CRIMINAL MISCELLANEOUS No.36825 OF 2006 (An application under Section 482 of the Code of Criminal Procedure ) 1. Mahendra Narain Yadav @ Mahendra Narayan Yadav , son of late Rama Yadav 2. Sanjeev Kumar Yadav @ Sanjeev Kumar. 3. Rajeev Kumar Yadav @ Rajeev Kumar 4. Shambhoo Kumar Yadav @ Shambhoo Kumar All serial No.2 to 4 sons of Mahendra Narain Yadav @ Mahendra Nr. Yadav. 5. Naidu Devi, wife of Mahendra Narayan Yadav 6. Asha Devi, wife of Sanjeev Kumar Yadav. 7. Manju Kumari daughter of Mahendra Narayan Yadav. All residents of village-Kiratpur, police Station-Jamalpur, District- Darbhanga --------------------------------- Petitioners. Versus 1. State Of Bihar 2. Raj Kumari Devi, wife of Devchandra Yadav, D/o- Ramadhar Yadav, resident of village-Gosopur, police station-Cholapur, District-Baranasi (Utter Pradesh) --------------------------------- Opposite Parties. For the Petitioners :- Mr.Gajendra Kumar Jha-2, Advocate For the State :- Mr. Ram Sumiran Rai, Advocate For the Opposite Party No.2 :- None ********* P R E S E N T THE HON'BLE MR. JUSTICE JYOTI SARAN Jyoti Saran, J. Heard learned counsel for the parties. As noted in the order dated 15.12.2010, the complainant- opposite party No.2 has not taken any steps for ensuring her representation in the present proceeding since after withdrawing Vakalatnama from the earlier counsel in August 2010. This application under Section 482 of the Code of Criminal Procedure is directed against the order dated 20.7.2006 passed in C.R. Case No. 95 of 2006 by the Sub-Divisional Judicial Magistrate, Biroul 2 at Benipur whereby the Magistrate has taken cognizance of the offences punishable under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act against these petitioners and has issued summons pursuant thereto. The petitioner No.1 is the father-in-law of the complainant, the petitioner Nos. 2 to 4 are step brother-in-law, the petitioner No.5 is the step mother-in-law, the petitioner No.6 is the step sister-in-law of the complainant and wife of the petitioner No.2 and the petitioner No.7 is the daughter of the petitioner No.1. The complainant herein is the son of the petitioner No.1 from his first marriage with Fulo Devi who is yet alive. The petitioner No. 5 is the second wife of the petitioner No.1 and mother/mother-in-law to the other petitioners. Sum and substance of allegation as set out in the complaint placed at Annexure-1 of the present proceeding charges these petitioners of demanding dowry in the form of cash of Rs. 50,000/- and a colour Television set. The complainant charges the petitioners of causing physical and mental harassment to her. The charges have been made in a sweeping manner. Learned counsel for the petitioner submits that a plain reading of the statement made in the complaint petition demonstrates that the allegations have been set out in a most general and omnibus manner. He further submits that the present prosecution is a motivated one and has been instituted with oblique motives. Learned counsel submits that the sole purpose of institution of the present complaint is to cause harassment to the petitioners herein who are the father-in-law and step relatives of the complainant. 3 Learned counsel submits that although the prosecution has been lodged for alleged offence punishable under Sections 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act but surprisingly the complainant has not chosen to array her own husband as an offender of the offences in question. He submits that the recitals of the complaint itself shows that the main issue of discontent is family property and the proceedings have been instituted for putting undue pressure on the petitioners to accede to the request of the complainant and her husband. Learned counsel for the petitioners in support of his submission has referred to the recitals made in the complaint placed at Annexure-1, the Sanha instituted by the petitioner No.1 dated 21.2.2006 placed at Annexure-2 and the Panchnama dated 14.3.2006 as contained in Annexure-5, arrived at for resolution of the property dispute among the petitioner No.1 and his siblings including the husband of the petitioner. Learned counsel further submits that barely 18 days back from the institution of the present complaint which was instituted on 30.3.2006 the complainant had also instituted an F.I.R. making wild allegation of physical assault against the petitioners on 12.3.2006 giving rise to Jamalpur P.S. Case No. 13 of 2006. He submits that a plain reading of the allegation as set out in the F.I.R. nowhere even whispers of any harassment made by the petitioners connected with the dowry demands or coming within the confines of Section 498A of the Indian Penal Code. He thus submits that the present institution of the complaint is an afterthought by the complainant, and her husband who 4 is the son from the first wife of the petitioner No.1. He further submits that the witnesses who have given evidence during the course of 202 enquiry are all interested witnesses being the mother of the husband of the complainant, the father of the complainant. He submits that there is no independent witness. Learned counsel thus submits that in the given circumstances it is evinced beyond any shadow that the institution of the proceeding is merely to cause pressure on the petitioner No.1 for succumbing to the partition of property demands made by the husband of the complainant. He submits that the complainant having been married three years back never chose to raise any such issue until the filing of the present complaint on 30.3.2006 though earlier thereto an F.I.R. was also instituted by her on 12.3.2006. He submits that even if the allegations as set out in the complaint are accepted on the face value, there being complete absence as to the imputation of any offence individually on any of the petitioners, there is no chance of conviction of either of the petitioners based on such general nature of allegations. He thus submits that the present prosecution is manifestly tainted with malafides and the continuation of the prosecution of the petitioners would be an abuse of the process of the Court. Learned counsel for the petitioners in support of his submissions relies upon the following judgments:- (a) 2009 (2) PLJR 310 (Ranjeet Srivastava & Ors. Vs. State of Bihar & Anr.) paragraph 4 (b) 2010 (4) PLJR 36 (SC) (Preeti Gupta & Anr. Vs. State of Jharkhand & Anr.) paragraphs 11, 22, 25, 26 & 30 5 Learned counsel concluding his submissions submits that in the accompanying circumstances the present proceeding is not sustainable and the order taking cognizance together with the criminal prosecution initiated pursuant thereto, is fit to be quashed and set aside. Learned Additional Public Prosecutor appearing on behalf of the State opposes the prayer made by the learned counsel for the petitioners and submits that all these issues could have been raised by the petitioners before the Court below, in response to the summons. He submits that the power vested in this court is to be sparingly exercised and that the present case did not fit into the category inviting exercise of such jurisdiction. I have perused the materials available on the records of the proceedings and have considered the rival submissions advanced on behalf of the contesting parties. A perusal of the complaint placed at Annexure-1 of the proceedings demonstrates that no specific overt act has been attributed to either of the petitioners. The allegations are sweeping and made in a general and in omnibus manner. The allegation of demand of dowry by the petitioners has been made in a most general manner. A Sanha has been placed at Annexure-2 which is dated 21.2.2006 i.e. much prior to the institution of the complaint and in which the petitioner No.1 has chosen to inform the officer-in-charge that the complainant and her husband who happens to be the son of petitioner No.1 were causing pressure for partition of the family property under the threat of institution of criminal cases. An F.I.R. instituted by the complainant herself barely 18 days before the institution of the present case on 6 12.3.2006 nowhere refers to any dowry demands by the petitioners rather it specifically mentions that an altercation had taken place in relation to family partition. Even the deposition made by the witnesses during 202 enquiry indicates that there was some dispute relating to the partition of family property. As regarding the scope and extent of power vested under Section 482 of the Code of Criminal Procedure, I am tempted to quote paragraphs 21 and 22 of the judgments passed in the case of Preeti Gupta (supra) which is reproduction of paras of the judgments rendered in the case of Madhavrao Jiwajirao Scindia & Ors. Vs. Sambhajirao Chandrojirao Angre & Ors. and in the case of State of Haryana & Ors. Vs. Bhajan Lal & Ors. “ 21. this Court in Madhavrao Jiwajirao Scindia & Others vs. Sambhajirao Chandrojirao Angre & Others, (1988) 1 SCC 692 observed in para 7 as under :- 7. The legal position is well settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the Court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilized for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 22. In State of Haryana & Others vs. Bhajan Lal & Others, 1992 Supp. (1) SCC 335, this court in the backdrop of interpretation of various relevant provisions of the Code of Criminal Procedure (for short, Cr.P.C.) under chapter- XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 of the Constitution 7 of India or the inherent powers under Section 482 Cr.P.C. gave the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of the court or otherwise to secure the ends of justice. Thus, this Court made it clear that it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexibile guidelines or rigid formulae and to give an exhaustive list to myriad kinds of cases wherein such power should be exercised:- (1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused. (2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156 (1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code. (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (4) Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code. (5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (6) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party. (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.” Undoubtedly, the powers inherent in this Court under Section 8 482 of the Code of Criminal Procedure has to be exercised with utmost caution, sparingly and rather carefully. At the same time, this Court would not be a silent spectator to a proceeding which has been instituted with oblique motives and as noted by the Supreme Court in the case of Bhajan Lal (supra) “manifestly attended with malafides” Taking into consideration accompanying circumstances, the materials available on records of the proceedings and the submissions of learned counsel, I am in no manner of doubt to conclude that the present proceedings has been instituted by the complainant for oblique purposes i.e. for causing pressure on the petitioner No.1 and his siblings to succumb to the demands in the matter of family property partition. The allegations as set out in the complaint are so general and omnibus in nature that the conviction of either of the petitioners appears most improbable. Regard being had to the circumstances, the continuation of the criminal prosecution of the petitioners would be an abuse of the process of the Court. In the result, the order taking cognizance dated 20.7.2006 passed in C.R. Case No. 95 of 2006 by the Sub-Divisional Judicial Magistrate, Biroul at Benipur together with entire criminal prosecution initiated pursuant thereto is quashed and set aside. This application is allowed. Patna High Court/ Dated the 21st December 2010/ Bibhash/N.A.F.R. (Jyoti Saran, J.)