IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43734 of 2008 MD.SARFRAZ & ORS Versus STATE OF BIHAR & ANR ----------- 6 18.5.2010 Heard counsel for the petitioners and the State as well as learned counsel appearing on behalf of Opposite party no.2. The petitioners pray for quashing the entire prosecution arising out of Complaint Case No.1275 of 2008 pending in the court of the Sub-Divisional Judicial Magistrate, Siwan as also the order dated 17.5.2008 whereby cognizance has been taken under sections 498A and 323 of the Penal Code against the petitioners. Learned counsel for the petitioners submits that the petitioners are resident of Kanpur in the State of U.P. Petitioner no.1 is the husband of Nazia Khanam. Petitioner no.2 is the father-in-law, petitioner no.3 is the mother-in-law, petitioner no.4 is the Dewar, petitioner no.5 is the elder brother of the husband of the complainant, petitioner nos.6 and 7 are the unmarried sisters and petitioner no.8 is the married sister of the husband of the complainant. He further submits that the complainant has tried to implicate all family members of petitioner no.1 in the instant case. Moreover. no cause of action took place at Siwan, still the complainant concocted some allegations at Siwan for filing case at Siwan court, though all allegations are alleged to have been committed at Kanpur, her matrimonial home. Learned counsel submits that from perusal of the complaint case it would appear that there is a bald and sweeping allegation against petitioners 4 to 8. He submits that petitioners 4 to 8 do not - 2 - have any concern with the day to day affairs of petitioner no.1. The complainant in her solemn affirmation and the witnesses in course of depositions have made vague allegations against the petitioners 4 to 8. In this view of the matter, the continuance of proceeding against them would be an abuse of the process of the court. Learned counsel contends that petitioner no.3, the mother- in-law, is a Pardanashin Lady and she has been maliciously made an accused in the instant case. In fact, much prior to the filing of the instant case on 9.6.2008, a Matrimonial Suit has been filed by petitioner no.1 way back in the year 2007 itself, in which he had prayed for restitution of his conjugal right. The Principal Judge, Family Court, Kanpur (Town) vide his judgment dated 1.8.2008 decreed the Matrimonial Suit directing the Opposite party no.2 to live with her husband, who is petitioner no.1 in the instant case. Thereafter the petitioner no.1 has filed an application before the District Magistrate, Kanpur, again much prior to the institution of the instant case, in which a report was sought from the local police station. The S.H.O. after enquiry submitted its report stating therein that Opposite party no.2 is an independent minded lady and she on her own deserted her Sasaural. It is further stated in the report that defiance of some accused persons did not agree to marry the younger brother of the husband of Opposite party no.2 with the sister of Opposite party no.2 the same peeved the Opposite party no.2 which culminated into filing of the instant case. Learned counsel for Opposite party no.2 submits that a - 3 - KHAN prima facie allegation is made against petitioner nos.1, 2 and 3. Having heard counsel for the parties and on going through the materials on record, this court finds that there is prima facie case against petitioners 1 to 3 and as such I am not inclined to quash their prosecution, as also the order dated 17.5.2008 taking cognizance against them. The instant quashing application, so far as petitioners 1 to 3 are concerned, is dismissed. However, it would be open to the petitioners 1 to 3 to take all these points at the time of framing of charge. In case such an application is filed, the learned court in seisin of the matter would consider it on its own merit without prejudice. So far as petitioner nos.4 to 8 is concerned, this court finds that the continuance of prosecution against them would be an abuse of process of the court and as such the same is quashed. In the result, this application is partly allowed to the extent indicated above. (S.P.Singh,J)