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Surendra Upadhayay & Ors vs The State Of Bihar & Anr on 24 April, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.30564 of 2011
Arising Out of PS. Case No. -2368 Year- 2010 Thana -Complaint Case District- SIWAN

1. Surendra Upadhayay son of late Sitaram Upadhayay

2. Nagendra Upadhayay son of late Byas Upadhayay

3. Prince Upadhayay son of Surendra Upadhayay
All residents of village Dewapur, P.S. Barauli, District Gopalganj

4. Harikishor Mishra son of late Hareshar Mishra
Resident of village Teliya, P.S. Basantpur, District Siwan
…. …. Petitioners
Versus

1. The State of Bihar

2. Pintu Tiwary son of Prabhunath Tiwary
Resident of village Mathia, P.S. Basantpur, District Siwan
…. …. Opposite Parties

Appearance :

For the Petitioners : Mr. Lakshmi Kant Tiwary, Advocate
For the State : APP
For O.P. No. 2 : Mr. Ajay Mishra, Advocate

CORAM: HONOURABLE MR. JUSTICE VIKASH JAIN
ORAL JUDGMENT
Date: 24-04-2017

Heard learned counsel for the petitioners, learned APP for

the State as well as learned counsel for the opposite party no. 2.

2. The present petition has been filed for quashing the

order dated 15.03.2011 passed by the learned Judicial Magistrate,

Siwan taking cognizance against the petitioners in Complaint Case No.

2368 of 2010 / Tr. No. 6142 of 2011 for the offence under Sections

447, 448, 427, 323, 380, 504 and 506 of the Indian Penal Code.

3. According to the prosecution case, on 20.09.2010 the

petitioners came on a jeep and unauthorizedly entered the house of the

complainant and committed theft of ornaments, clothes and cash of Rs.

20,000/- and also took away the complainant’s belongings.

4. Learned counsel for the petitioners submits that the
Patna High Court Cr.Misc. No.30564 of 2011 dt.24-04-2017

2/3

complaint against the petitioners is out and out mala fide. It is stated

that the complainant is the son-in-law of petitioner no. 1 and

accusations on the face of it are highly improbable that a person would

enter with arms in the house of his son-in-law and commit theft and

take away his daughter. As a matter of fact, there is case and counter

case between the parties. There is inordinate delay in filing the

complaint on 20.09.2010 for the alleged occurrence of 23.08.2010

which further casts doubt upon veracity of the accusation. A complaint

had earlier been filed on 26.08.2010 in Complaint Case No. 2406 of

2010 by the daughter of petitioner no. 1 against the opposite party no.

2 and his family members which was subsequently converted into an

FIR in Barauli P.S. Case No. 162 of 2010.

5. Mr. Ajay Mishra, learned counsel appearing on behalf

of the opposite party no. 2, opposes the present petition by submitting

that at the stage of taking cognizance, all that is required to be seen is

whether there was a prima facie case before the learned Magistrate for

taking cognizance of the offence. At this stage, the learned Magistrate

was not required to go into the defence of the petitioners and hence

there is no occasion for interference with the order taking cognizance.

6. Having heard learned counsel for the parties and on

careful consideration of the materials on record, this Court finds merit

in the petition. It is not in dispute that prior to the instant complaint,

the daughter of the petitioner no. 1 had filed a complaint under section

498A and allied Sections of the Indian Penal Code and Section ¾ of the
Patna High Court Cr.Misc. No.30564 of 2011 dt.24-04-2017

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Dowry Prohibition Act against the opposite party no. 2 and his family

members. The present complaint filed subsequently was clearly in

retaliation to the earlier compliant and to put pressure upon the

petitioners. The accusations in the complaint appear highly improbable

and incapable of being believed by a prudent person that petitioner no.

1 along with other persons would go with arms and commit theft in the

house of his son-in-law.

7. This Court, therefore, is of the view that continuance of

criminal prosecution against the petitioners, in the facts and

circumstances of the case, would amount to abuse of process of the

court.

8. Accordingly, the impugned order dated 15.03.2011

passed by the learned Judicial Magistrate, Siwan taking cognizance

against the petitioners in Complaint Case No. 2368 of 2010 / Tr. No.

6142 of 2011 for the offence under Sections 447, 448, 427, 323, 380,

504 and 506 of the Indian Penal Code is hereby quashed. The petition

stands allowed.

9. Registry is directed to send back the lower court

records without any delay.

(Vikash Jain, J)
B.T/-

AFR/NAFR NAFR
CAV DATE N.A
Uploading 27.04.2017
Date
Transmission 27.04.2017
Date

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