Patna High Court - Orders
Shamse Alam vs State Of Bihar & Anr on 8 October, 2010
Author: Rakesh Kumar
Bench: Rakesh Kumar
IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.51185 of 2007
SHAMSE ALAM SON OF LATE MD. MOBIN, RESIDENT OF VILLAGE
SINDHAULI, P.S. ASHOK PAPER MILL, DISTRICT DARBHANGA.
... ... PETITIONER.
Versus
1. THE STATE OF BIHAR
2. SHABANA PARVEEN @ SHABANA KHATOON WIFE OF SHAMSE ALAM
(DAUGHTER OF MD. ANWAR), RESIDENT OF MOHALLA KARPURI
ASTHAN, KARBALA, P.S. NAGAR, DISTRICT BEGUSARAI.
... ... OPPOSITE PARTIES.
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7. 8.10.2010. Heard Shri Prem Kumar Jha, learned counsel appearing on behalf of the petitioner, Shri Sanjay Sinha, learned counsel appearing on behalf of opposite party no.2 and Shri Ram Chandra Singh, learned Additional Public Prosecutor for the State.
The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 23.10.2006 passed by learned Sub Divisional Judicial Magistrate, Begusarai in Complaint Case No.749(C) of 2006. By the said order, learned Magistrate has taken cognizance of offence under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. The petitioner has also prayed for quashing of entire criminal prosecution in Complaint Case No.749(C) of 2006.
2Short fact of the case is that the opposite party no.2 filed a complaint in the court of Chief Judicial Magistrate, Begusarai, which was numbered as Complaint Case No.749(C) of 2006 against the petitioner, who was husband of the opposite party no.2 and other family members of her husband. The complaint was filed for the offence under Sections 498A, 323, 406 and 386 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. The complainant has asserted that on 26.1.2005, her marriage was solemnized with Muslim rites with the petitioner and thereafter the petitioner had gone for his livelihood to Jammu and Kashmir. It was alleged that right from very beginning, she was being tortured on the ground of non-fulfilment of demand of dowry by the accused persons including the petitioner. It has been alleged that besides articles and amount of dowry, the accused persons had also taken Rs.1,06,000/- as loan from the father of the complainant. It has been alleged that the complainant was regularly tortured and she was also assaulted by the accused persons. On one occasion, after getting information, her parents went 3 to the house of the in-laws of the complainant and thereafter, the accused persons, by force, got signature of her parents and others on blank papers and thereafter, the complainant returned back to her parents house. After filing complaint, enquiry was conducted and the learned Magistrate, after examining witnesses at the enquiry stage, being satisfied with offence under Section 498A of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act was made, has taken cognizance of offence by its order dated 23l.10.2006.
Aggrieved with the order of cognizance, the petitioner approached this
Court by filing the present petition.
Shri Prem Kumar Jha, learned counsel for the petitioner, while pressing the present petition, has submitted that before filing of the complaint petition, marriage of the petitioner with complainant had already come to an end with an agreement of dissolution of marriage in presence of Quazi. Learned counsel for the petitioner has referred to Annexure-3 to the petition, which is an agreement for dissolution of marriage. He has also referred to Annexure-4 to the 4 petition to show that on the date of dissolution of marriage i.e. on 1.5.2006 itself, almost all the articles which were taken by the petitioner as dowry was returned to the parent of the complainant. However, only the amount of Rs.1,06,000/- was required to be refunded and same was subsequently refunded on 23.7.2006. In support of the claim of the refund of the amount, learned counsel for the petitioner has referred to Annexure-1 to the petition. It has been submitted that the father of the complainant and other witnesses had put their signature on the receipt of the refund of Rs.1,06,000/- . Learned counsel for the petitioner has also argued that after the marriage only for few months, the complainant stayed at the house of her in-laws and she returned back to her parent's house. Learned counsel for the petitioner has referred to an Informatory Petition filed before the Chief Judicial Magistrate, which has been brought on record as Annexure-2 to the petition. While referring to Annexure-2 to the petition, which was filed on 11.7.2005 in the court of Chief Judicial Magistrate, the petitioner had shown apprehension of false implications by 5 the complainant.
Even the petitioner had disclosed in the said Informatory Petition that he was having suspicion regarding the character of the opposite party no.2. The petitioner had suspected that the opposite party no.2 had illicit relation with brother-in-law of her uncle. Learned counsel for the petitioner has also submitted that initially for the purposes of recovery of Rs.1,06,000/-, the complainant had filed a petition before the District Magistrate. In the said petition, it was asserted that Rs.1,06,000/- was taken as loan and for the purposes of recovery, a prayer was made before the District Magistrate. Subsequently, a petition was also filed before the Lok Adalat in which it was alleged that Dain Mehar amount of Rs.1,06,000/- was to be refunded, but same was not refunded. Learned counsel for the petitioner has referred to Annexure-7 to the petition i.e. an order passed by Lok Adalat. On the aforesaid ground, it has been submitted that in the present case, after dissolution of marriage, the complaint petition was filed maliciously. Rather it was filed with a view to put pressure to get the 6 amount of Rs.1,06,000/- recovered. The complaint was filed on 5.6.2006. Subsequently, on 23.7.2006, the amount was refunded to the complainant. On aforesaid grounds, it has been prayed to set aside the order of cognizance.
Learned counsel appearing on behalf of opposite party no.2 has vehemently opposed the prayer of the petitioner. While opposing the prayer, learned counsel has submitted that the documents, which have been relied upon by the learned counsel for the petitioner can well be looked into by the concerned court at appropriate stage. It has been submitted that this is not the stage to examine those documents meticulously. Accordingly, it has been prayed to reject the present petition.
Shri Ram Chandra Singh, learned Additional Public Prosecutor also submits
that complaint petition itself categorically discloses commission of offence and as such this Court may not interfere with the impugned order.
Besides hearing learned counsel for the parties, I have also perused the materials available on record. It is true 7 that at the time of hearing a petition under Section 482 of the Code of Criminal Procedure, it is not required for this Court to examine documents enclosed with the petition unless the documents are proved through process of law.
In the peculiar facts and circumstances, Annexure-7, which is photo
copy of order of Lok Adalat, the court is of the opinion that such orders can be looked into by this Court even at the time of hearing under Section 482 of the Code of Criminal Procedure. On the basis of materials available on record, the court is of the opinion that the present complaint petition was not filed fairly or honestly, but same was filed with an oblique motive and, accordingly, the court is of the opinion that allowing prosecution on such complaint will amount to allowing abuse of process of the court. Learned counsel appearing on behalf of opposite party no.2 has not disputed the contents of the enclosures, but it was asserted by him that those documents are required to be looked into by the concerned court. As per argument advanced by learned counsel for the petitioner, it is not in 8 dispute that marriage had come to an end on 1.5.2006. Documents further makes it clear that even Rs.1,06,000/-, which was taken as loan, has also been refunded, but of course, refund was made after filing of the complaint petition.
In view of the facts and circumstances, the court is of the opinion that it is a fit case for exercising inherent jurisdiction in favour of the petitioner.
Accordingly, the order of cognizance dated 23.10.2006 passed by Subdivisional Judicial Magistrate, Begusarai in Complaint Case No.749(C) of 2006 as well as entire criminal proceeding, so far as petitioner is concerned, is hereby set aside and petition stands allowed.
( Rakesh Kumar,J.) N.H./