IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.41148 of 2009 HARI MOHAN SINGH, S/o Sri Deo Nandan Singh, R/o Village- Chakbeyas Police Station Goroul, District-Vaishali ….. Petitioner Versus 1. STATE OF BIHAR 2. Khusboo Kumari @ Khushi Kumari, D/o Baiju Singh, R/o Village- Lohiapath, P.S.-Rupaspur, District- Patna. Presently residing at house of Dhananjay Srivastava, S/o Jitendra Prasad, Village- Himapur, P.S.- Bajpatti, District- Sitamarhi …. Opposite Parties. For the petitioner : - Mr. Awadhesh Kr.Singh, Advocate For the O.P. No. :- Dr. Manoj Kumar, Advocate. Mr. Devendra Prasad, Advocate. ----------- 3 25-06-2010 Heard both sides. Petitioner assails order taking cognizance. Background facts necessary for the disposal of the case may be indicated first. A complaint was lodged on 19-3-2009 by the opposite party herein against her husband and his entire family members alleging therein that on 30-4-2007 she was married with Chandra Mohan Kumar Singh (full brother of the petitioner). After sometime she was ill treated at her Sasural because she was not able to fulfill demand of cash of Rs. Two lakhs and a motorcycle. On 30-11-2008 she was ultimately ousted from the matrimonial home. Learned court below on completing enquiry in terms of Section 202 of the Code of Criminal Procedure, during which one witness was examined on behalf of the complainant, 2 took cognizance of the offence under section 498A of the Penal Code and under section 4 of the Dowry Prohibition Act. Learned counsel for the petitioner submits that the present case lodged by the complainant, is a malafide prosecution. It is submitted that on 22.01.2009 father of the complainant had lodged an FIR being Rupaspur P. S. Case No. 13 of 2009 (Annexure-2) instituted under Section 366 of the penal code, alleging therein that his daughter(complainant) had given birth to a male child and she was residing with him. One of the tenants, who was residing in his house and was subsequently ousted therefrom, enticed away his daughter (victim). The complainant appeared in the said case and made statement on 17-2-2009 under section 164 Cr.P.C. (Annexure-3). This is what the complainant has to say in her such statement: ÞmRrj & eSus vius ethZ ls /kuat; JhokLro ds lkFk 'kknh dj yh gS vkSj vc mUgha ds lkFk jguk pkgrh gq¡ A esjk /kuat; ds lkFk esjh igyh 'kknh ds iwoZ ls gh izse izlax py jgk Fkk AÞ It is submitted that after expiry of over a month the present prosecution has been lodged with the aforesaid allegations. Learned counsel for the petitioner further submits that going by the allegations contained in the complaint, there is no specific overt act alleged against the petitioner, who happens to be the brother-in-law of the complainant. According to him the allegations are directed against the husband. 3 Learned counsel for the complainant opposed the prayer. It is contended that considering the scope of the provisions invoked by the learned court below, this court may not interfere with the order. This court is in agreement with the submission of learned counsel for the complainant that at the stage of taking cognizance the court has only to verify and satisfy itself regarding presence of a prima facie case. However, if from the materials placed on record, this court is satisfied that the prosecution has been launched with ulterior and/or malafide reasons. Then the court of law shall be justified in interfering therewith and interdict such criminal proceeding as the same shall result in complete abuse of the process of the court. Having perused the materials available on record, this court is satisfied that there is absolutely no direct allegation against the petitioner, who is brother-in-law of the complainant. Secondly, considering the submission of the learned counsel appearing on behalf of the petitioner, which are supported from the annexures filed in support thereof, this court is satisfied that the continuance of the present proceeding against the petitioner shall be an abuse of the process of the court. Judicial process should not be an instrument of oppression or needless harassment (AIR 1992 SC 1815 Punjab National Bank & Others-Appellants Vs. Surendra Prasad Sinha—Respondent) In view of the discussions made above, this court is 4 satisfied that the present order so far as the petitioner is concerned, needs to be interfered with. The application is accordingly allowed. Order dated 09- 04-2009 passed by Sri Suvash Chandra Sharma, Judicial Magistrate, 2nd Class, Danapur in Complaint Case No. 251/C/2009 in so far it relates to the petitioner is hereby quashed and set aside. Sujit ( Kishore K. Mandal, J.)