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Shail Devi @ Shail Sharma & Ors vs State Of Bihar & Anr on 24 April, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.44070 of 2013
Arising Out of PS.Case No. -1769 Year- 2009 Thana -GAYA COMPLAINT CASE District- GAYA

1. Shail Devi @ Shail Sharma W/O Nand Mohan Sharma Resident Of Village-
Sarhua, P.S- Markhadumpur, District- Jehanabad.

2. Nand Mohan Sharma S/O Late Shayamia Prasad Resident Of Village- Sarhua,
P.S- Markhadumpur, District- Jehanabad.

3. Usha Devi D/O Nand Mohan Sharma And W/O Late Dhananjay Kumar Resident
Of Mohalla And P.S- Kankarbagh, District- Patna.

4. Sonu @ Sonu Kumar S/O Nand Mohan Sharma Resident Of Village- Sarthua,
P.S- Makhdumpur, District- Jehanabad.

5. Nand Navin @ Raju S/O Nand Mohan Sharma Resident Of Village- Sarthua,
P.S- Makhdumpur, District- Jehanabad.

…. …. Petitioner/s
Versus

1. The State Of Bihar

2. Rina Kumari W/O Nand Navin @ Raju And D/O Sitaram Singh Resident Of
Sarthua, P.S- Makhdumpur, District- ………………

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr.
For the Opposite Party/s : Mr.

CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
ORAL JUDGMENT
Date: 24-04-2017

The present petition has been filed for quashing the order

dated 26-07-2010 passed by Smt. Anandita Singh, the learned Judicial

Magistrate-Ist Class, Gaya in Complaint Case No. 1769 of 2009, by

which and whereunder, the learned Magistrate took cognizance

against the petitioners for the offence under Sections-498(A)/406 of

the Indian Penal Code.

Heard learned counsel for the petitioners and learned

counsel appearing for opposite party No. 2.
Patna High Court Cr.Misc. No.44070 of 2013 dt.24-04-2017

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It has been submitted that the instant complaint case has

been filed in the year, 2009 after grant of decree of divorce in favour

of husband (petitioner No. 5) in the year, 2008 (10-09-2008).

Petitioner Nos. 1, 2, 3 4 have no concern with personal relationship

of husband and wife. Counsel for opposite party No. 2 has appeared.

He has submitted that ex-parte decree of divorce was obtained by

husband (petitioner No. 5) without prior service of notice on the

complainant. The complainant has taken necessary steps for recall of

the ex parte order of divorce passed by the court.

From the impugned order, it appears that after looking into

S.A. of the complainant and statement of witnesses, learned

Magistrate found prima facie case against the petitioners under

Sections-498A/406 of the Indian Penal Code.

As per allegation in complaint petition, the complainant

was tortured in her Sasural for demand of Maruti car after marriage

and finally, she was ousted from the matrimonial house.

From the allegation made in the complaint, it appears that

petitioner Nos. 3 4 who are married Nanad and Devar of the

complainant did not commit any specific overt act against the

complainant. They have no any concern with the family affairs

between the husband and wife. Therefore, the impugned order of

cognizance and criminal proceeding against petitioner Nos. 3 4 is
Patna High Court Cr.Misc. No.44070 of 2013 dt.24-04-2017

3/4

hereby quashed.

So far as allegation against petitioner Nos. 1, 2 5 are

concerned; there is specific allegation against all of them of

committing physical and mental torture with the complainant for

demand of Maruti car and on non-fulfillment of the demand, she was

ousted from the house. The allegation has been made against them

that they committed torture with complainant since the date of

marriage i.e. 23-06-1999.

From the submissions of the petitioners, the marriage has

been dissolved vide ex parte decree of divorce passed in Matrimonial

Suit No. 50 of 2008.

Counsel for opposite party No. 2 has submitted that he has

taken steps in accordance with law for recalling the ex parte order of

divorce. This court is of the view that even after grant of divorce in

the year, 2008, the petitioner Nos. 1, 2 5 will not be exonerated

from the criminal offence committed by them prior to the date of

divorce.

From the complaint petition itself, it is apparent that the

complainant was being tortured by these petitioners since the date of

marriage i.e. 23-06-1999. It is specifically alleged in paragraph-12 of

the petition that the complainant on account of said mental and

physical torture, went in depression in the year, 2007.
Patna High Court Cr.Misc. No.44070 of 2013 dt.24-04-2017

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Therefore, this court does not find any illegality in the

order of cognizance taken against petitioner Nos. 1, 2 5. The trial

court will proceed against petitioner Nos. 1, 2 5 in accordance with

law.

Accordingly, this Criminal Misc. petition is allowed in

part.

The petitioner Nos. 1, 2 5 are given liberty to raise all

the points as raised in this Cr. Misc. Application at the time of

framing of charge in the case before the court concerned, which shall

be disposed off by the court below in accordance with law on its own

merit.

(Sanjay Priya, J)

A.K.V./-

AFR/NAFR NAFR
CAV DATE
Uploading Date 28-04-207
Transmission 28-04-2017
Date

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