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.
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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.”
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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
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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
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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
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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
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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
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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
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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