Patna High Court
Case Details
Patna High Court Cr.Misc. No.32649 of 2012 (5) dt.15-07-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.32649 of 2012 ====================================================== 1. Dr. Ashwani Kumar Upadhyay @ Ashwani Kumar @ Raju Jee . son of Dr. Baikunth Upadhyay. 2. Smt. Sushila Upadhaya @ Sushila Devi, wife of Dr. Baikunth Upadhyay. 3. Dr. Baikunth Upadhyay, S/o Late Yadubansh Upadhyay. 4. Din Dayal Upadhyay @ Din Dayal, son of Dr. Baikunth Upadhyay. 5. Manoj Kumar upadhyay @ Manoj Upadhyay @ Pappu Upadhyay, son of Dr. Baikunth Upadhyay. All residents of Dhanwantri Bhawan, Sadishopur, Police Station-Bihta, District- Patna. Versus .... .... Petitioners. 1. State of Bihar. 2. Rekha Devi @ Rekha Pandey, wife of Dr. Ashwani Kumar Upadhyay, daughter of Late Dajadhar Pandey, residing at Asharfi Bhawan, Uttari Mandiri, Krishna Nagar, Road no. 23, P.S.- Budha Colony, District- Patna. .... .... Opposite Parties.
Legal Reasoning
CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 5 15-07-2013 Heard learned counsel for the petitioners and learned counsel for the State. This is an application for quashing the order taking cognizance dated 23. 07. 2012 passed by Sri Upendra Kumar, Sub-Divisional Judicial Magistrate, Patna, passed in Complaint Case No. 3321 (C) of 2011, by which cognizance has been taken under Section 498A of the Indian Penal Code as well as Section 4 of the Dowry Prohibition Act. The prosecution case as alleged by the complainant in the complaint petition that marriage of the complainant was solemnised on 02. 06. 2011 with Ashwani Kumar Upadhyay. After marriage the complainant went to her sasural at Sadishopur. It is alleged that just after one day of marriage, all the accused persons started passing sarcastic remark and asking her to demand Patna High Court Cr.Misc. No.32649 of 2012 (5) dt.15-07-2013 of Rs. 50,000/- from her brother, when the complainant refused then all the accused persons abused by passing remark as her black complexion and it is alleged that her husband assaulted her by slaps and fists. It is further alleged that all the accused persons subjecting her to cruelty by asking to demand money from her brother. It is further alleged that accused no. 2 snatched articles of the complainant and compelled her to commit suicide. It is further alleged that when her brother learnt about subjecting cruelty then he came to her sasusal and all the accused persons abused the brother of the complainant and accused no. 2, 3, 4 and 5 ousted her from her sasural and asked her brother to take her then the complainant came to her maika on 06. 09. 2012. It is further alleged that on 13.12.2011, husband of the complainant along with accused no. 4 and 5 came to her maika and abused and threatened her to take signature on plain paper and accused no. 1 assaulted the complainant by slaps and fists and on hulla neighbourer of the complainant gathered there then all the accused persons flee away. On complaint, the complainant was examined and after examination of the witnesses, the trial court issued processes against the accused persons after taking cognizance for offence under Section 498A of the Indian Penal Code as well as Section 4 of the Dowry Prohibition Act. Learned counsel for the petitioners submits that Patna High Court Cr.Misc. No.32649 of 2012 (5) dt.15-07-2013 petitioners who are husband, mother-in-law, father-in-law and Bhaisur filed this petition for quashing the order taking cognizance for offence under Section 498A of the Indian Penal Code and Section 4 of Dowry Prohibition Act. It is further contended that marriage of the complainant was solemnised on 02.06.2011 and just after few months she left her matrimonial house on 06.09. 2011 and complaint has been filed in November, 2011. It has further been contended that after taking into allegation made in the complaint petition, though, there is specific allegation of assault and subjecting cruelty by the husband. So far other accused persons are concerned allegation made against them are only general and omnibus and entire family has been falsely implicated in the case due to malice to wreck vengeance against accused persons. learned counsel for the opposite party however contends that there is allegation in the complaint petition that all the family members of the complainant abusing her by calling her black complexion (Kali) and assaulted her and subjecting her cruelty are true and hence allegation made in the complaint makes out an offence and he has also filed a counter affidavit in this connection. Hence taking into consideration of the respective submissions, the question for consideration allowing the order taking cognizance prosecution continues is abuse of the process of the court. I reverting back to the allegation, it is apparent that Patna High Court Cr.Misc. No.32649 of 2012 (5) dt.15-07-2013 allegation against the husband, petitioner no. 1 is specific about assault to the complainant for subjecting cruelty and there is specific allegation that on 13. 12. 2011, husband along with accused no. 4 and 5 came her maika. However no specific overt act alleged against accused no. 4 and 5, but specific allegation against the husband to assault her. So far allegation against accused petitioner no. 2 that she snatched all the articles of the complainant and subject her to cruelty by slaps and fists. However, with regard to other accused persons there is general and omnibus allegation of assault and subjecting cruelty as there is no specific allegation against petitioners no. 3, 4 and 5. So far petitioner no. 4 and 5 are concerned, it is alleged that they are followed by petitioner no. 1 and went to her maika on 13. 12. 2011 at 3 P.M. and threatened her to take signature on plain paper and also threatened her for divorce. However, there is no specific allegation regarding any act of omission and commission by petitioner no. 4 and 5. Hence from plain reading of the statement made in the complaint petition, there is no specific allegation against petitioner no. 3, 4 and 5, though, there is specific allegation against husband and mother-in-law, petitioner no. 1 and 2 regarding assault and snatching articles. However, it is mater of common experience in such type of common allegation. There is general tendency to implicate entire family members, though, petitioner no. 3, 4 and 5 Patna High Court Cr.Misc. No.32649 of 2012 (5) dt.15-07-2013 has been made accused, but allegation against them or specific role attributed by subjecting cruelty whatsoever allegation made in the complaint are general and omnibus to harass with ill motive. The bold statement made against the petitioner no. 3, 4 and 5 suggest the anxiety of the complainant to rope in as many of the husband relation as possible. Neither the complaint petition nor the statement made in enquiry furnish the legal bars to issue process after taking cognizance against the accused. Hence taking into consideration the allegation, allowing the order taking cognizance and issue process and prosecution case to continue against petitioner no. 3, 4 and 5, is an abuse of the process of the court and hence order taking cognizance against petitioner no. 3, 4, 5 is hereby set aside. So far petitioner no. 1 and 2 are concerned, who are husband and mother-in-law, against them there is specific allegation of assault and snatching articles, I do not find any merit to interfere with order taking cognizance against petitioner no. 1
Decision
and 2, hence the petition is dismissed with regard to petitioner no. 1 and 2. Accordingly, this petition is allowed in part. m.p. (Gopal Prasad, J)