IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.48181 of 2014
Arising Out of PS.Case No. -33 Y ear- 2013 Thana – MAHILA P.S. District- NALANDA (BIHARSHARIFF)
1. Ganesh Kumar
2. Surya Mani Kumar Both son of Raja Ram Prasad Yadav
3. Raja Ram Prasad Yadav @ Raja Ram Yadav S/o Late
Mahavir Yadav
4. Shakuntala Devi W/o Raja Ram Prasad Yadav
5. Sulochana Devi
6. Munchun Devi Both D/o Raja Ram Prasad Yadav
7. Sangita Devi W/o Surya Mani Kumar
8. Phula Devi W/o Bhshan Yadav All are resident of village
Katchara, P.S. Bena, District – Nalanda.
9. Ram Janam Yadav S/o Sanju Yadav R/o village Mosimpur,
P.S. Chandi, District – Nalanda.
…. …. Petitioners
Versus
1. The State of Bihar.
2. Pinki Kumari D/o Suresh Prasad R/o village – Mushahri, P.S.
Chero, District – Nalanda.
…. …. Opposite Parties
With
Criminal Miscellaneous No. 3196 of 2016
Arising Out of PS.Case No. -1434 Year- 2013 Thana -PATNA COMPLAINT CASE District- PATNA
1. Ganesh Kumar, S/o Shri Raja Ram Prasad Yadav.
2. Suryamani Kumar, S/o Shri Raja Ram Prasad Yadav.
3. Rajaram Prasad Yadav @ Raja Ram Prasad Yadav. S/o Late
Mahabir Yadav, All are resident of Village- Kachra, P.S.- Bena,
District- Nalanda.
…. …. Petitioners
Versus
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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1. The State of Bihar.
2. Pinki Devi @ Pinki Kumari, D/o Sri Suresh Prasad, W/o Sri
Ganesh Kumar, R/o Village- Musahari, P.S- Harnaut, District-
Nalanda, at present Railway Colony, Qtr. No. -199-K,
Mahendrughat, P.S.- Pirbahore, District- Patna.
…. …. Opposite Parties
Appearance :
For the Petitioners : Mr. Din Bandhu Singh, Advocate
For the State : Mr. Satyendra Nr. Singh, APP
For the Opposite Party/s : Mr. Durgesh Nandan, Advocate
Mrs. Manisha Prakash, Advocate
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 29-11-2017
Heard learned counsel for the petitioners,
learned counsel representing the complainant-Opposite
Party No. 2 and learned Additional Public Prosecutor for
the State.
2. Cr. Misc. No. 48181/2014 has been filed
by the husband (petitioner No.1), his brother (petitioner
No.2), the father and mother (petitioner Nos. 3 and 4),
two married sisters (petitioner Nos. 5 6), wife of elder
brother and younger brother (petitioner Nos. 7 8) and
the mediator (petitioner No.9), who had participated at the
time of negotiation of marriage between the petitioner No.
1 and the complainant-Opposite Party No. 2.
3. All these petitioners are seeking quashing
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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of the order dated 06.02.2014 passed by learned Sub-
Divisional Judicial Magistrate, Biharsharif, Nalanda in
connection with Mahila P.S. Case No. 33/2013, by which
learned Magistrate took cognizance of the offence under
Sections 498A, 541, 323, 504, 506/34 R/W section 3/4 of
the Dowry Prohibition Act and summoned the petitioners.
4. Cr. Misc. No. 3196/2016 has been filed by
the husband, his elder brother and father being petitioner
Nos. 2 3 respectively for quashing of the order dated
23.09.2013, passed by learned Judicial Magistrate, 1st
Class, Patna, in Complaint Case No. 1434(C) of 2013, by
which the learned Magistrate has taken cognizance of the
offences under Sections 498A/323 I.P.C. and issued
summons to the petitioners.
5. Earlier, when Cr. Misc. No. 48181/2014
was heard on 18.10.2017, in view of the argument
advanced on behalf of the parties an issue came to be
considered as to how two cases may be allowed to
continue at two different places on the same set of
allegations, the relevant part of the order dated
18.10.2017 is quoted hereunder for ready reference: –
“In course of argument, in view of the
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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submission advanced at the bar particularly
when an issue came to be considered as to
how two cases may be allowed to continue
at two different places on the same set of
allegations. Learned counsel for the
Opposite Party No. 2 made a submission
that the cognizance taken in the complaint
case may be quashed and the present order
taking cognizance need not be interfered
with, as it is his submission that even
though this case was registered later on,
but it was the result of the on going
correspondences which were being pursued
by the informant and the complaint case
was filed later on though on the same set of
allegations. Once this submission has come
from the learned counsel representing the
Opposite Party No. 2, learned counsel for
the petitioners submits that the same may
be considered by this court as he will have
no objection to the same.
This being the position emerging from the
submissions made from both the sides, in
the opinion of this Court the present
application is required to be heard along
with Cr. Misc. No. 3196/2016 in which the
order taking cognizance in the complaint
case is under challenge.”
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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6. In view of the submissions made on behalf
of the parties which have been taken note of
hereinabove, the order taking cognizance and issuance
of summons dated 23.09.2013 passed by learned Judicial
Magistrate, 1 st Class, Patna in Complaint Case No.
1434(C) of 2013 is hereby quashed.
7. Let it be reiterated that the Opposite Party
No. 2 has made it very clear that she would proceed with
the police case only and not the complaint case, and,
therefore, what was recorded earlier has been once again
taken note of for the purpose of quashing of the order
taking cognizance in the complaint case. Cr. Misc. No.
3196/2016 is allowed.
Cr. Misc. No. 48181 of 2014
8. Now, coming to the order taking
cognizance in the police case in Mahila P.S. Case No.
33/2013, learned counsel for the petitioners has placed
before me the contents of the written complaint which
form basis of the F.I.R. It is his submission that on a
totally vague and omnibus kind of allegations the entire
family members of the husband have been falsely
implicated in the criminal case. In this case, this Court
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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had also called for the case diary which has been
received and the learned Additional Public Prosecutor
has assisted the Court by reading some of the relevant
paragraphs of the case diary.
9. It has come in course of investigation that
the marriage between petitioner no. 1 and the
complainant was solemnized, when the father of the
complainant promised to provide a job to the petitioner
no. 1 and because he failed to provide the said job, a
dispute arose and allegedly demand of a piece of land
was being made by the petitioners. The allegation is that
on non-fulfillment of the demand, the complainant was
being tortured physically and mentally.
10. Learned counsel for the petitioners
submit that in view of what has come in course of
investigation the impleadment of the entire family is
apparently a mala fide prosecution, and in a number of
judicial pronouncements, the Hon’ble Supreme Court has
held that this has now been a tendency to prosecute the
entire family of the husband on the strength of vague and
omnibus allegations. References in this regard have been
made to the judgment of the Hon’ble Supreme Court in
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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the cases of Geeta Mehrotra vs. State of U.P.
Another reported in 2012 (10) SCC 741 and Pritam
Ashok Sadaphule and Others vs. State of
Maharashtra and Another reported in 2015 (11) SCC
769.
11. Submission is that from a bare reading
of the F.I.R. it will appear that even though thrust of the
allegation is against the husband, his elder brother, wives
of the elder and younger brother, married sisters, mother
and father. All have been brought within the purview of
the prosecution, therefore, it has been submitted that the
case of the family members (petitioner Nos. 2 to 8) and
the mediator, against whom there is no allegation at all
(petitioner no. 9), should be considered on a different
footing, and if this Court is not inclined to interfere with
the order taking cognizance as respect the husband
(petitioner no. 1), the order taking cognizance, in so far as
it relates to the family members and the mediator, need to
be quashed. It is his submission that prosecution of the
family members and mediator is definitely an abuse of the
process of Court.
12. On the other hand, learned counsel
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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representing the complainant-Opposite Party No. 2
submits that, in the F.I.R., there are allegations against all
the family members, as it has been stated that they were
mentally and physically torturing the complainant-
Opposite Party No. 2, and sometimes the Opposite Party
No. 2 was not being provided food and her signature was
obtained on a blank-sheet of paper.
13. Learned counsel further submits that the
complainant-Opposite Party No. 2 was being
administered medicines causing her intoxication. It is the
submission of learned counsel representing the Opposite
Party No. 2, while it is true that the view of the Hon’ble
Supreme Court is that the case of the family members be
considered differently, but, at the same time, the Hon’ble
Supreme Court has also held that if there are allegations
against the family members, then, the prosecution should
not be quashed. In this regard, learned counsel relies
upon the judgment in the case of Taramani Parakh vs.
State of M.P. reported in (2015) 11 SCC 260.
14. Learned counsel for the complainant-
Opposite Party No. 2 has, however, fairly submitted at
least to this extent that there are no specific allegations
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against the female members of the family who are named
in the F.I.R. and, therefore, this Court may, if at all, willing
to consider the case of the female members on a different
footing, the case of the female members may only be
considered to that extent.
15. Learned Additional Public Prosecutor
representing the State has read out the statements made
in the case diary. In course of investigation, police has
recorded the statement of the informant, her father and
brother and she was also sent for medical examination,
but, in the case diary, no injury has been reported to be
present on the body of the informant. There are some
independent witnesses whose statements are recorded in
paragraphs 36 and 37 of the case diary. According to
which the marriage between the petitioner no. 1 and the
informant was solemnized only because the father of the
informant promised a job to the unemployed boy and
because after marriage he could not provide the job,
therefore, there was a demand for the land.
16. I have considered the submissions
made at the bar and have perused the records. A perusal
of the F.I.R. coupled with the statements of the witnesses
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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recorded in the case diary, as has been read out by the
learned Additional Public Prosecutor, would show that the
matrimonial dispute between the parties have arisen
because of the alleged promise said to have been made
by the father of the informant to petitioner No.1. There are
allegations of demand of a piece of land, but so far as
allegations against the family members, which I have
taken note of in the submissions of the parties in detail
hereinabove are concerned, those are not specific, at
least against the family members. The allegations are
vague and have been apparently made with an intention
to implicate them in the present case. It has been seen
that in the complaint petition, which was filed later on
while correspondences giving rise to the present police
case was still going on, the cognizance and summoning
order was passed only against the husband, father-in-law
and brother-in-law. The learned Magistrate while taking
cognizance in the complaint case had not even prima
facie believed the other story. The statement of the
independent witnesses in the case diary, which have
been taken note of hereinabove, also go to show that, so
far as family members are concerned, as also the
Patna High Court Cr.M isc. No.48181 of 2014 dt.29-11-2017
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mediator, they have been named in the F.I.R. without
there being any specific allegations of commission of any
overt act causing any torture to the complainant-Opposite
Party No. 2. What has been alleged in the F.I.R. is
completely vague and not sufficient to proceed against
them. The judgment on which reliance has been placed
by the learned counsel for the petitioners fully support the
contention advanced on behalf of the petitioners Nos. 2 to
9.
17. In view of what has been found or could
be gathered from the materials available on the record, I
am of the considered opinion that the prosecution of the
family members including the female members and the
mediator is only an abuse of the process of the Court and
the order taking cognizance and issuance of summon in
so far as it relates to petitioner Nos. 2 to 9 needs to be
quashed in the interest of justice, and the same is hereby
quashed with respect to petitioner Nos. 2 to 9. So far as
petitioner No. 1 is concerned, he being the husband and
against him there are allegations, I am not inclined to
interfere with the impugned order against petitioner No.1,
the prayer on his behalf is, accordingly, rejected.
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18. In the result, Cr. Misc. No. 48181/2014
is partly allowed to the extent indicated above.
(Rajeev Ranjan Prasad, J.)
Rajeev/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 01.12.2017
Transmission Date 01.12.2017