Patna High Court - Orders
Rakesh Roshan vs State Of Bihar & Anr on 5 January, 2012
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.37485 of 2009
Rakesh Roshan, S/o Devi Singh @ Devi Dayal Singh, Resident of
Muhalla-Prithvipur, Lane No. 1/A, Derh Number Gali, Chiraiyantanrh, P.S.
Patliputra/Kankarbagh, District- Patna-No. 46 P.S. Patliputra, District-
Patna.
Versus
1. The State of Bihar
2. Vandana Kumari Aradhna, W/o Rakesh Roshan, D/o Rajendra
Prasad Singh, R/o Mohalla- Saraikila Ghat Road, P.S. Tatarpur (Kotwali),
District- Bhagalpur, Bihar.
.............................. Opposite Parties
With
Criminal Miscellaneous No.37214 of 2009
1. Devi Singh @ Devi Dayal Singh, Resident of Muhalla-Prithvipur, Lane
No. 1/A, Derh Number Gali, Chiraiyantanrh, P.S. Patliputra/Kankarbagh,
District- Patna-No. 46 P.S. Patliputra, District-Patna.
2. Smt. Malti Devi, W/o Devi Singh @ Devi Dayal Singh
3. Dev Raushan S/o Devi Dayal Singh,
All residents of Muhalla Prithvipur, Lane No. 1/A Derh Number Gali,
Chiraiyantanrh, P.S. Kankarbagh, Patna.
4. Smt. Gayatri Devi, W/o Pawan Singh
5. Pawan Singh, S/o Satyadeo Singh
Both residents of village-Tilhari, P.S. Maner, District-Maner, Patna.
6. Smt Manorma Devi, W/o Umesh Prasad Singh, R/o East Mainpura, Gate
No. 46 , P.S. Patliputra, Dist- Patna.
......................... Petitioners.
Versus
1. The State of Bihar
2. Vandana Kumari Aradhna, W/o Rakesh Roshan, D/o Rajendra
Prasad Singh, R/o Mohalla- Saraikila Ghat Road, P.S. Tatarpur (Kotwali),
District- Bhagalpur, Bihar..... O.P.
2
10. 05-01-2012ORDER Both the above-said petitions were heard together and with consent of the parties, these petitions are being disposed of at the stage of admission itself.
2. The above said petitions have been filed under Section-482 of the Cr.P.C. for quashing the order dated 04-09- 2009 passed by learned S.D.J.M. Bhagalpur in Complaint Case No. 241(C) of 2009 whereby and whereunder, learned S.D.J.M. Bhagalpur, having conducted an inquiry under Secrtion-202 of the Cr.P.C., found prima facie case under Section-498A of the IPC and 4 of Dowry Prohibition Act against petitioners and ordered to issue summons for procuring their attendance to face trial.
3. Being aggrieved by and dissatisfied with the above-said impugned order, the petitioners preferred above- said petitions.
4. The brief facts of the case are that opposite party No. 2 namely, Vandana Kumari Aradhana filed Complaint Case bearing Complaint Case No. 241 of 2009 against petitioners alleging therein that her marriage was solemnized with the petitioner in Cr. Misc. No. 37485 of 2009 on 24-11- 2007 at Kankarbagh, Ram Pratap Garden, Dharmshala, Patna- 20 according to Hindu rites and rituals. At the time of marriage, 3 the father of Opposite Party No. 2 spent Rs 3,00,000/- in connection with the above said marriage and also gave ornaments, furniture, clothes and other articles. After marriage, the Opposite Party No. 2 went to her in-laws' house but the behaviour of her in-laws, was not proper and she was treated as maid-servant. It is further alleged that prior to the above-said marriage, a ring ceremony was held on 06-07-2007 and cordial relation was established between the two families. After solemnization of ring ceremony, petitioner No. 1 in Cr. Misc. No. 37214 of 2009 came to the house of Opposite Party No. 2 and asked the father of Opposite Party No. 2 to purchase a plot of 12 Dhurs at Patna at the consideration amount of Rs 5,00,000/- in the name of Opposite Party No. 2 so that she may construct her own house at Patna and after that, father of Opposite Party No. 2 gave an account payee cheque of Rs 2,50,000/- (Two and a half lacs) to the petitioner no.1 of Cr. Misc. No. 37214 of 2009. Again, her father gave Rs 2,00,000/- (two lacs) on 17-09-2007 to the petitioner no.1 of (Cr. Misc. No. 37214 of 2009) but neither any land was purchased nor the aforesaid amount was returned.
5. Further case of the Opposite Party No. 2 is that on 01-12-2007, all the petitioners pressurized the Opposite Party No. 2 to bring a computer, refrigerator, washing machine, furniture, water heater etc. inasmuch as, her father had not given all the above-said things at the time of marriage. It is 4 further alleged that in the meanwhile, Opposite Party No. 2 became pregnant but her husband i.e. the petitioner in Cr. Misc. No. 37485 of 2009 pressurized her for abortion and she was subjected to cruelty and harassment in both ways, i.e. mentally and physically and on 04-01-2008 while she was cooking in kitchen, the petitioner in Cr. Misc. No. 37485 of 2009 came there and tried to pour K. oil on her body but she anyhow eluded herself from the clutches of petitioner in Cr. Misc. No. 37485 of 2009 and hide herself in bath-room. On 27-01-2008, she gave information to her parents at Bhagalpur by telephone and asked them to come there and having got the aforesaid information, her father came at her matrimonial house and took her to his own house at Kalighat Road, Bhagalpur.
6. It is further alleged that while she was living at her matrimonial home, petitioner Nos. 4 & 5 of Cr. Misc. No. 37214 of 2009 took out of her ornaments and valuable clothes valued Rs 1,00,000/- (one lac) from her briefcase and rest petitioners threatened her to demand articles and cash of Rs 3,00,000/- (three lacs) from her parents otherwise she will not be allowed to enter her matrimonial home. On 12-07-2008, the father of Opposite Party No. 2, talked with her husband to take back the Opposite Party No. 2 but the petitioner in Cr. Misc. No. 37485 of 2009 refused to take her back and made the above-said demand. On 14-07-2008, she talked to the 5 petitioner in Cr. Misc. No. 37485 of 2009 on telephone but her husband repeated the same demand. On 28-08-2008, she gave birth to a male child at Bhagalpur but neither her husband nor any member of her in-laws family came to see the newly born child. The petitioner No. 5 in Cr. Misc. No. 37214 of 2009 did not take any attempt to get the relation of two families restored.
7. The aforesaid complaint petition was inquired under Section 202 of the Cr.P.C. and having conducted the inquiry, the learned Sub Divisional Judicial Magistrate, Bhagalpur passed the impugned order dated 04-09-2009 against which, two separate Cr. Miscellaneous Cases were filed by the petitioners.
8. When the aforesaid Cr. Miscellaneous Cases were placed before this court for hearing on the point of admission, this court issued notice to Opposite Party No. 2 vide order dated 11-01-2010.
9. In response to the above said notice, the Opposite Party No. 2 made her appearance before this court and filed counter affidavit in which she averred that earlier she had filed Complaint Case No. 3240 of 2008 in the court of Chief Judicial Magistrate, Patna who, in turn, transferred the said case to the court of Sub Divisional Judicial Magistrate, Patna for inquiry and trial and in the aforesaid Complaint Case No. 3240 of 2008, her statement on solemn affirmation was recorded and 6 the next date was fixed for inquiry under Section-202 of the Cr. P.C. but while the aforesaid inquiry was pending, her husband as well as other in-laws started giving threatening for withdrawal of the aforesaid case and due to above-said threat, the Opposite Party No. 2 came in depression and due to not getting proper advice, she filed a petition on 04-02-2009 in the court of learned Sub Divisional Judicial Magistrate, Patna for withdrawal of the Complaint Case No. 3240 of 2008 but the learned Sub Divisional Judicial Magistrate, Patna without paying any heed towards the averments made in the aforesaid petition, dismissed the aforesaid case under Section 203 of the Cr.P.C. after taking fresh statement of the Opposite Party No. 2. It has also been stated in her counter affidavit that after passing of the order in Complaint Case No. 3240 of 2008, she filed Complaint Case No.241 of 2009 in the court of learned Chief Judicial Magistrate, Bhagalpur on 07-09-2009 because the torture and harassment by the petitioner was continued. She further averred in her counter affidavit that at the time of filing of the complaint case, she was residing at her natal place but petitioners used to give threatening to her on telephone and, therefore, the court of Bhagalpur had got jurisdiction to entertain her complaint petition.
10. Learned counsel appearing for petitioners challenged the impugned order on the ground that the court of Bhagalpur had got no jurisdiction to entertain the complaint 7 petition filed on behalf of the Opposite Party No. 2 because as per the complaint case itself, the entire occurrence had taken place at Patna, so the court of district Patna has only got jurisdiction to entertain any complaint filed on behalf of the Opposite Party No. 2. In support of his contention, he referred the decision of Y. Abraham Ajith & Ors. Vs. Inspector of Police, Chennai and Anr. reported in 2004 CRI L.J. 4180 (Supreme Court) in which it has been held by Apex Court of this country that ordinarily, every evidence could be inquired into and tried by a court within whose local jurisdiction, it was committed. It is further contended by him that admittedly, the Opposite Party No. 2 had earlier filed complaint case bearing Complaint Case No. 3240 of 2008 in the court of Chief Judicial Magistrate, Patna but later on, the aforesaid complaint case was dismissed by learned Sub Divisional Judicial Magistrate, Patna under Section203 of the Cr.P.C. and in the aforesaid case, she has specifically stated that she had no grievance against her husband as well as her other family members and she was never tortured or harassed by her in-laws on account of non-fulfillment of illegal demand of dowry and, therefore, the present case filed at Bhagalpur is nothing but only an abuse of process of law.
11. It is further contended by him that no specific overt act has been attributed against the petitioners in Cr. Misc. No. 37214 of 2009 and, therefore, even on the face of complaint 8 petition, no case is made out against the petitioners in Cr. Misc. No. 37214 of 2009. He referred a decision reported in (2009) 10 Supreme Court Cases 604 (BHASKAR LAL SHARMA AND ANOTHER Vs. MONIKA) in which the Apex Court of this country has held that for bringing an offence under Section-498A of the IPC, the complainant must make allegation of harassment to the extent so as to coerce her to meet any unlawful demand of dowry, or any willful conduct on part of accused of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health. Furthermore, it has been held by the Apex Court of this country in the above-said decision that mere kicking and saying that her mother was a liar, may make out some other offence but not one punishable under Section- 498A of the IPC.
12. On the basis of aforesaid submissions, he prayed for quashing the impugned order dated 04-09-2009.
13. On the other hand, learned counsel appearing for Opposite Party No. 2 supported the impugned order arguing that offence of Section-498A of the IPC is a continuing offence and the Opposite Party No. 2 has very clearly averred in her complaint petition that while she was at the home of her father, petitioners used to make illegal demand and to give threatening to her on telephone. So, the aforesaid act of petitioners obviously comes under the 9 definition of mental harassment on account of non-fulfillment of illegal demand of dowry and, therefore, the court of District Bhagalpur has got ample power to entertain the complaint filed by the Opposite Party No. 2. In support of his contention, he referred a decision reported in AIR 2011, SC 1674 (Sunita Kumari Kashyap Vs State of Bihar & Anr.) in which the Hon'ble Supreme Court has held that in view of Sections-178 & 179 of the Criminal Procedure Code, offence under Section-498A IPC is a continuing offence and, therefore, the court, under whose jurisdiction the part of the offence has been committed, has got ample jurisdiction to entertain the case.
14. It is further contended by him that no doubt, the Opposite Party No. 2 had earlier filed complaint case bearing Complaint Case No. 3240 of 2008 in the court of Chief Judicial Magistrate, Patna but as a matter of fact, she was put under threat by petitioners and on account of the aforesaid threatening, she became bound to withdraw the aforesaid case and, therefore, even if the Complaint Case No. 3240 of 2008 has been dismissed by the court of Patna under Section- 203 of the Cr.P.C. then also, the aforesaid dismissal order does not preclude the complainant from filing the fresh complaint case in the court of District-Bhagalpur. It is further contended by him that even after dismissal of complaint case No. 3240 of 2008, the petitioners did not change their 10 behaviour and they continued giving threatening to Opposite Party No. 2, and, therefore she has every right to file a fresh case in the court of district Bhagalpur.
15. Having heard the contentions of both the parties, I have gone through the record along with decisions cited on behalf of the parties.
16. Admittedly, the petitioner in Cr. Misc. No. 37485 of 2009 is husband of the Opposite Party No. 2 whereas petitioner Nos. 1 & 2 in Cr. Misc. No. 37214 of 2009 are parents in law. Similarly, petitioner No. 3 is brother-in-law, petitioner No 4 is married Nanad, petitioner No. 6 is married maternal Nanad whereas petitioner No. 5 is Nandoshi of the Opposite Party No. 2.
17. It would appear from perusal of averments of complaint petition filed in the court of district-Bhagalpur that the alleged occurrence took place between different periods. The first date of occurrence has been shown in the aforesaid petition as 16-07-2007 and 17-09-2007 and the occurrence is said to have taken place at Sarai Kila Ghat Road, P.S. Tatarpur, District-Bhagalpur. The second date of occurrence has been shown as 25-11-2007 to 28-01-2008 at the matrimonial home of Opposite Party No. 2 i.e. Prithvipur Lane No. 1/A Derh No. Gali Chirainyatand, Patna. The third date of occurrence has been shown between 29-01-2008 to 22-12- 2008 which is said to have taken place at Sarai Kila Ghat 11 Road, P.S. Tatarpur, District-Bhagalpur and similarly, fourth date of occurrence has been shown as 31-01-2009 till the date of filing of the complaint case and the aforesaid occurrence is said to have taken place at Sarai Kila Ghat Road, P.S. Tatarpur, District-Bhagalpur. Therefore, according to averments of the aforesaid complaint case, some part of alleged occurrence took place at Patna whereas; some part of alleged occurrence took place at Bhagalpur.
18. In Complaint Case No. 3240 of 2008 which was filed in the court of Chief Judicial Magistrate, Patna, the date of occurrence has been shown between 25-11-2007 to 28-01-2008 and the occurrence between the aforesaid period is said to have taken place at matrimonial home of Opposite Party No. 2, i.e. Prithvipur Lane No. 1/A Derh No. Gali Chirainyatand, P.S. Kankarbagh, Patna. Therefore, it is apparently clear that the learned Sub Divisional Judicial Magistrate, Patna dismissed the Complaint Case No. 3240C of 2008 in respect of the offences which had said to be taken place at Patna and he had not inquired in respect of the offences which had taken place at district Bhagalpur. Furthermore, Annexure-B to the counter affidavit of Opposite Party No. 2 reveals that on 19-01-2009, she filed an interlocutory petition bearing Sanha No. 261 of 2009 against the petitioners of present petitions in the court of Chief Judicial Magistrate, Bhagalpur disclosing this fact that when she along 12 with her father had gone to make pairvi in Complaint Case No. 3240C of 2008 on 23-12-2008, her husband, father-in-law and Nandoshi stopped her and gave threatening of dire consequences if she would come Patna to make pairvi in her case. Furthermore, Annexure-C to the counter affidavit shows that on 04-02-2009, she filed a petition in the court of Sub Divisional Judicial Magistrate, Patna in Complaint Case No. 3240C of 2008 to this effect that she had reasonable apprehension that she may be kidnapped by her husband and in-laws or she may be killed during course of inquiry of the aforesaid complaint case because her husband had given threatening to kill her if she is found at Patna during the inquiry and trial of the aforesaid complaint case and accordingly, he prayed before learned Sub Divisional Judicial Magistrate, Patna to permit her to withdraw the aforesaid complaint case but Annexure-D to the aforesaid counter affidavit reveals that on filing of the aforesaid petition, learned Sub Divisional Judicial Magistrate, Patna again recorded her statement on solemn affirmation and dismissed the aforesaid complaint case on 04-02-2009 holding that no prima facie case is made out in view of the statement of Opposite Party No. 2 recorded by him in course of inquiry.
19. The aforesaid facts clearly go to show that before passing of order dated 04-02-2009 in Complaint Case No.3240 of 2008, the Opposite Party No. 2 had already given 13 information to Chief Judicial Magistrate, Bhagalpur about the alleged threatening by filing Sanha petition bearing Sanha Petition No. 261 of 2009 and apart from this, on 04-02-2009, she again disclosed the factum of alleged threatening given by her husband and other in-laws before learned Sub Divisional Judicial Magistrate, Patna seeking permission for withdrawal of Complaint Case No.3240 of 2008. It is admitted position that when Opposite Party No. 2 filed Complaint Case No.3240 of 2008, her statement on solemn affirmation was recorded by learned Chief Judicial Magistrate, Patna and after that he transferred the case to the court of Sub Divisional Judicial Magistrate for inquiry and trial and in course of inquiry, learned Sub Divisional Judicial Magistrate, Patna again recorded the statement of Opposite Party No. 2 on 04-02- 2009 and in the said statement, she stated that she had no grievance against her husband as well as her in-laws whereas, in her previous statement, she had supported her case. Moreover, the Opposite Party No. 2 had approached before learned Sub Divisional Judicial Magistrate, Patna for withdrawal of her case but I am unable to understand what prompted the Sub Divisional Judicial Magistrate, Patna to record the statement of Opposite Party No. 2 again and without giving any findings on withdrawal petition, dismissed the complaint case of Opposite Party No. 2 vide order dated 04-02-2009. Moreover, I have already stated that the offence 14 under Section-498A of the IPC is a continuous offence and no complaint had been filed in the court of learned Chief Judicial Magistrate, Patna in respect of offences which had taken place in the district Bhagalpur and, therefore, even if learned Sub Divisional Judicial Magistrate, Patna has dismissed the Complaint Case No.3240 of 2008, then also, it cannot be said that on account of dismissal of Complaint Case No.3240 of 2008, the complainant had no right to file fresh complaint in respect of the above-said alleged offences.
20. It has already been set at rest by the Apex Court of this country that the offence under Section- 498Aof the Indian Penal Code is a continuous offence and the court having jurisdiction to try the case can proceed with the case even the part of alleged occurrence has taken place under the jurisdiction of the aforesaid court.
21. In the present case, it is specific averment in the complaint petition of the Opposite Party No. 2 that while she was residing at Bhagalpur, she was threatened by her husband as well as her father-in-law on telephone and she was mentally harassed by them.
22. To attract an offence under Section- 498A of the Indian Penal Code, it is sufficient to prove that woman has been subjected to harassment on account of non-fulfillment of illegal demand of dowry. In the present case, it is specific case 15 of the Opposite Party No. 2 that she was harassed mentally and physically by her husband and other in-laws on account of non-fulfillment of illegal demand of dowry at both the places i.e. at Patna as well as at Bhagalpur. So, in my view, the decisions cited on behalf of the petitioners are not applicable in the present case and the court of district Bhagalpur has got ample jurisdiction to entertain the complaint petition filed on behalf of the Opposite Party No. 2.
23. It would appear from perusal of the averments of complaint petition filed in the court of Bhagalpur that the entire allegation of harassment as well as demand of dowry centers around the husband and father-in-law of the Opposite Party No. 2 who are petitioners in Cr. Misc. Nos. 37485 of 2009 and 37214 of 2009 respectively. So far as petitioner No. 5 in Cr. Misc. No. 37214 of 2009 is concerned, it has only been averred in complaint petition that even having full knowledge of the developments which had been taken place in the married life of Opposite Party No. 2, he did not take any pain to get the relation of the parties restored. So, even if the aforesaid allegation is taken on its face value, then also, the aforesaid allegation does not make out a case either under Section-498A of the Indian Penal Code or section-4 of Dowry Prohibition Act. So far as petitioner Nos. 4 & 6 are concerned, nothing has even been whispered against them in the complaint petition. Similarly, a vague allegation has been 16 levelled against petitioner Nos. 2 & 3 of Cr. Misc. No.37214 of 2009 that when on 04-01-2008, the husband of Opposite Party No. 2 tried to pour K. oil on her body, petitioner Nos. 2 & 3 of Cr. Misc. No.37214 of 2009 pushed her as a result of which, she fell down on the ground and except the aforesaid allegation, there is nothing against them in the entire complaint petition. Therefore, even if it assumed that on one occasion, the aforesaid petitioners pushed the informant, then also, the aforesaid single act does not constitute any offence under Section-498A of the Indian Penal Code against the above-said petitioner Nos. 2 & 3 of Cr. Misc. No.37214 of 2009.
24. On the basis of aforesaid discussions, I am of the opinion that Cr. Misc. No. 37485 of 2009 is devoid of merit and must be dismissed at the stage of admission itself.
25. So far as in Cr. Misc. No. 37214 of 2009 is concerned; the same is liable to be allowed partly.
26. Accordingly, Cr. Misc. No. 37485 of 2009 stands dismissed at the stage of admission itself and Cr. Misc. No. 37214 of 2009 is allowed in part in the manner that the impugned order dated 04-09-2009 passed by learned Sub Divisional Judicial Magistrate, Bhagalpur in Complaint Case No. 241C of 2009 is, hereby, quashed in respect of petitioner Nos. 2, 3, 4, 5 & 6 of Cr. Misc. No. 37214 of 2009 only and so 17 far as petitioner No. 1 of Cr. Misc. No. 37214 of 2009 is concerned, his prayer for quashing the impugned order dated 04-09-2009 passed by Sub Divisional Judicial Magistrate, Bhagalpur in above-said Complaint Case No.241C of 2009 stands dismissed.
27. In the aforesaid manner, the above-said Criminal Miscellaneous Cases are disposed of at the stage of admission itself.
( Hemant Kumar Srivastava, J.) AKVishwakarma