IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34352 of 2004 NAZRUL ISLAM S/O Jainuddin of Village. Bariol, Police Station- Abadpur, District –Katihar ------------- Petitioner Versus 1. STATE OF BIHAR 2. Hazra Khatoon, D/O Amaluddin, W/O Nazrul Islam, residence of Village. Sivanandpur, Police Station- Abadpur, District-Katihar -------------- Opp.Parties ----------- For the petitioner: Mrs. Anjana Prakash, Sr. Advocate and Mr. Shivendra Kishore Sinha, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For Opp.Party no.: None __________ O R D E R This application by one of the accused of Complaint Application no.496 of 2003 is for the quashing of the order dated 28.5.2003 passed therein by the learned Sub Divisional Judicial Magistrate, Katihar, whereby cognizance has been taken for offence under Section 498 A I.P.C. According to the complainant, one Hazra Khatoon, impleaded herein as Opp.Party no.2, she was married to Nazrul Islam, the petitioner herein, some 15-16 years back and at the time of marriage ornaments and cash were given in dowry and out of the wedlock a son and a daughter were born. It is alleged that after the birth of the daughter the accused persons in execution of the conspiracy entered amongst themselves started demanding additional - 2 - dowry in the form of a motorcycle and cash to the tune of Rs.50, 000/- and for the non-fulfillment thereof she was subjected to torture in various ways and even the usual food was put to a stop. It is further alleged that on pressure exerted by the accused persons she sold her share of the land and gave a sum of Rs.25, 000/- to the accused persons but that notwithstanding her torture continued unabated and finally on 10.1.2000, she was severely assaulted, all her ornaments were confiscated and she was ousted from the matrimonial home and prior thereto the co-accused tried to outrage her modesty. The learned counsel for the petitioner was critical of the fact that the complaint petition was filed on 2.4.2003 i.e. more than three years from the date of occurrence (10.1.2000) and curiously no explanation has been furnished for such inordinate delay. It was also submitted that the complainant had prior to the instant case filed complaint case no.1623 A of 2000 against the petitioner and others which was dismissed by the court below for absence of evidence and the accused were discharged under Section 245 (2) Cr.P.C. on 11.3.2003 by the learned Sub Divisional Judicial Magistrate, Katihar. That apart Complaint Case no.1231 ( C) of 2000 was filed by the petitioner against the brother of the complainant wherein the complainant Hazra Khatoon deposed on 15.9.2000 that she had left her in-law’s house some eight months prior to that date and that thereafter she had filed a complaint case against the petitioner. The learned counsel also sought to submit that complainant Hazra Khatoon had remarried after changing her name at Dinajpur in West Bengal - 3 - and this fact was supported by the Hazi who had officiated in the marriage on 6.7.2000 in course of his deposition in Complaint Case no.1231 of 2000. In the background of the factual matrix it was submitted by the learned counsel for the petitioner that it would be clear therefrom that the complainant had left the matrimonial home of her own accord and had contacted a second marriage soon thereafter after changing her name and the impugned order did not disclose the reasons that prompted the court below to take cognizance in this case moreso when the allegations were general and omnibus in nature and no specific allegations were levelled at any of the accused. The learned counsel was also critical of the fact that the complainant had suppressed material facts in as much as she had not stated of her earlier complaint petition no.1623A of 2000 being dismissed and she having contacted a second marriage after changing her name and the court below entertaining a second complaint based on the same set of facts pleaded in the first complaint which stood dismissed. In this context it was submitted that repeated prosecution of the petitioner on the same set of facts upon which the earlier complaint was dismissed and the accused were discharged was barred in law and continuance of the present proceeding would amount to an abuse of the process of the court. The submissions advanced by the learned counsel for the petitioner are well founded and supported by documents which have been appended as Annexures. - 4 - Opp.Party no.2 was duly served with notice and she appeared by filing Vakalatnama, but at the time of hearing, neither Opp.Party no.2 nor her counsel was present and as such the submissions of the learned counsel for the petitioner remains unrebutted. For the reasons stated above and the complainant not coming with clean hands and suppressing material facts, this application so far as the petitioner is concerned, is allowed and the impugned order taking cognizance is quashed. ( Abhijit Sinha, J) Patna High Court, Patna Dated : the 30th September,2008 Nawal Kishore Singh/A.F.R.