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Binod Lal Das And Ors vs State Of Bihar And Anr on 20 September, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.4306 of 2015
Arising Out of PS. Case No.-56 Year-2014 Thana- MADHEPURA COMPALINT CASE
District- Madhepura

1. Binod Lal Das son of Late Jai Narayan Lal Das

2. Manoj Kumar @ Manoj Kumar Mani son of Binod Lal Das

3. Sunita Devi wife of Binod Lal Das All resident of village – Nagar Panchayat
Murliganj, Ward No. 10, Police Station – Murliganj, District – Madhepura.

… … Petitioner/s
Versus

1. State Of Bihar

2. Kumari Archana Daughter of Surendra Lal Yadav resident of Village
Mohalla Satsang Vihar, Ward No. 07, Nagar Panchayat Murliganj, Police
Station – Murliganj, District Madhepura.

… … Opposite Party/s

with
CRIMINAL MISCELLANEOUS No. 10905 of 2015
Arising Out of PS. Case No.-56 Year-2014 Thana- MADHEPURA COMPALINT CASE
District- Madhepura

Mukesh Kumar son of Binod Lal Das, Resident of village- Nagar Panchayat
Murliganj, Ward No. 10, P.S.- Murliganj, District- Madhepura

… … Petitioner/s
Versus

1. State Of Bihar

2. Kumari Archana daughter of Surendra Lal Yadav Resident of village/
Mohalla- Satsang Vihar, Ward No. 07, Nagar Panchayat Murliganj, P.S.-
Murliganj, District- Madhepura

… … Opposite Party/s

Appearance :

(In CRIMINAL MISCELLANEOUS No. 4306 of 2015)
For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Sr. Adv
: Mr.Shekhar Kumar Singh, Adv
: Mr. Rupesh Kumar, Adv
For the O.P.No.2 : Mr. Shailendra Kumar Singh, Adv
For the State : Mr.Asha Devi,APP
(In CRIMINAL MISCELLANEOUS No. 10905 of 2015)
For the Petitioner/s : Mr. Baxi S.R.P. Sinha, Sr. Adv
: Mr.Shekhar Kumar Singh, Adv
: Mr. Rupesh Kumar, Adv
For the O.P.No.2 : Mr. Shailendra Kumar Singh, Adv
For the State : Mr.Dashrath Mehta, APP
Patna High Court CR. MISC. No.4306 of 2015 dt.20-09-2019
2/5

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 20-09-2019
Heard learned counsel for the parties in both the

applications.

2. Petitioners are husband and other relations of

opposite party No.2. In both the applications under Section 482

Cr.P.C., the petitioners have sought for quashment of order dated

17.12.2014 passed by the learned S.D.J.M., Madhepura in

Complaint Case No.56 of 2014 whereby the petitioners have been

asked to face trial for offences under Section 498A I.P.C. only.

3. According to complaint petition, opposite party

No.2 was married with petitioner-Mukesh Kumar on 29.06.2012 in

a Shiv Tample. The parents of the complainant had gifted to the

petitioners as per their capacity but the family members were not

happy with the gift and they were demanding dowry. The demand

was of Rs.Ten Lacs for constructing a house. The parents of

opposite party No.2 paid Rs.Five Lacs for that purpose and Rs.

Five Lacs was utilized for construction of a house at Murliganj

Satsang Vihar but the accused person were still demanding the

ramaining Rs.Five Lacs and for non-payment of further Rs. Five

Lacs, there is allegation of abuse and assault.

4. Submission is that each and every demand does not

fall within the mischief of unlawful demand as explained in
Patna High Court CR. MISC. No.4306 of 2015 dt.20-09-2019
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Section 498A I.P.C. The demand alleged was not as a

consideration of marriage rather was for fulfillment of some

family requirement.

5. Learned counsel for opposite party No.2 submits

that prima facie ingredient of the offence alleged is made out in

the complaint petition and has been supported by the witnesses at

the time of enquiry under Section 202 Cr.P.C. and once the

Magistrate applied its mind and asked the petitioners to face trial

this Court should not substitute its own views unless the view of

the Magistrate is perverse one.

The probable defence of the accused cannot be

looked into at this stage. Reliance has been placed on Sonu Gupta

Vs. Dipak Gupta, reported in (2015) 3 SCC 424, case of Md.

Allauddin Khan Vs. The State of Bihar Ors, reported in

2019(2)PLJR (SC)323 and case of Rakhi Mishra Vs. State of

Bihar Ors, reported in 2017(4)PLJR (SC)21.

6. There is no dispute with the proposition that at the

stage of taking cognizance, the Magistrate is required to see

whether the offences alleged are prima facie disclosed. There is no

dispute that probable defence of the accused cannot be looked into

at the stage of defence rather that can be looked into at the

appropriate stage of the trial only. However, the question before
Patna High Court CR. MISC. No.4306 of 2015 dt.20-09-2019
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this Court is whether the alleged demand was an unlawful demand.

Same question was there before a Division Bench of the Hon’ble

Jharkhand High Court in Saro Bano Ors Vs. The State of

Jharkhand, reported in 2005 Cri. L.J.65. Though that was an

appeal against conviction, however, the nature of the demand

alleged was of money for construction of the house and the

Hon’ble Jharkhand High Court held that the demand was not a

dowry demand as defined under Section 2 of the Dowry

Prohibition Act.

7. In Vipil Jaiswal Vs. State of Andhra Pradesh,

reported in (2013)3 PLJR (SC) 91, money demanded from the

family members of wife was for purchase of a computer and

setting up own business. The case was again an appeal against

conviction and the Hon’ble Supreme Court held that the demand

was not a dowry demand as defined in Section 2 of the Dowry

Prohibition Act, 1961.

8. In the case of Appasaheb Anr. Vs. State of

Maharashtra, reported in 2007 AIR SCW 456, the demand of

money was for meeting urgent financial need of the family and for

meeting urgent domestic expenses. The Hon’ble Supreme Court

held that it was not a dowry demand.

Patna High Court CR. MISC. No.4306 of 2015 dt.20-09-2019
5/5

9. Apparently, the demand alleged against the

petitioners was for construction of a house which was not a dowry

demand or unlawful demand. Hence, the basic ingredient for

offence under Section 498A I.P.C. is missing in this case.

Therefore, the criminal prosecution of the petitioners would

amount to abuse of the process of the Court.

10. Accordingly, the impugned order and entire

criminal prosecution stands quashed and both the applications are

allowed.

(Birendra Kumar, J)

Nitesh/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 23.09.2019
Transmission Date 23.09.2019

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