IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.47931 of 2014
Arising Out of PS.Case No. -2169 Yea r- 2009 Thana -WEST CHAMPARAN COMPLAINT Distri ct-
WESTCHAMPARAN(BETTIAH)
1. Ajay Kumar @ Laddu @ Laddu Mallik @ Ajay Kumar Mallik, Son of
Late Sona Mallik
2. Vidya Devi, Wife of Late Sona Mallik
3. Pramod Mallik, son of Late Sona Mallik, All Resident of Naurangabad
Dom Toli, P.S.- Bettiah Nagar, District- West Champaran
…. …. Petitioners
Versus
1. The State of Bihar
2. Mina Devi, Daughter of Mangali Mallik, Resident of Village-
Fuldarwa, P.S. Jagdishpur, District- West Champaran
…. …. Opposite Party
Appearance :
For the Petitioners : Dr. Amrendra Kumar, Advocate
For the OP No. 2 : Mr. Sanjeev Kumar, Advocate
For the State : Mr. Brujendra Nath Pandey, APP
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 27-11-2017
Heard learned counsel for the petitioners,
learned counsel representing the complainant-Opposite
Party No. 2 as also learned Additional Public Prosecutor for
the State.
2. Petitioner No. 1 is the husband, whereas
petitioner Nos. 2 3 are mother-in-law and Dewar
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respectively of the complainant-Opposite Party No. 2.
3. All these petitioners are seeking quashing of
the order dated 23.07.2012 passed by learned Sub-Divisional
Judicial Magistrate, Bettiah, West Champaran in Complaint
Case No. 2169(C) of 2009 by which learned Magistrate has
taken cognizance of the offences under Section 498A of the
Indian Penal Code and 3/4 of the Dowry Prohibition Act and
issued summon to the petitioners-accused.
4. Learned counsel for the petitioner submits
that a bare perusal of the statement made in the complaint
petition would show that the marriage, in the present case,
between the petitioner No. 1 and the complainant-Opposite
Party No. 2 took place 10 years ago in accordance with Hindu
rights and customs. It is admitted by the complainant-
Opposite Party No. 2 that after marriage for few years the
behaviour of the accused persons were good and there was
no complaint against them. The complainant-Opposite Party
No. 2 gave birth to one son and one daughter who were aged
about 7 years and 3 years respectively at the time of lodging
of the complaint. The allegation comes at this stage, as
according to the complainant-Opposite Party No. 2 after
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birth of the two children, all the accused persons were
pressurizing her to demand one colour Television and
Motorcycle from her father which the complainant-Opposite
Party No. 2 was protesting. It is further alleged that on denial
by the complainant-Opposite Party No. 2, the accused
persons were torturing her mentally and physically in
different ways. The complainant-Opposite Party No. 2
alleged that on the provocation or abetment of accused No.
2 3, the accused No. 1 assaulted her causing fracture in
one of her fingers of the left hand. It is also alleged that on
the abetment of accused Nos. 2 to 4, the accused No. 1
solemnized a second marriage two years ago and after the
said second marriage his behaviour went from bad to worse.
There are further allegations that accused No. 2 poured
kerosene oil on the body of the complainant-Opposite Party
No. 2, accused No. 3 to 5 put her down on the floor and were
pressing her neck, whereas accused No. 1 was going to burn
her by using matchbox, but, on raising hulla, the neighbours
ran to her place and in this way the complainant-Opposite
Party No. 2 could be saved. It is alleged that the accused
persons assaulted the complainant-Opposite Party No. 2 and
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snatched her money which has been quantified as about Rs.
20,000/-. The complainant-Opposite Party No. 2 along with
her daughter was allegedly thrown out of her house on
01.01.2009, thereafter on many occasions Panchayati were
held but ultimately the accused persons refused to keep the
complainant-Opposite Party No. 2.
5. The complainant-Opposite Party No. 2
herself states that she has lodged a F.I.R. in this respect in
the Police Station but the same was lodged only against the
accused No. 1. it is stated that pursuant to the said F.I.R., the
accused No. 1, when applied for anticipatory bail in the court
of learned Sessions Judge, gave an undertaking to keep the
complainant-Opposite Party No. 2 with full dignity and care,
but after keeping her for about 15 days, on the provocation
of accused No. 5, the complainant-Opposite Party No. 2 was
being tortured physically and mentally.
6. It is alleged that on 20.05.2009, the accused
No. 1 came in a drunken condition in the house and
assaulted the complainant-Opposite Party No. 2 and further
threw her cloths etc. out of the house. Accused Nos. 2 to 5
are said to have threatened the complainant-Opposite Party
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No. 2 by saying that she would not take any effort to enter in
the house.
7. Learned counsel for the petitioners has
drawn my attention towards the F.I.R. dated 15.02.2009, as
contained in Annexure-5 to the present application. A
written complaint of the present complainant-Opposite Party
No. 2 on the basis of which F.I.R. was lodged under Section
341, 323, 504 and 498A of the I.P.C. is virtually the anchor-
sheet of the argument of the learned counsel representing
the petitioners. Learned counsel submits that in the F.I.R.
there is no whisper of allegations against the petitioner Nos.
2 3. The whole thrust of the allegations in the F.I.R. are
directed against the petitioner No. 1 alone. Thus, according
to learned counsel, in the present complaint petition, she has
apparently improved upon the allegations made in the F.I.R.
and this time a false story has been narrated by making
flimsy allegations against petitioner Nos. 2 3 as well.
8. Learned counsel further submits that in fact
the motive behind filing of the present complaint is also
reflected in the complaint petition, when complainant-
Opposite Party No. 2 herself says at one stage that she had
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lodged the F.I.R. under Section 498A I.P.C., but the case was
lodged only against accused No. 1.
9. Thus, according to learned counsel, it is
evident that only to falsely implicate the other family
members, who are closely related to the husband of the
complainant-Opposite Party No. 2, the present case has been
lodged.
10. It is further pointed out that the complaint
case has been lodged on or about 14.09.2009 by setting up
an occurrence by way of further cause of action shown to
have taken place on 20.05.2009 when allegedly the husband
of the complainant-Opposite Party No. 2 came in a drunken
condition in the house and assaulted her. At this stage, no
act or omission causing any torture either physically or
mentally has been alleged against petitioner Nos. 2 3.
11. Learned counsel for the petitioners,
therefore, submits that although in his submission the whole
case has been lodged on a false and flimsy allegations and
the order taking cognizance and issuance of summons are fit
to be quashed in respect of all the petitioners, but in any
case his submission would be that so far as petitioner Nos. 2
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3 are concerned, they have been implicated only because
they happened to be the kith and kin of the husband. This is
apparent from the fact that F.I.R. lodged on 26.02.2009 did
not contain a single word of allegation against these
petitioners Nos. 2 3. In this regard, reliance has been
placed on the judgment of the Hon’ble Supreme Court in the
case of Geeta Mehrotra vs. State of U.P. Another reported
in 2012 (10) SCC 741 and in the case of Pritam Ashok
Sadaphule and Others vs. State of Maharashtra and
Another reported in 2015 (11) SCC 769.
12. On the other hand, learned counsel
representing the complainant-Opposite Party No. 2 submits
that the allegations made in the complaint petition and the
deposition of the enquiry witnesses sufficiently indicate the
materials available on the record for taking a prima facie
view and the learned Magistrate has committed no error by
issuing summons to the petitioners.
13. In course of argument, learned counsel
for the complainant-Opposite Party No. 2 has however fairly
submitted to this extent that so far as petitioner Nos. 2 3
are concerned, their cases may be distinguishable with the
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case of petitioner No. 1, and in their case the judgment of
the Hon’ble Supreme Court may perhaps be useful.
14. I have heard learned counsel for the
parties and perused the record. It is apparent from the facts
and circumstances of the present case that, on 15.02.2009,
when the F.I.R. was lodged by the present complainant-
Opposite Party No. 2, giving rise to Bettiah Town P.S. Case
No. 37/2009, no allegation at all was made against petitioner
Nos. 2 3. In the said F.I.R., the entire allegations have been
specifically made against her husband. The complainant-
Opposite Party No. 2 has stated that she was living well with
her husband earlier but for the last about one year he had
started abusing and torturing her. It is apparent from the
F.I.R. that the dispute between the husband and the wife
started about one year prior to lodging of the F.I.R. In the
F.I.R., there is no allegation at all either of demand of dowry
or of causing any provocation by petitioner Nos. 2 3 in the
act of torture allegedly committed by the husband. If the
allegations made in the F.I.R. and the present complaint
petition are considered side by side, it is evident that while
drafting the complaint petition a story has been made out
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against the petitioner Nos. 2 3 vaguely stating that they
were causing provocation to the husband for the offences
alleged and they had done certain acts and omissions which
may bring them within the purview of the offences alleged.
15. To me, it is very clear that allegations
made against petitioner Nos. 2 3 in the complaint petition
are false story and have been made purposely by way of
improvement upon the first version of the complainant, this
was done in order to implicate petitioner Nos. 2 3 who
happened to be the mother and younger brother of
petitioner No. 1.
16. In the facts and circumstances apparent
from the records, I am of the considered opinion that so far
as petitioner No. 1 is concerned, since the entire thrust of
allegations are against him, it is not a fit case for interference
with the order issuing summon as against petitioner No. 1
and the prayer made by him for quashing of the impugned
order is hereby rejected.
17. As has been held hereinabove, the
allegations against petitioner Nos. 2 3 in the complaint
petition are by way of improvement and have been made
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vaguely only subsequently after lodging of the F.I.R. in which
there was no whisper of allegations against them, I am of the
view that the continuance of the proceeding against
petitioner Nos. 2 3 is only be an abuse of the process of
the Court. This view is duly strengthen from the
pronouncement of the Hon’ble Supreme Court in the case of
Geeta Mehrotra (Supra) and the judgment rendered in the
case of Pritam Ashok Sadaphule and Others vs. State of
Maharashtra and Another reported in 2015 (11) SCC 769;
where Hon’ble Supreme Court has been pleased to set aside
the criminal proceedings launched against the close relatives
of the husband on vague allegations.
18. In the result, the order taking cognizance
and issuance of summons in so far as it relates to petitioner
Nos. 2 3 is hereby quashed.
19. This application is, thus, partly allowed.
Rajeev/- (Rajeev Ranjan Prasad, J.)
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 28.11.2017
Transmission Date 28.11.2017
