IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.45296 of 2011
Arising Out of P.S.Case No. -0 Year- null Thana -null District- NAWADA
1. Devlal Choudhary S/O Late Karem Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.
2. Umesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.
3. Dinesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.
4. Naresh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.
5. Ganesh Choudhary S/O Devlal Choudhary Resident Of Mohalla- Dhania
Bagicha, Police Station- Delha, District- Gaya.
6. Devanti Devi W/O Devlal Choudhary Resident Of Mohalla- Dhania Bagicha,
Police Station- Delha, District- Gaya.
7. Kunadan Choudhary S/O Dev Nandan Choudhary Resident Of Mohalla- Tulsi
Gali Rajgir, Police Station- Rajgir, District- Nalanda
8. Arvind Choudhary S/O Harihar Choudhary Resident Of – Dhanwa, Police
Station- Hasua, District- Nawada.
…. …. Petitioners
Versus
1. The State Of Bihar
2. Shiv Shankar Choudhary S/O Late Kishun Choudhary Resident Of Village-
Panchu Surdhi Tola, Police Station- Hisua, District- Nawada.
…. …. Opposite Parties
Appearance :
For the Petitioners : Mr. Pramod Kumar, Advocate
For the Opposite Parties : Mr. Akshay Lal Pandit, APP
CORAM: HONOURABLE MR. JUSTICE SANJAY KUMAR
ORAL JUDGMENT
Date: 27-07-2017
This application under Section 482 of the Cr.P.C. has been
filed to quash the order dated 02.08.2011passed by the learned
Judicial Magistrate, Ist Class, Nawada in Complaint Case No.926 of
2010 wherein and whereunder the learned Magistrate finding prima-
facie case for the offence under Sections 323, 341 and 379 of the IPC
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summoned the petitioners.
2. Heard Mr. Pramod Kumar, counsel for the petitioners
and Mr. Akshay Lal Pandit, APP for the State.
3. The facts in brief is that the Opposite Party No.2 filed a
complaint case on the file of CJM against the petitioners who are
none-else than his own father-in-law, son-in-laws and relatives of his
father-in-law. It has been alleged that on the date of occurrence, they
came at his residence and enquired as to why he has sent his wife to
Maika. The complainant Opposite Party No.2 refuted and replied that
his wife has gone to her Maika to her own desire. He has further
alleged that on 26.07.2010 at about 4 .00 O’ clock he woke up and
saw all the petitioner running away with his belonging and when he
raised protest, the petitioners assaulted by fist and slaps. On the alarm
of complainant, the local persons assembled and thereafter the
petitioners fled away.
4. It has been submitted that the Opposite Party No.2 has
filed a complaint case with false and frivolous allegation only to
counter the Complaint Case No.1518 of 2008 which has been filed by
the daughter of petitioner no.1. The petitioner nos.1 and 2 being the
father-in-law and brother-in-law of the complainant are witnesses in
the complaint case No.1518 of 2008. Besides that the daughter of
petitioner no.1 has filed a Maintenance Case No.34 of 2010 before the
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court of Principal Judge, Family Court, Gaya wherein the learned
Principal Judge has directed the Opposite Party No.2 to pay an
amount of Rs.1600/- per month as interim maintenance. The Opposite
Party No.2 did not comply the said order for which distress warrant
has been issued against the Opposite Party No.2. It has been further
submitted that there are contradictions in the statement of complainant
on solemn affirmation and other witnesses recorded at the time of
enquiry. The learned court below took cognizance without applying
judicial mind and so the impugned order is fit to be quashed.
5. The learned APP opposed the submissions.
6. On perusal of impugned order, complaint petition as well
as document available on record, I find that the wife of these
petitioners had filed a complaint case no.1518 of 2008 on 06.09.2008
against her husband for the offence under Sections 498A, 379, 323
and other Sections of the IPC. The wife of Opposite Party No.2 was
residing at the place of these petitioners. The complainant in the
present case has alleged that on the date of occurrence all the
petitioners along with others came at the house of Opposite Party
No.2 assaulted him and also took away his house hold articles. The
complainant in his solemn affirmation at para-5 to the Court question
has stated that at 4 A.M. he woke up and found the house hold articles
traceless from his house and he had seen the accused (petitioners)
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while escaping from his house. The petitioners had slept outside the
house on the date of occurrence. He has further stated that the
petitioners were not at visiting term at the place of complainant
Opposite Party No.2. There are contradictions also in the statement of
witnesses. The present case has been lodged after the complaint case
of his wife out of vengeance as submitted by learned counsel for the
petitioners.
7. In view of the aforesaid facts, the order dated 02.08.2011
passed by Judicial Magistrate, Ist Class, Nawada in Complaint Case
No.926 of 2010 is not sustainable and is accordingly quashed. This
application is allowed.
(Sanjay Kumar, J)
B.Kr./-
AFR/NAFR NAFR
CAV DATE
Uploading Date 01.08.2017
Transmission 01.08.2017
Date