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Bhawanand Mishra @ Dilip Mishra And Ors vs State Of Bihar And Anr on 15 February, 2024

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Patna High Court

Bhawanand Mishra @ Dilip Mishra And Ors vs State Of Bihar And Anr on 15 February, 2024

Author: Chandra Shekhar Jha

Bench: Chandra Shekhar Jha

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.34417 of 2015
Arising Out of PS. Case No.-1104 Year-2014 Thana- KHAGARIA COMPALINT CASE
District- Khagaria

1. Bhawanand Mishra @ Dilip Mishra Son of Late Chandranand Mishra @
Kailu Mishra,
2. Sidhyanand Mishra, S/o Late Chandranand Mishra @ Kailu Mishra,
3. Bandana Devi @ Bandana Mishra W/o BhawanandMishra @ Dilip Mishra,
4. Bindwasini Devi, W/o Late Chandranand Mishra @ Kailu Mishra, null
5. Lalanand Mishra, S/o Late Chandranand Mishra @ Kailu Mishra,
6. Soni Devi @ Soni Mishra, W/o Lalanand Mishra, All resident of Kharaiya
Basti, Ward No. 13, P.S. and District – Araria.

… … Petitioner/s
Versus
1. State of Bihar
2. Rambha Devi, W/o Late Vidhyanand Mishra, Resident of Village -Kharaiya
Basti, Ward No. 13, P.S. and District – Araria At present Rambha Devi, D/o
Late Mohan Mishra, Resident of B.K.P., 16 B, South Railway Coloney, P.S.
and District -Khagaria.

… … Opposite Party/s

Appearance :
For the Petitioner/s : Mr.Anil Prasad Singh
For the Opposite Party/s : Mr.Vinod Shankar Modiapp

CORAM: HONOURABLE MR. JUSTICE CHANDRA SHEKHAR JHA
ORAL JUDGMENT

Date : 15-02-2024
Heard the parties.

2. The present application has been filed for quashing

of the order dated 08.12.2014 passed by the learned S.D.J.M.,

Khagaria arising out of Complaint Case No. 1104(C) of 2014

whereby and whereunder the learned court was pleased to take

cognizance for the offence under Section 498A of the Indian

Penal Code (in short I.P.C.) and also under Section 3 and 4 of the

Dowry Prohibition Act.

Patna High Court CR. MISC. No.34417 of 2015 dt.15-02-2024
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3. From the crux of the compliant petition, which is

filed on 25.09.2014, before the learned trial court, it appears that

marriage of opposite party no. 2 was solemnized on 10.03.2003

with son of the petitioner no. 4 namely, late Vidhyanath Mishra

as per Hindu Rights and Rituals.

4. As per the narration of complaint case, it appears

that the demand of dowry started to raise from year 2006 itself

for which a complaint case was lodged in the year 2011, where

husband of the complainant was also arrayed as a party, which is

still pending before trial court. It appears that in the year 2013,

the husband of the opposite party no. 2 died due to illness and,

thereafter, in the year 2014, the present complaint case was filed

by opposite party no. 2 against the petitioners alleging for

demand of a motorcycle only.

5. It is submitted by learned counsel appearing on

behalf of the petitioners that the present complaint case was

lodged only with a view to settle the family partitions by creating

legal pressures, where petitioner no. 1, 2 and 5 are brothers-in-

law, whereas petitioner no. 3 and 6 are sisters-in-law and

petitioner no. 4 is mother in law. It is submitted that the

complaint which filed in the year 2011 was compromised but,

due to death of husband of opposite party no. 2, same was not
Patna High Court CR. MISC. No.34417 of 2015 dt.15-02-2024
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finally disposed before the court of law. It is submitted that

demand of Rs. 35,000/- as raised through earlier compliant

petition appears to be seized in the present complaint petition

where demand is specifically made regarding motorcycle only. It

is submitted that both sons of opposite party no. 2 are now living

separately with share of his late father/the husband of opposite

party no. 2. It is further submitted that Jamabandi of homestead

land also created in favour of both sons of opposite party no. 2,

namely Kanhaiya Kumar Mishra and Raja Kumar Mishra. It is

pointed out that for the partition of remaining agricultural land,

present false and malicious prosecution was lodged by opposite

party no. 2.

6. It is submitted by learned counsel appearing on

behalf of the complainant/opposite party no. 2 that the opposite

party no. 2 dispossessed from the property belongs to the share of

her husband. It is submitted that when she visited her in-laws

home, she was assaulted and she was treated at Sadar Hospital,

Araria on 03.09.2014, thereafter, she was referred to Sadar

Hospital, Purnea, where she was treated on 07.09.2014 and

further thereafter she went to Khagaria, where she was under

treatment of private doctor when present complaint was lodged.
Patna High Court CR. MISC. No.34417 of 2015 dt.15-02-2024
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7. It would be apposite in this context to reproduce

para 102 of the judgment of Hon’ble Supreme Court rendered I

the case of State of Haryana v. Bhajan Lal, reported in 1992

Supp (1) SCC 335:-

“102. In the backdrop of the interpretation
of the various relevant provisions of the Code under
Chapter XIV and of the principles of law enunciated
by this Court in a series of decisions relating to the
exercise of the extraordinary power under
Article 226
or the inherent powers under Section 482 of the Code
which we have extracted and reproduced above, we
give the following categories of cases by way of
illustration wherein such power could be exercised
either to prevent abuse of the process of any court or
otherwise to secure the ends of justice, though it may
not be possible to lay down any precise, clearly
defined and sufficiently channelised and inflexible
guidelines or rigid formulae and to give an exhaustive
list of myriad kinds of cases wherein such power
should be exercised.

(1) Where the allegations
made in the first information report or
the complaint, even if they are taken at
their face value and accepted in their
entirety do not prima facie constitute
any offence or make out a case against
the accused.

(2) Where the allegations in
the first information report and other
materials, if any, accompanying the FIR
do not disclose a cognizable offence,
justifying an investigation by police
officers under Section 156(1) of the
Code except under an order of a
Magistrate within the purview of Section
155(2) of the Code.

(3) Where the
uncontroverted allegations made in the
FIR or complaint and the evidence
Patna High Court CR. MISC. No.34417 of 2015 dt.15-02-2024
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collected in support of the same do not
disclose the commission of any offence
and make out a case against the
accused.

(4) Where, the allegations in
the FIR do not constitute a cognizable
offence but constitute only a non-

cognizable offence, no investigation is
permitted by a police officer without an
order of a Magistrate as contemplated
under Section 155(2) of the Code.

(5) Where the allegations
made in the FIR or complaint are so
absurd and inherently improbable on the
basis of which no prudent person can
ever reach a just conclusion that there is
sufficient ground for proceeding against
the accused.

(6) Where there is an
express legal bar engrafted in any of the
provisions of the Code or the concerned
Act (under which a criminal proceeding
is instituted) to the institution and
continuance of the proceedings and/or
where there is a specific provision in the
Code or the concerned Act, providing
efficacious redress for the grievance of
the aggrieved party.

(7) Where a criminal
proceeding is manifestly attended with
mala fide and/or where the proceeding is
maliciously instituted with an ulterior
motive for wreaking vengeance on the
accused and with a view to spite him due
to private and personal grudge.”

8. Taking note of the version of complaint petition

dated 25.09.2014 on its face and also by considering the

submissions as advanced by learned counsels appearing on

behalf of the parties, it appears prima facie that core issue is the

partition dispute related with the ancestral properties, where the
Patna High Court CR. MISC. No.34417 of 2015 dt.15-02-2024
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present case was only appears to create legal pressure. It appears

non-convincing that the family members immediately after the

death of husband of opposite party no. 2 will raise a demand for

motorcycle after fourteen years of marriage. The demand of cash

as raised in earlier complaint of year 2011 also appears to seize in

the present complaint petition. The narration and fact of the

complaint petition indicating the present prosecution as a

malicious prosecution with ulterior motive and, therefore, the

order of cognizance dated 08.12.2014 passed by the learned

S.D.J.M., Khagaria arising out of Complaint Case No. 1104(C) of

2014 in Compliant Case No. 1104(C) of 2014 with all its

consequential proceeding is hereby quashed and set aside.

9. Accordingly, present petition stands allowed.

10. It is made clear that this order is of no bearing over

pending compliant case No. 925(C) of 2011, as same is not under

challenge with present petition.

(Chandra Shekhar Jha, J)
amitkr/-

AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 17.02.2024
Transmission Date 17.02.2024

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