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Baiju Prasad Gupta vs The State Of Bihar Through Chief … on 8 January, 2020

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Writ Jurisdiction Case No.3297 of 2018
Arising Out of PS. Case No.- Year- Thana- District-

Baiju Prasad Gupta S/o Late Funnu Lal, R/o A.N. Road, Murarpur, P.S.-
Kotwali, Gaya, District- Gaya.

… … Petitioner
Versus

1. The State Of Bihar through Chief Secretary, Government Of Bihar, Patna.

2. The Chief Secretary, Government of Bihar, Patna.

3. The Home Secretary, Government of Bihar, Patna.

4. The Director General of Police, Government of Bihar, Patna.

5. The Inspector General of Police, Government of Bihar, Patna.

6. The Deputy Inspector General of Police , Government of Bihar, Magadh
Range, Gaya.

7. Mr. Vinay Kumar, the Deputy Inspector General of Police, Government of
Bihar, Magadh Range, Gaya.

8. The Senior Superintendent of Police, Gaya.

9. The Superintendent of Police, Gaya.

10. The Sub-Divisional Officer, Sadar Gaya, Gaya.

11. The S.H.O. Kotwali P.S., Gaya.

12. Mr. Ajay Kumar, the S.H.O. Kotwali P.S., Gaya.

13. Mr. Shekhar Sah, S/o unknown, R/o Kila Road, Patna City, P.S.- Chowk,
Patna.

14. Priyanka Rani @ Neha Gupta, D/o Shekhar Sah, S/o unknown, R/o Kila
Raod , Patna City, P.S.- Chowk, Patna.

… … Respondents

with
Criminal Writ Jurisdiction Case No. 576 of 2019
Arising Out of PS. Case No.-573 Year-2018 Thana- GAYA KOTWALI District- Gaya

Priyanka Rani @ Neha Gupta Wife of Gaurav Kumar, Daughter of Shekhar
Kumar, Resident of Mohalla-Kaila Road, Patna City-Patna. At present
residing at Anurudh Narayan Road, Near Dr. Vijay Jain, P.S-Kotwali, District-
Gaya, Pin-823001
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
2/15

… … Petitioner
Versus

1. The State of Bihar through the Principal Secretary, Home Department,
Bihar, Patna Patna

2. The Director General of Police, Old Secretariat, Patna.

3. The Inspector General of Police, Patna, Bihar.

4. The Senior Superintendent of Police, District-Gaya.

5. The S.H.O., Kotwali Police Station, District-Gaya.

6. Gayatri Devi Wife of Baiju Prasad @ Baiju Prasad Gupta (Mother-in-law of
petitioner) Resident of Anugrah Narayan Road, P.S-Kotwali, District-Gaya.
At present residing at Baiju Prasad Sona Chandi Dukhan, Baiju Bhushnalai
Chowk, Sarafa Road,Gaya.

7. Baiju Prasad @ Baiju Prasad Gupta Son of Late Funni Lal (Father-in-law of
petitioner). Resident of Anugrah Narayan Road, P.S-Kotwali, District-Gaya.
At present residing at Baiju Prasad Sona Chandi Dukhan, Baiju Bhushnalai
Chowk, Sarafa Road,Gaya.

8. Barun Kumar Son of Baiju Prasad @ Baiju Prasad Gupta (Dever of the
petitioner). Resident of Anugrah Narayan Road, P.S-Kotwali, District-Gaya.
At present residing at Baiju Prasad Sona Chandi Dukhan, Baiju Bhushnalai
Chowk, Sarafa Road,Gaya.

… … Respondents

Appearance :

(In Criminal Writ Jurisdiction Case No. 3297 of 2018)
For the Petitioner : Mr. Y. V. Giri, Sr. Advocate
Mr. Sanjeev Kumar, Advocate
Mr. Rajeev Shekhar, Advocate
For the Respondent/State: Mr. Md. Iqbal Asif Niazi, AC to GP-5
For private respondent : Mr. Anand Kumar @ Bipin Kumar @ Deo,
Advocate
(In Criminal Writ Jurisdiction Case No. 576 of 2019)
For the Petitioner : Mr.Dr. Anand Kumar, Advocate
For State : Mr. Md. Iqbal Asif Niazi, AC to GP-5
For Private respondent : Mr. Y. V. Giri, Sr. Advocate
Mr. Rajeev Shekhar, Advocate

CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH
CAV JUDGMENT
Date : 08-01-2020
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
3/15

Both the cases have common set of facts with claim

and counter claims. Hence, they are being heard together and

are being disposed of by a common order.

2. There exits a dispute between the father-in-

law Baiju Prasad Gupta (petitioner in CrWJC No.3297 of 2018)

and the daughter-in-law Priyanka Rani (petitioner in CrWJC

No.576 of 2019).

3. The contention of the father-in-law is that his

elder son, namely, Gaurav Kumar had married Priyanka Rani @

Neha Gupta in the year 2015. His son and daughter-in-law used

to live in his house. Later on, his son got involved in bad

company. He took loan from others in his name. He persuaded

his son Gaurav Kumar to improve his actions but his misdeed

kept on increasing. Being infuriated by such misdeed, he

partitioned the properties amongst his sons and wife and himself

in the year 2017. From then onwards, his son Gaurav Kumar

and his wife used to live separately and they had no connection

with his house. Later on, his son abandoned his wife also and

his wife used to live with her parents in Patna City. When he

along with his family members came to Patna for medical

checkup, Kotwali Police Station Case No. 573 of 2018 dated

15.12.2018 was registered against them by his daughter-in-law.
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
4/15

His further case is that on 18.12.2018, the DIG, Magadh Range,

Gaya, who is relative of his daughter-in-law directed the SHO to

break his house and the SHO along with SDO and local goons

broke his house and allowed his daughter-in-law to enter inside

the house in his absence in the name of providing justice to his

daughter-in-law.

4. On the other hand, the daughter-in-law

submitted a written report to the Officer-in-Charge, Kotwali

Police Station, Gaya on 15.12.2018 alleging therein that her

marriage was solemnized with Gaurav Kumar on 9 th December,

2015 as per Hindu rites and rituals at Mahabodhi Restaurant,

Bodh Gaya. At the time of marriage, her father had given bullet

motorcycle and several other articles in gift. She was blessed

with a daughter out of the wedlock aged one year. She was

being subjected to cruelty since the date of her marriage by her

husband and in-laws. On 15.12.2018, when she came with her

daughter to Gaya from her Maike, her father-in-law

misbehaved with her and pushed her out of the matrimonial

home. He said that unless she brings Rs.3 crores, she would not

be allowed to enter inside the house. She has further alleged that

her brother-in-law wanted to establish physical relationship with

her. He always used to say that since her husband has neglected
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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her, she should establish physical relation with him. She has

further alleged that her husband was maintaining extra marital

relation with another girl, namely, Soni Kumari and on protest

he used to assault her. She also alleged that on 16.09.2016, her

husband and in-laws got her seven months old pregnancy

terminated without her consent.

5. On the basis of the aforesaid written report,

Gaya (Kotwali) P. S. Case No. 573 of 2018 dated 15.12.2018

was registered inter alia under Sections 313 and 498A of the

Indian Penal Code and Sections 3 and 4 of Dowry Prohibition

Act against Gaurav Kumar, Baiju Prasad Gupta and others and

investigation was taken up.

6. In the background of facts stated above, the

father-in-law Baiju Prasad Gupta filed CrWJC No.3297 of 2018

seeking the following reliefs:-

“(a) To issue a writ in the nature of
direction commanding the respondents to
restrain from perpetuating illegality by
breaking the house and inflicting harms on
the property of the petitioner and after
issuance of such restraint order, issuance of
directions directing the respondents to
evacuate the house from persons who have
forcibly entered into the house with the aid
and help of respondent nos. 6, 7, 10, 11 and
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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12 and local goons.

(b) Consequent upon issuance of the
above direction, issuance of direction to set
up an inquiry preferably by CBI into the
action of the respondents nos.6, 7, 10, 11
12 and payment of compensation to the
petitioner for losses suffered on account of
illegalities perpetuated by respondent nos. 6,
7, 10, 11 and 12.

(c) To any other relief or reliefs to which
the petitioner is entitled in the facts and
circumstances of the case.”

7. Similarly, the daughter-in-law Priyanka Rani

@ Neha Gupta has also filed a writ petition vide CrWJC No.576

of 2019 seeking the following reliefs:-

“(i) For direction to the respondent
Authority to restrain the respondent no. 6 to 8
not to evict the petitioner forcibly and to
provide protection to the petitioner as well as
her children as threatening is being given by
the accused persons (respondent no.6 to 8) to
oust them form in law’s house or to kill her.

(ii) To allow others suitable
reliefs(s) in facts and circumstances of the
case.”

8. For the sake of convenience, the father-in-

law will be referred to hereinafter as ‘the petitioner’ and the
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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daughter-in-law will be referred to hereinafter as ‘the

respondent’.

9. The issues for consideration before this

Court in these cases are :

(I) Whether or not this Court can issue

direction to the daughter-in-law and grand

daughter of the petitioner to evacuate the

house of the petitioner under criminal writ

jurisdiction ?

(II) Whether or not direction can be issued

to the State and the police authorities for

payment of compensation to the petitioner

for loss suffered by the petitioner?

(III) Whether or not a direction can be

issued to the State authorities to restrain the

petitioner and his family members not to

evict the respondent forcibly and provide her

and her daughter police protection?

10. A submission has been advanced by Mr. Y.V.

Giri, learned senior advocate for the petitioner that the

petitioner had partitioned his property and provided a home to

his daughter-in-law and his son. He had discharged his duties.
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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His son and the respondent used to live separately and he does

not maintain any relation with the household of his son and the

respondent. He has contended that subsequently, the petitioner’s

son had abandoned his wife also and his wife used to live with

her parents at Patna City. The house in question belongs to the

petitioner and the forcible entry of the respondent was

facilitated by the police by forcible unfastening of the lock of

the house. The action of the police was wholly arbitrary, illegal

and unjust. They have committed a culpable offence by breaking

open the house.

11. Per contra, an argument has been advanced

by Dr. Anand Kumar, learned advocate for the respondent that

the respondent being the daughter-in-law of the petitioner has all

the rights to reside in the shared household of her husband. The

claim of partition of the family property by the petitioner is

fake. He has submitted that the mother-in-law of the respondent

has filed Title Suit No.841 of 2018 before the learned Sub-

Judge-1st, Gaya to declare that the plaintiff has valid and legal

title to the land and property described in Schedule-1 (अनु चछे द-

ख). The respondent and her daughter has filed intervention

petition in the said title suit, which is pending. The respondent

and her daughter have also filed a Title Partition Suit No. 101 of
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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2019 in the court of Civil Judge, Senior Division 1st, Gaya for

partition of the joint Hindu property which too is pending.

12. He submitted that on 18.12.2018, when the

respondent went to her matrimonial home with one year old

baby in her lap, the same was locked from outside. She filed an

application in the Kotwali Police Station Gaya requesting the

police to help her to get inside the house. Since she was carrying

a one year old child in her lap and exposure to extreme cold in

the month of December could have life threatening to an infant,

the police officials helped her and her daughter to get inside the

house.

13. The petitioner has pleaded that he has

suffered loss on account of breaking of his house. He has

prayed that he should be compensated for the loss caused by

vandalism by the police officials in collusion with the

respondent.

14. The Senior Superintendent of Police, Gaya

has stated in his counter affidavit that the police did not enter

into the house, but only helped a lady with a one-year child in

her lap to get inside the house in pick winter and extreme cold.

15. Having heard respective parties and carefully

perused the record, I find that the writ petition bearing CrWJC
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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No.3297 of 2018 filed by the petitioner involves disputed

questions of fact.

16. By now, it is well settled that a writ petition

which involves serious disputed questions of facts, which would

require consideration of evidence, which are not on record

should not normally be entertained.

17. In the case of Harnath Rathi vs. State of

Hyderabad [AIR 1958 AP 222], the High Court of Andhra

Pradesh took a view that where complicated questions of fact

have to be determined, the High Court will not turn itself into a

trial court and determine those questions of fact. It observed :

“Although very large powers are
conferred on the High Courts under Article
226, the exercise of those powers is not
without limitations, because the courts
themselves have laid down certain principles
limiting the exercise of that power in certain
cases such as that the High Court will not
convert itself into a court of appeal on merits
unless the decision is erroneous on the face of
the record, and in matters involving the use of
discretion and judgment entrusted to an
authority by law, it will not direct that
authority to pass orders or itself pass orders
on merits, or where complicated questions of
fact have to be determined, it will not turn
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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itself into a trial Court and determine those
questions of fact or investigate title, nor will it
issue ineffective writs.”

18. In the case of State of Orissa vs. Dr.(Miss.)

Binapani Dei Ors. [AIR 1967 SC 1269], the Supreme Court

took a similar view and did not interfere with exercise of

discretion of Orissa High Court where the High Court refused to

delve into questions of fact.

19. In the case of Mahant Moti Das vs. S.P.

Sahi [AIR 1959 SC 942], the Supreme Court observed :

“… whether the trusts are public or
private trusts or the properties are private or
trust properties are questions which involve
investigation of complicated facts and
recording of evidence and such investigation
could not be done on writ proceedings….”

20. In the matter of Union of India vs. T. R.

Varma [1958 SCR 499], the Supreme Court observed that

where there is a serious dispute, which cannot be satisfactorily

decided without taking evidence, it is not the practice of Courts

to decide such questions in a writ petition.

21. Whether this Court in exercise of extra-

ordinary jurisdiction under Article 226 can issue direction to the
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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respondent and her daughter to evacuate the house would

depend on the question of fact that whether or not, they have a

right to live in the house. This question of fact has to be decided

by an appropriate court after taking evidence of both sides. A

title suit and a title partition suit relating to property in question

are already pending before the subordinate court. Unless the

issue is decided on the basis of evidence, no order can be issued

to disturb the status quo.

22. The respondent has argued that she being the

daughter-in-law and her daughter have all the rights to live in

the shared household of her husband.

23. In the opinion of this Court, the question of

fact, being disputed and complex in nature, the action of the

police in helping the respondent with one year old child in her

lap in getting inside the house in the month of December when

the exposure of cold could have proved fatal to the infant cannot

be held to be illegal, arbitrary or unjust.

24. Whether or not, the petitioner has suffered

any loss is also a question of fact and would mainly depend on

the question whether the respondent and her daughter have right

in the household or not, which is yet to be decided in the court

where the suit for partition is pending.
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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25. Moreover, the allegation of vandalism is not

admitted and has not been substantiated with any evidence.

26. Therefore, before the above questions of fact

are decided by the court of competent jurisdiction where the

suits are pending, there is no ground for allowing the petition

filed by the petitioner.

27. Accordingly, CrWJC No. 3297 of 2018 filed

by the petitioner is dismissed.

28. As far as the relief prayed for by the

respondent in her writ petition vide CrWJC No.576 of 2019 is

concerned, it would be relevant to note that in the Domestic

Violence Act, the wife acquires a right of residence.

29. In the case of Vimlaben Ajitbhai Patel vs.

Vatslaben Ashokbhai Patel Ors. [(2008) 4 SCC 649], the

Supreme Court held :

“The Domestic Violence Act provides
for a higher right in favour of a wife. She not
only acquires a right to be maintained but
also thereunder acquires a right of residence.
The right of residence is a higher right. The
said right as per the legislation extends to
joint properties in which the husband has a
share.”

30. Also, in the case of S.R. Batra Anr. vs.
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
14/15

Taruna Batra (Smt) [(2007) 3 SCC 169], the Supreme Court

held :

“As regards Section 17(1) of the Act, in
our opinion the wife is only entitled to claim a
right to residence in a shared household, and a
shared household would only mean the house
belonging to or taken on rent by the husband,
or the house which belongs to the joint family
of which the husband is a member. ….”

31. Keeping in mind the facts and circumstances

of the case, as discussed hereinabove, as it stands admitted by

the petitioner Baiju Prasad Gupta that the respondent daughter-

in-law Priyanka Rani @ Neha Gupta with her one year old child

is living in the house since 18.12.2018, the Senior

Superintendent of Police, Gaya and the SHO, Kotwali Police

Station Gaya are directed to provide protection to the

respondent and her daughter so that the petitioner or his

relatives may not forcibly evict them from the house wherein

they are presently living with the petitioner.

32. With the aforesaid observation, CrWJC No.

576 of 2019 stands disposed of.

33. Before parting, it is made clear that this

Court has not decided right or title of the parties in respect of
Patna High Court CR. WJC No.3297 of 2018 dt. 08-01-2020
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the property in question, which is to be determined by the court

of competent jurisdiction in accordance with law in an

appropriate proceeding. Any observation made by this Court in

these writ petitions shall not prejudice the court below in any

proceeding pending between the parties.

34. Registry is directed to transmit a copy of the

order to the Senior Superintendent of Police, Gaya.

(Ashwani Kumar Singh, J)

kanchan/-

AFR/NAFR NAFR
CAV DATE 06.01.2020
Uploading Date 09.01.2020
Transmission Date 09.01.2020

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