IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.25389 of 2019
Arising Out of PS. Case No.-810 Year-2014 Thana- VAISALI COMPLAINT CASE District-
Vaishali
1. Surendra Tiwary @ Surendra Tiwari Son of Late Ramnandan Tiwari
Resident of Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.
2. Pankaj Tiwary Son of Surendra Tiwary @ Surendra Tiwari Resident of
Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.
3. Chandan Tiwary Son of Surendra Tiwary @ Surendra Tiwari Resident of
Village- Keshrawan Dih, P.S.- Kurhani, District- Muzaffarpur.
4. Ranjita Devi Wife of Pankaj Tiwari Resident of Village- Keshrawan Dih,
P.S.- Kurhani, District- Muzaffarpur.
… … Petitioner/s
Versus
1. The State of Bihar
2. Soni Kumari Wife of Prabhat Tiwari and daughter of Late Kamleshar
Sharma Resident of Village- Keshrawan Dih, P.S.- Kurhani, District-
Muzaffarpur, at present residing at Village- Sambhopatti, P.S.- Mahua,
District- Vaishali.
… … Opposite Party/s
Appearance :
For the Petitioner/s : Mr. Sanjeev Kumar
For the Opposite Party/s : Mr. Ashok Kumar Singh, A.P.P.
CORAM: HONOURABLE MR. JUSTICE PRAKASH CHANDRA
JAISWAL
ORAL JUDGMENT
Date : 09-05-2019
Heard learned counsel for the petitioners and
learned APP for the State.
2. This application under Section 482 of the Code
of Criminal Procedure has been filed for quashing the order
dated 13.03.2019 passed by Sub-Divisional Judicial Magistrate,
Vaishali at Hajipur in Complaint Case no. 810(C) of 2014,
whereby the learned Magistrate has rejected the discharge
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petition filed by the petitioners under Section 245 Cr.P.C.
3. Factual matrix of the case is that O.P. no. 2 Soni
Kumari filed Complaint Case no. 810 of 2014 against the
petitioners and four other accused persons as named in the
complaint petition under Sections 147, Section323, Section504, Section498A, Section379 of
the Indian Penal Code and Section 3/Section4 of Dowry Prohibition Act
with the allegation, in succinct, that marriage of the complainant
(O.P. No. 2) was performed with the accused Prabhat Tiwari.
After marriage, she went to her marital house, but the accused
persons started subjecting her to various sorts of torture over
demand of Rs. 5 lacs for doing business and finally they drove
her out of her marital house snatching her belonging and
thrashing her and extended threatening of dire consequences in
case of regression to her marital house without taking money.
Then she rushed to her maternal uncle and on call of her uncle,
accused no. 1 to 4 of the complaint petition arrived at the house
of her maternal uncle and put the aforesaid demand. On hectic
persuasion made by her uncle, they refused to budge and even
slated and assaulted her and her maternal uncle and extended
threatening.
4. During the course of inquiry, O.P. no. 2
examined herself on S.A. and also examined three witnesses.
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5. Learned Magistrate after perusing the complaint
petition, S.A., inquiry witnesses and finding making out prima
facie case took cognizance of the offence under Sections 498A
of the Indian Penal Code and Section 4 of D.P. Act against the
petitioners. Later on, five witnesses were examined by the
complainant before charge. Subsequently, Pushpa Devi and
Kiran Devi, who happens to be married sister-in-law (Nanad)
and Swati Priya Bhagni of the complainant filed discharge
petition under Section 245 Cr.P.C and after considering the facts
and circumstances of the case and materials available on record,
the learned Magistrate allowed the discharge petition vide order
dated 30.11.2018. Thereafter, the petitioners filed petition under
Section 245 Cr.P.C. for their discharge on 11.01.2019. But, after
hearing the parties, learned Magistrate vide impugned order
dismissed the aforesaid discharge petition treating the said
discharge petition as review petition and not maintainable on the
premise that earlier while considering the discharge petition of
the Pushpa Devi and Ors., entire facts and circumstances and all
aspects of the case was considered and petitioners were directed
to appear before the court for framing of charge.
6. It is submitted by learned counsel for the
petitioners that the petitioner no. 1 happens to be father-in-law,
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petitioner no. 2 is the Bhaisur, petitioner no. 3 Dewar and
petitioner no. 4 is the elder Gotni of the complainant. They have
neither made any demand nor ever subjected the complainant to
any sort of torture nor drove her out of her marital house over
the said demand nor slated and assaulted and threatened the
informant and her maternal uncle arriving at the house of her
maternal uncle. They are living separately and have no concern
with the affairs of the complainant and her husband. Allegation
levelled against the petitioners is not specific rather general and
omnibus in nature and on similar footing, Nanad and Bhagini of
the complainant have been discharged by the learned
Magistrate. But, the learned Magistrate rejected the discharge
petition of these petitioners treating the same as review petition
of its earlier order against the actual state of affairs. Hence, the
said order is illegal and is liable to be quashed.
7. On the other hand, learned APP for the State
opposed this quashing petition.
8. From perusal of record, it appears that
earlier a discharge petition was filed by the Nanad and
Bhagini of the complainant on 21.08.2018. The learned
Magistrate considering the aforesaid discharge petition
and facts and circumstances of the case and material
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available on record allowed the same vide order dated
30.11.2018. But, when these petitioners filed the
discharge petition on 11.01.2019, the same was
rejected by the court below finding it to be petition
filed for review of its aforesaid earlier order with
observation that the entire facts and circumstances and
all aspects of the case was considered on earlier
occasion and petitioners were directed to appear
before the court for framing of charge. From perusal of
the order dated 30.11.2018, passed by learned
Magistrate, it appears that the evidence and facts and
circumstances of the case was considered by the
learned Magistrate only in re to the discharge petition
filed by Nanad and Bhagini of the complainant,
namely, Pushpa Devi, Kiran Devi and Swati Priya and
not the case of the petitioners. Facts and circumstances
of each case and in re to each accused depends upon
its own merit and petitioners should also be given
opportunity of hearing, but without giving them
opportunity of hearing, the learned Magistrate turned
down their discharge petition in utter violation of
principle of natural justice. Moreover, from perusal
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of the order dated 30.11.2018, it appears that no where
in the said order, the learned Magistrate has directed
the petitioners to appear before him in person for
framing charge turning down their prayer ever made
by them.
9. Having regard to the facts and
circumstances of the case, the order dated 13.03.2019
passed by Sub-Divisional Judicial Magistrate, Vaishali
at Hajipur in Complaint Case no. 810(C) of 2014 is
hereby quashed and the case is remitted back to the
court below to pass fresh order, considering the facts
and circumstances and material available on record in
re to the said petitioners. accordingly this petition is
allowed.
(Prakash Chandra Jaiswal, J)
rohit/-
AFR/NAFR AFR
CAV DATE N.A.
Uploading Date 13.05.2019
Transmission Date 13.05.2019