Patna High Court
Case Details
Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.37344 of 2012 ====================================================== 1. Anju Gupta, wife of Santosh Gupta, daughter of Ashok Gupta. 2. Ashok Gupta, son of Late Ram Swaroop Pd. Gupta. 3. Anil Gupta, son of Ashok Gupta. All resident of Janta Niwas Gali, Daily Market, Police Station-Plant Site, Rourkela 01, District- Sundargarh (Orissa) Versus .... .... Petitioners. 1. The State of Bihar. 2. Nanda Kishore Gupta @ Nanda Kishore Prasad, son of Late Raja Ram Sah, Resident of Village- Pupri Bazar, Janak Road, Ward No. 5, Police Station- Pupri, District- Sitamarhi. .... .... Opposite Parties. CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 4 19-07-2013 Heard learned counsel for the petitioners and learned counsel for the opposite party. This is an application for quashing the order dated 05.04.2010 passed by the learned S.D.J.M., Pupri, Sitamarhi, in
Legal Reasoning
Trial No. 1014 of 2010 (arising out of Complaint Case No. 525 of 2009) by which cognizance under Section 504 of the Indian Penal Code against the petitioners has been taken. The prosecution case as alleged in the complaint that the wife and daughter-in-law of the complainant were present in the house. The complainant had gone outside of his house. Then brother and father of daughter-in-law came to his house and stayed in the night. In the morning they flee away along with cash worth Rs.2,00,000/-, jewellery worth Rs. 1,30,000/- as well as paper of land. It is further alleged that when the complainant asked on Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 telephone from accused no. 1 and 2, daughter-in-law and her father then they abused on telephone. The case proceeded on complaint and on examination of the complainant and witnesses the process was ordered to be issued against the accused persons after taking cognizance for offence under Section 504 I.P.C. However, cognizance was not taken under Section 379 I.P.C. The petitioners did not challenge the order in revision for taking cognizance under Section 504 I.P.C. Learned counsel for the petitioners submits that allegation made in the complaint which is inherently improbable and manifestly absurd that father and brother of petitioner no. 1 have committed such crime. It is further submitted that complaint case been lodged with ulterior motive malafidely to harass the petitioners to wreck vengeance to spit on the face of the petitioners and is well covered under Bhajan Lal case. It is stated that the petitioners are daughter-in-law, father and brother of daughter-in-law of the complaint. The marriage of petitioner no. 1 with the son of the complainant was solemnised in the year 2006 and there was dispute between the husband and wife. The petitioner no. 1, daughter-in-law of the complainant has lodged F.I.R. bearing Pupri P.S. Case No. 235 of Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 2009, for offence under Sections 341, 323, 307 and 504 and 34 of the Indian Penal Code. In the FIR petitioner no. 1 has alleged that her husband on the birth day of her son asked Rs.1,00,000/- for expenditure on birth day and when she protested, she was assaulted by her husband and attempt made to kill her. She has asserted that she was mentally and physically assaulted by her husband. She was admitted in hospital and has also attached medical certificate and there is allegation of demand and subjecting cruelty. The police after investigation submitted charge sheet which is annexure- 2/1. It is further asserted that the complaint case has been filed in retaliation allegedly with ulterior motive.
Legal Reasoning
Learned counsel for the complainant however appeared and has filed a detailed counter affidavit in which he has also asserted and admitted that dispute on the birth day of her son. However, he has submitted about Pupri P.S. Case No. 235 of 2009 in which charge sheet has been submitted under Section 498A. It is further submitted that petitioner no 1 has filed a maintenance case in which Rs. 5,000/- per month as maintenance was ordered to be paid. It is further submitted that complainant himself assaulted and harassed. Hence taking into consideration the respective Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 submission, the question for consideration whether the allegations made are suffer from improbability and prosecution case has been filed to maliciously with ulterior motive to wreck vengeance to attract category 5 and 7 of the Bhajan Lal case. However, taking into consideration the allegation that accused persons, the Samdhin and Samdh stay in night and flee away with cash rupees 2 lakhs and jewellery of Rs. 1,30,000/- and when the complainant who was at Ranchi at the time of occurrence learnt about occurrence then he asked the Samdhi about the occurrence then accused person abused him on telephone. However, the learned Magistrate on the enquiry took cognizance under Section 504 I.P.C. not under Section 379 IPC. So far offence under Section 504 I.P.C. is concern, it is alleged that the complainant having telephoned from Ranchi, the accused person abused, even accepting the allegation, Section 504 I.P.C. is not made out. There is no mention about nature of abuse or even words. There allegation of vulgar abuse is no offence. Moreover, the use of abusive language on telephone cannot be said with intention to provoke to do crime when the complainant alleged that he asked about the allegation. Moreover, allegation made in the complaint itself on the face value it is inherently improbable and manifestly absurd Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 and taking into consideration the background that prior to the filing of the complaint petition on 24. 12. 2009, the petitioner no. 1 has been filed a case on 09. 12. 2009. However, it is asserted that prior to the filing of matrimonial case, petitioner no. 1 has filed maintenance case. Hence It is apparent that prior to the filing of the complaint there was dispute between the husband and wife and filing case against the husband. However, in this back ground even prior to the institution of this case, wife herself filed a written report on the basis of which FIR was lodged and charge sheet submitted for offence under Section 307 and allied Sections of Penal Code in Pupri P.S. Case No. 235 of 2009 against the complainant and his family member itself indicated and probable that the case has been filed malifidely with ulterior motive to wreck vengeance. However, taking into consideration the allegation made in the complaint, it is apparent that there is nothing to proceed against the accused persons as cognizance taken under Section 504 I.P.C. is not made out as per allegation in the complaint and cognizance not taken under Section 379 I.P.C. The allegation made in the complaint appears to be manifestly absurd and inherently improbable and this fact and circumstance which indicates that case has been filed with ulterior motive to wreck vengeance and to Patna High Court Cr.Misc. No.37344 of 2012 (4) dt.19-07-2013 spit on the face of the accused persons. Hence under the fact and circumstance, the case covered under category 5 and 7 of Bhajan Lal case referred in 1992 Supplementary SCC 335. Further this fact and circumstance allowing the prosecution to continue is abuse of process of the court. However, taking into consideration the fact and circumstance when the allegation made in the complaint does not make out a case for offence under Section 504 I.P.C. under which cognizance is taken and the allegation itself on the face value appears to be inherently improbable and manifestly absurd that does not require to call the accused persons to face trial and when the attaining circumstance itself indicates that complaint has been filed malafidely with ulterior motive to wreck vengeance then allowing the order taking cognizance and prosecution to continue shall be abused of the process of the court. Hence in the interest of justice, the order taking cognizance and entire prosecution is hereby set aside and the petition is allowed. m.p. (Gopal Prasad, J)