Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.194 of 2013 ====================================================== 1. Raj Kishore Prasad @ Raj Kishore Sah S/O Late Sheojee Sah @ Sheojee Prasad Resident Of Purani Chawk Gopalganj, Ward No. 11, P.S- Gopalganj, District- Gopalganj. 2. Nawal Kishore Sah S/O Late Sheojee Sah @ Sheojee Prasad Resident Of Purani Chawk Gopalganj, Ward No. 11, P.S- Gopalganj, District- Gopalganj. 3. Prem Nath Sah S/O Late Sheojee Sah @ Sheojee Prasad Resident Of Purani Chawk Gopalganj, Ward No. 11, P.S- Gopalganj, District- Gopalganj. Versus .... .... Petitioner/s 1. The State Of Bihar 2. Rajesh Ram S/O Kishun Ram Resident Of Village- Purani Chawk, Gopalganj Ward No. 12, P.S- Gopalganj, District- Gopalganj. .... .... Opposite Party/s ====================================================== CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL ORAL ORDER 4 04-04-2013 Petitioners have filed the present application questioning the legality of the order dated 8.6.2012 passed by the learned Judicial Magistrate, 1st Class, Gopalganj in Complaint Case No. 2215/ 2004 (Tr.No.2984/2012) whereby, upon conclusion of enquiry and being prima facie satisfied therefrom, cognizance of the offence has been taken under section 302/34 IPC.
Facts
Background facts giving rise to the application may first be noticed with relevant brevity. One Lalmati Devi died an unnatural death in the wee hours of 5.11.2004. U.D. case was lodged on 5.11.2004 vide U.D. Case No. 07 of 2004. Subsequently, a complaint case being 2 Patna High Court Cr.Misc. No.194 of 2013 (4) dt.04-04-2013 2 / 6 Complaint Case No.2060 of 2004 was lodged on 8.11.2004 by one Uma Devi (sister-in-law of the deceased). It is said that petitioner no.1 had drafted the said complaint. Upon presentation of the said complaint in court it was referred to the police for institution of an FIR under section 156(3) of the Code of Criminal Procedure (for short ‘the Code’). The complainant of the present complaint case along with others including his brothers were made accuseds in the said case relating to the death of the victim. An FIR was drawn up vide Gopalganj P.S. Case No. 364 of 2004 under sections 302,328 and 34 of the Penal Code in which after conclusion of investigation charge sheet was filed. One of the accuseds of the aforesaid complaint Case No. 2060C of 2004 subsequently filed a complaint case vide Complaint Case No. 2215/2004 on 7.12.2004 (Annexure-1) under sections 147,326,120(B), 302 and 376/34 IPC alleging, inter alia, that his wife Lalmati Devi was earlier married to Late Prem Shankar Ram but after the death of her first husband she solemnized marriage with the complainant on 20.5.2004. Lalmati Devi (the victim) used to do household work/domestic chores of accused no.8 (Sukhdeo Singh). In the evening of 4.11.2004 his wife had gone to the house of accused no.8 to perform household work where she asked the accused no.8 to advance her some money for her treatment. The 3 Patna High Court Cr.Misc. No.194 of 2013 (4) dt.04-04-2013 3 / 6 said accused fraudulently made his wife stay overnight at his house on some excuse and in the night the accused after administering intoxicating substance, committed rape on her and when she regained consciousness she threatened the said accused with filing of a criminal case against him. Having said so she came out of the house of the accused. Accused no.7 Uma Devi and accused no.9 Suresh Sharma were hiding outside the house of the said accused. They stalked her. Other accused assembled there and they jointly restrained her from proceeding towards house. Accused no.9, in the meanwhile, came from behind and all the accused persons forcibly administered poison to her and tried to kill Lalmati Devi by throttling. A Hulla was raised by Lalmati Devi which attracted the nearby people whereafter she escaped from their clutches and came to the house and narrated the story to the complainant. She was immediately taken to Gopalganj Sadar hospital for treatment where she died in the morning of 5.11.2004. In this way, allegation(s) was/were made that all the accuseds in connivance of each other had killed his wife. The solemn affirmation of the complainant was recorded on 26.5.2006, followed by examination of other witnesses, namely Ramashish Ram, Jitendra Ram and Balisater Ram. On perusal of the materials adduced in course of such enquiry, the learned Magistrate found a 4 Patna High Court Cr.Misc. No.194 of 2013 (4) dt.04-04-2013 4 / 6
Legal Reasoning
prima facie case having been made out against the accuseds cited in the complaint and accordingly cognizance of the offence was taken under section 302/34 IPC vide order dated 8.6.2012. Learned counsel for the petitioners submits that present accusations have been made out of malice. There is no overt act alleged against the petitioners who are all brothers. The complainant has tried to wreck vengeance as prior to this a complaint was lodged by Uma Devi (sister-in-law of the victim) against the complainant and others which was drafted by petitioner no.1. Relying on the ratio laid down in State of Haryana & Ors vs. Bhajan Lal & Ors. since reported in 1992 SCC (Cri) 426 it has been submitted that, in the facts and circumstances of the case, the present criminal proceeding is maliciously/manifestly attended with mala fide and/or the proceeding is maliciously instituted with ulterior motive and as such the same be quashed at its threshold. Heard the parties and perused the materials on record. A lady who was doing the menial work in the house of others for paltry amount was killed. A U.D. Case was initially registered. Subsequently, a complaint was lodged by the sister-in- law of the victim impleading the complainant of the present case as an accused along with others. The complainant claims himself 5 Patna High Court Cr.Misc. No.194 of 2013 (4) dt.04-04-2013 5 / 6 to be the husband of the victim lady. He subsequently lodged the present complaint alleging therein the manner in which the victim was forced to overstay in the house of one of the accuseds where she was raped and whereafter while she was on her way the accuseds overpowered her and forcibly administered poisonous like substance which ultimately resulted in her death. The witnesses have supported the prosecution case in course of enquiry. The learned Magistrate on being satisfied therefrom has passed the impugned order. It has been strenuously argued that there is inordinate delay in filing the complaint by none else than the accused of the first complaint case being Complaint Case No.2060 of 2004. It has further been urged that petitioner no.1 had drafted the complaint and as such he incurred the wrath of the complainant and as such the present prosecution be declared as malicious prosecution instituted with ulterior motive for wrecking vengeance on the accuseds with a view to spite them due to personal grudge. Merely on account of the fact that petitioner no.1 had drafted the complaint and there was some delay in filing the complaint for which explanation has been made in the complaint itself, this Court is unable to agree with the submissions of the petitioners. There appears to be two versions of the cause leading to unnatural death of the victim. The Court will, therefore, 6 Patna High Court Cr.Misc. No.194 of 2013 (4) dt.04-04-2013 6 / 6 require to consider both the versions of the occurrence in order to do justice to the parties. It is not the case of the petitioners that the allegations contained in the complaint do not make out a case and/or in course of enquiry the same did not find support from the witnesses examined in support thereof. Having regard to the above, this Court is not satisfied that a case for quashing of the present criminal proceeding at its initial stage by invoking extra ordinary and inherent jurisdiction of the Court under section 482 of the Code is made out. The petitioners shall have adequate opportunity to raise the relevant issue at the relevant stage of the proceeding/trial. In view of above, this Court finds no merit in this application which is, accordingly, dismissed. (Kishore Kumar Mandal, J) HR/-