Patna High Court
Case Details
Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 1 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.32567 of 2012 ====================================================== 1. Pancha Nand Rai @ Pachu Rai, S/o Late Yadu Rai. 2. Parwati Devi, W/o Sri Pancha Nand Rai @ Pachu Rai. 3. Manoj Rai, S/o Pancha Nand Rai @ Pachu Rai. 4. Sunil Rai, S/o Pancha Nand Rai @ Pachu Rai. 5. Pankaj @ Shyam, S/o Pancha Nand Rai @ Pachu Rai. All are residence of Kila Road, Patna City, P.S. Chowk, Patna City, District- Patna. Versus .... .... Petitioners. 1. State of Bihar. 2. Savita Devi, W/o Sri Anil Rai, resident of Village- Kila Road, Patna City, P.S. Chowk, Patna City, District- Patna. At present residing at Ganjpar, P.S. Athmalgola, District- Patna. .... .... Opposite Parties. ====================================================== Appearance : For the Petitioners : Mr. S. D. Yadav, Advocate. Mr. Nagmani Kumar, Advocate. For the Opposite Party : Mr. Manoj Kumar Pandey, Advocate. For the State : Mr. Suresh Prasad Singh, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 5 19-08-2013 Heard learned counsel for the petitioners and learned counsel for the complainant. 2. This is an application for quashing the order dated 22.11.2011 passed by the Sub-Divisional Judicial Magistrate, Barh, passed in Case No. 385 (C) of 2011, by which cognizance has been taken under Section 498 A of the Indian Penal Code as well as Section 3/4 of Dowry Prohibition Act. 3. The prosecution case as alleged by the complainant Sabita Devi that marriage with solemnised with Anil Rai on 6th July, 2006. After marriage she went to Sasural with her husband and having good relation with them. However, it is alleged that father-in-law, mother-in-law, Bhaisur and Dewar subject her to
Legal Reasoning
Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 2 cruelty by passing sarcastic remark. It is further alleged in absence of her husband there was demand by accused to the tune of Rs.50,000/- and threat to drive out from sasural. It is further alleged that on 7th July, 2011, when her husband gone outside the house for the purpose of his business then all the accused persons abused, assaulted and thrown her out of house after taking all articles. Thereafter, she went to her Naihar and she resides at naihar with her husband. 4. On the complaint, the complainant was examined on solemn affirmation and after examination of witness, cognizance has been taken for offence under Section 498A of the Indian Penal Code. 5. The order taking cognizance has been challenged by the petitioners who are father-in-law, mother-in-law, Bhaisur and Dewar, of the complainant though, husband has not been named as an accused, but has been arrayed as a witness of the occurrence. 6. Learned counsel for the petitioners submits that petitioners are father-in-law, mother-in-law, Bhaisur and Dewar of the complainant have challenged the order taking cognizance on the ground that allegations made in the complaint are general and omnibus and there is no specific overt act alleged against any of the petitioners and allegation of demand and subjecting cruelty are all in general and omnibus without any specific act of commission and omission. It has further been contended that prior to the Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 3 institution of this case on 20. 07. 2011, a report has been filed by police on 15. 07. 2011 in which Pancha Nand Rai has shown to be first party and Anil Kumar, husband of the complainant has shown to be second party. The report shows that there is dispute between the accused Pancha Nand Rai, father-in-law of complainant on one side and husband of the complainant, who is son of Pancha Nand Rai the second party, with allegation that second party, the husband of the complainant has locked the room of the first party, the father-in-law of the complainant. On request made by father- in-law to open the lock, the husband of the complainant abused and assaulted the father-in-law of the complainant. The report has been filed by the police on the allegation made on 11. 06. 2011. It
Legal Reasoning
has been reported that house has got six rooms. Pancha Nand Rai, the father-in-law of the complainant has five sons and so has allotted one room to each of his five sons and in the sixth room father-in-law and mother-in-law of the complainant resides, but the husband of the complainant has locked the sixth room in addition to room allotted to him. In the case filed by the father-in- law, the police took action against the husband so case has been instituted by the complainant the wife of Anil Kumar who is second party in proceeding under Section 107 Cr.P.C.. Hence it has been contended that this complaint case has been filed to wreck vengeance to spit on the face to the petitioners. 7. Learned counsel for the complainant however, Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 4 contended that allegation made in the complaint itself makes out an offence as there is the specific allegation that all the accused persons demanded of Rs. 50,000/- and subject her cruelty to the complainant and court at this stage only look into the allegation whether prima facie case make out an offence and if it so order taking cognizance is sustainable. 8. However, taking into consideration the respective submission, question for consideration whether the allegations made are absurd and improbable and suffer from malice as are suffer from infirmity that allegations are highly absurd and improbable and suffer from malice to pressurise for illegally grabbing the house of the share of father-in-law of the complainant. 9. However, taking into consideration the allegation made in the complaint and statement of complainant and witness, it is apparent that allegations made in the complaint are general and omnibus and no specific allegation has been attributed against the petitioners and there is no specific act of commission and omission has been made against the petitioners, who are father-in- law, mother-in-law, Bhaisur and Dewar of the complainant. However, it is true that Court at this stage is not required to look into the documents filed by the accused. However, it is well settled that if documents are unimpeachable character and inspire confidence at the outset this Court in exercising inherent Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 5 jurisdiction under Section 482 Cr.P.C. may look into it. However, document filed is Annexure 2 a report with regard to allegation that husband of the complainant has locked the room of the father- in-law and even police even prior to the institution of the present case shows that there Pancha Nand Rai is one side and Anil Kumar, the husband of the complainant is other side. On the basis of document it can well be inferred that criminal proceeding going on between both the parties and there is dispute between first party and second party. However, from the complaint, it is apparent that husband of the complainant has not been made accused in the case and has been arrayed as witness in complaint yet another special feature of the case 10. However going into the question, the allegation made in the complaint, the husband of the complainant has not been made party and complainant has filed the complaint against family members of her husband. In the light of the report shows that father-in-law of the complainant as first party made a complaint by which proceeding under Section 107 Cr.P.C. has been initiated against the husband of the complainant who is second party. Hence from that document, it can well be inferred that criminal case going on between the husband of the complainant and the father-in-law of the complainant and case for offence under Section 498 A filed showing husband as a witness hence in this circumstance, it can be well be inferred that Patna High Court Cr.Misc. No.32567 of 2012 (5) dt.19-08-2013 6 allegation made in the complaint by the complainant with a view to wreck vengeance with malafide intention and hence the case cover under category of 5 and 7 of the Bhajan Lal Case reported in 1992 SC page 604. 11. Hence it is apparent that the case has been instituted maliciously for share in the house and grabs the room in which father-in-law and mother-in-law are residing there with ulterior motive to grab the room and hence allowing the prosecution and order taking cognizance to continue is the abuse of the process of the Court. Hence in the interest of justice the order taking cognizance is hereby set aside.
Decision
12. Accordingly, the impugned order is set aside and the petition is allowed. m.p. (Gopal Prasad, J)