IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.6936 of 2009 SUKHDEO RAM, SON OF LATE BALESHWAR RAM, RESIDENT OF VILLAGE-GODAIPATTI, POLICE STATION- BISHANPUR (MORO), DISTRICT-DARBHANGA. ……….Petitioner. Versus 1. THE STATE OF BIHAR. 2. MANORAMA KUMARI, DAUGHTER OF RAM PUJAN RAM, RESIDENT OF MOHALLA-MAULAGANJ, P.S.-LAHERIA SARAI, DISTRICT-DARBHANGA. ……Opp. Parties. ----------- 8 16.12.2010 Heard. This is petition for quashing the order dated 06.11.2008 passed in Trial No.2230 of 2008 arising out of Laheria Sarai P.S. Case no.177 of 2006 by which the petition under Section 239 of the Cr.P.C. has been rejected holding that there was sufficient material for framing of charge u/s 498A of the I.P.C. The prosecution case as alleged in the complaint petition is that accused person used to pressurize the victim to transfer the land standing in her name at village- Maulaganj / Dilahi and subjected her to cruelty with a threat to kill. It is further alleged that on the date of occurrence dated 21.5.2006 the accused person came to Maulaganj asked to withdraw case assaulted threatened to kill, if the land is not transferred in his name. The complaint petition was sent for lodging FIR under Section 156(3) Cr.P.C. and in consequence the FIR was lodged bearing Laheria Sarai P.S. Case no.177 of 2006 and investigations proceed. After the investigation charge sheet submitted under Section 498A of the penal code and accordingly the cognizance was taken. A petition was filed on 22.2.2008 under Section 239 2 Cr.P.C. on ground that no offence is made out under Section 498A IPC. That prior to lodging of the criminal case a matrimonial case No.34 of 2006 filed by the complainant bearing matrimonial case No.34 of 2006 before Family Court, Darbhanga and later this petitioner filed a case for restitution of conjugal rights. It is asserted that marriage solemnized on 16.4.1984 petitioner has been blessed with two son aged 20 years and 18 years of the marriage and complaint filed after 18 years and complaint filed on pretext of land dispute. However the petition was rejected on the ground that there is sufficient material in case diary for framing of charge. The learned counsel for the petitioner however contended that no offence is made out even on the allegation made in the complaint taken to be true on the face value. It has further been contended that there is allegation of assault for non-transferring of the land and this allegation does not come under the definition of demand of dowry and unless the demand of dowry is made 498A is not made out and has place reliance upon decision reported in A.I.R. 2007 SC, 763 (Appasaheb & Anr. Versus State of Maharashtra) and further place reliance upon decision reported in SCC 2005, 507 (Ramesh & others Versus State of Tamil Nadu) and has submitted that the transferring of the land does not constituted demand of dowry. It has further been contended that prior to institution of this case a divorce case had been filed by the complainant and petition for restitution of marriage was filed by this petitioner and hence contended that this case has been filed malafidely as a case of restitution of marriage earlier been filed by this petitioner and has placed reliance upon 3 decision reported in P.L.J.R. 2007(4), 696 (Navin Kumar Singh Versus The State of Bihar & Anr.) and asserted that while taking cognizance the Magistrate ought to have taken this materials in consideration. The learned counsel for the opposite party however contended that at a stage of taking cognizance and issuing process and framing of the charge the court is required only to satisfy that the allegation made in complaint makes out a prima facie case and is not required to see anything more and this court should not interfere with the order framing of the charge or order passed under Section 239 if prima facie case is made out and for this proposition as relied upon decision reported in P.L.J.R. 2001(1) SC 42 (State of Delhi Vs. Gyan Devi & Ors.) and contented that the court is not required to go beyond the records to rely the affidavit or any other defence like counter case or divorce petition for which the reliance has been placed on decision reported in SCC 2007(12), 369 (Pratibha Vs. Rameshwari Devi & Ors.) and further submitted that the High Court at the stage of the framing of charge not required to go into meticulously examine the materials filed on affidavits by the accused and has placed reliance upon decision reported in SC (Supp)(1) 1992 SC 222 (State of Bihar & Anr. Vs. P.P. Sharma, IAS & Anr.) On respective submission of the parties the question for consideration on the material available on record the satisfaction of the magistrate that there is ground for framing the charge is sustainable. Or not and the impugned order required to be quashed. However, coming to the allegation made in complaint 4 there is allegation that the accused persons were persuading the complaint to transfer the land standing in the name of complainant to the accused person and for non-transferring the land the victim was subjected to cruelty. On investigation police submitted charge sheet. On considering the charge sheet the cognizance has been taken under Section 498A. The petition was filed for discharge has been rejected by the impugned order. However Section 498A has been defined that if a husband subject his wife to cruelty shall be punished with imprisonment. The cruelty has been defined as any willful conduct which is likely to compel women to commit suicide and the harassment of the women with a view to coercing her or any person relating to her to meet any unlawful demand for any property or valuable security on account of failure by her or any person related to her. Hence 498 made out if there is harassment of women for unlawful demand for property and valuable security. Section 498A does not talks about any dowry or any dowry demand but it mentions about harassment for any unlawful demand of property and valuable security. However coming to the fact and circumstance of this case there is allegation that there was demand of transfer of the land of the victim by accused person and she was subjected to cruelty by assault with threat to kill. However the cruelty has been defined physical assault as well as a mutual and psychological injury or threat has also been held to be come under the definition of cruelty and hence taking into consideration the entire allegation that there was a demand to 5 transfer land and the victim was subjected to cruelty by assault and was pressurized to transfer the land for non-fulfillment of demand causing mental and psychological injury hence allegation made apparently made out an offence u/s 498A. The learned counsel for the petitioner however relied upon decision reported in SCC 2005(3), 507 (Supra) and SC 2007, 763 (Supra) for the proposition that any demand of money or demand to transfer land does not come under the definition of dowry however these are the case in which the offence alleged was under Section 304B as well as under Dowry Prohibition Act for demand of dowry but the definition of dowry under Dowry Prohibition Act is not applicable to case for offence u/s 498A.. Hence, decision relied upon by the learned counsel for the petitioner not applicable to the fact and circumstance of this case. There is no allegation of demand of dowry but the allegation with regard to the occurrence squarely covers the offence under Section 498A does subjecting cruelty for non-fulfillment of unlawful demand comes within the definition of 498A and makes out an offence. On the perusal of the case diary and records the learned magistrate found sufficient material for framing of the charge against the accuse person and the magistrate at this stage of framing of charge not required to look into the defence. Moreover, mere filing of a matrimonial case prior to occurrence does not make a ground to quash the criminal proceeding if the allegations made makes out an offence. The case reported in 2007(4) PLJR 696 is not appealble as in that case as in the fact and circumstance of the case it was a complaint case and in evidence before charge the complaint admitted 6 that she also wanted divorce and in divorce case filed by husband wife filed her written statement that she also want to discharge the many and many was dissolve by order dated 17.12.2003, hence as the present case on police report police after investigation submitted charge sheet on which cognizance taken and there are sufficient material and merely because the petitioner filed a matrimonial case is no ground for quashing and this view find support in decision reported in 2007(12) SCC 369. Hence taking into consideration the entire fact and circumstance of case I do not find any merit in the petition and hence the petitioner is dismissed. PN ( Gopal Prasad,J.)