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Surendra Tiwary @ Surendra Tiwari vs The State Of Bihar on 9 May, 2019

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
Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019
2/6

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.
Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019
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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,
Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019
4/6

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
Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019
5/6

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
Patna High Court CR. MISC. No.25389 of 2019 dt.09-05-2019
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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

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