CRIMINAL MISCELLANEOUS No.17033 OF 2000 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure,1973. ---- MISHRI SAH @ MISHRI LAL SAH, SON OF SHYAM SUNDAR SAH, RESIDENT OF MOHALLA CINEMA ROAD, CHAMARTOLI, TOWN P.S. MAHNAR, DISTRICT VAISHALI. ... ... PETITIONER. Versus 1. THE STATE OF BIHAR 2. INDU KALA DEVI, WIFE OF ARJUN PRASAD GUPTA, RESIDENT OF CHANDPURA, NANHKAR, P.S. DESARI, DISTRICT VAISHALI, PRESENTLY RESIDING AT MOHALLA KATRA, TOWN AND P.S. HAJIPUR, DISTT. VAISHALI. ... ... OPPOSITE PARTIES. ---- For the Petitioner : Mr. Ratan Kumar Sinha, Adv. For the State : Mrs.Indu Bala Pandey, A.P.P. ---- 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 an order dated 31.8.1999 passed by Judicial Magistrate, Ist Class, Hajipur in Complaint Case No.C1-1715 of 1998, Tr. No.709 of 2000. By the said order, the learned Magistrate has taken cognizance of offence under Sections 498(A) and 406 of the Indian Penal Code and directed for issuance of summons against the accused persons including the petitioner. 2. Short fact of the case is that the 2 opposite party no.2, who was wife of Arjun Gupta, counsin of this petitioner(Phuphera Bhai), filed a complaint vide Complaint Case No.C1-1715 of 1998 in the court of Chief Judicial Magistrate, Vaishali at Hajipur disclosing therein that her marriage was solemnized in the year 1975 as per Hindu customs with Arjun Gupta and thereafter, she was blessed with two sons and two girls. Subsequently, it was alleged that Accused Nos.2 and 3 in connivance with Accused no.1 started to torture the complainant with an object to take possession of the properties of the complainant and thereafter, on 25.8.1998, after assaulting her, the accused persons ousted her from the house of her in- laws. On the aforesaid allegation, complaint was filed and after completing enquiry, the learned Magistrate, by its order dated 31.8.1999, took cognizance of offence under Sections 498A and 406 of the Indian Penal Code. 3. Aggrieved with the order of cognizance i.e. order dated 31.8.1999 passed by Judicial Magistrate, Ist Class, Hajipur, the petitioner approached this Court by 3 filing the present petition. On 18.7.2001, while issuing notice to opposite party no.2, this Court directed that till any order is passed in the admission matter, further proceeding in Complaint Case No.C1-1715 of 1998, Tr. No.709 of 2000 pending in the court of Sri A.K. Pathak, Judicial Magistrate, Ist Class, Hajipur (Vaishali) in respect of the petitioner shall remain stayed. Subsequently, by order dated 1.11.2001, the case was admitted and it was directed that interim order passed on 18.7.2001 shall remain operative during pendency of the application. 4. Shri Ratan Kumar Sinha, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance as well as entire proceeding initiated against him, submits that it is admitted fact that the petitioner was cousin brother of husband of the complainant. It was submitted that the petitioner was residing separately in different village and as such there was no occasion for the petitioner to commit any offence as alleged by the complainant. It was further submitted that the complainant was having no good relation 4 with her husband and she herself was residing separately and as such her husband had filed an informatory petition on 17.5.1997 in the court of Sub Divisional Magistrate, Vaishali. Even her husband had questioned the character of the complainant and he was suspicious that the complainant was having illicit relation with one Suresh Pandit, who was made second party in the petition dated 17.5.1997. Learned counsel for the petitioner further, by referring to Annexure-3 to the petition, submits that the complainant herself had filed a petition under Section 125 of the Code of Criminal Procedure in the court of Chief Judicial Magistrate in the month of April,1998 for her maintenance against her husband Arjun Gupta. By way of placing this petition, Shri Ratan Kumar Sinha has argued that the date of filing of the petition under Section 125 of the Code of Criminal Procedure i.e. dated 23.4.1998 has got much relevance for demolishing the allegation made by the complainant even against her husband. In complaint petition, the complainant had categorically stated that finally after assaulting the complainant, she was ousted 5 from the house of her in-laws on 25.8.1998 and thereafter, she started to live separately. Accordingly, it was submitted that once she admits that she was ousted on 25.8.1998, there was no occasion for the complainant to file a petition in the month of April, 1998 i.e. prior to the date when she was constrained to leave the house of her in-laws. Moreover, according to the learned counsel for the petitioner, in the petition filed under Section 125 of the Code of Criminal Procedure, the complainant had categorically stated that time without number, she was tortured by only one accused i.e. her husband. It was alleged that her husband was not accepting her since she was ugly. In said petition, she has not even whispered regarding the involvement of this petitioner. To the reasons best known to the complainant, the petitioner was also arrayed in the complaint petition as an accused. It was further submitted that moreover, in this case, after passing an order of cognizance, the petitioner had approached this Court and this Court had stayed the proceeding so far as petitioner is concerned and notices were 6 directed to be issued to opposite party no.2. Despite valid service of notice, the opposite party no.2 has not preferred to appear before this Court. 5. In the aforesaid circumstances, the learned counsel for the petitioner submits that allowing proceeding in the present complainant to further proceed will amount to allowing the abuse of the process of the court and he has prayed for quashing of the order of cognizance as well as entire proceeding in Complaint Case No.C1-1715 of 1998. 6. Smt. Indu Bala Pandey, learned Additional Public Prosecutor appearing on behalf of the State has opposed the prayer of the petitioner event in absence of opposite party no.2. 7. Besides hearing learned counsel for the petitioner and State, I have also perused the materials available on record. The court is of the view that it is a fit case to exercise inherent jurisdiction in favour of the petitioner and, accordingly, the order dated 31.8.1999 passed by Sri A.K. Pathak, Judicial Magistrate, Ist Class, 7 Hajipur in Complaint Case No.C1-1715 of 1998, Tr. No.709 of 2000 as well as entire proceeding so far as petitioner is concerned, is hereby set aside and petition stands allowed. ( Rakesh Kumar,J.) PATNA HIGH COURT Dated 22.7.2010 N.A.F.R./N.H.