Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.35277 of 2008 1. Harendar Upadhyay, son of Late Ramadhar Upadhyay. 2. Nirmala Devi, wife of Harindar Upadhyay. Both residents of Guddupur, P.S. Harsidhi, District-East Champaran. …………………………………………………….Petitioners. Versus 1. The State Of Bihar. 2. Savitri Devi, wife of Bipin Upadhyay, of Gaddupur, P.S. Harsidhi, District-East Champaran, at present resident of village-Saraiya Khurd, P.S. Harsidhi, District-East Champaran. …………………………………………...Opposite Parties. ---------------------------------- For the Petitioners: M/s. Umakant Shukla & Rajesh Ranjan no.1, Advocates. For the State : Mr. Dashrath Mehta, A.P.P. ---------------------------------- O R D E R 6. 6.1.2012. The petitioners have approached this Court, under Section 482 of the Code of Criminal Procedure, to quash the order dated 9.6.2008 passed in Trial No.2344 of 2008 by the Sub Divisional Judicial Magistrate, Sadar, Motihari, allowing the petition of the complainant- opposite party no.2, Savitri Devi, to summon the petitioners under Section 319 of the Code of Criminal Procedure. 2 2. In brief, the case is that the complainant- opposite party no.2, Savitri Devi, filed the complaint petition, numbered as Complaint Case No.126C of 2005 in the court of the Chief Judicial Magistrate, East Champaran, Motihari, against her husband, Bipin Upadhyay, brother-in-law, Harendrar Upadhyay (petitioner no.1), sister-in-law, Nirmala Devi, (petitioner no.2) and mother-in-law, Most, Ramdulari Kunwar, for the offence under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act. After filing of the aforesaid complaint petition by the complainant-opposite party no.2, on inquiry under Section 202 of the Code of Criminal Procedure, the Sub Divisional Judicial Magistrate, Sadar, Motihari, summoned only the accused, Bipin Upadhyay and Most. Ramdulari Kunwar, the husband and mother-in-law respectively of the complainant-opposite party no.2, finding prima facie case under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act against them vide order dated 22.7.2005. In course of trial, the complainant-opposite party no.2, Savirti Devi, filed a petition to summon the accused-petitioners under Section 3 319 of the Code of Criminal Procedure on the basis of the evidence adduced before the court before charge. The Sub Divisional Judicial Magistrate, Sadar, Motihari, on considering the evidence of the witnesses, as recorded before charge, summoned the accused-petitioners under Section 319 of the Code of Criminal Procedure through the order dated 9.6.2008, arriving at the conclusion that the trial of the accused-petitioners is necessary alongwith the accused, Bipin Upadhyay and Most. Ramdulari Kunwar, the husband and mother-in-law of the complainant-opposite party no.2, for the offence under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act. 3. Learned counsel appearing on behalf of the petitioners made submission that while the petitioners, who happen to be the brother-in-law and sister-in-law of the complainant-opposite party no.2, Savitri Devi, were made accused alonwith the other two accused, namely, Bipin Upadhyay and Most. Ramdulari Kunwar, who happen to be husband and mother-in-law, of the complainant-opposite party no.2, in the complaint petition, but on inquiry under Section 202 of the Code of Criminal 4 Procedure, only Bipin Upadhyay and Most. Ramdulari Kunwar, the husband and mother-in-law of the complainant-opposite party no.2, were summoned vide order dated 22.7.2005 by the Sub Divisional Judicial Magistrate, Sadar, Motihari, under Section 204 of the Code of Criminal Procedure, finding prima facie case under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act against them, hence, the petitioners shall be deemed to be accused in the case according to the provisions of Section 319 of the Code of Criminal Procedure. As such, the power under Section 319 of the Code of Criminal Procedure could not be exercised by the Sub Divisional Judicial Magistrate, Sadar, Motihari, to summon the petitioners. In support of his submission, learned counsel placed reliance on a decision of a Bench of this Court rendered in Rama Devi and another Vs. State of Bihar and another {2004(2) PLJR 225}. 4. On going through the order dated 9.6.2008 passed by the Sub Divisional Judicial Magistrate, Sadar, Motihari, in Trial No.2344 of 2008, it appears that the petitioners, who are brother-in-law and sister-in-law of the 5 complainant-opposite party no.2, were also made accused alongwith the accused, Bipin Upadhyay and Ramdulari Kunwar, who are husband and mother-in-law of the complainant-opposite party no.2, in the complaint petition filed by the complainant-opposite party no.2, Savitri Devi, but, on inquiry under Section 202 of the Code of Criminal Procedure, only the accused, Bipin Upadhyay and Ramdulari Kunwar, who happen to be the husband and mother-in-law of the complainant-opposite party no.2, Savitri Devi, were summoned under Section 204 of the Code of Criminal Procedure, finding prima facie case under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act. Later on, on the basis of the petition filed by the complainant-opposite party no.2, Savitri Devi under Section 319 of the Code of Criminal Procedure, the Sub Divisional Judicial Magistrate, Sadar, Motihari, summoned the petitioners also for the offence under [STATUTE] and Sections 3/4 of the Dowry Prohibition Act on perusing the evidence of the witnesses, as recorded before the charge. 5. Since the learned counsel for the petitioners 6 solely made submission that the petitioners will not come within the purview of the expression “not being the accused” under the provision of Section 319 of the Code of Criminal Procedure, it is necessary to refer the provisions of

Applicable IPC Section: 498

Statute Text:
Section 498 of the Indian Penal Code. Enticing or taking away or detaining with a criminal intent a married woman. Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.