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
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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
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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
