Brajesh Kumar & Ors vs The State Of Bihar & Anr on 18 April, 2017

Patna High Court Cr.Misc. No.14564 of 2011 dt.18-04-2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.14564 of 2011

1. Brajesh Kumar S/O Dayanand Yadav R/O Village – Chukti, P.S. – Mansi,
District – Khagaria

2. Dayanand Yadav S/O Late Nand Kishore Yadav R/O Village – Chukti, P.S. –
Mansi, District – Khagaria

3. Malti Devi W/O Dayanand Yadav R/O Village – Chukti, P.S. – Mansi, District –
Khagaria

4. Tej Narayan Yadav S/O Dayanand Yadav R/O Village – Chukti, P.S. – Mansi,
District – Khagaria

5. Rinkan Kumari D/O Dayanand Yadav R/O Village – Chukti, P.S. – Mansi,
District – Khagaria
…. …. Petitioners
Versus

1. The State Of Bihar

2. Vinita Kumari wife of Brajesh Kumar, R/o village- Chukti, P.S.- Mansi,
District- Khagaria
…. …. Opposite Parties

Appearance :

For the Petitioner/s : Mr. S. S. Sharma, Advocate
Mr. Rajesh Kumar, Advocate
For the Opposite Party/s : Mr. Nagendra Prasad Yadav, Advocate
Mr. Fakhruddin Ali Ahmad, Advocate

CORAM: HONOURABLE MR. JUSTICE JITENDRA MOHAN SHARMA
ORAL JUDGMENT
Date: 18-04-2017

This Criminal Miscellaneous application has been filed for

quashing the order dated 10.05.2010 passed by learned S.D.J.M., Khagaria

whereby and whereunder the learned S.D.J.M. has taken cognizance

against the accused persons for the offence under Section 498A of the

Indian Penal Code in Protest-cum-Complaint Case No. 553 C of 2008

arising out of Chautham (Mansi) P.S. Case No. 124 of 2006.

2. Heard learned counsel for the petitioners, learned APP and

learned counsel representing Opposite Party No. 2.

3. As per protest complaint, the complainant was married to

READ  Mustafa Shahadal Shaikh, ... vs State Of Maharashtra on 28 November, 2007

Lakhan Lal, son of petitioner no. 2 Dayanand Yadav, in the year 2001 and
Patna High Court Cr.Misc. No.14564 of 2011 dt.18-04-2017

a daughter Prerna @ Mithi was born out of the wedlock. Unfortunately,

her husband died due to tetanus, thereafter, she was married to 4th son of

petitioner no. 2 Dayanand Yadav, namely, Brajesh Kumar on 24.11.2005.

Informant’s mother paid Rs. 80,000/- to her husband for securing job in the

Railway but thereafter, further demand of Rs. 2 lakh was made and her

widow mother was not able to pay, resulting, she was harassed by her in-

laws. The complainant was examined on Solemn Affirmation and

thereafter, on her behalf Rajesh Kumar Yadav CW 1, Wakil Yadav CW 2

and Manish Kumar CW 3 were examined during inquiry and the learned

S.D.J.M. after considering those materials collected during inquiry found

that prima facie case is made out against the accused persons under Section

498A of the Indian Penal Code and accordingly, passed the order for

issuing summons to the accused persons.

4. Submission on behalf of the petitioners is that the petitioner

Brajesh Kumar was not married with the complainant and all these facts

have come during investigation and accordingly, final form was submitted

but again this protest-cum-complaint petition has been filed. CW 1 Rajesh

Kumar Yadav upon court question has stated that on 24.11.2005 Brajesh

performed second marriage at Samastipur, so the allegation that Brajesh

Kumar Yadav was married with complainant on 24.11.2005 is falsified but

without considering all these facts learned S.D.J.M. passed the order

READ  Smt. Gangamma vs State Of Karnataka on 27 March, 2014

taking cognizance under Section 498A IPC. On 24.11.2005, the petitioner

was on duty in Railway at Rajasthan. The marriage was never performed as

per Hindu rites and for demanding dowry in such a situation appears not
Patna High Court Cr.Misc. No.14564 of 2011 dt.18-04-2017

reliable and probable. It is also submitted that the complainant has filed

case under Section 125 Cr.P.C. and the learned Principal Judge of Family

Court dismissed the petition holding that she is not a legally married wife

of Brajesh Kumar so the order taking cognizance is bad in law and is fit to

be quashed.

5. On the other hand, learned APP duly assisted by learned

counsel for the opposite party no. 2 submits that the learned S.D.J.M. after

perusal of the materials collected during inquiry i.e. the statement of

complainant on solemn affirmation and the statements of three inquiry

witnesses has passed the order which is quite legal, justified and proper and

no interference is required by this Court.

6. Having considered the submissions urged at bar, after going

through the records, L.C.R. and noticing that the learned S.D.J.M. after

perusal of the protest complaint, statement of complainant on S.A and the

statements of inquiry witnesses namely, Rajesh Kumar Yadav, Wakil

Yadav and Manish Kumar has rightly passed the order taking cognizance

under Section 498A of the Indian Penal Code because from those

materials collected during inquiry prima facie offence under Section 498A

of the Indian Penal Code is made out against the accused persons. At this

stage, the court is not required to see the defence of the accused persons.

READ  State Of Haryana vs Inder Singh And Ors. on 29 January, 2002

From perusal of the record it also reveals that before charge two witnesses

have already been examined and cross-examined by the defence who are

Manish Kumar and Wakil Yadav.

7. At this stage, the court is only required to see as to whether on
Patna High Court Cr.Misc. No.14564 of 2011 dt.18-04-2017

the basis of materials collected during inquiry prima facie case is made out

or not and the learned S.D.J.M. has rightly passed the impugned order. At

this stage the defence of the accused cannot be looked into rather that can

be adjudged at the time of framing of charge when all these things can be

brought during cross-examination by the defence before charge. Thus,

finding no illegality, incorrectness or impropriety in the impugned order,

the same requires no interference by this Court.

8. In the result, finding no merit in this Criminal Miscellaneous

application the same is hereby dismissed.

(Jitendra Mohan Sharma, J)
avin/-

AFR/NAFR
CAV DATE
Uploading Date 20.04.2017
Transmission 20.04.2017
Date

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