IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.9955 of 2007 1. ANIL PANDAY @ ANIL KUMAR PANDEY , S/o Kapildeo Pandey 2. Rajeev Pandey, S/o Jai Prakash Pandey 3. Kapil deo Pandey, S/o Kapildeo Pandey 4. Birendra Pandey, S/o Kapildeo Pandey 5. Brahmdeo Pandey, S/o Kapildeo Pandey 6. Jai Prakash Pandey, S/o 7. Upendra Pandey, S/o Kapildeo Pandey 8. Renu Devi W/o Sidhanath Upadhaya, S/o Kapil deo Pandey All residents of Harnauth, Dihree, P.S. Harnauth, District Nalanda …… Petitioners Versus 1. THE STATE OF BIHAR 2. Sidhnath S/o Late Suryanath Upadhayay, R/o Bari Patandevi Colony, Gulzarbagh, Patna, P.S. Alamganj, District Patna ….. Opp. Parties ----------- For the petitioners : Mr. Arbind Kumar Mauar, Advocate For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. B.K.Jha, Advocate O R D E R The eight persons who have been arrayed as an accused in Complaint Case No. 373 of 2006 have prayed for the quashing of the entire complaint case including order dated 20.9.2006 passed therein by Sri Dipak Kumar, Judicial Magistrate, 1st Class, Patnacity, whereby he has taken cognizance for offences punishable under sections 384, 379, 323, 341, 498, 504/34 IPC against the petitioners. According to the complainant, Sidhanath, his marriage with Renu Devi, impleaded as petitioner no. 8 herein, was solemnized on 20.4.1996 where no demand for dowry was made as the complainant was opposed to dowry. However, after the marriage it is alleged that behaviour of petitioner no. 8 towards the husband as also his widowed - 2 - mother was reprehensible and frequently she used to taunt her husband and mother in law over small matters like their house being very small, that it was like a jail and that they had followed the parda system and as a result whereof she felt stifled and under no circumstances was she ready to live in the matrimonial home and when the husband and the mother in law tried to pacify her they were abused by Renu Devi. It is also alleged that she also used to extend threats that she would not live with the complainant as husband and wife unless she was permitted to live in her paternal home. The complainant also alleged that it was primarily with the intention to extort money from him that the accused persons had got Renu Devi married to him and had also implicated them in a false case wherein after taking Rs. 20,000/- entered into compromise so that the complainant’s mother could get bail. It is also alleged that out of fear the complainant started living in his in – law’s house with his wife having disassociated himself from his widowed mother and it was on this condition that they were acquitted from the Complaint Case No. 1038(C) of 2003 from the court of the learned Sub Divisional Judicial Magistrate, Nalanda at Biharsharif on the basis of a compromise petition filed. It is further alleged that the complainant in the paternal home of his wife was subjected to various form of mental and physical torture by the accused and his wife had entered into an illicit relationship with one Jaiprakash Pandey, accused no. 6, and whenever he raised objections to such relationship she would threaten him with involving him in a case of - 3 - dowry demand and when he laid protest with the other accused they would taunt him by saying that he was not fit to be the husband of Renu Devi. The complainant alleged that on the night of 12.5.2006 when he woke up from sleep he found his wife missing from the bed and on entering into the next room he found his wife having illicit sexual intercourse with accused no. 6 whereupon he raised alarm whereupon all the other accused persons, except accused no. 7, and the people of the neighbourhood assembled and started assaulting the complainant and threw him out of the house. They also threatened that they had once taken Rs. 20,000/- as rangdari by filing a case and that they would again realize Rs. 20,000/- from him by way of rangdari . It is further alleged that at about 5 in the morning of 5.6.2006 all the accused except accused no. 7 came to their house in a car and pushing his mother aside and opening the door entered into the house, started abusing him and demanded the keys of the box and took away all the clothes and ornaments of Renu as also the ornaments of his mother . It has been submitted on behalf of the petitioners that on the alleged date of occurrence petitioner nos. 1 and 7, the brother of Renu Devi, were posted at Baroda and Madras respectively where they were employed with the Indian Army and they have been falsely implicated in this case. It has further been submitted that admittedly Renu Devi had filed Complaint Case No. 1038 of 2003 in Biharsharif against the complainant and her mother which ended in a compromise and - 4 - thereafter Renu was living in the matrimonial home but not satisfied with her the complainant and her mother hatched a plan to oust her from the matrimonial home when she became pregnant and the instant complaint was preferred even as she was living in her matrimonial home with her husband and mother – in – law as they were demanding Rs. 61,000/- towards the expenses incurred over the earlier litigation and when her parents did not agree they started torturing her. It has further been submitted that even as Renu Devi was living in her sasural summons were issued to her in this case and on 4.11.2006 she was brutally assaulted and ousted from the matrimonial home. It has also been submitted that on 7.11.2006 the complainant went to his sasural and without disclosing that he had lodged the instant complaint case demanded Rs. 51,000/- and for the same Renu Devi brought Complaint Case No. 1191 (C) of 2006 agaisnt her husband and mother – in – law. It has finally been submitted that as per the settled principle of law no person can be harassed. Section 498 IPC reads as follows: “Enticing or taking away or detaining with criminal intent a married woman:- whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit - 5 - intercourse with any persons, or conceals or detains with that intent any such woman, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.” The essential ingredients of section 498 IPC are as follows: 1. Taking or enticing away or concealing or detaining the wife of another man or from that man or from any person having the care of her on behalf of that man. 2. such taking away enticing concealing or detaining must be with intent that she may have illicit intercourse with any person and 3. knowledge or reason to believe that the woman is the wife of another man. From perusal of the complaint it appears that petitioner no. 8 was residing in her mother’s place and the husband’s allegation is that in his sasural he found his wife in compromising position with her relation and the brother, sister and other relatives of the wife have been impleaded as accused. The wife, petitioner no. 8, has also filed a complaint against her husband under sections 498A and 406 IPC which is also pending. It appears that the complaint was filed by the complainant against his wife and her relatives due to vendetta and for ulterior motive and for oblique purposes. The allegations that the accused persons took - 6 - away ornaments of petitioner no. 8 as also his mother at 5 A.M. in the morning appears to be absurd. It is also apparent from the complaint petition itself that the husband and the wife are not having any relationship ever since the solemnization of marriage and she has repeatedly been subjected to torture. This fact is not sought to be denied by the complainant, as no counter affidavit or show cause has been filed on his behalf. It is also difficult to believe that a husband and his mother can be tortured in their own home by the wife of the complainant. With the presumptive improbality and unrationality of the complainant’s case I find good reasons to interfere with the impugned order taking cognizance. Accordingly for the reasons discussed above the order dated 20.9.2006 taking cognizance in Complaint Case No. 373 of 2006 is hereby quashed and the application is allowed. The Patna High Court The Dated 20th February, 2009 Sanjay Pd/ A.F.R. (Abhijit Sinha, J.)