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Niraj Shahi @ Niraj Kumar Shahi And … vs State Of Bihar And Anr on 18 April, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.1443 of 2017
Arising Out of PS. Case No.-2657 Year-2015 Thana- GOPALGANJ COMPLAINT CASE
District- Gopalganj

1. Niraj Shahi @ Niraj Kumar Shahi Son of Shashikant Shahi,

2. Shashikant Shahi, Son of Late Suresh Shahi,

3. Mira Shahi, Wife of Shashikant Shahi,

4. Pankaj Shahi @ Pankaj Kumar Shahi, Son of Shashikant Shahi,

5. Suman Shahi, Wife of Pankaj Shahi, All resident of Village- Tirmahuan,
P.S.- Turkapatti, District- Kushinagar, U. Pat Present 06/1021 Jankipuram
Bistar, P.S.- Madiyahu, District- Lucknow U.P.

… … Petitioner/s
Versus

1. State Of Bihar and Anr

2. Pragati Shahi, Wife of Niraj Shahi, D/o Markandey Rai, Resident of Village-

Gopalpur, Parsauni, P.S.- Gopalpur, District- Gopalganj.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Ramakant Sharma, Sr. Adv.

Mr. Santosh Kumar Pandey, Adv.

Mr. Rakesh Kumar Sharma Adv.

For the Opposite Party/s : Mr. Pankaj Kumar, Adv.

Mr. Subhesh Pandey, Adv.

For the State : Mr. Bal Mukund Prasad Sinha, Adv.

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER

8 18-04-2019 1. Asking for quashing of the order dated

07.10.2015 passed by Sri Harsbardhan, Judicial Magistrate, Ist

Class, Gopalganj, in Complaint Case No.2657/2015 whereby

and whereunder petitioners have been summoned to face trial

for an offence punishable under Section 498A of the IPC and ¾

D.P. Act, instant petition has been filed.

2. Opposite Party No.2 filed complaint petition

alleging inter alia that after having been married with Niraj
Patna High Court CR. MISC. No.1443 of 2017(8)
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Shahi on 12.12.2009, she come to her Sasural. During stay, her

husband, father-in-law, mother-in-law, brother-in-law and sister-

in-law began to taunt her inflicting mental cruelty calling

daughter of a wretched person as, though at the time of marriage

her father had given sumptuous articles, cash (so detailed) but

could not afford to give four wheeler as well as automatic

generator. When the activity of the accused persons became

unbearable, she informed her Naihar whereupon, her father

came and said that he is already under debt so, is unable to

fulfill their demand whereupon, he was disrespected. In the

aforesaid background, the accused persons began to exert

physical torture upon her. During midst thereof, she had

begotten a female child on 20.11.2010. Even then, the accused

persons continued with their nefarious activities. Lastly, in the

year 2012 the accused persons, after brutally assaulting her,

deserted by dumping at her Naihar. Her father and other family

members took initiative whereupon, she was taken a back after

six months but, again subjected her with the same treatment

followed with her deportation from her Sasural. During her stay

at her Naihar, her father against took initiative by having

presence of respectable persons, relatives who convened

panchayati and lastly, in the month of January, 2015 anyhow she
Patna High Court CR. MISC. No.1443 of 2017(8)
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was taken away. However, during her stay the accused persons

did not desist themselves from torturous act extorting physical

as well as mental cruelty upon her. Lastly, in the night of

29.08.2015 her husband, father-in-law and mother-in-law, in-

law Pankaj Shani and Suman armed with ‘Dab’ forcibly entered

inside her room and then, Meera sprinkle K.Oil over her.

Perceiving the subsequent event, she raised alarm attracting the

neighbour whereupon, her life was saved. On the following days

she along with her daughter has been kicked out from her

Sasural after snatching of all their belongings, Stridhan. Her

father, even thereafter tried to materialize the situation but, the

accused persons flatly refused to accept till fulfillment of their

demands.

3. On the aforesaid complaint, the learned

lower court proceeded with an inquiry under Section 202 of the

Cr.P.C. and after completing the same, by the order impugned

took cognizance of an offence punishable under Section 498A

IPC, ¾ of the Dowry Prohibition Act, the subject matter of

instant petition.

4. Three folds argument has been raised on

behalf of petitioners. First and foremost happens to be that

because of the fact that instant prosecution happens to be false
Patna High Court CR. MISC. No.1443 of 2017(8)
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and frivolous, on account thereof, no place of occurrence has

been shown. In order to justify the same, it has also been

submitted that the house of the petitioners lies at village-

Tirmahun while the husband petitioner no.1, being employed in

a Co-operative Bank, is residing at Lucknow (Flat No.6/104

Jankipuram Extension, P.S.-Madiyahu, Lucknow) and before

that was posted at Mathura. That being so, it suffers from

jurisdictional error. Moreover, it is an admitted fact that during

course of stay at her Sasural she had faced the consequence

whereupon, the jurisdiction of the Gopalganj was not at all

legally acknowledgeable. That being so, the learned lower court

should have returned the complaint petition directing to prefer

before the court having the jurisdiction in accordance with

section 201 Cr.P.C. or would have taken recourse so prescribed

under Section 187 Cr.P.C.

5. Then, it has been submitted that consistently,

it has been held that on account of bitterness in the marital life,

there happens to be incredible increase in filing of the cases but

manner whereunder it is being presented arraying the agnates as

an accused, making bald statement virtually hackneyed, the very

purpose of introduction of 498A of the IPC, and that happens to

be reason behind that in large number of cases including Sushil
Patna High Court CR. MISC. No.1443 of 2017(8)
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Kumar Sharma vs. Union of India Ors. reported in (2005)

6 SCC 281, Preeti Gupta Anr. vs. State of Jharkhand

Anr. reported in (2010) 7 SCC 667, Ramgopal Anr. vs.

State of Madhya Pradesh Anr. reported in (2010) 13 SCC

540, K. Subba Rao Ors. vs. State of Telangana Ors.

reported in (2018) 14 SCC 452, whenever there happens to be

bald allegation suffering from deflagration the order of

cognizance relating to the other family members, distant

relatives has to be quashed. From perusal of the complaint

petition, it is evident that the allegation suffers from vagueness

and so, fell within one of the criterion having been laid down by

the Apex Court, hence fit to be quashed.

6. It has also been submitted that present

petition happens to be malicious as well as in order to counter-

meet the allegation having under the divorce petition at the end

of the husband (Annexure-2) bearing Matrimonial Suit

No.2146/2015. So, on the cumulative consideration of all the

eventualities, it is evident that the order impugned happens to be

within the parameter of the principle laid down by the Apex

Court whereupon, is fit to be set aside.

7. The learned counsel for the O.P. No.2 as

well as learned APP vehemently controverted the submissions
Patna High Court CR. MISC. No.1443 of 2017(8)
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having made on behalf of petitioners and submitted that order of

cognizance unless and until is found soaked with impropriety, in

contravention of settled principle of law, then and then, only

could be interfered with. It has further been submitted that for

the purpose of taking of cognizance, the court has to see

presence of prima-facie case only and that has been found

whereupon, petitioners have been summoned to face trial. Apart

from this, it has also been submitted that the occurrence is not of

one day affair rather it continued for years together not only for

procurement of dowry rather so many factors were responsible

influencing the husband as well as his family members,

whereunder managed the things shrewdly, intelligently clutching

slowly and lastly ousted as fault to satisfy greed so demanded.

As such, it happens to be continuing affair which cannot be

circumvent by single illustration, and so, it looks unwise,

unprudent, improbable to detail the each day affair which the

O.P. No.2 faced at her Sasural during course of her stay. During

course of submission, it has also been urged that after going

through the relevant judgment so cited at the end of petitioners ,

it is crystal clear that aforesaid aspect has not been properly

considered by the Apex Court. That being so, there is factual

variance, hence are not attracted. It has also been argued that
Patna High Court CR. MISC. No.1443 of 2017(8)
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while deciding the aforesaid cases, the Apex Court did not

considered applicability of the 34 or 149 IPC, 107 IPC, 120B

IPC, inconsonance with the allegation. Furthermore, it has also

been submitted that filing of divorce case when the O.P. No.2 is

a mother of a daughter is another instance of mental cruelty

depicting the unwarranted activity as well as dubious character

of the petitioners as daughter is representative of a family which

has been filed only to cloud their misdeeds.

8. Recently in Rupali Devi vs. State of Uttar

Pradesh Ors. (Cr. Appeal No.71 of 2012) order dated

09.04.2019 the three judges bench of the Apex Court observed

that the complaint at the instance of wife is maintainable at a

place of her residence away from her matrimonial house as, her

residence happens to be on account of resultant of the cruelty

having extorted over her during course of her stay at her Sasural

depriving her to stay at the place where she could be,

whereupon the whole event has been properly identified under

the garb of Section 179 Cr.P.C.

9. In Rakhi Mishra vs. State of Bihar Ors.

reported in (2017) 16 SCC 772, it has been held:-

“4. We have heard learned counsel appearing
for the parties. We are of the considered
opinion that the High Court erred in allowing
the application filed by Respondent Nos.2, 4,
5, 6, 7, 8, 9 and 10 and quashing the criminal
Patna High Court CR. MISC. No.1443 of 2017(8)
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proceedings against them. A perusal of the
FIR would clearly show that the Appellant
alleged cruelty against Respondent Nos.2, 4,
5, 6, 7, 8, 9 and 10. This Court in Sonu
Gupta v. Deepak Gupta and Ors. (2015) 3
SCC 424, 426 held as follows:

“8. …At the stage of cognizance and
summoning the Magistrate is required
to apply his judicial mind only with a
view to take cognizance of the
offence to find out whether a prima
facie case is made out for summoning
the accused persons. At this stage, the
Magistrate is not required to consider
the defence version or materials or
arguments nor he is required to
evaluate the merits of the materials or
evidence of the complainant, because
the Magistrate must not undertake the
exercise to find out at this stage
whether the materials would lead to
conviction or not.”

5. The order passed by the Trial Court
taking cognizance against R-2 and R-4 to R-
9 is in conformity with the law laid down in
the above judgment. It is settled law that the
power under Section 482 Cr. P.C. is
exercised by the High Court only in
exceptional circumstances only when a
prima facie case is not made out against the
accused. The test applied by this Court for
interference at the initial stage of a
prosecution is whether the uncontroverted
allegations prima facie establish a case.”

10. In Taramani Parakh vs. State of M.P.

reported in 2015 Cr.L.J. 2031, it has been held:

“14. From reading of the complaint, it cannot
be held that even if the allegations are taken
as proved no case is made out.

15. There are allegations against Respondent
No.2 and his parents for harassing the
complainant which forced her to leave the
matrimonial home. Even now she continues
to be separated from the matrimonial home
as she apprehends lack of security and safety
and proper environment in the matrimonial
home. The question whether the appellant
Patna High Court CR. MISC. No.1443 of 2017(8)
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has infact been harassed and treated with
cruelty is a matter of trial but at this stage, it
cannot be said that no case is made out.

Thus, quashing of proceedings before the
trial is not permissible.

16. The decisions referred to in the judgment
of the High Court are distinguishable. In
Neelu Chopra, parents of the husband were
too old. The husband Rajesh had died and
main allegations were only against him. This
Court found no cogent material against other
accused. In Manoj Mahavir, the appellant
before this Court was the brother of the
daughter-in- law of the accused who lodged
the case against the accused for theft of
jewellery during pendency of earlier 498A
case. This Court found the said case to be
absurd. In Geeta Mehrotra, case was against
brother and sister of the husband. Divorce
had taken place between the parties. The said
cases neither purport to nor can be read as
laying down any inflexible rule beyond the
principles of quashing which have been
mentioned above and applied to the facts of
the cases therein which are distinguishable.
In the present case the factual matrix is
different from the said cases. Applying the
settled principles, it cannot be held that there
is no triable case against the accused.”

11. In Kailash Chandra Agrawal Anr. vs.

State of U.P. Others reported in 2014 AIR SCW 6152, it has

been held:

“9. We have gone through the FIR and
the criminal complaint. In the FIR, the
appellants have not been named and in
the criminal complaint they have been
named without attributing any specific
role to them. The relationship of the
appellants with the husband of the
complainant is distant. In Kans Raj vs.
State of Punjab Ors.[(2000) 5 SCC
207], it was observed:-

“5………A tendency has,
however, developed for roping in
all relations of the in-laws of the
Patna High Court CR. MISC. No.1443 of 2017(8)
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deceased wives in the matters of
dowry deaths which, if not
discouraged, is likely to affect the
case of the prosecution even
against the real culprits. In their
over enthusiasm and anxiety to
seek conviction for maximum
people, the parents of the deceased
have been found to be making
efforts for involving other
relations which ultimately weaken
the case of the prosecution even
against the real accused as appears
to have happened in the instant
case.” The Court has, thus, to be
careful in summoning distant
relatives without there being
specific material. Only the
husband, his parents or at best
close family members may be
expected to demand dowry or to
harass the wife but not distant
relations, unless there is tangible
material to support allegations
made against such distant
relations. Mere naming of distant
relations is not enough to summon
them in absence of any specific
role and material to support such
role.

10. The parameters for quashing
proceedings in a criminal complaint are
well known. If there are triable issues, the
Court is not expected to go into the
veracity of the rival versions but where
on the face of it, the criminal proceedings
are abuse of Court’s process, quashing
jurisdiction can be exercised. Reference
may be made to K. Ramakrsihna and Ors.
vs. State of Bihar and Anr.[(2000) 8 SCC
547], Pepsi Foods Ltd. and Anr. vs.
Special Judicial Magistrate and Ors.
[(1998) 5 SCC 749], State of Haryana
and Ors. vs. Ch. Bhajan Lal and Ors.
[(1992) Suppl 1 SCC 335] and
Asmathunnisa vs. State of A.P.

represented by the Public Prosecutor,
Patna High Court CR. MISC. No.1443 of 2017(8)
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High Court of A.P., Hyderabad and Anr.

[(2011) 11 SCC 259].”

12. The learned counsel for the O.P. No.2 has

rightly argued that event of torture could not be one time affair,

rather it varies, in same cases continues for years together

yielding unfavourable scenario to the newly wedded girl, who,

on account of custom, precedent, bound to stay at her Sasural,

having complete separation from her birth place, expecting due

recognition as one of the family member, to be responsible for

procreation, expected to discharge her matrimonial obligation

and vice versa. In the aforesaid background, the victim waits till

her last, expecting change of situation and after perceiving no

hope now remains, then, she has to come in fray in order to save

her survival. In such situation one has to perceive such

horrifying situation. Furthermore, in none of the judgment the

facts has been properly adjudged taking into account implication

of Section 34 IPC, 149 IPC, 107 IPC to onwards, dealing abater,

conspirator. Moreover, really it happens to be plausible or

possible to incorporate each day incident. Much less when the

finding of the Apex Court in Rupali Devi vs. State of Uttar

Pradesh Ors. (Cr. Appeal No.71 of 2012) order dated

09.04.2019 is considered in its true sense, the basic feature so

coming out therefrom while allowing prosecution under the garb
Patna High Court CR. MISC. No.1443 of 2017(8)
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of section 179 of the Cr.P.C., expands the arena whereupon,

narrow construction is found still life. For better appreciation

the relevant paras are quoted below:

“12. Section 498A of the Indian Penal Code was
introduced by the Criminal Law (second
amendment) Act, 1983. In addition to the aforesaid
amendment in the Indian Penal Code, the provisions
of Sections 174 and 176 of the Code of Criminal
Procedure, 1973 relating to inquiries by police in
case of death by suicides and inquiries by
magistrates into cause of such deaths were also
amended. Section 198A was also inserted in the
Code of Criminal Procedure with regard to
prosecution of offences under Section 498A. Further
by an amendment in the first schedule to the Cr.PC
the offence under Section 498A was made
cognizable and non-bailable. of considerable
significance is the introduction of Section 113A in
the Indian Evidence Act by the Criminal Law
(second amendment) Act, 1983 providing for
presumption as to abetment of suicide by a married
woman to be drawn if such suicide had been
committed within a period of seven years from the
date of marriage of the married woman and she had
been subjected to cruelty. Section 113A is in the
following term:

“113-A. Presumption as to abetment of
suicide by a married woman.- When the
question is whether the commission of
suicide by a woman had been abetted by her
husband or any relative of her husband and it
is shown that she had committed suicide
within a period of seven years from the date
of her marriage and that her husband or such
relative of her husband had subjected her to
cruelty, the Court may presume, having
regard to all the other circumstances of the
case, that such suicide had been abetted by
her husband or by such relative of her
husband.

Explanation.- For the purposes of this
section, “cruelty” shall have the same
meaning as in section 498-A of the Indian
Penal Code (45 of 1860).”

13. The object behind the aforesaid amendment,
undoubtedly, was to combat the increasing cases of
cruelty by the husband and the relatives of the
Patna High Court CR. MISC. No.1443 of 2017(8)
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husband on the wife which leads to commission of
suicides or grave injury to the wife besides seeking
to deal with harassment of the wife so as to coerce
her or any person related to her to meet any unlawful
demand for any property, etc. The above stated
object of the amendment cannot be overlooked
while answering the question arising in the present
case. The 8 judicial endeavour must, therefore,
always be to make the provision of the laws
introduced and inserted by the Criminal Laws
(second amendment) Act, 1983 more efficacious and
effective in view of the clear purpose behind the
introduction of the provisions in question, as already
noticed.

14. “Cruelty” which is the crux of the offence under
Section 498A IPC is defined in Black’s Law
Dictionary to mean “The intentional and malicious
infliction of mental or physical suffering on a living
creature, esp. a human; abusive treatment; outrage
(Abuse, inhuman treatment, indignity)”. Cruelty can
be both physical or mental cruelty. The impact on
the mental health of the wife by overt acts on the
part of the husband or his relatives; the mental stress
and trauma of being driven away from the
matrimonial home and her helplessness to go back to
the same home for fear of being illtreated are aspects
that cannot be ignored while understanding the
meaning of the expression “cruelty” appearing in
Section 498A of the Indian Penal Code. The
emotional distress or psychological effect on the
wife, if not the physical injury, is bound to continue
to traumatize the wife even after she leaves the
matrimonial home and takes shelter at the parental
home. Even if the acts of physical cruelty committed
in the matrimonial house may have ceased and such
acts do not occur at the parental home, there can be
no doubt that the mental trauma and the
psychological distress cause by the acts of the
husband including verbal exchanges, if any, that had
compelled the wife to leave the matrimonial home
and take shelter with her parents would continue to
persist at the parental home. Mental cruelty borne
out of physical cruelty or abusive and humiliating
verbal exchanges would continue in the parental
home even though there may not be any overt act of
physical cruelty at such place.”

13. After perceiving the entire gamet of the

litigation, it is evident that the prosecution of petitioner no.4
Patna High Court CR. MISC. No.1443 of 2017(8)
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namely Pankaj Shahi @ Pankaj Kumar Shahi and petitioner

no.5 Suman Shahi are not at all warranted whereupon, the order

impugned to their interest is hereby quashed. Consequent

thereupon, instant petition relating thereto is allowed. Contrary

to it, prima facie allegation is found against remaining three

namely Niraj Shahi @ Niraj Kumar Shahi, Shashikant Shahi

and Mira Shahi, whereupon this petition lacks merit to their

status consequent thereupon, is dismissed.

(Aditya Kumar Trivedi, J.)

Prakash Narayan
U T

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