IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.54720 of 2007 1. Guriya @ Sangeeta Kumari, wife of Deepak Kumar 2. Sharda Devi @ Sharda Singh, wife of Late Upendra Prasad Singh. 3. Deepak Kumar, son of Late Upendra Prasad Singh. All resident of village-Gonawan near Niva Cinema Hall, police station- Nawadah Town, District-Nawada. At present residin at Flat No. 001, Karan Apartment, Punaichak, Patna-23. …….Petitioners Versus 1. The State Of Bihar 2. Kumari Jyotsana, daughter of Shivendra Narayan Singh, resident of village-Bindi Dih, police station-Silao, District-Nalanda. …..Opposite Parties ----------- 05. 30.04.2010 Heard learned counsel for the petitioners and learned counsel for the State. The present application has been filed for quashing of the order 02.11.2007, whereby learned C.J.M., Nawadah has taken cognizance in Nawadah Town P.S. Case No. 366 of 2005 differing with the final form submitted by the police under Section 498A of the Indian Penal Code and ¾ of the Dowry Prohibition Act. It is submitted by learned counsel for the petitioners that Petitioner No. 1 is the wife of elder brother. Petitioner No. 2 is the mother-in-law and petitioner No. 3 is the elder brother. The petitioner No. 3 is a practicing Advocate of Patna and petitioner Nos. 1 and 2 reside with him at Patna. The complaint was filed on 07.12.2005 by O.P. No. 2 alleging therein that she was married on 24.05.2004 2 with Niraj Kumar and at the time of marriage gifts were given but immediately after the marriage the husband including the petitioners started teasing the O.P. No. 2 for non giving of color T.V. as gift. It is alleged that the O.P. No. 2 was being assaulted. The specific allegation relates to 06.11.2005 wherein it has been mentioned that the accused persons tried to burn the complainant and ultimately she was driven out from her matrimonial house. The father of the O.P. No. 2 thereafter tried to get the matter reconciled but the accused persons did not agree. The police thereafter investigated the matter and vide charge sheet No. 44 of 2007, on 31.01.2007 submitted charge sheet under Section 498A I.P.C. and ¾ of the Dowry Prohibition Act only against the husband with specific averments in the charge sheet that the present petitioners have falsely been implicated as they did not use to reside with the husband at Nawada. Consequently the learned C.J.M. vide order dated 02.11.2007 differed with the final form and took cognizance against all the F.I.R. named accused including husband against whom the chargesheet was submitted. It is submitted by the learned counsel for the petitioners that admittedly the marriage took place on 24.05.2004 but immediately after marriage the Matrimonial case No. 8 of 2005 was filed on 27.01.2005 under Section 13 of the Hindu Marriage Act for dissolution of the marriage 3 basically on the ground of cruelty and in paragraph Nos. 31 and 33 of the plaint, it is alleged that the O.P. No. 2 is not residing with the husband since 16.01.2005 though the said matrimonial case stood dismissed on 18.05.2005 by an order passed by the District Judge, Nawadah on the ground that matrimonial case was filed within a year of marriage which is Annexure-2 to the present application. Then another matrimonial case was filed on behalf of the husband on 07.07.2005 vide Matrimonial Case No. 49 of 2005 which is still pending. Further contention of the learned counsel for the petitioners is that an informatory petition was filed on behalf of the husband before the Sub-Divisional Officer, Nawadah on 29.11.2005 alleging therein that the threat is being given from the side of O.P. No. 2 for withdrawing the matrimonial case upon which the Sub-Divisional Officer directed the Officer-in-charge, Nawadah Town P.S. for taking immediate action and submit a report in this regard. Consequently the Officer-in-charge, Nawadah P.S., on 07.12.2005 submitted the report that the husband got the O.P. No. 2 reached to her parents house three to four months prior to submission of the report which was submitted on 03.12.2005 as a result of which the O.P. No. 2 is residing with her parents. Hence learned counsel for the petitioners submits that this report also suggest that O.P. No. 2 was not residing with the 4 husband when the complaint was filed or on the alleged date of occurrence (though the informatory petition dated 29.11.2005 as well as the report of Officer-in-charge, Nawada P.S. dated 07.12.2005 are not on record but certified copies of both were produced for perusal of this Court). Let it be kept on record. Learned counsel for the petitioners relied upon the judgment reported in 2009(10) SCC 184(Neelu Chopra and Another versus Bharti) wherein it has been held that when the accusation is not specific and precise then the prosecution of the accused person on the basis of vague allegation is bad in law. Learned counsel for the petitioners has also relied upon a judgment reported in 2007(2) PLJR 721(Badri Choubey & Ors versus The State of Bihar & Another) wherein it has been held that for discerning the situation of each evidence the allegation made in the petition or complaint has to be read and considered and when on consideration of the same the element of absurdity and improbability appear then such prosecution deserves interference which has been held as follows:- “It is trite law that for discerning the constitution of an offence the allegation made in the petition of complaint has to be read and considered. On a consideration of the allegations what appears is that the element of absurdity 5 and improbability appears in them. The accused persons were assaulting the complainant or were attempting to burn her. In that attempt, K. Oil had also been poured upon her and Badri Choubey lit a match stick for settling the complainant at fire. But, she started pleading for mercy and for being spared so that she could go to her father’s house for bringing Rs. 50,000/- and a motorcycle and, accordingly, the accused persons melted and spared the complainant so that she could go to her father’s house and file the complaint petition. This is patently assured(Sic.-absurd ?) and inherently improbable. If the allegations appeared patently absurd and inherently improbable, the prosecution has to be quashed, as may appear from A.I.R. 1976 SC 1947(Shri Nagwa vs. Veeramna). Keeping that in mind I find that the entire prosecution suffers from patent absurdity and inherent improbability and as such the impugned order and the prosecution initiated through it against the petitioners is hereby quashed” Learned counsel for the O.P. No. 2 has submitted that there is allegation in the complaint and police maliciously submitted final form though several 6 witnesses have leveled allegation against the petitioners which has been recorded by the learned C.J.M. in the impugned order and at this stage, prima facie case has to be seen. It is further contended that learned C.J.M. has power to differ with the final form and take cognizance. As both divorce cases were maliciously filed moreover the O.P. No. 2 was not aware about the divorce cases which was filed to create a defense. So far as informatory petition and report of Officer-in-charge, Nawada are concerned, it is submitted by the learned counsel for the O.P. No. 2 that these documents were deliberately created for creating a defense. After hearing learned counsel for the parties and perusing the materials on records, it appears from the complaint that other allegations are not very specific except the allegation of the occurrence dated 6.11.2005 to the effect that all the accused tried to bush the opposite party NO. 2 but the said occurrence is not inspiring confidence in view of the fact that the alleged occurrence took place on 06.11.2005 whereas the complaint was filed on 07.12.2005. Moreover this allegation was against all accused persons and the complainant did not specify that she received any injury in that incident or she was being treated by any doctor. This occurrence of 06.11.2005 also gets clouded in view of the fact that the first matrimonial divorce case was filed by the husband on 27.01.2005 and in paragraph No. 7 22 and 23 of the plaint, it was specifically mentioned that the wife was not residing with the husband since 16.01.2005. Furthermore from the report of the Officer-in- charge, Nawadah dated 03.12.2005 which has not been brought on record but certified copy was produced from which it appears that three to four months prior to the said report the O.P. No. 2 was not residing with the husband. In view of the aforesaid fact and considering the view taken in the case of Badri Choubey and others (Supra) wherein also the allegation was an attempt to burn which was termed as absurd by Bench of this Court, the allegation dated 06.11.2005 of the present case also appears not to be very inspiring. In that view of the matter, prima facie case under Section 498A and ¾ of the Dowry Prohibition Act is not made out. It is contended by the learned counsel for the O.P. No. 2 that certain paragraphs has been referred by the learned C.J.M. which suggest the prima facie case which has been controverted by the learned counsel for petitioners by submitting that these are the statements of the family members of the O.P. No. 2. as no independent witness has supported the prosecution case. Some witnesses might have supported the prosecution case during investigation but the final form is 8 not submitted on the basis of statement of some witnesses but on the basis of the consideration of the total effect of the evidences collected during investigation. It is true that the finding of the investigating agency was not accepted by the learned C.J.M. Learned C.J.M. has the power to differ with the final form submitted by the investigating agency. But learned C.J.M., as it appears has not considered the matrimonial cases filed prior to the present complaint or he has no occasion to peruse the informatory petition dated 29.11.2005 and report of the Officer-in-charge dated 3.12.2005. Hence considering the discussions made above, I do here by quash the order of cognizance dated 02.11.2007 passed in Nawadah Town P.S. Case No. 366 of 2005 in respect of the petitioners only. I feel inclined to record that this Court tried to make reconciliation and in pursuance to that the husband and wife appeared on 23.04.2010 though the wife was ready to resume the conjugal life but the husband was adamant not to take her back resulted into failure of reconciliation. Hence, in no way any observation or finding in the present proceeding may be used during the trial of the husband as the husband is neither party in the present proceeding nor the husband’s case has been considered in the present proceeding. With the aforesaid observations, the application 9 stands allowed. Shageer (Dinesh Kumar Singh, J.)