IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.31160 of 2007 1. Kalpana Choudhary wife of Raghwendra Choudhary. 2. Raghwendra Choudhary s/o Kamal Narayan Choudhary. Both residents of village- Pachahi, P. S. Madhepur, District Madhubani. .. Petitioners. Versus 1. State Of Bihar 2. Pushpa Mishra, wife of Shekhar Chandra Mishra, D/o Indra Narayan Jha, Resident of village- Dyodh, P.S. Ghoghardiha, District- Madhubani. Presently residing at Mohalla- R. S. Tank, P. S. Bahadurpur, District- Darbhanga. .. Opposite parties. ----------- 5. 16.02.2010 Heard learned counsel for the petitioner and learned counsel for the State. Despite service of notice and in fact filing of Vakalatnama on behalf of opposite party no. 2, no one has appeared on her behalf. The two petitioners have assailed the order taking cognizance dated 9.3.2007 for offence under Sections 498 (A) I. P.C. and 3/4 of Dowry Prohibition Act. Their plain and simple case is that even if the complaint is read as a whole at least nothing can be found against them who are related to the complainant by way of Nanad and Nadosi respectively. Counsel in this respect has also drawn attention towards the specific averment made in the 2 complaint petition pertaining to a single date incident of 7.3.2006 wherein it is said that the complainant herself had gone along with her family members for arranging her second marriage (Gauna) but the family members of her husband did not agree to perform the second marriage until they were paid Rs.5,00,000/- by way of dowry. Counsel has pointed out that this specific allegation would go to show that neither in this part of allegation the petitioners have been named nor they are supposed to be over there inasmuch as the petitioner no. 1 is married Nanad living separately in a different town with her husband petitioner no. 2 (Nandosi of the complainant). Reliance has also been placed by him on judgment of the Apex Court in the case of Ramesh & Ors. vs. State of Tamil Naidu, reported in 2005(2) PLJR 174(SC) and also of this court in the case of Sunil Kumar Singh & Ors. vs. The State of Bihar, reported in 2006(I) PCCR, 275 wherein the trend with regard to making all the family members as accused in cases arising out of matrimonial dispute/ Section 498 (A) I.P.C. has been deprecated. Counsel for the State would point out that though in the petition of complaint there is no specific 3 allegation against the two petitioners but then as would appear that the complaint petition was made subject matter of an investigation by police in view of its being instituted as a police case under Section 156(3) of the Code of Criminal Procedure and as police has also submitted a charge-sheet against the petitioners, the Court below cannot be said to have committed any error in taking cognizance of the offence and issuing summons even against the petitioners. In the opinion of this court, if however there is absolutely no allegation against the petitioners barring their being named in the complaint petition which formed the basis of the first information report, there would be hardly any scope for the police to find any material against the petitioners more so when the order taking cognizance also does not refer to any such allegations. This court therefore would find that the order taking cognizance so far it relates to the petitioners cannot be sustained. In taking this view, this court is also guided by the observations made by the Apex court in the case of Ramesh (Supra) as also of this Court in the case of Sunil Kumar Singh (supra) wherein in an identical 4 circumstance, the criminal prosecution against the married sister-in-law (Nanad) was quashed. Thus upon considering the matter from all angles, this court is satisfied that continuance of criminal prosecution against the petitioners will amount to gross abuse of the process of the Court and therefore the impugned order taking cognizance, only as against the petitioners, is set aside. The prosecution however would continue as against the rest of the accused persons. With the aforesaid observations, this application, to the extent indicated above, is allowed. kanchan (Mihir Kumar Jha, J.)