Case Facts:
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.11187 of 2010 ====================================================== Rajendra Sharma S/O Late Banwari Sharma R/O Village - Dhanauti Math, P.S.- Siwan, Distt.-Siwan .... .... Petitioner/s Versus 1. The State Of Bihar 2. Kiran Devi W/O Rajendra Sharma R/O Village - Dhanuati Math, P.S.- Siwan, Distt.- Siwan At Present Residing At Village - Phulguni, P.S.-Thave, Distt.- Gopalganj. .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Arbind Kumar For the Opposite Party/s : Mr. ====================================================== CORAM: HONOURABLE MR. JUSTICE RAKESH KUMAR ORAL ORDER 4 10-07-2012 Heard Sri Hemendra Prasad Singh, learned senior counsel, who was assisted by Sri Arbind Kumar, learned counsel for the petitioner, Sri Pradeep Narayan Kunwar, learned Additional Public Prosecutor as well as Sri Jitendra Kumar Singh, learned counsel, who has appeared on behalf of complainant / opposite party no. 2. The petitioner, who is husband of complainant / opposite party no. 2, has come before this Court while invoking its extra ordinary inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 23.12.2009 passed by Sri P.K. Shukla, learned Judicial Magistrate 1st Class, Gopalganj, in Complaint Case No. 1960 of 2009, Tr. Patna High Court Cr.Misc. No.11187 of 2010 (4) dt.10-07-2012 2 / 5 2 No. 1074 of 2010. By the said order learned Magistrate has taken cognizance of offence under [STATUTE] . Learned counsel for the petitioner while assailing the impugned order has primarily argued that in the entire complaint petition there is no allegation or averment of torture with a view to extract or demand dowry. He submits that in absence of any demand offence under [STATUTE] is not made out. On this ground alone he has prayed for quashing of order of cognizance. In support of his argument he has heavily relied on a judgment reported in 2010(1) BBCJ IV-168 (Pashaura Singh Vs. State of Punjab and Anr.). He has also relied on 2010 (4) BLJ SC -1 (Preeti Gupta & Anr. Versus State of Jharkhand & Anr.). He submits that in Pashaura Singh Case (Supra) it has been held that in absence of ingredient of demand of dowry no offence under [STATUTE] is made out. He further submits that in Preeti Gupta Case (Supra), the Apex Court has deprecated the approach of the court below in cases instituted for the offence under [STATUTE] . On aforesaid grounds he has prayed for quashing of order of cognizance. Learned counsel appearing on behalf of complainant / Patna High Court Cr.Misc. No.11187 of 2010 (4) dt.10-07-2012 3 / 5 3 opposite party no. 2 has specifically referred to averment made in the complaint petition which makes it clear that the opposite party no. 2 was tortured mentally and physically and thereafter she was ousted. He further submits that contents of the complaint petition makes it clear that even during the life time of the opposite party no. 2 the petitioner had solemnized third marriage and as such, according to learned counsel for complainant / opposite party no. 2, besides offence under [STATUTE] it was case for offence under [STATUTE] also. Besides hearing the parties, I have perused the material available on record particularly, the complaint petition and the impugned order. In the complaint petition there is specific averment of cruelty against the opposite party no. 2 by the petitioner. Repeatedly, it has been stated, that the complainant was tortured mentally and physically, and finally, she was ousted by the petitioner. Since it was argued by learned senior counsel for the petitioner that no offence under [STATUTE] is made out, it would be appropriate to refer the provision i.e. [STATUTE] , which is as follows: - “498A. Husband or relative of husband of a woman subjecting her to cruelty. – Whoever, being the husband or the Patna High Court Cr.Misc. No.11187 of 2010 (4) dt.10-07-2012 4 / 5 4 relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation. - For the purpose of this section, “cruelty” means- (a) any wilful conduct which is 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 (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand]” Explanation (a) to [STATUTE] makes it clear that cruelty means any wilful conduct which is 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 (whether mental or physical) of the woman. After perusing the explanation „(a)‟ to [STATUTE] side by side of the allegation made in the complaint petition, the Court is satisfied that offence under [STATUTE] is made out. So far as Pashaura Singh Case (Supra) is concerned, in that case F.I.R. was quashed primarily on the ground that F.I.R. was lodged maliciously. So far as Preeti Gupta Case (Supra) is concerned, the Court is of the opinion that in view of specific allegation made in the complaint petition the Patna High Court Cr.Misc. No.11187 of 2010 (4) dt.10-07-2012 5 / 5 5 petitioner may not get any benefit from the said judgment. In the order of cognizance, learned counsel for the petitioner has not pointed ou

Applicable IPC Section: 323

Statute Text:
Section 323 of the Indian Penal Code. Voluntarily causing hurt. Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.