IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.49683 of 2014
Arising Out of PS.Case No. -28 Year- 2013 Thana -JALE District- DARBHANGA
1. Tribhuwan Thakur Son Jageshwar Thakur
2. Kusum Devi w/o Tribhuwan Thakur
Both resident of Village Hasanpur, P.S. Jale, District-Darbhanga.
…. …. Petitioner/s
Versus
1. State of Bihar
2. Durgi Devi, d/o Kusum Thakur, resident of Village Simri P.S. – Bisfi, District-
Madhubani
…. …. Opposite Party/s
Appearance:
For the Petitioner/s : Mr. Md. Soban Asghar, Advocate.
For the State: Mr. Parmeshwar Mehta, A.P.P.
For the Opposite Party no.2 : Mr. Dharmendra Jha, Advocat.e
CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 16-10-2017
Heard learned counsel for the petitioners and learned
counsel representing the opposite party no. 2 as also learned A.P.P.
for the State.
2. Petitioner no. 1 is the elder brother of the husband of the
informant – opposite party no. 2 and petitioner no. 2 is the wife of the
petitioner no. 1. Both these petitioners are seeking quashing of the
order dated 26.08.2013 passed by learned Chief Judicial Magistrate,
Darbhanga in connection with Jale P.S. Case No. 28/2013 registered
on 03.04.2013 by which the learned Chief Judicial Magistrate,
Darbhanga has taken cognizance of the offences under Sections 498A
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and 348 IPC read with Sections 3 / 4 of the D.P. Act and decided to
issue summons to all the eight accused persons including the present
petitioners.
3. Learned counsel for the petitioners submits that on the
same allegations the informant had earlier lodged a complaint case
giving rise to C.R. No. 230/2013 in the court of the learned Chief
Judicial Magistrate, Madhubani against six accused named in the
Complaint Petition. These two petitioners were not named in the
complaint case. Learned counsel for the petitioners submits that a
perusal of the Complaint Petition (Annexurew-3 to the present
application) would show that it contains the allegation of demand of
dowry as well as torture meted out to her by the accused persons and
there is also an instance of commission of certain acts by the accused
named in the complaint on 04.03.2013. Learned counsel has drawn
my attention towards the Complaint Petition and then has placed
Annexure-1, which is the written report dated 03.04.2013 submitted
by the informant – opposite party no. 2, who is the complainant in
C.R. No. 230/2013. In the written report submitted to the Officer-in-
charge, Jale Police Station, this time the name of these two petitioners
have also been added as accused without there being any specific
allegation against them. In fact, a comparison between the two
documents, i.e., the Complaint Petition and the F.I.R. would show that
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the same allegations and instance have been repeated for purpose of
lodging an F.I.R. Learned counsel submits that the petitioner no. 1 is
Bhaisur and the petitioner no. 2 is Gotni and they are always residing
in Kolkatta as the petitioner no. 1 is an employee in the Railway. The
petitioners have brought on record copies of the Identity Card and the
Attendance Register showing that on the alleged date the petitioner
no. 1 was on duty. The emphasis is on the submission that it is a case
of mala fide prosecution of the entire family members. The Complaint
Petition and the F.I.R. for the same allegations without there being
any specific allegation against these petitioners are conclusively
indicating towards false prosecution of these petitioners.
4. On the other hand, learned counsel for the opposite
party no. 2 has opposed the prayer for setting aside of the impugned
order as regards the present petitioners.
5. A pointed question has been asked to the learned
counsel representing the opposite party no. 2 as to whether there is
any specific allegation against these petitioners, learned counsel for
the opposite party no. 2 is unable to show that there is any specific
allegation against these two petitioners. There is also no explanation
as to why the names of these petitioners were added in the F.I.R.
lodged on 03.04.2013 when in the Complaint Petition they were not
accused and no allegations of demand of dowry or torture were made
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against them.
6. This Court has perused the materials available on
record. The Complaint Petition (Annexure-3 to the present petition)
was filed only against six accused, these petitioners were not named
there. No allegation at all was made against these petitioners in the
Complaint Petition filed on 07.03.2013.
7. The F.I.R. has been lodged on 03.04.2013 but without
there being any specific allegation against these petitioners. The only
difference is that the names of these petitioners have been added in the
F.I.R. in the column of the accused with an intention to make them
accused on the strength of general and omnibus allegations which
were earlier made against the accused persons named in the
Complaint Petition only.
8. There is another uncontroverted and unimpeachable
document in form of the Identity Card of the petitioner no. 1 showing
that he is working as a Driver, Grade I in South Eastern Railways, the
Attendance Register enclosed as part of Annexure-2 also shows that
he was on duty during the period these Complaint and the F.I.R. have
been lodged. As the Court comes to a finding that these petitioners
have been only implicated because they happen to be the family
members of the husband and there is no allegation at all against them,
rather their names have been brought in the F.I.R. at a later stage
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when the complainant – opposite party no. 2 did not make any
allegation against them in the first complaint, it is a clear case of mala
fide prosecution of these petitioners.
9. This being the position, continuance of the criminal
proceedings against these petitioners would be only an abuse of the
process of court and the same needs to be set aside in the interest of
justice.
10. The impugned order insofar as it relates to the present
petitioners is hereby set aside and the application is allowed.
(Rajeev Ranjan Prasad, J)
Dilip, AR
AFR/NAFR NAFR
CAV DATE N/A
Uploading Date 16.10.2017
Transmission 16.10.2017
Date