High Court Patna High Court - Orders

Madhu Gupta & Anr vs State Of Bihar & Anr on 15 November, 2011

Patna High Court – Orders
Madhu Gupta & Anr vs State Of Bihar & Anr on 15 November, 2011
               IN THE HIGH COURT OF JUDICATURE AT PATNA
                      Criminal Miscellaneous No.52902 of 2008
               1. Madhu Gupta, wife of Sri Rabindra Nath Gupta.
               2. Rabindra Nath Gupta, son of Late Baidyanath Gupta.
                  Both resident of Mohalla-Saraiyaganj, P.S. Town
                  (Muzaffapur), District-Muzaffarpur.
                  .........................................................Petitioners.

                                            Versus

                   1. The State Of Bihar.
                   2. Manish Kumar, son of Sri Chandra Bhusan Prasad,
                      resident of Mohalla-Pankha Toli, P.S. Kazi
                      Mahmadpur, District-Muzaffarpur.
                      .............................................Opposite Parties.

                                ----------------------------------

                    For the Petitioners: Mr. Vivekanand Vivek, Advocate.
                    For the State      : Mr. Jharkhandi Upadhyay, A.P.P.

                               ----------------------------------

                                      O R D E R

6. 15.11.2011. This application, under Section 482 of the Code

of Criminal Procedure, has been filed for quashing the

order 9.9.2008 passed by the court of Sri S. Kaushar,

Judicial Magistrate, Ist Class, Muzaffarpur, in Complaint

Case No.2845 of 2006/Trial No.2157 of 2008, summoning

the accused-petitioners, on inquiry under Section 202 of

the Code of Criminal Procedure, finding prima facie case

under Sections 323/448/504 of the Indian Penal Code.

2. The brief facts, leading to this application, are
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that the complainant-opposite party no.2, Manish Kumar,

filed the complaint petition, numbered as Complaint Case

No.2845 of 2006, against the six accused persons

including the petitioners, with the contention that he has

filed the Divorce Case, numbered as Matrimonial Case

No.133 of 2005 in the court of the Principal Judge, Family

Court, Muzaffarpur, on 9.8.2005. On knowing about the

said Matrimonial Case, all the accused persons including

the petitioners armed with lathi, danda and rod came at the

house of his father, who is a Senior Advocate, and started

to abuse showing the paper of divorce. At that time, his

father was doing the work behind the house after locking

the grill of the house. All the accused persons including

the petitioners entered into the house breaking the lock of

the grill and started to assault the complainant-opposite

party no.2. The accused-petitioner no.1, Madhu Gupta

and the accused-petitioner no.2, Rabindra Nath Gupta,

snatched the gold chain from the neck of the complainant-

opposite party no.2 and ordered to kill him. Thereafter, all

the accused persons including the petitioners started to

assault him again with an intention to kill. On raising

‘hulla’ to save, his father rushed there and tried to save
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him but the accused-petitioner no.1, Madhu Gupta, also

assaulted his father through slipper and torn the cloth. It is

also alleged that the accused no.6, Md. Asfi, damaged the

television and threatened his father for dire consequences,

if the case will be lodged about the occurrence and,

thereafter, all the accused persons including the petitioners

fled away. At that time, the accused no.3, Sweety Gupta,

the wife of the complainant-opposite party no.2, Manish

Kumar, took away all her personal belongings. On the

next date, the matter was reported to the police but the

police refused to register the case.

3. After filing of the aforesaid complaint petition

by the complainant-opposite party no.2, Manish Kumar,

on inquiry under Section 202 of the Code of Criminal

Procedure, out of six accused, named in the complaint

petition, the accused-petitioners, were summoned through

the impugned order dated 9.9.2008 finding the prima facie

case under Sections 323, 448 and 504 of the Indian Penal

Code.

4. Learned counsel appearing on behalf of the

petitioners submitted that the petitioners are none else but

the mother-in-law and father-in-law of the complainant-
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opposite party no.2, Manish Kumar and much prior to the

filing of the complaint petition by the complainant-

opposite party no.2, on the basis of the written report of

the accused-petitioner no.2, Rabindra Nath Gupta,

Muzaffarpur Town P.S. Case No.281 of 2005 was

instituted on 21.8.2005 under Sections 498(A) and 379 of

the Indian Penal Code and Sections 3/4 of the Dowry

Prohibition Act regarding the occurrence of torture and

harassment to his daughter, Sweety Gupta, named as

accused no.3 in the complaint petition, for demand of

dowry and removing her from the Sasural house after

snatching her personal belongings against the

complainant-opposite party no.2 and his parents. In that

case, the prayers for anticipatory bail of the complainant-

opposite party no.2, Manish Kumar, have been rejected

upto Hon’ble Supreme Court and due to that reason with

oblique motive, Chandra Bhushan Prasad, the father of the

complainant-opposite party no.2, who is Senior Advocate

in Civil Courts, Muzaffarpur, got filed the present

complaint case through the complainant-opposite party

no.2, so that the petitioners may not pursue the case of

Muzaffarpur Town P.S. Case No.281 of 2005 and also
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could not create any hindrance to succeed in divorce case

as alleged in the complaint petition of the complainant-

opposite party no.2. It is also contended that from the

complaint petition itself, it is clear that regarding the

alleged occurrence of 16.8.2005, the present complaint

case has been filed by the complainant-opposite party no.2

on 26.12.2006, after about 16 months only to take defence

in Muzaffarpur Town P.S. Case No.281 of 2005, as lodged

for causing cruelty, harassment and removing the accused

no.3, Sweety Gupta, by the complainant-opposite party

no.2 and his family members on 15.8.2005 after snatching

her personal belongings.

5. On the other hand, learned A.P.P. for the State,

submitted that the learned Judicial Magistrate, has rightly

summoned the accused-petitioners on perusal of the

complaint petition and the statements of the witnesses as

examined in course of the inquiry and there is no illegality

in the impugned order for interference with the same at

this stage.

6. Admittedly, the petitioners are mother-in-law

and father-in-law of the complainant-opposite party no.2

and it is also apparent from the complaint petition that for
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the occurrence alleged to be taken place on 16.8.2005, the

complaint case has been filed on 26.12.2006. The F.I.R.

of Muzaffarpur Town P.S. Case No.281 of 2005,

Annexure-‘2’ to this application, disclosed that the F.I.R.

has been lodged under Section 498(A) and 379 of the

Indian Penal Code and Sections 3/4 of the Dowry

Prohibition Act on the basis of the written report of the

petitioner no.2, Rabindra Nath Gupta, causing cruelty and

harassment of his daughter, Sweety Gupta, the accused

no.3 to the complaint petition, for demand of dowry and

also removing her from Sasural house after snatching her

personal belongings on 15.8.2005 by the complainant-

opposite party no.2 and his parents . It is also alleged in

the F.I.R. that on the next date, i.e., 16.8.2005, the

petitioner no.2, Rabindra Nath Gupta, approached the

complainant-opposite party no.2 and his parents to know

about he cause of removal of his daughter, Sweety Gupta,

on snatching her personal belongings. The complaint

petition filed on behalf of the complainant-opposite party

no.2 itself, disclosed about the filing of the divorce case by

him against his wife, Sweety Gupta, daughters of accused-

petitioners.

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7. It is well settled that the jurisdiction under

Section 482 of the Code of Criminal Procedure could be

exercised very sparingly in rare cases for quashing the

prosecution. In case of State of Haryana and others Vs.

Bhajan Lal and others {A.I.R. 1992 (SC) 604}, the

Hon’ble Apex Court held that the power under Section

482 of the Code of Criminal Procedure could be exercised

either to prevent abuse of the process of any court of law

or otherwise to secure the ends of justice, though it may

not be possible to lay down any precise, clearly defined

and sufficiently channelised and inflexible guidelines or

rigid formulae and to give an exhaustive list of myriad

kinds of cases wherein such power should be exercised,

but noted the seven categories of cases wherein such

power should be exercised, out of which one is where a

criminal proceeding is manifestly attended with mala fide

and/or where the proceeding is maliciously instituted with

an ulterior motive for wreaking vengeance on the accused

and with a view to spite him due to private and personal

grudge.

8. Admittedly, the petitioners are mother-in-law

and father-in-law of the complainant-opposite party no.2
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and the petitioner no.2 has lodged the F.I.R. about causing

cruelty and harassment and removing his daughter, Sweety

Gupta, accused no.3 to the complaint petition, from her

sasural caused at the hands of the complainant-opposite

party no.2 and his parents. Prior to the filing of the

complaint petition, the divorce case is also filed by the

complainant-opposite party no.2 against his wife, Sweety

Gupta, daughter of the petitioners. In that situation, it is

quite improbable that the petitioners would go at the house

of the complainant-opposite party no.2 and would commit

the alleged offence, as detailed in the complaint petition.

As such, the complaint petition, filed by the complainant-

opposite party no.2, appears to be with oblique motive or

wreaking vengeance on the accused-petitioners.

9. Under the aforesaid facts and the

circumstances, the impugned summoning order dated

9.9.2008 passed by the court of Sri S. Kaushar, Judicial

Magistrate, First Class, Muzaffarpur, in Complaint Case

No.2845 of 2006/Trial No.2157 of 2008 appears to be an

abuse of the process of the court.

10. Accordingly, the impugned order dated

9.9.2008 passed by the court of Sri S. Kaushar, Judicial
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Magistrate, First Class, Muzaffarpur, in Complaint Case

No.2845 of 2006/Trial No.2157 of 2008 is hereby

quashed and the application is allowed.

(Rajendra Kumar Mishra, J)

P.S./A.F.R.