE HIGH COURT OF JUDICATURE AT PATNA
                Criminal Writ Jurisdiction Case No. 466 of 2016
            Arising out of P.S. Case No. - 18 Year - 2015 Thana - Bela District - MUZAFFARPUR
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1. Ashwani Kumar @ Ashwani Chaudhary, Son of Shashi Bhushan Chaudhary @
Nathuni Chaudhary, resident of mohalla Bela Chhapra, P.S. – Bela, District –
Muzaffarpur

2. Shashi Bhushan Chaudhary @ Nathuni Chaudhary, Son of Late Yogendra
Chaudhary

3. Pramila Devi, Wife of Shashi Bhushan Chaudhary @ Nathuni Chaudhary,
Resident of 2 7 3 mohalla Bela Chhapra, P.S. – Bela, District – Muzaffarpur
…. …. Petitioners
Versus

1. The State of Bihar through Director General of Police, Patna

2. Prabhat Kumar, Son of Ramashray Singh, Resident of Mohalla – Bela Industrial
Area, Phase – I, P.S. – Bela, Muzaffarpur

3. Sneha, wife of Ashwini Kumar, resident of mohalla Bela Chhapra, P.S. – Bela,
District – Muzaffarpur, presently resides with her father namely Ramashray
Singh, resident of Fulelpur, P.S. – Athamalgola, District – Patna
…. …. Respondents
With
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Criminal Writ Jurisdiction Case No. 1245 of 2015
Arising out of P.S. Case No. – 125 Year – 2015 Thana – Athamalgola District – PATNA

===========================================================

1. Shashi Bhushan Chaudhary @ Nathuni Chaudhary, Son of Late Yogendra
Chaudhary

2. Pramila Devi, wife of Shashi Bhushan Chaudhary @ Nathuni Chaudhary

3. Aman Kumar, Son of Shashi Bhushan Chaudhary @ Nathuni Chaudhary
All are resident of mohalla Bela Chhapra, P.S. – Bela, District –
Muzaffarpur
…. …. Petitioners
Versus

1. The State of Bihar through Director General of Police, Patna

2. Sneha, wife of Ashwini Kumar, resident of mohalla Bela Chhapra, P.S. – Bela,
District – Muzaffarpur, presently resides with her father namely Ramashray
Patna High Court Cr. WJC No.466 of 2016 dt.18-03-2017

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Singh, resident of Fulelpur, P.S. – Athamalgola, District – Patna
…. …. Respondents
===========================================================
Appearance :

(In Cr. WJC No. 466 of 2016)
For the Petitioners : Mr. Rajeev Ranjan, Advocate
For the Respondents : Mr. Jawahar Pd. Karn, A.A.G.IV
(In Cr. WJC No. 1245 of 2015)
For the Petitioners : Mr. Bela Singh, Advocate
For the Respondents : Mr. S. Raza Ahamad, A.A.G-IX
===========================================================
CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
C.A.V. JUDGMENT
Date: 18-03-2017

In both the writ applications aforesaid common question has

been raised that on the basis of same facts two FIRs are not permissible

in view of the settled principles of law and prayer is for quashing of one

out of the two FIRs.

2. Learned counsel for the petitioners submits that for

matrimonial dispute between the parties Athamalgola Police Station

Case No. 125 of 2015 was registered on the complaint of Sneha the wife

of petitioner Ashwani Kumar and Bela Police Station Case No. 18 of

2015 was registered on the written report of Prabhat Kumar the full-

brother of Sneha. A bare perusal of both the FIRs would reveal that for

same matrimonial dispute both the cases have been lodged, hence,

continuance of both would be an abuse of the process of the court.

3. On the other hand, learned counsel for the respondents

submits that when two FIRs relates to different offences committed

against different set of persons on different dates and at different places

and were lodged by two different persons it cannot be quashed only for
Patna High Court Cr. WJC No.466 of 2016 dt.18-03-2017

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the reason that there is matrimonial dispute. A bare perusal of both the

FIRs makes it abundantly clear that both relates to different offences

committed on different dates against different sets of persons. The

petitioners of Cr.W.J.C. No. 1245 of 2015 are accused in connection

with Athamalgola Police Station Case No. 125 of 2015 registered on

02.06.2015 on the basis of Complaint Case No. 373C of 2015 filed on

21.05.2015 by respondent no. 2 Sneha. The learned Magistrate directed

institution of a police case and investigation of the same in exercise of

power under Section 156(3) Cr.P.C. The complaint was for offences

under Sections 323, 406 and 498A of the Indian Penal Code as well as

Sections 3/4 of the Dowry Prohibition Act against her husband and other

in-laws for the occurrence, allegedly, committed from 13.03.2012

onwards i.e. from the very next day of marriage on 12.03.2012 with co-

accused Ashwani Kumar.

4. The petitioners of Cr.W.J.C. No. 466 of 2016 are accused in

connection with Bela Police Station Case No. 18 of 2015 filed on

20.05.2015 for offences under Sections 341, 323, 379, 504, 498A and 34

of the Indian Penal Code on written report of respondent no. 2 Prabhat

Kumar the full-brother of respondent no. 3 Sneha for the alleged

occurrence committed on 19.05.2015.

5. According to FIR of Bela Police Station Case No. 18 of

2015 informant Prabhat Kumar along with his wife and sister went to the
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house of Sneha, on receiving SMS from Sneha that she is likely to be

killed. When the informant and others reached there on 19.05.2015 all

the named accused persons started assaulting them with lathi etc. Further

allegation is of commission of theft of ornament.

6. According to the complaint petition filed by Sneha she was

married with petitioner Ashwani Kumar (of Cr.W.J.C. No. 466 of 2016)

on 12.03.2012, thereafter she went to her Sasural on 13.03.2012. On the

same day, the husband, the mother-in-law and the Dewar started

torturing her alleging that she is daughter of a beggar and has not

brought a four wheeler. Subsequently, the husband started a business of

Ultrasound Centre along with co-accused Seema Verma and this time

also rupees twenty lacs was demanded from the complainant by the

husband, mother-in-law and the Dewar. For non-fulfilment of dowry

demand, the aforesaid three persons used to assault the complainant of

and on. Subsequently, the husband married with co-accused Seema

Verma i.e. his business partner on 19.05.2015. Seema Verma poured

kerosene oil and the husband attempted to burn her to death. However,

the brother of the complainant and others were there who took the

complainant to her parents’ house.

7. Cr.W.J.C. No. 466 of 2016 has been filed for quashing the

FIR of Bela Police Station Case No. 18 of 2015 on the ground of
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existence of another of FIR for the same occurrence i.e. complaint based

FIR i.e. Athamalgola Police Station Case No. 125 of 2016

8. A bare perusal of the two FIRs would reveal that both

relates to offence committed against two different persons on different

dates and to some extent at different places of occurrence. Therefore,

there is no merit in the submission that both the FIRs relate to the same

offence. The law is well settled that in the matter of quashing of FIR

mala fides of the informant is immaterial because the matter is to be

investigated by and independent conclusion is to come from the police.

9. Hence, in my view, there is no merit in Cr.W.J.C. No. 466

of 2016. The same, accordingly, stands dismissed.

Cr.W.J.C. No. 1245 of 2015

10. Cr.W.J.C. No. 1245 of 2015 has been filed to quash the

complaint based FIR i.e. of Athamalgola Police Station Case No. 125 of

2015 on the ground of another FIR i.e. Bela Police Station Case No. 18

of 2015 for the same occurrence.

11. As discussed above, I do not find any merit on the

submission that both FIRs relate to the same occurrence. Hence, one of

the same is fit to be quashed, for the reason that both the FIRs were

lodged by different persons against different nature of offences

committed against different set of people on different dates.
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12. However, the perusal of the complaint based FIR reveals

that direction for institution of FIR is result of non-application of judicial

mind by the learned Magistrate. The perusal of the complaint petition

annexed with the FIR would reveal that the same is not on affidavit.

There is no prayer for sending the complaint case for institution as a

police case. Nor there is averment that the complainant had approached

the police for registration of an FIR or had complained to the higher

authorities in pursuance of provisions under Section 154(3) Cr.P.C.

13. The law is well settled that at the stage of issuing a direction

under Section 156(3) Cr.P.C. the Magistrate is required to apply its

judicial mind to satisfy that a cognizable offence is disclosed in the

complaint petition and the statutory requirement has been fulfilled to

warrant a direction for institution of an FIR under Section 156(3) Cr.P.C.

Reference may be made to the case Mrs. Priyanka Srivastava Anr.

vs. State of U.P. Ors. reported in 2015(3) PLJR SC 78.

Paragraph 25 to 27 of the judgment is relevant to be reproduced

here:-

“25. Issuing a direction stating “as per the application” to
lodge an FIR creates a very unhealthy situation in the
society and also reflects the erroneous approach of the
learned Magistrate. It also encourages the unscrupulous
and unprincipled litigants, like the respondent no.3, namely,
Prakash Kumar Bajaj, to take adventurous steps with courts
to bring the financial institutions on their knees. As the
factual exposition would reveal, he had prosecuted the
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earlier authorities and after the matter is dealt with by the
High Court in a writ petition recording a settlement, he
does not withdraw the criminal case and waits for some
kind of situation where he can take vengeance as if he is the
emperor of all he surveys. It is interesting to note that
during the tenure of the appellant No.1, who is presently
occupying the position of Vice-President, neither the loan
was taken, nor the default was made, nor any action under
the SARFAESI Act was taken. However, the action under
the SARFAESI Act was taken on the second time at the
instance of the present appellant No.1. We are only stating
about the devilish design of the respondent No.3 to harass
the appellants with the sole intent to avoid the payment of
loan. When a citizen avails a loan from a financial
institution, it is his obligation to pay back and not play
truant or for that matter play possum. As we have noticed,
he has been able to do such adventurous acts as he has the
embedded conviction that he will not be taken to task
because an application under Section 156(3) Cr.P.C. is a
simple application to the court for issue of a direction to the
investigating agency. We have been apprised that a carbon
copy of a document is filed to show the compliance of
Section 154(3), indicating it has been sent to the
Superintendent of police concerned.

26. At this stage it is seemly to state that power under
Section 156(3) warrants application of judicial mind. A
court of law is involved. It is not the police taking steps at
the stage of Section 154 of the code. A litigant at his own
whim cannot invoke the authority of the Magistrate. A
principled and really grieved citizen with clean hands must
have free access to invoke the said power. It protects the
citizens but when pervert litigations takes this route to
harass their fellows citizens, efforts are to be made to
scuttle and curb the same.

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27. In our considered opinion, a stage has come in this
country where Section 156(3) Cr.P.C. applications are to be
supported by an affidavit duly sworn by the applicant who
seeks the invocation of the jurisdiction of the Magistrate.
That apart, in an appropriate case, the learned Magistrate
would be well advised to verify the truth and also can verify
the veracity of the allegations. This affidavit can make the
applicant more responsible. We are compelled to say so as
such kind of applications are being filed in a routine
manner without taking any responsibility whatsoever only
to harass certain persons. That apart, it becomes more
disturbing and alarming when one tries to pick up people
who are passing orders under a statutory provision which
can be challenged under the framework of said Act or under
Article 226 of the Constitution of India. But it cannot be
done to take undue advantage in a criminal court as if
somebody is determined to settle the scores. We have
already indicated that there has to be prior applications
under Section 154(1) and 154(3) while filing a petition
under Section 156(3). Both the aspects should be clearly
spelt out in the application and necessary documents to that
effect shall be filed. The warrant for giving a direction that
an the application under Section 156(3) be supported by an
affidavit so that the person making the application should
be conscious and also endeavour to see that no false
affidavit is made. It is because once an affidavit is found to
be false, he will be liable for prosecution in accordance
with law. This will deter him to casually invoke the
authority of the Magistrate under Section 156(3). That
apart, we have already stated that the veracity of the same
can also be verified by the learned Magistrate, regard being
had to the nature of allegations of the case. We are
compelled to say so as a number of cases pertaining to
fiscal sphere, matrimonial dispute/family disputes,
commercial offences, medical negligence cases, corruption
Patna High Court Cr. WJC No.466 of 2016 dt.18-03-2017

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cases and the cases where there is abnormal delay/laches in
initiating criminal prosecution, as are illustrated in Lalita
Kumari are being filed. That apart, the learned Magistrate
would also be aware of the delay in lodging of the FIR.”

14. The perusal of the complaint petition would further reveal

that there is no whisper of any allegation against petitioner no. 1 Shashi

Bhushan Chaudhary who is father-in-law and has been arrayed as an

accused at serial no. 5 of the column of the accused. If the learned

Magistrate would have carefully gone through the contents of the

complaint petition he would not have decided to direct institution of FIR

against petitioner no. 1 Shashi Bhushan Chaudhary. Moreover, there was

no material at all to substantiate that the allegation was based on

affidavited complaint. There was no prayer for sending the complaint

case for institution of a police case. Hence, in view of the judgment of

the Hon’ble Apex Court in Mrs. Priyanka’s case (supra), the FIR of

Athamalgola Police Station Case No. 125 of 2015 is fit to be quashed

and the same, accordingly, stands quashed.

15. The opposite party no. 2/complainant would be at liberty to

bring fresh complaint case on affidavit and the court below shall be at

liberty to proceed on the complaint itself if there is no prayer for

direction to the police to register a police case of that complaint. In the

event of such prayer or suo motu exercise of discretion, the learned
Patna High Court Cr. WJC No.466 of 2016 dt.18-03-2017

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Magistrate is required to ensure compliance of other requirements of

law.

16. With the aforesaid observation Cr.W.J.C. No. 1245 of 2015

stands allowed.



                                                        (Birendra Kumar, J)

     Kundan
     AFR/NAFR         A.F.R.
     CAV DATE       07.03.2017
     Uploading Date 18.03.2017
     Transmission 18.03.2017
     Date
 

One thought on “Shashi Bhushan Chaudhary @ … vs The State Of Bihar Through … on 18 March, 2017

  1. Indian Banking Sector needs systematic commercial approach:
    Gross NPAs of PSBs rose by over ₹1 lakh crore to ₹7 lakh crore during by the end of March 2017, Gross NPAs of PSBs nearly doubled to ₹5.02 lakh crore at the end of March 2016, from ₹2.67 lakh crore at the end of March 2015. The data requires revamp of the whole Banking system in India, from bureaucratically managed to professionally managed. Right from the appointment of clerks and probationary officers, the candidates with Commerce, Banking or Business Management qualifications should be given preference and those with other qualifications like Engineering and Arts should be taken only for the specialized posts in the Banks which are meant for them taking in view their academic curriculum.

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