CRIMINAL MISCELLANEOUS No.33887 OF 2002 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- 1.MAHENDRA SAO son of Ram Sao 2.Pramila Devi daughter of Mahendra Sao 3.Kanhai Sao son of Mahendra Sao 4.Sakendra Prasad Sah son of Hira Sah 5. Upendra Sah son of Mahadeo Sah All resident of village-Mahisauri, P.S.-Jamui District- Jamui ……. ……Petitioners Versus 1.STATE OF BIHAR 2.Bhola Sao son of Sri Kishun Sao, resident of village-Asht Dhatti Kalali Patti, P.S.-Lakhisarai, District- Lakhisarai. …… ……Opp.Parties ------- For the petitioners: Mr.Akhauri Kamal Kishore Sahay For the State: Mr. Shiwesh Chandra Mishra, A.P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR --------- Rakesh Kumar,J. Five petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, have, prayed for quashing of an order dated 19.7.2002 passed by Sub.Divisional Judicial Magistrate, Lakhisarai in Complaint Case No.378C of 2001. By the said order the learned Magistrate, has taken cognizance of the offences under sections 403, 494, 323 and 504 of the Indian Penal Code. 2. Short fact of the case is that opposite party no.2, who is husband of petitioner No.2 filed a complaint in the court of Additional Chief Judicial Magistrate, Lakhisarai which was numbered as Complaint Case No.378C of 2001 against the petitioners and one Manoj Kumar Sah. It was alleged in the complaint petition that the complainant was married with petitioner 2 no.2 in the year 1993 according to the Hindu rites and subsequently in the year 1998 on the eve of Durga Puja the petitioner no.1 came to the house of the complainant and requested him to allow petitioner no.2 to go with him. It has further been alleged that petitioner no.1 persuaded the complainant to allow petitioner no.2 to go with ornaments and valuable Sarees. On the request of petitioner no.1, petitioner no.2 was allowed to go with ornaments. It was alleged that thereafter on one pretext or the other petitioner no.2 never returned to the house of the complainant. It has also been alleged that other accused persons had misappropriated the ornaments of petitioner no.2 and got her marriage solemnized with one Manoj Kumar, who has not come to this court. On the aforesaid allegation the learned Magistrate after conducting enquiry took cognizance of the offences under sections 403, 494, 323 and 504 of the Indian Penal Code. 3. Aggrieved with the order of cognizance the petitioners have approached this court by filing the present petition. This court on 12.3.2003 while issuing notice to opposite party no.2 directed that in the meantime further proceedings in the court below shall remain stayed. Thereafter, on 25.2.2004 the case was admitted for hearing and it was directed that the interim order dated 12.3.2003 shall remain continued till the disposal of the case. The opposite party no.2 had already entered his appearance through his counsel, however, at the time of hearing none appeared on his behalf. 4. Mr.Akhauri Kamal Kishore Sahay, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance and initiation of proceeding in Complaint Case No.378C 3 of 2001, submits that the present complaint petition was filed by opposite party no.2 with a view to create a defence in a case which was instituted against the complainant and his family members by petitioner no.2 for the offence under sections 498A and 323 of the Indian Penal Code. It was submitted that in the complaint case which was instituted by the petitioner no.2 when the learned Magistrate took cognizance of the offence, the complainant in a designed manner has filed the present complaint petition. It was submitted that petitioner no.2 was legally married wife of the complainant and right from the very beginning the complainant and his family members started torturing petitioner no.2 and they were demanding Rs.25,000/-. The petitioner no.2 had alleged in the complaint petition that since her father was not in a position to fulfill the demand of the complainant and his family members the accused persons after assaulting her had ousted her from the house on 20.12.1999 and thereafter she was constrained to live with her parents and steps were taken regularly to persuade the complainant to allow her entry in the house of her in-laws but she was never allowed. Thereafter, on 12.5.1999 the petitioner no.2 had filed a complaint in the court of Chief Judicial Magistrate, Jamui which was numbered as Complaint Case No.372C of 1999. On the aforesaid fact of the case, it has been submitted by learned counsel for the petitioners that the present complaint petition which was filed on 28.11.2001 was nothing but a false defence was created by opposite party no.2. It was submitted that the prosecution in Complaint Case No.378C of 2001 as well as order of cognizance is liable to be set aside only on the ground of 4 Patna High Court The 31st August, 2010 Md.S./NAFR malicious prosecution. 5. Despite the fact that opposite party no.2 had entered appearance through his counsel, none has appeared on his behalf. However, I have heard Mr. Shiwesh Chandra Mishra, learned Addl. Public Prosecutor appearing on behalf of the State. 6. Besides hearing learned counsel for the petitioners and the State, I have also perused the materials available on the record. Perusal of the complaint petition (annexure-4) which was filed by petitioner no.2, makes it clear that petitioner no.2 was forcibly ousted from the house of her in-laws by the complainant and his family members due to non-fulfillment of demand of dowry. The court is satisfied that the present complaint was filed on 28.11.2001 maliciously and on the ground of malicious prosecution entire criminal prosecution in Complain Case No.378C of 2001 as well as order of cognizance dated 19.7.2002 passed by Sub.Divisional Judicial Magistrate, Lakhisarai are hereby set aside and the petition stands allowed. (Rakesh Kumar, J.)