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Binod Malakar & Ors vs State Of Bihar & Anr on 14 March, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.43697 of 2013
Arising Out of PS.Case No. -32 Year- 2012 Thana -KATIHAR COM PLAINT CASE District-
KATIHAR

1. Binod Malakar Son of Rajendra Prasad Resident of Village – Vidya Nagar,
Brahman Tola, P.S. – Katihar Sahayak, District – Katihar

2. Shobha Devi @ Fekani Devi Wife of Binod Malakar Resident of Village – Vidya
Nagar, Brahman Tola, P.S. – Katihar Sahayak, District – Katihar

3. Raj Kumar Malakar @ Munna Kumar Malakar Son of Binod Malakar Resident
of Village – Vidya Nagar, Brahman Tola, P.S. – Katihar Sahayak, District – Katihar

…. …. Petitioner/s
Versus

1. The State of Bihar

2. Kumari Veena Daughter of Sudhir Malakar Resident of Village – Chakla Maula
Nagar, P.S. – Falka, District – Katihar

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Bimal Kumar
For the Opposite Party/s : Mr. Shakir Ahmad, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
C.A.V. JUDGMENT
Date: 14-03-2018

Heard learned counsel for the petitioners and the

State.

2. Petitioners, by means of this application under

section 482 of the Code of Criminal Procedure, have invoked the

inherent jurisdiction of this Court with prayer to quash the order dated

02.08.2012 passed by the learned Judicial Magistrate, 1st Class,

Katihar in C.A. Case No. 32 of 2012, whereby cognizance has been

taken against the petitioners for the offence under section 498A of the

Indian Penal Code and issued process against them.
Patna High Court Cr.M isc. No.43697 of 2013 dt.14-03-2018

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3. Submission of learned counsel for the petitioners is

that petitioners, who are father-in-law, mother-in-law and husband of

the complainant respectively, have falsely been implicated in the

present case. As a matter of fact, no offence against the petitioners is

disclosed and the present prosecution has been instituted with mala

fide intention for the purposes of harassment. The alleged marriage

was solemnized on 22.11.2009. After one month of the marriage, the

complainant left her Sasural. When petitioner no.3/husband was going

to his Sasural for Bidagiri of the complainant, he met with an accident

and sustained severe head injury. He became senseless and was

admitted in K.M.C.H., Katihar, fromwhere he was referred to Sadar

Hospital, Purnea and thereafter, to Paramount Hospital, Siliguri.

4. Further, learned counsel for the petitioners submits

that somehow life of the husband of the complainant was saved but

due to accident, his face and right leg got badly damaged, which is

evident from Annexure-2. It is further submitted that while the

husband of the complainant was under treatment and was fighting for

his life, the complainant on her own left the matrimonial house and

deserted her husband.

5. Learned counsel further submits that petitioners are

always ready keep the complainant with full honour and dignity. But

it is the complainant, who does not want to live with her husband. As
Patna High Court Cr.M isc. No.43697 of 2013 dt.14-03-2018

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a matter of fact, for restitution of conjugal relations with the

complainant, the petitioner no.3 had also filed Matrimonial Suit No.

446 of 2012 before the Family Court, Katihar (Annexure-4). It is

further relevant to mention that while the anticipatory bail petition of

these petitioners were being heard, the learned Sessions Judge tried

his best to reconcile the dispute, but the opposite party no.2 flatly

refused to live with her husband, as is evident from the order of the

learned Sessions Judge, contained at Annexure-5. Further, on perusal

of Annexure-6 to the supplementary affidavit, it appears that since

02.06.2015 neither the complainant nor her lawyer is appearing before

the Court below.

6. In this case, notices were issued to the opposite party

no.2, but she refused to take notice and as such, this Court vide order

dated 17.11.2014 accepted the service of notice as valid.

7. It is also submitted that the complainant has already

solemnized her second marriage and she is not appearing either before

this Court or before the Court below and as such, these petitioners

may be acquitted as provided under section 256(1) Cr. P.C.

8. In view of the above submissions, learned counsel

prays for quashing of the order taking cognizance.

9. Considering the facts and circumstances of the case,

the materials available on records and the submissions advanced on
Patna High Court Cr.M isc. No.43697 of 2013 dt.14-03-2018

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behalf of the parties, it is found that the submissions advanced on

behalf of the petitioners have substance and I agree with the same. In

view of the fact that the complainant/opposite party no. 2 has not

appeared before this Court despite service of notice and she is also not

appearing before the Court below since 02.06.2015, this Court feels

that the continuance of the present prosecution against the petitioners,

who are father-in-law and mother-in-law and husband respectively,

will be an abuse of process of the Court. Accordingly, the order taking

cognizance dated 02.08.2012 passed by the learned Judicial

Magistrate, 1st Class, Katihar in C.A. Case No. 32 of 2012, is, hereby,

quashed.

10. Accordingly, the application stands allowed.

(Arvind Srivastava, J)

Shailendra/-

AFR/NAFR NAFR
CAV DATE 30.10.2017
Uploading Date 14.03.2018
Transmission 14.03.2018
Date

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