IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.32346 of 2009
1. Vijay Prasad, S/o Ram Kishun Sao
2. Nirmala Devi, Wife of Vijay Prasad
3. Razia Devi, Wife of Ram Kishun Sao
All resident of Mohalla- Patwa toly, Manpur, P.S. Buniyadganj,
District-Gaya .......... ...... Applicants
Versus
1. The State Of Bihar
2. Rakha Devi, Wife of Sri Ajay Prasad @ Krishna Prasad, D/o
Chhotu Prasad, resident of Mohalla- Makhlaut Ganj, P.S. Kotwali,
District- Gaya. .................. Opposite Parties.
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For the applicants: Ms. Soni Srivastava, Advocate
For the Opposite parties:
3 25-07-2011 High Courts records of this petition was eaten away
by the white ants and it was reconstructed when a notice with
regard to the same was given to the counsel who provided the
court with the copy of the petition for consideration.
Heard learned counsel appearing for the applicants as
well as learned counsel appearing for the Opposite Party No. 2.
This petition has been preferred under section-482 of
the Cr.P.C. against the order dated 23.09.2007 passed by Sri
D. Srivastava, J.M. Ist Class, Gaya in Complaint Case No. 971
of 2008 whereby and whereunder, he, having found prima facie
case under section-498A of the of the Indian Penal Code,
ordered to issue processes against the applicants and other
accused to procure their attendance for facing trial for the
above-said offence. The applicants have invoked the inherent
jurisdiction of this court for quashing the above-said order dated
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23.09.2007.
Brief facts of the case are as follows:
O.P. No. 2 filed complaint case bearing Complaint
Case No. 971 of 2008 against the applicants and two other
accused stating therein that the marriage of opposite party No.
2 was solemnized with accused Ajay Prasad @ Krishna Prasad
in the year, 1992 according to Hindu Rites and Rituals and after
marriage, opposite party No. 2 went to her matrimonial home
and started leading her conjugal life alongwith her husband and
after sometimes, she gave birth to a male child. Subsequently,
her husband developed illicit relationship with applicant No. 2
who happens to be sister-in-law (Gotani) of the opposite party
No. 2 and when she made protest, the applicants and other
accused subjected her to cruelty and harassment in both ways;
mentally and physically and also started demanding Rs 25,000/-
for starting a business. Furthermore, when the father of
opposite party No. 2 visited house of the applicants, the same
demand was made by the applicants and other accused and
also they (applicants) misbehaved with him. The father of the
opposite party No. 2 filed an Informatory Petition in the court of
SDM, Gaya and when the applicants and other accused got
knowledge about the filing of aforesaid informatory petition, they
ousted the opposite party No. 2 from her matrimonial home and
after that, the opposite party No. 2 filed the above-said case. It
is also the case of opposite party No. 2 that applicant No. 1 was
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residing at Kolkata in connection with his business and he
oftenly used to visit his house.
Learned court below having conducted an inquiry
under section 202 of the Cr.P.C. passed the impugned order in
the manner as stated above.
The contention of learned counsel for the applicants is
that applicant Nos. 1, 2 and 3 are; brother-in-law, sister-in-law
and mother-in-law of the complainant respectively and as a
matter of fact, entire allegation centres around against the
husband of opposite party No. 2 because according to
complainant’s case itself, the alleged occurrence took place on
account of so-called illicit relationship of the husband with the
applicant No. 2. It is further contended on behalf of the
applicants that the present case does not come under the
purview of section-498A of the Indian Penal Code because
now-a-days, it has become a fashion to implicate almost all the
in-laws even if a trivial dispute took place between the husband
and the wife.
Learned counsel for the applicants heavily relied upon
a decision reported in 2010 (7) SCC 667 (Preeti Gupta & Anr.
Vs State of Jharkhand & Anr) in which the Apex court of this
country has held that,
“if there is no specific allegation made against the
appellants in complaint, and none of the
witnesses attributing any role to them-Held, their
implication was only meant to harass and
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humiliate husband’s relatives”.
The learned counsel for the applicants also relied
upon decision reported in 2009(10) SCC 184 (Neelu Chopra &
Anr Vs Bharti) in which it has been held by the Apex Court of
this country that ;
“…..for lodging a proper complaint mere mentioning
of relevant sections and language of 498A and
others are not sufficient…….”
On the otherhand, learned counsel appearing for
opposite party No. 2 supported the impugned order and
submitted that learned court below has rightly held that a prima
facie case is made out against the applicants. It is further
contended by him that if the applicants have any grievance in
respect of taking cognizance of the offence under section-498A
of the Indian Penal Code, they may raise the aforesaid
grievance at the time of framing of charge.
Having heard rival contentions of the parties, I have
gone through the record. It is well-known fact that section-498A
of the Indian Penal Code has been enacted to check the dowry
related offence. In the present case, the dispute between the
husband and the wife arose on account of so-called illicit
relationship of husband of the opposite party No. 2. So even if
the contents of complaint are taken into consideration, then also
it cannot be said that the dispute between the opposite party
No. 2 and her husband arose on account of non-fulfillment of
illegal demand. Furthermore, I find that according to complaint
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case itself, the applicant No. 1 was residing at Kolkata and at
the time of alleged occurrence, he often used to come at his
home and apart from this, no specific overt act has been
attributed against these applicants.
In the aforesaid circumstance, I am of the view that it
is a fit case in which this court must exercise the power vested
under it under section-482 of the Cr.P.C. to check the abuse of
the process of law.
On the basis of aforesaid discussions, this Cr. Misc.
Case is allowed and the order dated 23.09.2007 passed by
Shri D. Srivastava, J.M. Ist Class , Gaya in connection with
Complaint Case No. 971 of 2008 stands quashed in respect of
the applicants only.
AKV/- (Hemant Kumar Srivastava,J.)