IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.25832 of 2014
Arising Out of PS.Case No. -148 Year- 2012 Thana -DHAKA District- EAST CHAMPARAN
(MOTIHARI)
1. Anandi Jha @ Anandi Chaudhary wife of Arvind Kumar Choudhary resident of
Parsapatayli District – Mahatairai, Nepal
2. Lalita Devi wife of Achutanand Jha resident of village – Bhandar, P.S. Dhaka,
District – East Champaran
…. …. Petitioner/s
Versus
1. The State of Bihar
2. Archana Devi daughter of late Chedi Thakur and wife of Jitendra Kumar Jha
resident of village – Vishnupur, P.S. Kataha, District – Muzaffarpur
…. …. Opposite Party/s
Appearance:
For the Petitioner/s : Mr. Mrigank Mauli
Mr. Sanket and
Mr. Prince Kumar Mishra, Advocates.
For the State : Mr. Rajendra Singh Shastri, A.P.P.
For the O.P. No. 2 : Mr. Baidyanath Thakur, Advocate.
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 11-10-2017
A show cause has been filed on behalf of the
Superintendent of Police, Motihari.
2. Perused the show cause. For the reasons stated therein,
the show cause is accepted.
3. Heard learned counsel for the petitioners and learned
counsel for Opposite Party no. 2 as well as learned A.P.P. for the
State.
4. The petitioner no. 1 is the Nanad (husband’s sister) and
the petitioner no. 2 is the mother-in-law of the informant-opposite
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party no. 2. Both the petitioners are seeking quashing of the order
dated 04.09.2013 passed by the learned Sub Divisional Judicial
Magistrate, Motihari in Dhaka P.S. Case No. 148 of 2012 by which
the learned Sub Divisional Judicial Magistrate, Motihari has taken
cognizance of the offences under Sections 498A, 323 and 504 read
with Section 34 of the Indian Penal Code and issued summons to the
accused including the present petitioners.
5. Learned counsel for the petitioners at the very first
instance submits that this is a case of malicious prosecution involving
each and every member of the family of the husband of the informant.
He would submit that in the F.I.R., apart from the husband, the father-
in-law, the mother-in-law, the elder brother, the wife of the elder
brother and the married sister (petitioner no. 1), all have been
implicated on the strength of general and omnibus allegations of
demand of dowry leading to act of cruelty. Learned counsel submits
that in fact the father-in-law of the opposite party no. 2 has already
died during pendency of his application for quashing of the order
taking cognizance but a co-ordinate bench of this Court while
considering the quashing application vide Cr. Misc. No. 52624/2013,
filed on behalf of the elder brother and the wife of the elder brother of
the husband, came to a conclusion that it was a case of malicious
prosecution and, accordingly, quashed the impugned order dated
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04.09.2013 as against the petitioners in the said case.
6. Learned counsel has referred the First Information
Report (Annexure-1) wherein it is alleged that the informant was
married to accused Jitendra Kumar (brother of petitioner no. 1 and son
of petitioner no. 2) according to Maithili customs following the
Hindu’s ceremonies on 04.03.2009. It has been alleged that at the time
of marriage, the parents of the informant had, according to their
capacity, spent a sum of rupees ten lakhs on furniture, ornaments,
clothes, etc. The allegation was that the elder brother of the husband
created a number of obstacles in marriage and was demanding one
Alto Car but, later on, with the intervention of the Naihar people of
the informant they agreed to do the Vidai ceremony. It is specifically
alleged thereafter that the accused Jitendra Kumar asked for 15 Bhar
Gold, one Alto Car, one lakh rupees in cash saying that this is the
common decision of the family. She has alleged act of cruelty against
her husband. It is further alleged that when accused no. 1, 2 and 5
came for purpose of Vidai, there also they demanded Gold, Alto Car
and ornaments.
7. Learned counsel has further drawn the attention of this
Court towards the general and omnibus allegations bringing within the
ambit of the allegations vaguely all other family members including
the present petitioners. Learned counsel submits that in fact there is
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not a single word specifically indicating any overt act committed by
these two petitioners. It is his further submission that even in course
of investigation police could not collect any independent material to
substantiate the allegations against these petitioners.
8. By filing a Supplementary Affidavit learned counsel has
brought on record a marriage certificate of the petitioner no. 1
showing that she was married to a Nepali citizen on 09.06.2003 and
thereafter she has adopted / got Nepali citizenship. The marriage
certificate has been issued by Local Development Ministry,
Registration Branch, Government of Nepal. It is her case that after her
marriage she has been residing in Nepal from 2003 onwards but has
been unnecessarily dragged in this case by the opposite party no. 2 on
account of her own dispute with her husband. Learned counsel further
submits that the petitioner no. 2 is an old-aged lady, who has been
implicated in the present case only because she happens to be the
mother-in-law. In the first part of the allegations where the opposite
party no. 2 has alleged demand of dowry, she has made that allegation
only against her husband, the elder brother of the husband and the
father-in-law. The allegation against the elder brother of the husband
has already been disbelieved and the co-ordinate bench of this Court
quashed the case against him.
9. Earlier this Court had called for the case diary which
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has also been received and has been handed over to the learned A.P.P.
for the State. Learned A.P.P. for the State having gone through the
case diary submits that some general and omnibus allegations are
there in the case diary also. No independent witness or any other
material has come on the record to show any active involvement of
these petitioners in the alleged offence.
10. This Court has considered the submissions made at the
Bar. The Court has also perused the judgment of the co-ordinate
bench of this Court in case of Dharmendra Kumar Jha Ors.
(elder brother and his wife) Vs. The State of Bihar Anr., reported
in 2017 (1) PLJR 926. The case against the elder brother and his wife
was quashed as it was found from the unimpeachable documents
brought before the Court that those allegations were false. The co-
ordinate bench has also relied upon two decisions of the Hon’ble
Supreme Court reported in (2008) 13 SCC 678 and (2012) 10 SCC
741. The relevant paragraphs are quoted hereunder:
“14. The learned counsel for the petitioners has cited order of
the Hon’ble Supreme Court reported in Para Para 22 of
(2008) 3 SCC 678 as follows:
“Ordinarily, a defence of an accused although appears
to be plausible should not be taken into consideration
for exercise of jurisdiction under Section 482. The High
Court at that stage would not ordinarily enter into a
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disputed question of fact. It, however, does not mean
that documents of unimpeachable character should not
be taken into consideration at any cost for the purpose
of finding out as to whether continuance of the criminal
proceedings would amount to an abuse of the process of
court or that the complaint petition is filed for causing
mere harassment to the accused. Although a large
number of disputes should ordinarily be determined
only by the civil courts, but criminal cases are filed only
for achieving the ultimate goal, namely, to force the
accused to pay the amount due to the complainant
immediately. The courts on the one hand should not
encourage such a practice; but, on the other, can not
also travel beyond its jurisdiction to interfere with the
proceeding which is otherwise genuine. The courts
cannot also lose sight of the fact that in certain matters,
both civil proceedings and criminal proceedings would
be maintainable.”
“16. The Hon’ble Supreme Court in a decision reported in
Paras 14,15, 18 to 20 and 24 to 28 of (2012) 10 SCC 741 has
come to a conclusion that:
“Though the contents of the complaint made out a
prima facie case against the husband of Respondent 2
wife and some other family members, but no such case
was made out against the appellant-accused. There
were no specific allegations against the appellant-
accused (sister and brother of the husband) so as to
make them liable for bickering between Respondent 2
Patna High Court Cr.Misc. No.25832 of 2014 dt.11-10-20177/8
wife and her husband. There was no specific allegation
against the appellant-accused that they demanded any
dowry from Respondent 2. Casual reference to a large
number of members of the husband’s family without any
allegation of active involvement would not justify taking
cognizance against them and subjecting them to trial.
Respondent 2 wife had obtained an ex parte divorce
decree against her husband. This was also a relevant
fact. Under these conditions, the High Court erred in
not considering the entire circumstances of the case
with regard to the appellant-accused. It disposed of the
matter only on the issue of territorial jurisdiction
without even looking at the other issues raised. Though
it was justified in not deciding the issue of territorial
jurisdiction under Section 482 Cr.P.C. but it failed to
apply its mind to the case and determine whether the
appellant-accused be subjected to trial. The High Court
ought to have considered that even if the trial court had
the jurisdiction to hold the trial, the question still
remained as to whether the trial against the appellant
brother and sister of the husband was fit to be continued
and whether that would amount to abuse of process of
court. As the contents of the FIR indicated that the
appellant-accused were casually referred to and no
prima facie case was made out against them, in the
absence of specific allegations, criminal proceedings
against them are quashed without remanding the matter
to High Court for reconsideration.”
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11. In view of the unimpeachable materials on the record
showing that the petitioner no. 1 is a married citizen of Nepal and is
living there since the year 2003 after her marriage with her husband
Arvind Kumar Chaudhary and that in the F.I.R. also there is no
specific allegation of commission of any overt act against her as also
that there is no specific allegation of over act against the mother-in-
law and the demand of dowry is not attributed to her, this Court
comes to a definite conclusion that this a case of false implication of
each and every member of the family of the husband and, that is how,
these two petitioners came to be implicated in the present case. The
Court is of the view that further continuance of the prosecution
against these two petitioners would only be an abuse of the process of
Court.
12. In above view of the matter the order taking
cognizance and issuance of summons insofar as it relates to the
present petitioners is hereby quashed.
13. The application is allowed to the extent indicated
above.
(Rajeev Ranjan Prasad, J)
Dilip/-
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 12.10.2017
Transmission 12.10.2017
Date
