IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.23680 of 2007 1. Niraj Kumar Bihari, son of Late Amarnath Bihari. 2. Krishna Prasad, son of Late Kanhai Sah. 3. Dhiraj Kumar Bihari, son of Late Amarnath Bihari. 4. Vimla Devi, wife of Late Amarnath Bihari. 5. Sushil Kumar Bihari, son of Late Deo Narayan Bihari. 6. Dimple Devi, wife of Krishna Prasad. 7. Munnilal Bihari, son of Late Baldeo Sah. 8. Pato Devi, wife of Sushil Bihari. 9. Mohan Lal Bihari, son of Munna Lal Bihari. Petitioners Nos. 1,3,4,5,7,8 and 9 are resident of Kajichak Mirjanhat, Police Station-Mohahidpur, District-Bhagalpur and Petitioner Nos. 2 and 6 both resident Of Bhairahpur, Police Station-Biharsharif, District-Nalanda. …..Petitioners. Versus 1. The State of Bihar. 2. Pushpa Devi, D/o Sri Rajendra Prasad, wife of Niraj Kumar Bihari, resident of Mohalla-Kathabari, Police Station-LNMU, District-Darbhanga. ………………………...Opposite Parties. ----------- 7. 23. 06. 09. Heard learned counsel for the petitioners, opposite party and learned counsel for the State. This application has been filed for quashing the order dated 27. 9. 2006 by which the application under Section 239 Cr.P.C. has been rejected by the S.D.J.M., Darbhanga and the petitioners have been asked to be present physically in the court for framing of charge. Complainant has filed a Complaint Case on 27.11.2002, in which the complainant has levelled allegation against her husband and other family members. The salient feature in the complaint case which requires to be brought on record is that sister of the Petitioner No. 1 was married with brother of Opposite Party No.2 (Complainant). The sister of Petitioner No.1 died in her 2 matrimonial home and Opposite Party No.2 went there to attend the Shradh ceremony on 6. 9. 2001 and since then she has been residing at her ‘Naihar’. Neither her husband nor other family members want to take her back to Sasural. The allegation in the complaint petition is that Sushil Kumar Bihari, Uncle-in-law, Munnilal Bihari, Grand father-in-law and Mohan Lal, maternal uncle-in-law of the Opposite Party No. 2 and other family members demanded Rs. 1,00,000/- (one lakh) and a motor cycle from the father of Opposite Party No.2. It is also stated that husband and her in- laws refused to take her back to Sasural after the Shradh ceremony on account of non-fulfilment of the said demand. Learned counsel for the petitioners submits that before lodging of the complaint by Opposite Party No. 2 Pushpa Devi gave a legal notice to her husband who is Petitioner No.1. On perusal of the legal notice, it would appear that there is no allegation of demand of dowry either against in-laws and husband of Opposite Party No. 2 or any of the family members of the petitioners. However, it is clear that husband of Opposite Party No.2 did not take any step to take his wife back to her matrimonial home after Shradh ceremony which she went to attend. The Opposite Party No.2 has specifically stated 3 that if her husband and others family members of the petitioners do not take steps to take her ‘Bidagiri’ within 25 days, Opposite Party No. 2 Pushpa Devi would file a case for restitution of conjugal rights. This is contrary to the allegation made in the complaint petition, it would appear that there is no allegation in the legal notice which does not tally with the complaint petition that demand of dowry was made by her husband or his family members and Opposite Party No. 2 Pushpa Devi was tortured and harassed on account of such demand of dowry. After perusal of the complaint petition as well as the legal notice, it is clear that petitioner No. 1 who is the husband of Opposite Party No.2, had deliberately demanded dowry from his wife who is Opposite Party No.2 and refrained from taking her to his home, which in my opinion, would amount to torture. It is made clear that on perusal of the complaint petition the main allegation has been made against accused- petitioners Nos. 1,5,7 and 9 as they were said to be instigating the said demand of dowry, therefore, this Court does not find that allegation of demand of dowry is substantiated under Section 498 A against other petitioners, namely, Petitioner Nos. 2,3,4,6 and 8. As a result this application is partly allowed and order dated 13. 1. 2007 passed by the Sessions Judge, 4 Darbhanga in Cr. Revision No. 542/06 and order dated 27. 9. 2006 passed by the S.D.J.M., Darbhanga, in T.R.No. 1956/06/G.R. No.840/03 (L.N.M.U.P.S.Case No.63/03) are set aside as part against Petitioner Nos. 2, 3,4, 6 and 8, namely, Krishna Prasad, Dhiraj Kumar Bihari, Vimla Devi, Dimple Devi and Pato Devi and dismissed as against Petitioner Nos. 1, 5, 7 and 9 namely, Niraj Kumar Bihari, Sushil Kumar Bihari, Munnilal Bihari and Mohan Lal Bihari. m.p. (Sheema Ali Khan, J.)