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Dipak Malakar & Ors vs State Of Bihar & Anr on 25 April, 2018

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.33640 of 2015
Arising Out of PS. Case No.-50 Year-2014 Thana- KHAGARIA COMPALINT CASE
District- Khagaria

1. Dipak Malakar, S/o Wakil Malakar

2. Wakil Malakar, S/o Late Anandi Malakar

3. Chandrakala Devi, W/o Wakil Malakar

4. Reena Devi, D/o Wakil Malakar

5. Pankaj Malakar @ Pankaj Kumar, S/o Wakil Malakar
All resident of Village- Durgapur, P.S.- Muffasil, District-
Khagaria
… … Petitioner/s
Versus

1. The State of Bihar.

2. Soni Devi, W/o Deepak Malakar, D/o Bhagwat Malakar, At present residing
at Gogri, P.O- Gogri, District- Khagaria
… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Ranjeet Kumar Singh, Advocate
For the Opposite Party No.1 : Mr. B.N.Panday (APP)
For the Opposite Party No.2 : Mr. Mrityunjay Kumar, Advocate
Mr. Umesh Prasad, Advocate

CORAM: HONOURABLE THE CHIEF JUSTICE
ORAL JUDGMENT
Date : 25-04-2018

Seeking quashing of Complaint Case 50C/2014 pending

in the Court of Sub-Divisional Judicial Magistrate, Khagaria and

an order dated 30th of April, 2015 taking cognizance for an offence

under Section 498A of the Indian Penal Code, this application has

been filed by the petitioners.

Petitioner No.1 Dipak Malakar is the husband of

opposite party no.2-the complainant Soni Devi. Petitioner No.2 is
Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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the father of petitioner no.1, petitioner no.3 is the mother of

petitioner no.1 and petitioner nos. 4, and 5 are the brother in law

and sister in law of the complainant.

It is the case of the complainant that she was married to

petitioner no.1 Dipak Malakar on 20th June, 2007 according to

Hindu Rites and religious customs. On the eve of marriage, gifts to

the tune of Rs.60,000/- and a cash of Rs.31,000/- was paid, but

after coming and staying in the matrimonial house, a child was

born to her and thereafter the family members started harassing

her and demanding Rs.50,000/-. She communicated the same to

her parents and when the same was not paid, harassment is

maintained upon her. Accordingly, based on the aforesaid, the

complaint has been filed.

It is the case of the petitioners that allegations of

harassment are incorrect. Petitioner no.1, after the complainant left

the house, had filed an application for restitution of conjugal rights

and in retaliation thereof, it is stated that this application has been

filed complaining commission of an offence under Section 498A

of the Indian Penal Code. By referring to the complaint and the

statement of the complainant on affidavit and the statements of

three witnesses examined and the proceedings held before the

Court below, it is stated that omnibus and general allegations are
Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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made with regard to demand of dowry and harassment and based

on the same against all the petitioners, the allegations are not

proved.

Learned counsel for the opposite parties refuted the

aforesaid and argued that once the complainant has made specific

averment with regard to harassment, at this stage in a proceeding

under Section 482 of the Code of Criminal Procedure, the Court

should not interfere.

The principles of interfering into such matters has been

laid down by the Hon’ble Supreme Court to the following cases

viz:- Gian Singh Versus State of Punjab and another, (2012) 10

SCC 303; Taramani Parakh Versus State of Madhya Pradesh

and others, (2015) 11 SCC 260; Kans Raj Versus State of

Punjab and others; (2000) 5 SCC 207; and Amit Kapoor

Versus Ramesh Chander and another, (2012) 9 SCC 460, and it

is seen that in the case of Taramani Parakh (supra) after referring

to the principles governing quashing of the complaint in a

proceeding under Section 482 of the Code of Criminal Procedure

in paras 10 and 11, the following principles have been

crystallized:-

10. The law relating to quashing is well
settled. If the allegations are absurd or do not make
out any case or if it can be held that there is abuse
Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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of process of law, the proceedings can be quashed
but if there is a triable case the Court does not go
into reliability or otherwise of the version or the
counter version. In matrimonial cases, the Courts
have to be cautious when omnibus allegations are
made particularly against relatives who are not
generally concerned with the affairs of the couple.
We may refer to the decisions of this Court dealing
with the issue.

11. Referring to earlier decisions, in Amit
Kapoor V. Ramesh Chander, (2012) 9 SCC 460, it
was observed:

“27.1. Though there are no limits of the
powers of the Court under Section 482 of the Code
but the more the power, the more due care and
caution is to be exercised in invoking these powers.
The power of quashing criminal proceedings,
particularly, the charge framed in terms of Section
228 of the Code should be exercised very sparingly
and with circumspection and that too in the rarest of
rare cases.

27.2. The Court should apply the test as
to whether the uncontroverted allegations as made
from the record of the case and the documents
submitted therewith prima facie establish the
offence or not. If the allegations are so patently
absurd and inherently improbable that no prudent
person can ever reach such a conclusion and where
the basic ingredients of a criminal offence are not
satisfied then the Court may interfere.

27.3. The High Court should not unduly
interfere. No meticulous examination of the
evidence is needed for considering whether the case
would end in conviction or not at the stage of
framing of charge or quashing of charge.

Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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27.4. Where the exercise of such power
is absolutely essential to prevent patent miscarriage
of justice and for correcting some grave error that
might be committed by the subordinate courts even
in such cases, the High Court should be loath to
interfere, at the threshold, to throttle the prosecution
in exercise of its inherent powers.

27.5. Where there is an express legal bar
enacted in any of the provisions
of the Code or any
specific law in force to the very initiation or
institution and continuance of such criminal
proceedings, such a bar is intended to provide
specific protection to an accused.

27.6. The Court has a duty to balance the
freedom of a person and the right of the complainant
or prosecution to investigate and prosecute the
offender.

27.7. The process of the court cannot be
permitted to be used for an oblique or
ultimate/ulterior purpose.

27.8. Where the allegations made and as
they appeared from the record and documents
annexed therewith to predominantly give rise and
constitute a “civil wrong” with no “element of
criminality” and does not satisfy the basic
ingredients of a criminal offence, the court may be
justified in quashing the charge. Even in such cases,
the court would not embark upon the critical
analysis of the evidence.

27.9. Another very significant caution
that the courts have to observe is that it cannot
examine the facts, evidence and materials on record
to determine whether there is sufficient material on
the basis of which the case would end in a
conviction; the court is concerned primarily with the
allegations taken as a whole whether they will
constitute an offence and, if so, is it an abuse of the
process of court leading to injustice.
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27.10. It is neither necessary nor is the
court called upon to hold a full- fledged enquiry or
to appreciate evidence collected by the investigating
agencies to find out whether it is a case of acquittal
or conviction.

27.11. Where allegations give rise to a
civil claim and also amount to an offence, merely
because a civil claim is maintainable, does not mean
that a criminal complaint cannot be maintained.

27.12. In exercise of its jurisdiction
under
Section 228 and/or under Section 482, the
Court cannot take into consideration external
materials given by an accused for reaching the
conclusion that no offence was disclosed or that
there was possibility of his acquittal. The Court has
to consider the record and documents annexed
therewith by the prosecution.

27.13. Quashing of a charge is an
exception to the rule of continuous prosecution.
Where the offence is even broadly satisfied, the
Court should be more inclined to permit
continuation of prosecution rather than its quashing
at that initial stage. The Court is not expected to
marshal the records with a view to decide
admissibility and reliability of the documents or
records but is an opinion formed prima facie.

27.14. Where the charge-sheet, report
under
Section 173(2) of the Code, suffers from
fundamental legal defects, the Court may be well
within its jurisdiction to frame a charge.

27.15. Coupled with any or all of the
above, where the Court finds that it would amount to
abuse of process
of the Code or that the interest of
justice favours, otherwise it may quash the charge.
The power is to be exercised ex debito justitiae i.e.
to do real and substantial justice for administration
of which alone, the courts exist.

(Ref. State of W.B. v. Swapan Kumar
Guha [(1982) 1 SCC 561 : 1982 SCC (Cri) 283 ];
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04-2018
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Madhavrao Jiwajirao Scindia v. Sambhajirao
Chandrojirao Angre [(1988) 1 SCC 692 : 1988 SCC
(Cri) 234];
Janata Dal v. H.S. Chowdhary [(1992) 4
SCC 305 : 1993 SCC (Cri) 36 ];
Rupan Deol Bajaj
v. Kanwar Pal Singh Gill [(1995) 6 SCC 194 : 1995
SCC (Cri) 1059];
G. Sagar Suri v. State of U.P.
[(2000) 2 SCC 636 : 2000 SCC (Cri) 513];
Ajay
Mitra v. State of M.P. [(2003) 3 SCC 11 : 2003 SCC
(Cri) 703];
Pepsi Foods Ltd. v. Special Judicial
Magistrate [(1998) 5 SCC 749 : 1998 SCC (Cri)
1400];
State of U.P. v. O.P. Sharma [(1996) 7 SCC
705 : 1996 SCC (Cri) 497];
Ganesh Narayan Hegde
v. S. Bangarappa [(1995) 4 SCC 41 : 1995 SCC
(Cri) 634];
Zandu Pharmaceutical Works Ltd. v.
Mohd. Sharaful Haque [(2005) 1 SCC 122 : 2005
SCC (Cri) 283];
Medchl Chemicals Pharma (P)
Ltd. v. Biological E. Ltd. [(2000) 3 SCC 269 : 2000
SCC (Cri) 615];
Shakson Belthissor v. State of
Kerala [(2009) 14 SCC 466 : (2010) 1 SCC (Cri)
1412];
V.V.S. Rama Sharma v. State of U.P. [(2009)
7 SCC 234 : (2009) 3 SCC (Cri) 356];
Chunduru
Siva Ram Krishna v. Peddi Ravindra Babu [(2009)
11 SCC 203 : (2009) 3 SCC (Cri) 1297];

Sheonandan Paswan v. State of Bihar [(1987) 1 SCC
288 : 1987 SCC (Cri) 82];
State of Bihar v. P.P.
Sharma [1992 Supp (1) SCC 222 : 1992 SCC (Cri)
192 ];
Lalmuni Devi v. State of Bihar [(2001) 2 SCC
17 : 2001 SCC (Cri) 275];
M. Krishnan v. Vijay
Singh [(2001) 8 SCC 645 : 2002 SCC (Cri) 19];
Savita v. State of Rajasthan [(2005) 12 SCC 338 :
(2006) 1 SCC (Cri) 571] and
S.M. Datta v. State of
Gujarat [(2001) 7 SCC 659 : 2001 SCC (Cri) 1361 :
2001 SCC (LS) 1201]).

27.16. These are the principles which
individually and preferably cumulatively (one or
more) be taken into consideration as precepts to
exercise of extraordinary and wide plenitude and
jurisdiction under
Section 482 of the Code by the
High Court. Where the factual foundation for an
offence has been laid down, the courts should be
reluctant and should not hasten to quash the
Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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proceedings even on the premise that one or two
ingredients have not been stated or do not appear to
be satisfied if there is substantial compliance with
the requirements of the offence.”

If we analyze the case in hand in the backdrop of the

aforesaid principles, it is seen that except for making general

allegation that her husband was taking dowry and harassing her, no

specific allegation with regard to nature of harassment, the

particulars when and how the harassment was made, are indicated

against any of the petitioners. At best, specific allegation is made

against petitioner no.1 Dipak Malakar. As far as other petitioners

are concerned, general omnibus allegations are made against all

the family members.

Keeping in view the nature of complaint made and the

law laid down, as indicated in the cases referred to hereinabove, I

am of the considered view that except for petitioner no.1 Dipak

Malakar, the husband, no specific allegations are made out on a

bare reading of the complaint against petitioner nos.2 to 5 and,

therefore with regard to these petitioners, the petition has to be

allowed and is, accordingly, allowed.

Accordingly, the order so far it pertains to taking

cognizance and registering the complaint against petitioner nos.2

to 5 are concerned, the same is quashed. Petitioner No.1 Dipak
Patna High Court Cr.Misc. No.33640 of 2015 dt.25-04-2018
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Malakar should face the trial and raise all objections, as are

permissible in law before the court below.

With the aforesaid, the application is allowed and

disposed of.

(Rajendra Menon, CJ)

Sunil/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 30.04.2018
Transmission Date 30.04.2018

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