Criminal Miscellaneous No.32562 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- NALIN GUPTA SON OF LATE RASH BIHARI GUPTA, RESIDENT OF 28/100 SUBHASH PALLI, BENACHITI, POLICE STATION ABRINDO, DURGAPUR, WEST BENGAL. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. KAKOLI DEVI DAUGHTER OF SHREE LAKHI NARAYAN DASGUPTA, WIFE OF SHREE BIJAY KUMAR SHARMA, RESIDENT OF ANANDPURI, P.S. BUDHA COLONY, DISTRICT PATNA. ... ... OPPOSITE PARTY. ---- For the Petitioner : Mr. Gouranga Chatterjee, Advocate For the State : Mrs.Indu Bala Pandey, Additional Public Prosecutor ---- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR ---- Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of order dated 16.12.1993 passed by Sub Divisional Judicial Magistrate, Patna in Complaint Case No.285(c) of 1993. By the said order, the learned Magistrate, prima facie, satisfied with the case under Section 406 of the Code of Criminal Procedure has directed for issuance of process against accused persons. 2. Aggrieved with the order dated 16.12.1993, the petitioner approached this Court by - 2 - filing the present petition and while admitting the case, this Court had directed that pending disposal, further proceeding in Complaint Case No.285(c) of 1993 pending in the court of S.D.J.M., Patna, shall remain stayed and order of stay is still continuing. 3. Short fact of the case is that the opposite party no.2 filed a complaint vide Complaint Case No.285(c) of 1993 arraying this petitioner as one of the accused. It was alleged that petitioner was “Sarhu” of brother of her husband. It was disclosed that marriage of complainant with Shiv Shankar Roy was solemnized in the year 1978 and during the marriage, besides other persons, the petitioner also participated. It was alleged that immediately after the marriage, ornaments, furnitures etc. were entrusted to all the six accused persons including the petitioner at Patna and thereafter, the complainant along with her husband, who is Accused No.1 in complaint case went to Lucknow. After arriving at Lucknow, the complainant noticed that her husband was entangled with wife of accused Ajay Kumar Roy, who was Sarhu of the petitioner. It was alleged that subsequently, strained relation developed between - 3 - the parties and in the year 1979 itself, she returned back to Patna and started to live with her father. In complaint petition, it was further disclosed that in the year 1982, while the complainant had gone to Lucknow, she noticed that entire ornaments and other belongings were lying in the bed room of Accused No.4, Chanda Roy, who was wife of Sarhu of this petitioner. Subsequently, a maintenance case was filed by the complainant vide Case No.371(M) of 1983, which was finally decided in favour of the complainant by order dated 29.4.1985 passed by Judicial Magistrate, Ist Class, Patna. The complainant has further disclosed in the complaint petition that her husband got a consent decree of divorce in R.E.G. Suit No.77 of 1986 thereafter it was assured that entire ornaments and assets of the complainant will be returned to the complainant. However, it was never returned and thereafter, several letters were sent on behalf of the complainant and in reply, the complainant received a legal notice dated 18.9.1992 wherein it was stated that complainant herself had left the house of her husband in the month of December,1982 and she had taken all the ornaments, cloths etc. even those ornaments which were given by her - 4 - husband. On aforesaid allegation, it was alleged by the complainant that though entire materials were entrusted to the accused persons which include the petitioner, the accused persons committed an offence of criminal breech of trust and thereafter, complaint petition was filed. After filing the complaint petition, the complainant was examined on S.A. and in support of complaint, some witnesses were also examined. The learned Sub Divisional Judicial Magistrate, by order dated 16.2.1993, prima facie, satisfied that offence under Section 406 of the Indian Penal Code was made out and directed for issuance of process against the accused persons including the petitioner. 4. Shri Gouranga Chatterjee, learned counsel appearing on behalf of the petitioner, while challenging the impugned order, submits that only materials against the petitioner was that he attended the marriage of complainant in the year 1978, besides this, there is no averment against this petitioner. He submits that petitioner was not a close relative of husband of the complainant rather he was Sarhu of brother of husband of the complainant. He further submits that even in complaint petition itself, the complainant has - 5 - admitted that in the year 1986, a decree of divorce was already passed and after expiry of period of limitation under Section 468 of the Code of Criminal Procedure, the present complaint petition was filed. Decree of divorce was passed in the year 1986. However, the complaint petition was filed after about seven years from the judgment and decree and complaint petition was filed in the month of April,1993. Learned counsel appearing on behalf of the petitioner, by way of referring to each paragraph of the complaint petition and materials brought on record, submits that no offence is made out against this petitioner and the learned Magistrate without any basis in a mechanical manner has passed the impugned order. 5. In this case, despite service of notice and appearance filed on behalf of opposite party no.2 through her advocate, none has come forward at the time of hearing to defend the case of opposite party no.2. This case was partly heard on 18.5.2010 and thereafter, the case was again taken up for hearing today. However, none has come forward on behalf of opposite party no.2. 6. I have also examined the materials available on record particularly the complaint - 6 - petition. On perusal of the entire complaint petition, it is difficult to arrive to a conclusion as to whether any offence is made out against this petitioner. Prima facie, I am of the view that from the complaint petition, nothing comes out to indicate that petitioner has committed any offence in the present case. The marriage of the complainant was solemnized in the year 1978. During the marriage, ornaments and other articles were given to the complainant by her parents. It is also evident that the complainant, after the marriage, went to her inlaws house at Lucknow, she stayed there for some time. However, as claimed by the complainant, her ornaments and other articles were handed over to one of the accused, namely, Chanda Roy, who was wife of brother of her husband with whom there was an allegation that husband of complainant was entangled. The complainant herself admits in the complaint petition that all those properties were lying in the room of Chanda Roy. Besides this, in this case, marriage of the complainant had come to an end in the year 1986. 7. In view of judgment and decree passed in R.E.G. Case No.77 of 1986, there is no plausible explanation in the complaint petition as to why the - 7 - complaint petition was filed after about seven years from the date of dissolution of the marriage. In such situation, it is difficult for this Court to allow prosecution of this petitioner, who is distantly related to the brother of the husband of the complainant and, accordingly, I am of the opinion that allowing prosecution of this petitioner in such complaint will amount to abuse of the process of the court and with a view to prevent abuse of the process of the court as well as for the ends of justice, it is necessary to interfere with the impugned order and, accordingly, order dated 16.12.1993 is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 19.5.2010 N.A.F.R./N.H.