IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.38737 of 2011
Arising Out of PS.Case No. -0 Year- null Thana -null District- BEGUSARAI
1. Bishundeo Mishra, son of late Tamol Mishra
2. Dilip Kumar Mishra @ Dilip Mishra, son of Bishundeo Mishra
3. Guriya Devi @ Archana Mishra, W/o Dilip Mishra
4. Usha Mishra, W/o Arvind Mishra.
All resident of village- Harrakh, P.S.- Begusarai Town, Distt- Begusarai.
5. Asha Jha, W/o Pramod Kumar Jha, resident of village- Sanhaula, P.S.-
Sanhaula, District- Bhagalpur.
…. …. Petitioner/s
Versus
1. The State of Bihar
2. Shabanam Kumari, W/o Binod Mishra, resident of village- Harrakh, P.S.-
Begusarai Town, Distt- Begusarai at present D/o Ram Chandra Mishra, resident
of village- Sabour, P.S.- Barauni, District- Begusarai.
…. …. Opposite Party/s
Appearance :
For the Petitioner/s : Dr. Amrendra Kumar, Advocate.
Mr. Ravi-S-Pankaj, Advocate.
For the State : Mr. Ajay Kumar No. 1, A.P.P.
CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR
ORAL JUDGMENT
Date: 03-10-2017
Heard learned counsel for the petitioners and learned
counsel for the State.
2. The petitioners have filed this quashing application
under Section 482 of the Code of Criminal Procedure for setting aside
order dated 11.05.2011 passed by the Judicial Magistrate, 1 st Class,
Begusarai in Complaint Case No. 2012C of 2010 whereby he has
taken cognizance of offence against the petitioners under Section
498A of the Indian Penal Code directing for issuance of summons to
stand on trial in the case.
Patna High Court Cr.Misc. No.38737 of 2011 dt.03-10-2017
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3. The petitioners are accused in the aforesaid complaint
lodged by Shabnam Kumari, O.P. No. 2, against father-in-law and
others excluding husband.
4. Brief fact, as stated in complaint, is that complainant’s
marriage was solemnized in the year 1991 with Vinod Mishra, son of
Kishundeo Mishra (petitioner No. 1). The family was a joint family
but after marriage accused persons started making demand of
Rs. 50,000/- cash and a motorcycle in dowry and used to torture her in
that connection. It is alleged that her husband is a lawyer by
profession and he always used to protest such conduct of his family
members and lost his mental balance 7-8 years back and on
10.06.2010, all accused, being unanimous, driven her out along with
her children from matrimonial home.
5. Learned counsel for the petitioners submits that infact
marriage of the complainant was solemnized with her husband
approximately 20 years back, even the eldest daughter was married in
year 2009 so there is no question of any further demand of dowry and
torture and there is no allegation that at the time of marriage any
demand of dowry was made. He submits that peculiar fact of case is
that husband is not made accused by the wife/complainant because of
the reason that there was no any torture rather complaint is filed with
ulterior motive to take personal vengeance for the reason that
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petitioners no. 1 to 4 have filed a partition suit being Partition Suit No.
38 of 2010 for partition of the joint property in which husband of the
complainant, son of the petitioner no. 1, is one of the defendants.
There is neither any specific allegation of overt act committed by the
accused persons relating to torture and harassment, nor any specific
allegation of such act is mentioned in the complaint.
6. None appears on behalf of the O.P. No. 2. Learned
counsel for the State supports the impugned order.
7. Having considered the rival submissions and on
perusal of record, the Court finds that allegation of demand of further
dowry is alleged against the petitioners, who are father-in-law, brother
of the husband, married Nanads and wife of the brother of the
husband but there is no any allegation against the husband, so he is
also not an accused in this case. There is complete omission of any
specific overt act or specific act of torture or harassment committed
by the petitioners; even married Nanads (petitioners no. 4 and 5) have
been made accused in this case. It is also reflected that the petitioners
no. 1 to 4 have filed Partition Suit No. 38 of 2010, being plaintiffs, in
the case in which the husband of the complainant is one of the
defendants and present complaint is filed after expiry of a decade
since the marriage, so existence of civil litigation is apparent in the
shape of partition suit in between the petitioners no. 1 to 4 and the
Patna High Court Cr.Misc. No.38737 of 2011 dt.03-10-2017
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husband of the complainant.
8. so the present complaint appears to have been filed
by the complainant to take personal vengeance in order to settle the
score in civil dispute, hence order taking cognizance dated
11.05.2011 passed by the Judicial Magistrate, 1st Class, Begusarai in
Complaint Case No. 2012C of 2010 and subsequent criminal
proceeding against all the petitioners is hereby set aside.
9. The application stands allowed.
(Arun Kumar, J)
Sujit/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.10.2017
Transmission 07.10.2017
Date