IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.17009 of 2008 1. Bhawnath Jha, son of Shubh Narayan Jha. 2. Babali Devi, daughter of Ram Kumar Mishra, wife of Bhawnath Jha. All are resident of Village-Patasa, P.S. Hansanpur, District- Samastipur. ………………………………………………..........Petitioners. Versus 1. The State Of Bihar. 2. Bandana Devi, wife of Sukomal Mishra, daughter of Anil Choudhary, resident of Village-Hasanpur, P.S. Khanpur, District-Samastipur. …………………………………………….Opposite Parties. ---------------------------------- For the Petitioners : M/s. B.P. Pandey, Sr. Advocate & Praveen Kumar Sinha, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. Ajeet Kumar & Avinash Kumar, Advocates. ---------------------------- O R D E R 6. 18.10.2011. The petitioners have approached this Court, under Section 482 of the Code of Criminal Procedure, for quashing the order dated 20.2.2008 passed by the Sub Divisional Judicial Magistrate, Rosera, Samastipur, in Complaint Case No.211 of 2007, T.R. No.2219 of 2008, whereby the petitioners and three other accused persons, named in the complaint petition, have been 2 summoned under Section 204 of the Code of Criminal Procedure, on inquiry, finding prima facie case under Sections 498-A and 323 of the Indian Penal Code. 2. In brief, the facts, leading to this application, is that earlier the complainant-opposite party no.2, Bandana Devi, filed the complaint petition, numbered as Complaint Case No.211 of 2007, alleging, inter alia, therein that she had filed the Complaint Case No.764 of 2006 under Sections 498-A, 406 and 323 of the Indian Penal Code against her husband-accused no.1, Sukomal Mishra and his family members, which is pending for disposal. The further case of the complainant-opposite party no.2 is that her marriage was performed with accused no.1, Sukomal Mishra on 11.6.2004 and she gave birth to a female child out of the wedlock. Thereafter, all the accused persons under conspiracy started torturing her, mentally and physically, and also tried to commit her murder by setting her on fire for not providing the washing machine, colour television, motorcycle and refrigerator as a dowry. Regarding the aforesaid cruelty and harassment, the aforesaid complaint case was filed, in which after recording her 3 solemn affirmation, record of the case was transferred to the court of Sri B.K. Srivastava, Judicial Magistrate, First Class, Rosera. Her husband was taken in jail custody and at the time of hearing of anticipatory bail petition of her husband-accused no.1, Sukomal Mishra, in the court of Sessions Judge, he was summoned and on giving written assurance to keep her properly, his anticipatory bail petition was allowed. Thereafter, she used to reside with her husband and his family members. The further case of the complainant-opposite party no.2 is that all the accused persons again started torturing her mentally and physically and on 17.3.2007, her husband- accused no.1, Sukomal Mishra and other accused with an intention to commit her murder started pulling her by folding ‘Muffler’ on her neck but on the intervention of the neighbours, she anyhow saved her life and came to the court and informed regarding the same. 3. On filing the aforesaid complaint petition regarding the subsequent occurrence by the complainant- opposite party no.2, on inquiry, the Sub Divisional Judicial Magistrate, Rosera, Samstipur, summoned the accused persons, named in the complaint petition, 4 including the petitioners through the impugned order dated 20.2.2008 finding prima facie case under Sections 498-A and 323 of the Indian Penal Code. 4. Learned counsel appearing on behalf of the petitioners submits that the petitioner no.1, Bhawnath Jha, is the Nanadosi and petitioner no.2, Babali Devi, is Nanad of the complainant-opposite party no.2 and they have been falsely implicated in this case only with a view to harass them. It has also been submitted that both the petitioners had also been made accused in the Complaint Case No.764 of 2006, earlier filed on behalf of the complainant-opposite party no.2, which is pending for disposal, which would appear from the Complaint Case No.211 of 2007, Annexure-‘1’ to this application. Learned counsel for the petitioners further submits that from bare perusal of the complaint petition, it appears that no specific averment has been made against the petitioners, who are Nanadosi and Nanad of the complainant-opposite party no.2 and the petitioners have no concern with the family affairs of the complainant- opposite party no.2. As such, summoning the accused- petitioners through the impugned order is an abuse of the 5 process of the court. 5. On going through the complaint petition, Annexure-‘1’ to this application, it appears that the petitioner no.1, Bhawnath Jha and the petitioner no.2, Babali Devi, are the Nanadosi and Nanad, respectively of the complainant-opposite party no.2. No specific averment has been made against them in the complaint petition regarding cruelty or harassing the complainant- opposite party No.2. In the solemn affirmation of the complainant-opposite party no.2 and the statements of her father, Anil Kumar Chaudhary and one Shashi Chaudhary, which have been annexed as Annexure-‘3’ to the supplementary affidavit filed on behalf of the petitioners in this case, no specific averment has been made against the petitioners causing cruelty or harassing the complainant-opposite party no.2 for demand of dowry. Their names have only been added in the accused column alongwith husband of the complainant- opposite party no.2 and his family members. It is a matter of common experience that most of the complaint petitions under Sections 498-A of the Indian Penal Code are filed in the heat of the moment implicating the 6 relations like married or unmarried sister and brother-in- law of the husband chiefly to heap malice so as to harass them. 6. Having regard to the facts and the circumstances of the case, summoning the accused- petitioners through the impugned order appears to be abuse of the process of the court. 7. Accordingly, the impugned order dated 20.2.2008 passed in Complaint Case No.211 of 2007, T.R. No.2219 of 2008 by the Sub Divisional Judicial Magistrate, Rosera, Samastipur, with respect to the petitioners, is hereby quashed and the application is allowed. P.S. (Rajendra Kumar Mishra, J)