CRIMINAL MISCELLANEOUS No.24579 OF 2007 ------- In the matter of an application under Section 482 of the Code of Criminal Procedure. ----- 1.DEV KUMAR @ DEV RAM son of Kishan Ram 2. Kishan Ram son of Late Bansi Ram 3.Subla Devi wife of Kishan Ram All are resident of village Pahepur (Behind Jail), P.S.Mufassil,District Samastipur ---- Petitioners Versus 1.THE STATE OF BIHAR 2. Radha Devi wife of Dev Kumar, daughter of Rajan Raut, resident of Lallupokhar,P.S.Kashim Bazar, District Munger ----- Opp.Parties ----- For the petitioners : Mr. Mukesh Kumar Thakur For the State : Mrs.Indu Bala Pandey, Addl.P.P. For opposite party no.2 : Mr.Ram Sevak Choudhary ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ----- Rakesh Kumar,J. Three petitioners, who are husband, father-in-law and mother-in-law respectively of opposite party no.2, have approached this court by invoking its inherent jurisdiction under section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 28.8.2006 passed by learned Sub.Divisional Judicial Magistrate, Munger in Complaint Case No.452C of 2006. By the said order the learned Magistrate was prima facie satisfied that the case under sections 498A and 406 of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act was made out and directed for summoning the petitioners. 2. Short fact of the case is that opposite party no.2, who is wife of petitioner no.1, filed a complaint in the court of Sub.Divisional Judicial Magistrate, Munger which was numbered as Complaint Case No.452C of 2006 with an allegation that all the 2 three petitioners had committed offences under sections 498A, 406, 323 and 504 of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act. .It was disclosed in the complaint petition that marriage of opposite party no.2 with petitioner no.1 was solemnized on 28.4.1999 according to Hindu rites. After solemnization of marriage the accused persons with a view to extract dowry started torturing the complainant. It was further disclosed that on earlier occasion also due to non-fulfilment of demand of dowry the complainant was ousted from the house of in-laws. Subsequently, she was taken back and finally in the month of February, 2003 the complainant along with her baby child was ousted from the house of in-laws due to non-fulfilment of demand of dowry. It was alleged that the accused persons had forcibly taken the entire ornaments of the complainant. On the aforesaid allegations the complaint was filed. After conducting enquiry, the learned Magistrate by its order dated 28.8.2006 has taken cognizance of the offences under sections 498A and 406 of the Indian Penal Code and sections 3 and 4 of the Dowry Prohibition Act. 3. Aggrieved with the order of cognizance, the petitioners have approached this court by filing the present petition. 4. Mr.Mukesh Kumar Thakur, learned counsel appearing on behalf of the petitioners while assailing the order of cognizance as well as initiation of criminal proceeding in complaint Case No. 452C of 2006, submits that the complaint 3 petition was filed only after filing of matrimonial case by petitioner no.1 vide Matrimonial Case No. 32 of 2006. It was submitted that the complainant on her own volition had left the house of her in-laws. Thereafter, time without number steps were taken, particularly by petitioner no.1, to get her back to his house but all steps went in vain. Subsequently, petitioner no. 1 sent legal notices to opposite party no.2 as well as her father for settling the dispute and finally on 12.4.2006 petitioner no.1 was constrained to file a Matrimonial case Vide Matrimonial Case No. 32 of 2006 in the Family Court with sole prayer for restitution of conjugal right. Learned counsel for the petitioners has referred to annexure-4 series i.e. copy of plaint of Matrimonial Case No. 32 of 2006 as well as ordersheets in the said case passed by the Family Judge. Learned counsel for the petitioners has submitted that despite the fact that notices were issued in the matrimonial case to opposite party no.2, she never preferred to appear in the matrimonial case. Instead of appearing in matrimonial case to the reasons best known to the complainant, she had filed the present complaint case on 18.5.2006. It has been submitted that during the pendency of the present case, Matrimonial Case No.32 of 2006 has already been decreed and prayer for restitution of conjugal right was allowed by the Family Court. In view of the aforesaid facts and circumstances, it has been submitted that it is not a case of ousting the complainant from her in-laws house but it is a case where the complainant herself on her own volition has left the house of the petitioners and as such there is no purpose to allow the prosecution 4 of the petitioner. Learned counsel for the petitioners while pressing the present petition has specifically referred to the averments made at pages 4 and 5 of the complaint petition i.e. running pages 20 and 22 of this petition. It has been submitted that opposite party no.2 has herself admitted in the complaint petition that from the month of February, 2003 she is regularly residing in her parents’ house i.e. Naihar. 5. Mr. Ram Sevak Chaudhary, learned counsel for opposite party no.2 has vehemently opposed the prayer of the petitioners. It was submitted by Mr. Chaudhary that the averments made in the complaint petition categorically discloses the commission of offence for which the learned Magistrate has taken cognizance. It has been submitted that on earlier occasion also the complainant was ousted from her in-laws house due to non- fulfilment of dowry demand. Accordingly, it has been prayed to reject the present petition. 6. Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has supported the stand taken by learned counsel for opposite party no.2. 7. Besides hearing learned counsel for the parties, I have also perused the materials available on record. The court is satisfied that the present complaint was not filed fairly and honestly rather it was filed with some oblique motive. From the record it is evident that so far as petitioner no.1 is concerned, who is husband of opposite party no.2, has taken sincere steps for settling his family life and due to that reason he had even filed 5 matrimonial case vide Matrimonial Case No. 32 of 2006 with a prayer for restitution of his conjugal right with opposite party no.2. The matrimonial case was filed prior to filing of the complaint petition. The complainant in the complaint petition has not at all disclosed as to the reason for filing of complaint at such belated stage. Non-disclosure of this fact corroborates that the present complaint was filed after noticing the fact that matrimonial case was filed by petitioner no.1. In view of the facts and circumstances of the present case, the court is of the opinion that allowing prosecution of the petitioners will amount to allowing an abuse of the process of the court and with a view to prevent the abuse of process of the court it is necessary to interfere even at initial stage of cognizance in Complaint Case 452 C of 2006. 8. Accordingly, order of cognizance dated 28.8.2006 passed by Sub-Divisional Judicial Magistrate, Munger in Complaint Case No. 452C of 2006 is hereby set aside and the petition stands allowed. Patna High Court The 9th November,2010 Md.S. (NAFR) ( Rakesh Kumar, J.)