IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.4129 of 2009 1. Jay Prakash Singh, son of Shiv Shankar Singh, 2. Shiv Shankar Singh, son of Late Kuber Singh, Both resident of Village- Betari, P.S. Bhabua, District- Kaimur (Bhabua). ……………………….Petitioners. Versus 1. The State of Bihar. 2. Anuradha Patel, wife of Jyoti Patel, resident of Village- Betari, P.S. Bhabua, District- Kaimur (Bhabua) …………………..Opposite Parties. For the petitioners :- Mr. Kumar Sunil, Advocate. For the State :- Mr. Ajay Kumar I, A.P.P. ----------- 4. 11. 01. 2011. Heard. This criminal miscellaneous petition has been filed for quashing the order dated 16. 12. 2008 passed by the Sub Divisional Judicial Magistrate, Kaimur (Bhabua) in Complaint Case No. 1085 of 2008, by which cognizance has been taken for offence under Section 498 A and Section 3/4 of the Dowry Prohibition Act. 2. The allegation made in the complaint that complainant Anuradha Patel was married with Jyoti Patel. It is alleged that husband Jyoti Patel is adopted son of accused Suryawarti Singh. There is allegation of demand of fifty thousand cash and motorcycle and subjecting cruelty for non-fulfillment of demand. It is further alleged that her husband used to protest the subjecting cruelty on the complainant. On such protest the accused person asked the husband to flee away then 2 husband of the complainant flee away. The complainant was subjected to cruelty by assault then complainant asked to let her go to Naihar she will bring the motorcycle and Rs. 50,000/- then she was allowed to go to her father placed then filed the case. 3. On the complaint the complainant was examined on S.A. and two witnesses examined during inquiry and the learned magistrate issued summon on the four accused persons mentioned in the complaint petition after taking cognizance. 4. The learned counsel for the petitioner submits that the petitioners falsely implicated malafidely to wreck vengeance and the case has been lodged suppressing the fact. The accused Suryawarti Singh had lodged a criminal case bearing Bhabhua P.S. Case No. 300, dated 21.08.2008 before the lodging of this complaint petition against Dauji Singh, S/o Sheo Pujan Singh, Shama Devi, W/o Dauji Singh, Sheo Pujan Singh, S/o Kuber Singh and Prabhat Kumar Patel, who are the natural father, mother, grand father and brother of the husband of the complainant for offence under Sections 448, 341, 323 and 379/34 of Penal Code The Suryawarti Singh is brother of grand father of the husband of the complainant. This false complaint has been filed malafidely to wreck vengeance to pressurise the 3 Suryawarti Singh to withdraw his case. The petitioner no. 2 is the full brother of Surwawarti Singh and petitioner no. 1 is the son of petitioner no. 2. But the complainant has cunningly neither disclose the relationship of the accused with the petitioner in the complaint petition rather taken false plea that the husband of the complainant is the adopted son of Suryawarti Singh where as fact is that Suryawarti Singh is the full brother of natural grand father of the husband of the complainant and there is enmity. The complaint has filed two documents, along with the petition under Section 482 of Cr.P.C. one is F.I.R. of Bhabua P.S. Case No. 300, dated 21. 08. 2008 and other is copy of certified copy of T.S. No. 52 of 1079 to show the relationship of complainant the husband of the complainant and the accused as well as the natural father and mother are of same family and contends that Suryawarti Singh alleged to have adopted the husband of the complainant is non else than the full brother of the natural grand father of the husband of the complainant and complaint has been filed this case suppressing these facts with malafide intention to falsely implicate to wreck vengeance in view of case filed by Suryawarti Singh against the husband. 5. Notice was issued to O.P. No. 2 but even on receipt of notice none appeared on behalf of the 4 complainant. 6. The learned counsel for the State however, contends that taking into consideration the allegation made in complaint makes out an offence and the document filed and assertion made in the defence of the accused may not be considered at this stage. 7. Hence on respective submissions made by the parties the question for consideration whether the cognizance taken is sustainable and the prosecution be allowed to continue the criminal proceeding. 8. However, in the entire complaint, it is alleged that her husband is the adopted son of accused Suryawarti Singh, but the relationship of complainant with other accused not disclosed. However, from parentage of accused person in complaint petition, it is apparent that petitioner no. 2 who is accused no. 3 in complaint petition has been shown as son of Kuber Singh and the Suryawarti Singh accused no. 1 in complaint also shown as son of Kuber Singh and the two documents filed shows that prior to the institution of this complaint case, Suryawarti Singh filed a criminal case against the natural father and grand father of the husband of the complainant, but this fact has been surreptitiously suppressed by the complainant and plea taken by State that these documents are not required to be seen as it is 5 defence of the accused. However, if the document filed the jurisdiction given under Section 482 is inherent power is to do exdebitio justice i.e. to do real and substantial justice to prevent the abuse of the process of court. 9. It is true that at this stage of quashing, the accused is not required to raise his defence and could not require to look into the defence of the accused lawyer. However, the court may take into consideration the admitted fact and it is also permissible to look into the pleading of the parties in a suit. It is one thing to say that the court is at this juncture would not consider the defence of accused, but it is another thing to say that for exercising inherent jurisdiction, it is impermissible also to look into the admitted document or document with unimpeachable character. However, the two documents filed are F.I.R. filed on Fardbeyan of Suryawarti Singh which is relevant for who are party and who is accused and of unimpeachable character , but that case lodged and party to the case as one is F.I.R. apparently lodged prior to this occurrence and other is copy of certified copy of T.S. filed by Suryawarti Singh in the year 1979 much prior to filing of this complaint and even much before the marriage of complainant and it shows that relationship that Dauji Singh is son of Sheo Pujan singh and Sheo Pujan singh is son of Kuber singh and the accused 6 Suryawarti Singh filed a criminal case against Dauji Singh and the accused Suryawarti Singh prior to the filing of this complaint. This fact has been surreptitiously concealed by the complainant in complaint petition. 10. However, in the back ground the allegation made in the complaint petition by the complainant the husband has not been made an accused. The natural father and mother are neither accused nor a witness even the father of the complainant not come forward to support the case of complainant when the complaint petition was filed while the complainant was at Naihar. Moreover, the sala (brother-in-law) of the natural father has been named as a witness who has come to support the case of the complainant. However, it is true that court at this stage is not required to meticulously consider the fact, but the court should be circumspect, judicious and exercise discretion and required to take all relevant fact and circumstance to do undebitio justice to prevent the abuse of the process of the Court. However, these facts are germane for consideration whether the complainant has come to the Court with clean hand and if the complaint is allowed to proceed caused to the harassment of the petitioner then that will nothing but an abuse of the process of the Court. 11. However, taking the nature of allegation in 7 the complaint the allegations are omnibus and general in complaint, the relationship of accused and complainant has not been disclosed. The complainant in her statement on solemn affirmation has not made any imputation against these petitioners. One witness, Banarasi is Sala of natural father and other is Moti Singh is an outsider witness, but neither the natural father of husband nor the father of the complainant has been made a witness nor came to support the complaint. 12. The allegation made in the complaint is peculiar in fact and circumstance absurd that brother of grand father of the husband adopted the husband of complainant and other brother of grand father demanded motorcycle and cash of Rs. 50,000/- which the husband used to resist and husband thrown out of home and complaint filed by the complainant after F.I.R. lodged by Suryawarti Singh against the natural father and mother of the husband of the complainant itself shows that prosecution case is manifestly abused and inherently improbable and has been filed maliciously to wreck vengeance to satiate the malafide intention of the complainant her husband and natural father of the husband. The case has been filed suppressing the facts and allowing the prosecution to proceed is nothing but an abuse of the process of the court. 8 13. It appears that learned Magistrate without an intelligent and proper inquiry passed order taking cognizance without proper application of mind. Hence the impugned order taking cognizance is hereby set aside and criminal miscellaneous petition is allowed. m.p. ( Gopal Prasad, J.)