Patna High Court - Orders
Braj Nath Tiwary & Anr. vs State Of Bihar & Anr on 17 May, 2013
Author: Gopal Prasad
Bench: Gopal Prasad
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.36013 of 2012
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1. Braj Nath Tiwary, son of Late Kapildeo Tiwary.
2. Mandawi Devi, Wife of Brij Nath Tiwary.
Both Resident of Mohalla- Quarter No. 10, Besides Centre Office,
B.H.U., P.S. Lauka, District- Varanasi (U.P.).
.... .... Petitioners.
Versus
1. State of Bihar.
2. Chandresh Kumar, Son of Tribhuwan Dutt Dwivedi, resident of Village-
Chakmadhua Bazar, P.S. Saraiya, District- Muzaffarpur.
.... .... Opposite Parties.
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Appearance :
For the Petitioner/s : Mr.
For the Opposite Party/s : Mr.
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CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD
ORAL ORDER
3 17. 05. 2013. 1. This is a petition for quashing the order dated 07.
08. 2012 passed in Trial No. 1020 of 2002 (arising out of Complaint Case No. 1271 of 2009) for offence under Sections 379 and 504 of the Indian Penal Code by which a petition for discharge from the liability of the aforesaid case has been rejected on petition filed under Section 245 Cr.P.C.
2. The prosecution case as alleged by the complainant Chandresh Kumar that the marriage of the complainant was solemnized on 6th March, 2006, according to the Hindu custom with Jyoti Devi, daughter of Braj Nath Tiwary. After the marriage, Jyoti Devi came to her sasural at Village-Chakmadhua Bazar, P.S. Saraiya, District-Muzaffarpur. It is further alleged that after some days the wife of the complainant expressed her desire to go to go to her Naihar, but father-in-law was not ready to allow her to go her Naihar, so she started breaking the articles then the complainant reported the matter to the accused no. 1 and then accused no. 1 on 13. 07. 2008, took the wife of the complainant to Varanasi. Thereafter, several times the complainant went to her sasural at Varanasi to meet his wife, but accused no. 1 and 2 who are father-in-law and mother-in-law of the complainant did not allow him to enter into the house and even assaulted him and thrown out of the house. This compelled the complainant to file case for restitution of conjugal right before the Family Court, Muzaffarpur. After receiving the notice the accused persons used to come themselves through their pairvi used to take dates and then the complainant decided to resolve the matter through Panchayati. Further allegation is that father-in-law and mother-in-law was informed by telephone and requested to come at the village- Chakmadhua to resolve the issue. It is further alleged that accused persons reached there on 26. 07. 2008, at the house of the complainant at about 3 P.M. It is further alleged that at that time respectable persons of the village were present and they raised the issue and impressed upon the accused to hand over his daughter to the husband and allow her to live at her Sasural on which accused persons disclosed that his daughter does not want to live her at Sasural nor they want to allow her to come to the place. It is further alleged that this lead to verbal altercation between the parties and even exchange of abuses. It is further alleged that accused persons assaulted the father and brother of the complainant by slaps and fists. Further accused no. 1 snatched Rs. 1100/- from the pocket of the father of the complainant and accused no. 2, the mother-in-law snatched golden chain from the neck of the mother of the complainant. The accused persons did not return the snatched articles and without any decision they went away. It is further alleged that since the complainant was ill so there is delay in lodging the complaint.
3. The occurrence as alleged on 26.07.2009, but the complaint filed on 30. 09. 2009. On the complaint, the complainant was examined on oath and thereafter, seven witnesses were examined and after examination of the witnesses, the summon was issued after taking cognizance. After appearance of the accused persons and examination of witnesses before charge, a petition was filed under Section 245 Cr.P.C. stating therein that daughter of the petitioners who is legally wedded wife of the complainant, Chandesh Kumar has filed a case for offence under Section 498A of the Indian Penal Code against the complainant and his family members and this case has only been filed to malafide intention to pressurise the petitioners.
4. Learned counsel for the complainant submits that prima facie the case is made out in view of the allegations made in the complaint and statement of witnesses rejected the petition under Section 245 Cr.P.C.
5. Learned counsel for the petitioners hence filed this petition for quashing the order as well as quashing the entire proceeding. It is further contended that allegations made in the complainant itself improbable and absurd and repugnant to normal common sense as whole occurrence as alleged to have been taken place at the village in the presence of complainant and his family members and it is highly improbable that accused nos. 1 and 2 who were father-in-law and mother-in-law abuses and assaulted the father of the complainant and snatched money and snatched chain in present of all the villagers. It is further contended that as per allegation made in the complaint, accused persons were not allowing their daughter to visit her Sasural or go to Sasural and accused persons were not at all ready for sending the victim-wife to her Sasural. Further it is asserted that allegations made in the complaint are not only absurd and improbable but also tainted with malice to institution of this case. It is further alleged that wife of the complainant herself, had filed a case for offence under Section 498 A in which the complainant and other family members were made party. It is further contended that it is highly improbable that petitioners snatched money and golden chain in full view of the complainant and villagers at the door of the complainant. Hence this case has only been filed to mount pressure to withdraw the case filed by the daughter of the petitioners under Section 498A. He has relied on category 5 and 7 of the decision of Bhajan Lal Case reported in AIR 1992 SC 527 and AIR 2011 (1) PLJR 23 (SC).
6. Learned counsel for the complainant-opposite party no. 2 however, contends that complainant has been examined on oath and has supported the prosecution case and seven witnesses were examined on behalf of the complainant and they have also supported the prosecution case and hence when the witnesses examined and accused persons given opportunity to cross-examine and hence, if the allegation made if taken as un-rebutted face value makes out an offence then order against discharge not required to be set aside and reliance has been placed in 1986 (2) SCC page 716 (R. S. Nayak Vrs. A. R. Antulay) and petitioners has relied upon decision reported in 2006 (2) PLJR page 247 (Dr. Sidharth Vrs. State of Bihar) and it has been submitted that allegations made on the face value of the complaint if taken to be true then it makes out an offence since the witnesses have supported the allegations then charge required to be framed and order which petition under Section 245 Cr.P.C. rejected is sustainable. It has further been contended that, though, learned counsel for the petitioners has challenged the order on the ground that allegations made in the complaint are absurd and tainted with malice, but having regard to the nature of the allegations that the complainant called the accused for Panchayati then complainant came for Panchayati and during Panchayati offence was done and hence it cannot be said that allegations made improbable or tainted with malice.
7. Hence taking into respective submissions, the question for consideration whether the allegation made as absurd and inherently improbable or there is sufficient ground to proceed against accused, whether the allegation made suffer from malice with an ulterior motive to wreck vengeance.
8. However, taking into consideration the allegations made by the complainant himself as alleged that the victim came in her Sasural for some time then she had desired that she go away and she was apprehended broken articles, thereafter, father of the victim-wife came and took her. Thereafter, when the complainant went to his Sasural, he was not allowed to enter into the Sasural and not only this he was assaulted and thrown out of the house and being helpless he was compelled to file a petition for restitution of conjugal life then he decided to Panchayati and talked with father-in-law and mother-in-law to come to his place. Having nature of the allegations when the father-in-law and mother-in-law was not allowing the husband to enter into the house even thrown him away, then it is highly improbable that they will come for Panchayati from Varanasi to Muzaffarpur. Further it is alleged that they reached at 3 P.M. and at that time several respectable persons of the village were present at the house of the complainant and it is alleged that in Panchayati they asserted that they will not allow their daughter to come to her Sasural nor the daughter want to come and this explanation also reluctant then there was no occasion for them to come Muzaffarpur from Varanasi to participate in Panchayati and further it is highly improbable that two persons husband and wife who are accused no. 1 and 2, if come to Muzaffarpur and in presence of entire villagers there was verbal altercation and will be able to assault and snatched money from the pocket of the father of the complainant and a lady to dare to snatch golden chain from the neck of the mother of the complainant. Hence taking into consideration the allegations in the face value it wholly lack of bonafide in filing such complaint which is absurd.
9. Hence having regard to the allegation where the allegations on face of it absurd and there was whole lack of bonafide of the complaint then in such a case Section 482 Cr.P.C. is required to be applied. It is true that this Court while exercising jurisdiction under Section 482 Cr.P.C. does not go into the question whether allegations made are true or false, but where the allegations themselves so absurd then no reasonable ground to accept the same and in that circumstance , High Court could not surge its responsibility to pass order in the interest of justice.
10. However, taking into consideration the allegations that allegations made itself at the face value appears to be absurd and improbable but also tented with malice as prior to the institution to this case, the victim-wife of the complainant has already filed a case for offence under Section 498 A and then complainant filed in retaliation to the case filed by the victim-wife of the complainant for offence under Section 498A. However, in Bhajan Lal Case reported in 1992S.C. this case cover under category under 5 and 7 of Bhajan Lal case reported in 1992 Cr.L.J.R. page 532 category 5 mentioned;
"Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused".
11. Hence taking into consideration the fact, prior to the institution of this case, a case has been filed for offence under Section 498A by the victim-wife of the complainant against the father and other family members of the complainant whereas the complainant has filed complaint that father-in-law and mother-in- law of the complainant came from Baranasi to Muzaffarpur and snatched Rs. 1100/- from the pocket of the father of the complainant and mother-in-law snatched golden chain from neck of the mother of the complainant in full public view and assault and there was Panchayati was going on and in Panchayati respectable persons were present which is neither appreciable that persons will not have compromise the matter it is apparent that allegation made in the complaint is inherently and manifestly absurd.
12. In this regard it is pertinent to quote part of passage in 2011 (1) PLJT 23 Manoj Mahavir Prasad Vrs. Ram Gopal Poddar & Anr.
"......However when on the face of it the absurd charges are levelled and there is a whole lack of bonafide of the complainant/respondent no. 1, in our opinion there would be no fetter in using the power under Section 482 Cr.P.C."
13. However the assertion that the complainant and the witness has supported the case of prosecution and reliance has been placed in decision reported in 1986 SCC 2006(2) PLJR for proposition that at the stage of 245 Cr.P.C. the Court is only required to see whether the evidence led by prosecution is such that if un-rebutted it would justify the conviction of the accused and the Court has therefore to examine the evidence as it stand without rebuttal and come to conclusion on whether on the basis of evidence the Court could convict. However Section 245 Cr.P.C. and Section 482 Cr.P.C. are having different orientation and sailing in two different field and do not lapse one against another. However, even in fact allegation makes out an offence is no bar to exercise jurisdiction under Section 482 Cr.P.C. in case the allegations made are absurd without bonafide and with malafide motive.
14. I am conscious of the fact that while exercising jurisdiction under Section 482 Cr.P.C. has to be used sparingly and circumspection whether allegations made in the complaint are likely to be established by the existence or not. However, taking into consideration the allegation which is on face of it appears to be highly improbable and absurd with lack of bonafide. Further allegations have also found to be malafide with intention of a literally motive for wreck vengeance with a view to spit on face for personal grudge. Here, it is apparent that victim-wife has also filed a case and in retaliation a case was instituted for restitution of conjugal right then a criminal case has been lodged and the allegations are highly improbable and manifestly absurd to harass the father and mother of the victim-wife.
15. Hence taking into consideration the entire fact and circumstance, allowing the prosecution to continue is an abuse of the process of the Court and is not in the interest of justice.
16. Hence under the fact and circumstance, the entire prosecution case against the petitioners is hereby quashed and the petition is allowed.
m.p. (Gopal Prasad, J)