IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36447 of 2014
Arising Out of PS.Case No. -662 Year- 2012 Thana -ROHTAS COMPLAINT CASE District- SASARAM (ROHTAS)
1. Shiv Shankar Dubey s/o Ramanuj Dubey
2. Ramanuj Dubey s/o Jagdeo Dubey
3. Satyendra Dubey, son of Shiv Shankar Dubey All R/o Village-
Sikrona, P.S.- Itarhi, District- Buxar
…. …. Petitioners
Versus
1. The State of Bihar
2. Shyam Narayan Tiwary, S/o Bhuneshwar Tiwari, R/o Village-
Sawandihri, Post Balthari, P.S.- Kochas, District- Rohtas (Sasaram)
…. …. Opposite Party
Appearance :
For the Petitioner/s : Mr. Dharmendra Kumar, Advocate
For the Opposite Party/s : Mr. Amitesh Kumar, Additional Public Prosecutor
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 13-09-2017
Heard Sri Yogesh Chandra Verma, learned Senior
counsel as well as learned counsel representing the
petitioners, learned counsel representing the
complainant/Opposite Party No. 2 and learned Additional
Public Prosecutor for the State.
2. The petitioners, in the present case, are seeking
quashing of the order taking cognizance dated 15.04.2013
passed in Complaint Case No. 662/2012 by learned Sub-
Divisional Judicial Magistrate, Sasaram (Rohtas) by which
learned Magistrate has taken cognizance of the offence
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under Section 406 IPC read with Section 4 of the Dowry
Prohibition Act, 1961.
3. Learned Senior counsel representing the petitioners
would submit that from perusal of the complaint petition,
which is annexure-1 to the present application, it would
appear that due to failure of negotiation for marriage
between the daughter of the complainant and the accused
no. 1 namely, Satyendra Dubey, the present complaint has
been brought with false and flimsy allegations.
4. Learned Senior counsel submit that in the complaint
petition, although there are allegations that the complainant
had handed over a sum of Rs. 3,00,000/- in cash to accused
no. 3 and one gold chain worth Rs. 40,000/- for accused no.
1, Satyendra Dubey and a sum of Rs. 8 lacs in cash and one
Alto Car was demanded by accused persons after ‘Cheka’ as
a condition for marriage, but according to learned Senior
counsel, the allegations are vague and there is not even a
prima facie evidence to support the prosecution. According
to him, no offence under Section 406 IPC and/or Section 4 of
the Dowry Prohibition Act, 1961 is made out from a reading
of the complaint petition, therefore, the order taking
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cognizance is bad in law.
5. Reliance has been placed in support of the
submissions by learned Senior counsel for the petitioners on
the judgments in the case of Vijay Sharma Anr. Vs. State
of Bihar reported in 2011 (1) PLJR 780; Mishri Ram Vs. State
of Bihar reported in 2002 (4) PLJR 197 and Employees’ State
Insurance Corporation Vs. S.K. Aggarwal reported in 1998
CRL. L. J. 4027. Further submission is that even if allegations
are taken to be true for the arguments sake, Dowry
Prohibition Act itself says that an agreement for giving and
taking of dowry shall be void, therefore, the complainant
cannot prosecute the accused persons for taking dowry, and
as such, the cognizance under Section 4 of the Dowry
Prohibition Act is bad in law.
6. On the other hand learned counsel representing
the complainant/Opposite Party No. 2 submits that the
learned Magistrate has taken cognizance of the offences as
alleged on the basis of the statements of the complainant on
oath as well as the statements of the inquiry witnesses under
Section 202 Cr.P.C.
7. A counter affidavit has been filed on behalf of
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complainant/Opposite Party No. 2 with which certain
photographs have been attached to show that the
negotiations had already taken place between the parties
and it is only after some kind of ring ceremony (Cheka),
which is evident from the photographs, the money and Alto
Car was demanded, the accused persons broke the
negotiation and refused to return the cash Rs. 300,000/- and
gold chain which were handed over to accused no. 3
Ramanuj Dubey as per negotiation for marriage and thereby
committed an offence under Section 406 of the Indian Penal
Code read with section 4 of Dowry Prohibition Act. Further
submission of learned counsel for the complainant/Opposite
Party No. 2 is that no doubt Section 5 of the Dowry
Prohibition Act says that any agreement for giving or taking
dowry shall be void, but the scheme of Dowry Prohibition Act
is different from other statute, that provision cannot be
construed to mean and understand that the accused persons
who have demanded dowry, if proved, shall not be punished,
therefore, the submission of learned Senior counsel for the
petitioners that by virtue of agreement being a void
agreement no offence is made out is a total
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misunderstanding of law on this behalf.
8. Learned counsel representing the complainant
/Opposite Party No. 2 submits that the photographs, which
he has attached with the counter affidavit filed before this
Court, are very much part of the record before the learned
Judicial Magistrate who has taken cognizance only after
appreciation of the materials available on the record and
based on a prima facie view for the purpose of cognizance.
The photographs have not been enclosed with the complaint
petition filed by the present petitioner as Annexure-1 to the
present application, further the accused-petitioners have not
brought on record the deposition of enquiry witnesses, and,
therefore, all such documents which were against the
petitioners have not been placed before this Court. He
further submits depositions of enquiry witnesses have been
brought on record by him with his counter affidavit, a perusal
thereof would show that the witnesses have supported the
case of the complainant. Thus, according to him, this Court
need not exercise it’s inherent jurisdiction to quash the
present proceeding.
9. This Court has considered the rival submission at
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the Bar. The judgments referred on behalf of the petitioners
have also been perused. In the case of Employees’ State
Insurance Corporation Vs. S.K. Aggarwal since reported in
1998 CRL. L. J. 4027; the issue, which had fallen for
consideration before the Hon’ble Supreme Court, was as to
whether a criminal proceeding can be lodged against the
Director of a limited company taking him as a principal
employer liable to pay contribution under Section 40 of the
Employee’s State Insurance Act, 1948. The Hon’ble Supreme
Court upheld the judgment of the Hon’ble Calcutta High
Court taking a view that the Director shall not be personally
liable for the contributions not deposited by the Company.
10. In the case of Mishri Ram Vs. State of Bihar since
reported in 2002 (4) PLJR 197, a coordinate Bench of this
Court was considering a criminal revision application which
arose out of an order of conviction passed under Section 409
of the Indian Penal Code, whereby a sentence of two years
simple imprisonment and to pay a fine of Rs. 1000/- in
default was awarded to the accused. The argument of the
petitioner in the said case was that there was no evidence
about entrustment of the property and misappropriation
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thereof, and therefore, the case of the petitioner would not
fall within the mischief of Section 409 of the Indian Penal
Code.
11. The Court, in Mishri Ram’s case, came to a
conclusion in the facts of that case that though there were
evidence about entrustment of property to the petitioner
but there was no evidence to show that he had dishonestly
misappropriated the property and converted to the property
to his own use, therefore, mere refusal to return the
property which was entrusted to him was held not to
constitute an offence under Section 406 of the Indian Penal
Code.
12. In the case of Vijay Sharma Anr. Vs. State of
Bihar since reported in 2011 (1) PLJR 780; this Court quashed
a criminal proceeding under Section 406 of the Indian Penal
Code taking note of the facts that it was admitted case of the
complainant/Opposite Party No. 2, that he had given money
to the petitioner no. 1 for obtaining an employment for his
son. On the assurance of the accused that he will obtain a job
for his son in police force, the complainant/Opposite Party
No. 2 had given a sum of Rs. 65,000/- to the accused. In the
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facts of that case, a coordinate Bench of this Court noticed
Section 23 of the Indian Contract Act, which declares void a
contract, which is contrary to the law or opposed to the
public policy, but the submission of the complainant relying
upon Section 65 of the Indian Contract Act that he may still
file a money claim was left open. In ultimate analysis, the
criminal proceeding in the said case was quashed by learned
Single Judge of this Court concluding that the allegations
were false, frivolous and vexatious as a vendata and to divert
the attention of the petitioners to prevent them from
actively pursuing the criminal case which was brought by the
petitioner against the complainant of the case under Section
304(B) IPC. The quashment of criminal proceeding is not on
the ground as is being pleaded in the present case.
13. On consideration of the submissions of the parties
as regards cognizance under Section 4 of the Dowry
Prohibition Act, 1961, this Court is of the opinion that a case
brought by the present complainant/Opposite Party No. 2
alleging that accused persons demanded dowry after
receiving part of the agreed amount and the gold chain
cannot be allowed to be closed down or quashed on the
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ground that the agreement for giving and taking of dowry is
a void agreement. This is the only plea taken by the
petitioner. The legislatures being fully aware of what they
have prescribed in Section 5 of the Dowry Prohibition Act,
whereunder an agreement to give or take dowry has been
declared a void agreement did not include the persons giving
dowry within the scope of Section 4 of the Dowry Prohibition
Act, though under section 3 of the said Act ‘giver of dowry
shall also be punished’ scope of sections 3 and 4 are different
and distinct.
14. On the applicability of Section 406 of the Indian
Penal Code, none of the judgments referred by the learned
Senior counsel for the petitioners would help because those
judgments as noted above have been rendered in totally
different fact situation. The Hon’ble Supreme Court has
cautioned time and again that a judgment should not be
cited like an euclid’s theorem because a slightest of change
in the facts of the case may result in a sea difference in the
judgment of the Court and the law.
15. In the present case, the photographs which have
been brought on record with the counter affidavit were not
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enclosed by the present petitioners with complaint petition
which has been enclosed as Annexure-1 which seems
purposely done to withheld the documents which were
relied upon by the learned Judicial Magistrate for the
purposes of taking cognizance. Photographs as well as the
statements made in complaint and deposition of the enquiry
witnesses in support that the accused persons after receiving
part of the agreed amount and the gold chain demanded a
sum of Rs. 8 Lakhs in cash and a Alto Car, which have been
brought by the complainant/Opposite Party No. 2 on record,
prima facie satisfies this Court with the correctness of the
order taking cognizance passed by the learned Judicial
Magistrate. The inherent power of this Court to quash the
criminal proceeding cannot be exercised in favour of the
petitioners in the present case.
16. This court is, therefore, not inclined to interfere
with the order taking cognizance and issuance of summons.
The accused-petitioners are at liberty to raise all such pleas
which are available to them at the time of framing of charge
in the court below which will be considered by the court
below on it’s own merit without being prejudice by the
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observation of this Court, here-in-above.
17. This application is dismissed. No order as to costs.
(Rajeev Ranjan Prasad, J.)
Rajeev/-
AFR/NAFR NAFR
CAV DATE NA
Uploading Date 15.09.2017
Transmission Date 15.09.2017