Criminal Miscellaneous No.4364 OF 1998 ------- In the matter of an application under section 482 of the Code of Criminal Procedure. ------- 1.SMT. MADHURI SINHA wife of Shri U.N.Sinha 2.Shri U.N.Sinha, son of late Gauri Shankar Lal Both are resident of C/44. Kankarbagh Colony, P.S.-Kankarbagh, Dist.-Patna ….. Petitioners Versus 1.STATE OF BIHAR 2.Shri Umesh Kishore Sharan, son of late Sakal Deo Narain, resident of Mohalla-Ashok Nagar, Road No.3-B, Kankarbagh, P.S.-Kankarbagh, Dist.-Patna. ……. …..Opposite. Parties -------- For the petitioners: Mr.Vindhya Keshary Kumar, Sr.Adv. and Mr.Radhe Shyam Kumar. For the State: Mrs. Indu Bala Pandey, A.P.P. --------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR --------- Rakesh Kumar,J. The present petition was filed under section 482 of the Code of Criminal Procedure with a prayer to quash the order dated 2.7.1997 passed by Shri B.K.Tiwary, Judicial Magistrate, Patna. By the said order the learned Magistrate has taken cognizance for the offences under sections 342, 392, 468, 498A and 504 of the Indian Penal Code in Complaint Case No.399C of 1997. 2. Initially, the present petition was filed by the two petitioners. However, during the pendency of this petition petitioner no.2 died, who was husband of petitioner no.1 and, as such, a supplementary affidavit was filed whereby it was indicated that petitioner no.2 died on 8.11.2003. The case of petitioner no.2 stood abated as per order dated 19.3.2010 passed by this court in the present case. Now, the petition is only in respect of petitioner no.1. 2 3. Short fact of the case is that father of daughter-in- law of the petitioners filed a complaint petition vide Complaint Case No.399C of 1997. In the said case it was disclosed that his daughter was got married with the son of the petitioner, namely, Shashi Bhushan Mukesh on 9.3.1988. It was alleged that immediately after the marriage, the family members of in-laws of the daughter of the complainant started torturing his daughter for extracting dowry and finally daughter of the complainant died on 25.7.1994. It was disclosed in the complaint petition that due to consistent torturing and negligence, she became physically and mentally week and, as such, she died. Many other facts were also disclosed in the complaint petition to corroborate the allegation in the complaint petition. It was further alleged that in the marriage of her daughter, the petitioner (wife of the complainant) had gifted ornaments and other articles costing about Rs.4,00,000/-(rupees four lakh). Subsequently, the complainant was compelled to sign on black non-judicial stamp paper and by using the said document the accused persons prepared a forged deed of gift for landed property and thereafter grabbed the said property. It was further alleged that on 29.1.1997 the complainant was threatened by hired men of the accused persons and thereafter on 4.4.1997 at about 6.30 P.M. while the complainant was going to consult his lawyer, two sons of the petitioners along with four other accused persons surrounded and abused him and also his brief case containing valuable documents and the letters written by the daughter of the complainant and also containing Rs.5,000/- was snatched by the accused persons and they fled away. On the aforesaid allegations 3 the complaint petition was filed. 4. After filing of the complaint, the complainant was examined on solemn affirmation and in support of the complaint petition three witnesses were examined. Subsequently, by the impugned order the learned Magistrate took cognizance for the offences as mentioned above. Aggrieved with the order of cognizance the petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal procedure, has approached this court. 5. On 3.3.1998 while issuing notice to opposite party no.2, this court had directed that in the meantime further proceeding in the court below so far as petitioners are concerned shall remain stayed. After appearance of opposite party no.2 through his Advocate the matter was heard and by order dated 18.9.1998 this case was admitted for hearing and it was directed that during the pendency of this application, interim order dated 3.3.1998 so far as petitioners are concerned, shall continue and order of stay is still continuing. 5. Besides filing this petition, the petitioners have also filed two supplementary affidavits on 19.3.2009. By his first supplementary affidavit a copy of the award prepared by members of Lok Adalat was brought on record and by another supplementary affidavit death certificate of petitioner no.2 was brought on record. Again a supplementary affidavit was filed on 13.4.2010 whereby the petitioner has brought on record an order dated 1.12.2004 passed in respect of other three accused persons of the present case by which evidence before charge was closed by the learned Magistrate in view 4 of the fact that from 3.2.1998 to 24.9.2004 despite opportunities given to the complainant for producing evidence before the charge, no evidence was produced by the complainant. The said order has been annexed as annexure-A to the supplementary affidavit dated 23.3.2010 which was filed on 13.4.2010. Against the order dated 1.12.2004 the complainant had filed a revision application which was rejected on 10.11.2005 vide Cr. Revision No.35 of 2005 by learned Additional Sessions Judge-III, Patna. The said order has been annexed as Annexure-B to the supplementary affidavit. Against the rejection order, the opposite party no.2 filed a quashing application before this court vide Cr.Misc. No.238 of 2006 and this quashing application too was rejected by order dated 19.7.2006 by a Bench of this court. The said order has been annexed as annexure-C to the supplementary affidavit. Subsequently, the complainant approached the Hon’ble Supreme Court by way of filing SLA(Cri) No.111 of 2007. However, in the said appeal the Hon’ble Supreme Court granted leave and directed for expediting the hearing. The order dated 15.1.2008 passed in SLA (Cri.) No.111 of 2007 has been brought on record as annexure-D to the supplementary affidavit. 6. Mr.Vindhya Keshary Kumar, learned senior counsel appearing on behalf of the petitioners, while questioning the order of cognizance dated 2.7.1997 passed in Complaint Case No.399C of 1997, submits that on perusal of the entire complaint petition as well as evidence of three witnesses, who were examined in the case before cognizance, no offence is made out against these petitioners. He further submits that in the present case it is not in dispute that death 5 of daughter-in-law of the petitioners had occurred on 25.7.1994 and the complaint petition was filed on 5.4.1997 and, as such, the learned Magistrate had incorrectly taken cognizance of the offence under section 498A of the Indian Penal code. Learned counsel for petitioner further argued that actually the occurrence is alleged to have occurred on 4.4.1997 on which date it was alleged by the complainant that the brief case of the complainant was forcibly snatched by two sons of the petitioner along with other four accused persons. Regarding the said occurrence section 392 of the Indian Penal Code was included in the complaint petition. Sri Kumar further submits that on perusal of the entire evidence, which were brought on the record by the complainant before the cognizance, it is amply clear that regarding the said occurrence robbery has not been attributed against petitioner no.1. He submits that petitioner no.1 is an old lady and after the death of petitioner no.2, she had become widow in the year 2003. On the aforesaid grounds learned senior counsel for the petitioner has prayed for quashing of the impugned order of cognizance. 7. Mr. Vindhya Keshary Kumar, learned senior counsel appearing on behalf of the petitioner while referring to annexure-4A at page 49 of the supplementary affidavit dated 5.11.2003 submits that in respect of dispute in Guardianship Case No.22 of 1997 an award was prepared by Lok Adalat at Patna on 6.3.2003. He referred to paragraph-4 of the petition filed before the Lok Adalat (the petition filed before the Lok Adalat has been annexed as Annexure-4 to the supplementary affidavit dated 5.11.2003) and submits that both the parties had agreed that Guardianship Case No.22 of 1997 and the 6 criminal Complaint Case No. 399C of 1997 (complaint in the present case) between the parties was to be settled by compromise. On this ground Sri Kumar has submitted that order of cognizance may be quashed. 8. Learned counsel for the petitioner has also referred to annexures-A, B C and D of the supplementary affidavit which was filed on 23.3.2010 and submits that even in respect of other co- accused in the present complaint petition, the complainant has failed to produce any evidence for a long period and due to that reason the learned Magistrate by its order dated 1.12.1994(annexure-A) has closed the evidence of the complainant before the charge. He submits that conduct of the complainant i.e. opposite party no.2 shows that the complaint was filed only with a view to harass the petitioner and his family members. On the aforesaid grounds he has prayed for quashing of the entire proceedings. 9. None has appeared on his behalf opposite party no.2 to argue the case. 10. I have also heard Mrs. Indu Bala Pandey, learned A.P.P. appeared on behalf of the State. She has vehemently opposed the prayer of the petitioner. She submits that at the stage of cognizance this court may refrain from interfering that too while exercising inherent power under section 482 of the Code of Criminal Procedure. She further submits that the materials which have been brought on record categorically makes it clear that the petitioner no.1 was involved in the crime as has been alleged by the complainant and the learned Magistrate in view of the evidence on record was not 7 having any other option than to take cognizance of the offences as mentioned above. She submits that the learned Magistrate has rightly passed the order of cognizance. Accordingly, she prayed for rejection of the present petition. 11. I have also examined the materials available on the record of the case. After going through the complaint petition, I am satisfied that materials available in the complaint petition were sufficient to proceed with the case. Besides the complaint petition the complainant witness no.1 in her deposition, a copy of which has been brought on record as annexure-3/B at page 34-36 of the petition, in paragraph-2 has made it clear that daughter of the complainant was tortured for the purpose of dowry. She stated that daughter of the complainant was secretly sending letters to her parents disclosing the fact. Paragraph-4 of her deposition further makes it clear that accused persons were demanding dowry and they were asked to pay Rs.1,000/- per month. It was alleged in the said paragraph of the deposition that the accused persons had got her signature on blank paper and subsequently they got her house and land by way of gift by committing forgery. It is true that in respect of allegation of robbery alleged to have been committed on 4.4.1997 nothing was attributed against the petitioner but other part of the allegation against the petitioner cannot be over-looked. Moreover, the learned Magistrate on the basis of materials available on record has rightly passed an order of cognizance for the offences as mentioned above. So far as the plea taken by learned counsel for the petitioner that the award was prepared in between the parties, the complainant 8 may not be allowed to proceed with the case is concerned, I am of the view that at this stage it would not be proper for this court to examine such thing. These facts are required to be looked into by the court where the case is pending. Similarly, so far as the plea of Sri Kumar that order of cognizance may be quashed on the ground that the death of daughter-in-law had occurred on 24.7.2004 and complaint petition was filed on 5.4.2007 is concerned, I am of the view that this plea appears to be misconceived and has got no force in the eye of law. In any event, on an allegation of torture for extracting dowry, the complaint petition was filed within the period prescribed under section 468 of the Code of Criminal Procedure. So far as argument advanced by Sri Kumar learned counsel for the petitioner that the petitioner cannot be held responsible for commission of offence under section 498A of the Indian Penal Code is concerned, I am of the view that contents of the complaint petition as well as deposition of complainant witness no.1, which have been referred above, are sufficient to indicate that in the facts and circumstances of the present case, the penal provision under section 498A of the Indian Penal Code is attracted. I am of the view that at the initial stage of a criminal case this court should certainly refrain from interfering that too while exercising inherent power under section 482 of the Code of Criminal Procedure. Accordingly, I am not inclined to exercise inherent power in favour of the petitioner. 12. The argument which has been advanced by the learned counsel for the petitioner that in respect of other three accused persons in whose favour no stay was granted and no 9 evidence has been adduced for a long period as indicated in annexure-A to the supplementary affidavit dated 23.3.2010 is concerned, I am of the view that this fact has got no relevance with the present case. The petitioner in the present case has made a prayer for quashing of the order of cognizance which was passed in the year 1997 and, as such, the subsequent event which had taken place that too in the case of other accused persons has got no relevance in the present case. 13. Accordingly, the petition stands rejected. 14. In view of rejection of the present petition, the interim order of stay stands automatically vacated. 15. Let a copy of this order be sent to the court below forthwith. Patna High Court The 4th May, 2010 NAFR/Md.S. ( Rakesh Kumar, J.)