CRIMINAL MISCELLANEOUS No.36076 OF 2002 In the matter of an application under Section 482 of the Code of Criminal Procedure -------------- 1. Shanti Devi Wife of Harendra Rai and daughter of Sri Asharfi Rai 2. Asharfi Rai, Son of Late Gangu Rai 3. Mangal Rai 4. Shambhu Rai 5. Prabhu Rai, All sons of Asharfi Rai 6. Radhika Devi Wife of Asharfi Rai 7. Usha Devi wife of Mangal Rai 8. Janki Devi wife of Mangal Rai All residents of Sultanpur, P.S. Derani, District-Saran ----------------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Harendra Kumar Rai, Son of Ramashish Rai, resident of Village- Kulharia, P.S. Koilwar, District-Bhojpur --------- Opp.Parties. -------------- For the petitioners: S/Sri P.C. Das and Amitesh Kumar, Advocates For the State: Smt. Indu Bala Pandey, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Petitioner no.1, who is wife of complainant, has approached this Court along with her father, mother, brothers and wives of her brother, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 26.09.2002 passed by Sri L. Prasad, Judicial Magistrate, 1st Class, Ara in Complaint Case No.783( C) of 2002, Trial No.1102 of 2002. By the said order, the learned Magistrate has taken cognizance of offences under Sections 323,341,379 of the Indian Penal Code. 2. Short fact of the case is that Opp.Party no.2 filed a complaint on 2 10.7.2002 in the court of learned Chief Judicial Magistrate, Ara, which was registered as Complaint Case No. 783 C of 2002. In the complaint petition, the complainant disclosed that petitioner no.1, who was wife of complainant, right from the date of marriage, i.e. 6th June, 1995 was not behaving properly either with the complainant or with his family members. It was alleged that from time to time, petitioner no.1 used to return back to her parents’ house even without intimating her in-laws. It was alleged that in similar manner on the date of occurrence i.e. 24.4.2002 while the complainant returned back, he saw that petitioner No.1 was not present in the house. He noticed that Rs.10, 000/-, which was sale proceeds, was not available in his house. It transpired that petitioner no.1 took Rs.10, 000/- and put all the jewellaries on her and along with her younger son, she went somewhere else without giving any intimation to the family members of the complainant. Thereafter, the complainant inquired and visited the house of petitioner no.1, where he was abused by all the petitioners and even he was assaulted and ousted from the house. On the aforesaid allegation, a complaint petition was filed and in support of his complaint petition, the complainant examined about five witnesses during the enquiry. The complaint petition was filed for the offences under Sections 323, 341, 379,388, 366 of the Indian Penal Code. However, the learned Magistrate after conducting enquiry took cognizance of offences under Sections 323,341 and 379 of the Indian Penal Code. 3. Aggrieved with the order of cognizance, the petitioners approached this Court by filing the present petition. On 24.3.2003, while issuing notice to Opp.Party no.2 this Court directed that in the meantime, further proceeding pending in the court of the Judicial Magistrate, 1st Class, 3 Ara in Complaint Case No.783 (C ) of 2002 , Tr.No.1102 of 2002 shall remain stayed and finally the case was admitted for hearing on 25.6.2004 . While admitting, it was directed that during the pendency of this application the interim order dated 24.3.2003 shall remain continued. It further appears that on 05.04 .2004 after some arguments learned counsel appearing on behalf of Opp.Party no.2 had sought adjournment on the ground of obtaining further instruction. However, on 25.6.2004 none appeared on behalf of Opp.Party no.2 and, as such, the case was admitted. This Court, while admitting, again directed for issuance of fresh notice to Opp.Party no.2. The case was taken up for hearing on 27.8.2010. However, since none appeared on behalf of Opp.Party no.2, the case was adjourned for the day with an indication that if on the next date no one appears on behalf of Opp.Party no.2, in his absence, the matter will be decided on the basis of materials available on record of the case. Today again, none has come forward on behalf of Opp.Party no.2. 4. Sri Amitesh Kumar, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance and initiation of proceeding in Complaint Case No.783C of 2002, submits that the present complaint petition was filed maliciously and with oblique motive. It was submitted that right from the very inception of marriage, the complainant and his family members were not treating the petitioners properly and regularly they were torturing petitioner no.1 with a view to extract dowry. Finally, petitioner no.1 filed a complaint in the court of the learned Chief Judicial Magistrate vide Complaint Case No.1303 of 2002. Learned counsel for the petitioner has also referred to Annexure-2A to the petition, which is a copy of the complaint petition. It was submitted that by order dated 4 22.6.2002; the learned Chief Judicial Magistrate under Section 192 of the Code of Criminal Procedure had transferred the matter to the court of learned Sub Divisional Judicial Magistrate for enquiry and disposal of the case. 5. Since petitioner no.1 had filed a complaint petition against the complainant and his other family members, in retaliation the complainant on 10.7.2002 filed the present complaint petition. It was further submitted that the allegation made in the complaint petition appears to be not probable. It was submitted that since from time to time the complainant and his family members were torturing and assaulting petitioner no.1, the petitioner no.1 was forced to leave the house of the complainant on the alleged date of occurrence in the present complaint petition and thereafter, the petitioner no.1 left with no option filed a complaint, which was numbered as Complaint Case No.1303 of 2002 .Only thereafter, the present complaint petition was filed by the Opp.Party no.2. On the aforesaid ground, it has been submitted that the order of cognizance as well as entire proceeding in Complaint Case No.783C of 2002 is liable to be set aside. 6. I have heard Smt. Indu Bala Pandey, learned Addl.Public Prosecutor, appearing on behalf of the State, who has opposed the prayer of the petitioner. 7. I have also perused the materials available on record. In view of the facts and circumstances, particularly the fact that prior to the filing of the present complaint petition, petitioner no.1, who is wife of Opp.Party no.2, had filed a complaint alleging commission of offences under Sections 498A, 363, 511 and 506 of the Indian Penal Code against Opp.Party no.2 and his family members, the Court is satisfied that it is a fit case for interfering with the order of cognizance. 5 8. Accordingly, order dated 26.9.2002 passed by Sri L.Prasad , Judicial Magistrate, 1st Class, Ara in Complaint Case No.783 ( C) of 2002, Trial No.1102 of 2002 is hereby set aside and the petition stands allowed. Patna High Court,Patna Dated : the 30th August,2010 Nawal Kishore Singh/ N.A.F.R. ( Rakesh Kumar, J.)