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Rahul Raj @ Chandan vs State Of Bihar And Anr on 15 January, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No. 28893 of 2014
Arising Out of Complaint Case No.-1671C Year-2012 Thana- PATNA COMPLAINT CASE
District- Patna

Rahul Raj @ Chandan, Son of Sheodhari Singh, resident of E/82, P.C.

Colony, Kankarbagh, District Patna.

… … Petitioner/s

Versus

1. State of Bihar

2. Arvind Kumar Singh, Son of Ambika Singh alias Akhilesh Prasad Sinha,

resident of P1/8, Vidhyanagar Colony, P.O. and P.S. Kankarbagh, District

Patna.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Jai Vardhan Narayan and
Mr. Sarvendra Kumar Verma, Advocates
For the State : Mr. Jharkhandi Upadhyay, A.P.P.
For the Opposite Party/s : Mr. Arun Kumar and
Mr. Bipin Kumar, Advocates

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN
AMANULLAH
ORAL JUDGMENT

Date : 15-01-2019

Heard learned counsel for the petitioner; learned A.P.P.

for the State and learned counsel for the opposite party no. 2.
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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2. The sister of the petitioner and the son of the opposite

party no. 2 have also come to Court.

3. On 08.01.2019, the Court had recorded the following

order:

“2. Two family members are bitterly
fighting among themselves as there are various
cases and counter cases, all resulting out of the
failed marriage of the sister of the petitioner with
the son of the opposite party no. 2.

3. Thus, the Court deems it appropriate
to call the warring parties to explore the possibility
of any settlement between them, failing which the
Court shall proceed to decide the matter on
merits.”

4. Today, learned counsel submitted that there is no

chance of any settlement. Thus, the Court has proceeded to hear

the matter on merits.

5. The petitioner has moved the Court under Section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the ‘Code’) for the following relief:

“That this quashing application is being
filed on behalf of the petitioner for quashing the
entire criminal proceedings against the petitioner
in Complaint Case no. 1671 (C) of 2012 pending
in the Court of Smt. Reshma, the learned Chief
Judicial Magistrate, Patna under Sections 323,
341, 342, 504, 506, 386, 379, 120B, 34 of IPC and
Sections 25A, 26 and 27 of the Arms Act and
cognizance has been taken on 07.11.2012 u/s 341,
323, 504 IPC.”

Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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6. The allegation against the petitioner and six others is

of assault and snatching of gold chain and money. Against the

petitioner, it is also stated that he along with his brother-in-law had

taken out pistol and got blank papers signed by the son of the

complainant.

7. Learned counsel for the petitioner submitted that the

present is a total false and fabricated case. It was submitted that

the sister of the petitioner had married the son of the opposite party

no. 2, in a temple at Mumbai and affidavit was sworn by both the

parties in this connection declaring their marriage. It was

submitted that the marriage was performed on 27.04.2009 at

Mumbai. It was submitted that within a few days only, the family

members and the husband of the sister of the petitioner started

torturing her for dowry, threatening that if the same was not met,

the son of the opposite party no. 2 would marry someone else after

divorcing the sister of the petitioner. It was further submitted that

the sister of the petitioner was turned out of the matrimonial home

on 12.06.2009 and had to return to her parent’s place and request

by the family members of the petitioner to the opposite party no. 2

and his family members to keep his sister was rejected. Learned

counsel submitted that this forced the sister of the petitioner to file

Complaint Case No. 2541(C) of 2009, before the Sub Divisional
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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Judicial Magistrate, Patna under Sections 498A of the Indian Penal

Code and 3/4 of the Dowry Prohibition Act. Learned counsel

submitted that in the said case, the son of the opposite party no. 2

had filed anticipatory bail petition which was rejected by the Court

of Session and the High Court. Learned counsel further submitted

that the opposite party no. 2 had also filed Cr. Misc. No. 3442 of

2013, to quash the entire criminal proceedings in connection with

Complaint Case No. 2541(C) of 2009, in which the case against

the son of the opposite party no. 2, i.e., the husband of the sister of

the petitioner was dismissed as withdrawn. Learned counsel

submitted that the said case was filed on 17.09.2009 and

cognizance was taken on 19.01.2012. Learned counsel submtited

that besides this, the sister of the petitioner also filed Domestic

Violence Case No. 8 of 2012, against her husband, the opposite

party no. 2, her mother-in-law and sister-in-law on 23.02.2012.

Against the same, the accused i.e. opposite party no. 2 and others

had moved the Court in Cr. Misc. No. 4361 of 2013 for quashing

of the said case and by order dated 04.09.2013 the Court had

dismissed the application seeking quashing of the Domestic

Violence Case. Learned counsel submitted that in the meantime,

the son of the opposite party no. 2 had filed M.P. No. 465 of 2009

at Kalyan in the State of Maharastra for dissolving the marriage on
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18.08.2009 in which an ex parte order for divorce has also been

passed on 29.11.2010. Learned counsel submitted that the husband

of the sister of the petitioner has the habit of marrying one after the

other and then getting into litigation. In this connection, learned

counsel submitted that the husband of the sister of the petitioner

had married Tripti alias Tripti Kumari with whom also there were

differences giving rise to Matrimonial Case No. 564 of 2013, filed

by the son of the opposite party no. 2, seeking restitution of

conjugal rights on 11.07.2013. However, it was submitted, that

ultimately the parties divorced and the son of the opposite party

no. 2 has again married for the third time. Learned counsel

submitted that a plain reading of the complaint would show that

the allegations are totally unnatural and unbelievable. It was

submitted that even in the statement of witnesses who have

deposed before the Court there are serious contradictions with

what has been stated in the complaint petition. It was submitted

that in the complaint, the allegation is that the petitioner and his

brother-in-law, at the point of gun had got plain papers signed by

the son of the opposite party no. 2, but the witness no. 2 namely,

Gajendra Singh has not stated anything with regard to taking out

of gun by the petitioner and the brother-in-law and further to a

query of the Court he has stated that it was the complainant who
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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had told him about the accused and the incident. Learned counsel

submitted that the second witness namely, Milind Kumar, has

stated that it was the brother-in-law of the petitioner who had taken

Rs. 15-20 thousand from the complainant. Learned counsel

submitted that the said Milind Kumar has further stated that it was

only the brother-in-law of the petitioner, who has taken out the

gun. Learned counsel submitted that the witness Gajendra Singh

has stated that it was the petitioner, who had got the papers

forcibly signed by the son of the opposite party no. 2. Learned

counsel submitted that there being so much material contradictions

between the complaint, S.A. and the statement of witnesses, even

the Court below found that the allegations under Sections 342,

506, 386, 379, 120B and 34 of the Indian Penal Code and 25A, 26

and 27 of the Arms Act have been added only to make the offence

serious. Learned counsel further submitted that the allegation

appears to be concocted and false for the reason that if at all the

sister of the petitioner had taken Rs. 15,000/- and certificates at

Mumbai, going to the house of the petitioner after three years and

that too after getting an ex parte decree of divorce is absolutely

unbelievable and untenable and there cannot be any truth in the

same. Learned counsel submitted that further, the allegation in the

complaint being that the sister of the petitioner had snatched away
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gold chain from the neck of the son of the opposite party no. 2 is

also unbelievable for she being a lady cannot be expected to do

such act and even one of the witness has stated that it was the

petitioner, who had done so. Learned counsel further submitted

that there is also no explanation as to how the incident could have

occurred when there were three other witnesses besides the son of

the petitioner and the opposite party no. 2 himself and all being

male members, as to why five persons were unable to prevent the

incident. Learned counsel submitted that the allegation of assault

by brick bats is completely false as no injury report with regard to

any person has been brought on record. Learned counsel

submitted that the falsity of the allegation would also be clear from

the fact that in the S.A., to a Court query, the opposite party no. 2

has stated that the other sister of the petitioner, who was the

daughter-in-law of the co-brother of the opposite party no. 2,

wanted to get her sister married to the son of the opposite party no.

2 for which she was putting pressure and that was the reason for

the incident. Thus, learned counsel submitted that the entire story

of going to the house of the petitioner for return of the degree of

opposite party no. 2 and Rs. 15,000/- is falsified by the statement

before the Court of the opposite party no. 2 himself and that too in

reply to a Court query.

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8. Learned A.P.P. and learned counsel for the opposite

party no. 2 submitted that the Court has taken cognizance on the

basis of the materials before it and, thus, the petitioner is required

to face trial in which they can prove their innocence. However, on

a query of the Court that when the present application has also

been filed for quashing of the entire complaint case, how the order

of cognizance shall make any difference, they had no answer.

9. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, taking an

overall view of the matter, the Court finds that a case for

interference has been made out. In the present case, as has rightly

been submitted by learned counsel for the petitioner, there being

serious discrepancies in the complaint and the statement of

witnesses and even the complainant himself in his answer to the

Court query during S.A. having completely changed the cause of

the alleged incident, as also one of the witnesses stating that

whatever he has stated is on the basis of what he has been told as

also there being serious contradictions of the role assigned with

regard to the individual allegations against the accused varying

from person to person and most importantly, even the Court below

itself finding that the allegation under the Arms Act and various

other Sections of the Indian Penal Code being added just to make
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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the offence serious and no prima facie case being made under such

Sections, the entire complaint case itself appears to be a concocted

story. Further, there being no explanation as to what concrete steps

the opposite party no. 2 and his family members had taken if at all

it was true that the sister of the petitioner had taken away the

original degrees/certificates and Rs. 15,000/- from the son of the

opposite party no. 2 more than three years back, clearly appears to

be a lame excuse and is hard to believe. Further, once after having

taken ex parte divorce and almost after a year of having married

another girl i.e., Tripti alias Tripti Kumari and still approaching the

petitioner and his family members and going their house also

cannot be said to be believable. In this connection, the Court

would refer to the decision of the Hon’ble Supreme Court in the

case of State of Haryana vs. Bhajan Lal reported as 1992 Supp

(1) SCC 335, where at paragraph no. 102, categories have been

laid down under which the Court would exercise its inherent

power under Section 482 of the Code. The same reads as under:

“102. In the backdrop of the interpretation of the
various relevant provisions of the Code under Chapter
XIV and of the principles of law enunciated by this Court
in a serious of decisions relating to the exercise of the
extraordinary power under Article 226 or the inherent
powers under Section 482 of the Code which we have
extracted and reproduced above, we give the following
categories of cases by way of illustration wherein such
power could be exercised either to prevent abuse of the
process of any court or otherwise to secure the ends of
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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justice, though it may not be possible to lay down any
precise, clearly defined and sufficiently channelised and
inflexible guidelines or rigid formulae and to give an
exhaustive list of myriad kinds of cases wherein such
power should be exercise.

(1) Where the allegations made in the
first information report or the complaint, even if
they are taken at their face value and accepted in
their entirety do not prima facie constitute any
offence or make out a case against the accused.

(2) Where the allegations in the first
information report and other materials, if any,
accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by
police officers under Section 156 (1) of the Code
except under an order of a Magistrate within the
purview of Section 155(2) of the Code.

(3) Where the uncontroverted
allegations made in the FIR or complaint and the
evidence collected in support of the same do not
disclose the commission of any offence and make
out a case against the accused.

(4) Where, the allegations in the FIR do
not constitute a cognizable offence but constitute
only a non-cognizable offence, no investigation is
permitted by a police officer without an order of a
Magistrate as contemplated under Section 155(2)
of the Code.

(5) Where the allegations made in the
FIR or complaint are so absurd and inherently
improbable on the basis of which no prudent
person can ever reach a just conclusion that there
is sufficient ground for proceeding against the
accused.

(6) Where there is an express legal bar
engrafted in any of the provisions of the Code or
the concerned Act (under which a criminal
proceeding is instituted) to the institution and
continuance of the proceedings and/or where
there is a specific provision in the Code or the
concerned Act, providing efficacious redress for
the grievance of the aggrieved party.

(7) Where a criminal proceeding is
manifestly attended with mala fide and/or where
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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the proceeding is maliciously instituted with an
ulterior motive for wreaking vengeance on the
accused and with a view to spite him due to
private and personal grudge.”

10. In the opinion of the Court, the present case comes

under categories 5 and 7 of the aforesaid judgment in the case of

Bhajan Lal (supra).

11. Similarly, it is relevant to refer to the judgment of the

Hon’ble Supreme Court in the case of State of Karnataka v. L.

Muniswamy reported as (1977) 2 SCC 699, where at paragraph

no. 7, the following has been held:

“7. ………In the exercise of this wholesome
power, the High Court is entitled to quash a
proceeding if it comes to the conclusion that
allowing the proceeding to continue would be an
abuse of the process of the Court or that the
ends of justice require that the proceeding ought
to be quashed. The saving of the High Court’s
inherent powers, both in civil and criminal
matters, is designed to achieve a salutary public
purpose which is that a Court proceeding ought
not to be permitted to degenerate into a weapon
of harassment or persecution. In a criminal
case, the veiled object behind a lame
prosecution, the very nature of the material on
which the structure of the prosecution rests and
the like would justify the High Court in
quashing the proceeding in the interest of
justice……”

12. For reasons aforesaid, the application is allowed.

The entire criminal proceeding in Complaint Case No. 1671(C) of
Patna High Court Cr.Misc. No.28893 of 2014 dt.15-01-2019
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2012 as well as the order taking cognizance dated 07.11.2012, as

far at it relates to the petitioner, stands quashed.

(Ahsanuddin Amanullah, J.)

P. Kumar

AFR/NAFR
U
T

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