CRIMINAL MISCELLANEOUS No.9547 OF 2007 -------- In the matter of an application under section 482 of the Code of Criminal Procedure. -------- 1.GANESH Pd. GUPTA 2.Manoj Pd. Gupta @ Manoj Kumar Both sons of late Bhola Pd. Gupta 3.Sabitri Devi W/o late Bhola Pd. Gupta All residents of village- Bairoliya Estate Jaynagar, P.S.-Jaynagar, Distt.- Madhubani 4.Santosh Pd. Gupta @ Santosh Kumar Gupta S/o late Laxmi Narayan Gupta, resident of village and P.S.-Laukahi, Distt.-Madhubani. ……. ……. Petitioners Versus 1.STATE OF BIHAR 2.Priti Gupta D/o Prabhash Pd.Gupta, resident of Professor Colony, Ward No.10, Birpur, P.S.-Birpur Distt.-Supaul. …....... …….. Opp.Parties. -------- For the petitioners: Mr. B.N.P.Singh and Mr. Ram Shankar Singh For Opp. Party No.2: Girish Prasad Gupta For the State: Mrs. Indu Bala Pandey, Addl. P.P. -------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR -------- Rakesh Kumar,J. The petitioner no.1, who was husband of opposite party no.2, along with his other three relatives have approached this court with a prayer to quash an order dated 13.5.2005 passed by Sub-Divisional Judicial Magistrate, Birpur, District Supaul. By the said order, the learned Magistrate has taken cognizance of the offences under Sections 498(A) of the Indian Penal Code and 3/ 4 of the Dowry Prohibition Act. 2. Short fact of the case is that opposite party no.2 filed a complaint in the court of Sub-Divisional Judicial Magistrate at Birpur, which was registered as Complaint Case No. 53 C of 2004, against the petitioners and one another on an 2 allegation of commission of offences under Sections 498(A) and 406/34 of the Indian Penal Code. It was disclosed in the complaint petition that marriage of petitioner no.1 was solemnized with opposite party no.2 on 13.05.1999 according to Hindu rites. Thereafter in the year 2000 she was blessed with a female child. It has been alleged that the petitioners had tortured the complainant with view to extract dowry from the parents of the complainant. It has been disclosed in the complaint petition that petitioner no.1, who was husband of complainant, subsequently dropped the complainant to his in- laws’ house sometime in the year 2001 and thereafter he did not take any care to take the complainant back to her in-laws family. It was alleged that the accused persons had repeatedly demanded dowry of Rs.1,00000/- from the parents of the complainant. After filing of the complaint, an enquiry was conducted by the learned Magistrate and by the impugned order the learned Magistrate has taken cognizance of the offences under Section 498(A) of the Indian Penal Code and 3/4 of the Dowry Prohibition Act. Aggrieved with the order of cognizance, the petitioners have approached this court by filing the present petition. 3. Mr.B.N.P.Singh, learned counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has argued that the present complaint was filed maliciously. It has further been submitted that the complainant had herself deserted petitioner no.1 i.e. her husband. The petitioner no.1 has taken every step to get the complainant back to his house 3 but all went in vain. Thereafter, petitioner no.1 was constrained to file a matrimonial case Vide Matrimonial Case No. 48 of 2003 in the court of learned Additional District Judge, Fast Track Court No.2, Madhubani with a prayer for a decree of restitution of conjugal right with respondent (opposite party no.2/complainant) or in alternative for a decree of divorce. Learned counsel for the petitioners has referred to annexure -3 which is judgment and decree of dissolution of marriage of petitioner no.1 with complainant-opposite party no.2. It has further been submitted that in the matrimonial case initially opposite party no.2 appeared. However, at subsequent stage she left to do any pairvi in the case and as such the suit was decreed and marriage of the petitioner no.1 with opposite party no.2 was dissolved and divorce was granted. Judgment and decree of divorce is dated 6.12.2005. Learned counsel for the petitioners further submits that during pendency of the matrimonial case, at much belated stage from the date of filing of matrimonial case, the present complaint petition was filed by opposite party no.2 in which along with petitioner no.1, who was husband of opposite party no.2, his entire family members have been roped and made accused. On the ground of malicious prosecution, it has been prayed to set aside the order of cognizance so far as the petitioners are concerned. 4. Mr.Girish Prasad Gupta, learned counsel appearing for opposite party no.2 has vehemently opposed the prayer of the petitioners. He submits that earlier opposite party no.2 had approached this court by filing M.J.C. No.1720 of 2004 4 with a prayer for order of transfer of matrimonial case from the court of District Judge, Madhubani to the court of District Judge, Supaul (Saharsa). He, at the time of hearing of the present petition, had produced a photo copy of certified copy of order dated 20.7.2005 passed in M.J.C. No.1728 of 2004 (keep it on the record). After going through the order dated 20.7.2005 it appears that the petition for transfer of matrimonial case preferred by opposite party no.2 was rejected by this court. However, liberty was granted to opposite party no.2 that she can file a petition under section 24 of the Hindu Marriage Act for proper cost of litigation including traveling expenses etc. I have also heard Mrs. Indu Bala Pandey, learned Additional Public Prosecutor appearing for the State. 5. After going through the contents of the complaint petition, order passed in Matrimonial Case No.48 of 2003 as well as order dated 20.7.2005 passed in M.J.C. No.1728 of 2004, this court is of the opinion that opposite party no.2 was knowing well regarding matrimonial case in which first relief was to restitute the conjugal right of petitioner no.1 with opposite party no.2. This shows that opposite party no.2 after knowing each and every fact regarding matrimonial case has filed the present complaint petition to the reasons best known to her. In view of the facts and circumstances as indicated above, the court is of the opinion that the present complaint by opposite party no2, was not filed fairly and honestly and, as such, allowing such prosecution will amount to allowing abuse of process of the court. With a view to prevent 5 abuse of process of court, it is necessary to interfere with the impugned order. 6. Accordingly, order dated 13.5.2005 passed by Sub.Divisional Judicial Magistrate, Birpur, District Supaul in Complaint Case No.53C of 2004 is hereby set aside and the petition stands allowed. Patna High Court The 2nd November, 2010 Md.S./NAFR ( Rakesh Kumar, J.)