IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.13818 of 2010 ======================================================
1. Binayak Tiwary, son of Late Basudeo Tiwary.
2. Chandrawati Devi, wife of Late Basudeo Tiwary. Both resident of Chand Kothi, in front of Zila School, Police Station- Civil Lines, District-Gaya. …. …. PETITIONERS Versus
1. The State Of Bihar.
2. Bandana Tiwary, Daughter of Pramod Tiwary, resident of Mohalla-
Bank Colony, Police Station-Kotwali, District-Bhagalpur.
…. …. OPPOSITE PARTIES.
For the Petitioners : Mr. Pramod Kumar, Advocate. For the Opposite Parties : Mr. Md. Ashmad Ansari, A.P.P. 9 16/11/2011 Earlier there were two petitioners Binayak Tiwary as well as Chandrawati Devi. While the instant petition happens to be pending, petitioner no.2, Chandrawati Devi died and in the aforesaid background instant petition has been found infructuous so far petitioner no.2 is concerned.
In likewise manner the O.P. No.2, the complainant (wife) did not appear in spite of service of summon.
Now there happens to be sole petitioner, namely, Binayak Tiwary who has challenged the order dated 12.01.2010 passed by Additional Chief Judicial Magistrate, Bhagalpur whereby and where under petitioner has been summoned to face trial for an offence punishable under Section 498(A), 406 of the Indian Penal Code with regard to Tilka Manjhi Kotwali P.S. Case No.424 of 2005.
Pramod Kumar Tiwary, father of Bandana Tiwary (O.P. No.2) filed written report before the O/c Tilka Manjhi disclosing therein that marriage of Bandana Tiwary was solemnized with Binayak Tiwary in the night of 24/25.06.2005 at his place. No demand of dowry was made during course of negotiation. Then it has been incorporated that just after solemnization of marriage (Sindur Dan), the family members of his son-in-law, Binayak Tiwary came and took away Bandana. After ten minutes, Binayak Tiwary telephoned him and demanded rupees two lac as dowry otherwise threatened of dire consequences. The aforesaid demand continued up till 28.6.2005. On 29.6.2005 at about 5 A.M. his daughter Bandana Kumar after escape from Gaya, reached at Bhagalpur, her Naihar and disclosed her miseries whatever she had faced at her Sasural on account of non-fulfillment of demand of dowry. Further it has been disclosed that his daughter was medically unfit to bear a child. The first wife of Binayak Tiwary died leaving behind a son aged about four years and so both the parties after knowing each others deficiencies negotiated and solemnized marriage.
On the basis thereof, Tilka Manjhi Kotwali P.S. Case No.424 of 2005 was registered under Section 498A, 420 I.P.C. and 3/4 of the Dowry Prohibition Act and investigation commenced and concluded by submission of charge sheet whereupon vide order dated 12.1.2010 the learned ACJM, Bhagalpur summoned the petitioner including others to face trial for an offence punishable under Section 498A, 406, 323 of the I.P.C.
It has been submitted on behalf of the petitioner that on account of physical deformity, the marriage was not conjugated. The aforesaid theme is itself incorporated in the written report and that led filing of a suit for dissolution of marriage to bearing M.T.S. Case No.38 of 2005 and the same was decreed ex-parte. Also submitted that another case bearing Complaint Case No.1594 of 2006 was instituted by the opposite party no.2 wherein cognizance was taken under Section 467, 468, 471 and 420 of the I.P.C. which was quashed vide Cr. Misc. No.32068 of 2007 order dated 10.05.2011. Then submitted that instant case has not been launched by Bandana Tiwary rather it was filed by her father with malafide intention just to tease and harass the petitioner after coming to know about the fact that petitioner is ready to file a suit for annulling the marriage on account of physical deformity of the Bandana Tiwary. So submitted that in the aforesaid background, the criteria framed by Hon’ble Apex Court in State of Hariyana Versus Bhajan Lal reported in 1992 Suppl. (1) SCC 335 is fully applicable. Consequent thereupon the order impugned is fit to be quashed.
At the other hand the learned Additional P.P. opposed the prayer and submitted that for the purpose of taking cognizance at the stage of 190 Cr.P.C., only a prima facie case has to be traced out. From the narration of the written report it is evident that prima facie case is made out and so there is no occasion for this Court to interfere with finding of the learned lower court by which petitioner has been summoned.
From the different annexures it is evident that parties are at logger head. It is also evident that by an order dated 06-07- 2006 the marriage in between spouse has been annulled on the ground of physical deformity which the written report itself discloses.
The basic theme for exercising the power vested to the High Court in accordance with Section 482 of the Cr.P.C. happens to be an inherent power to act ex-debito justitiae to do real and substantial justice, for the administration of which alone it exists, or to prevent the abuse of process of court. It could be exercised to enforce (a) to give effect to an order under court (b) to prevent the abuse of process of court (c) to otherwise secure the ends of justice and the Hon’ble Apex Court times without number have considered the aforesaid basic feature and then thereafter in 1992 Suppl. (1) SCC 335 popularly known as State of Hariyana Versus Bhajan Lal, following seven criteria has been identified.
“(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 uncontroveretd 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, on 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 grounds for proceedings 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 proceedings 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 malafide 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.”
The litigation amongst spouse leading to institution of a case under 498(A) has been taken into consideration by the Hon’ble Apex Court as has been held and reported in 2010(7) SCC page 667 wherein at para 32 it has been observed “it is a matter of common experience that most of these complaints under Section 498A IPC are filed in the hit of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bonafide and are filed with oblique motive. At the same time, repeated increase in the number of genuine cases of dowry harassment is also a matter of serious concern”.
Now coming to the facts of the case, it is evident that the marriage was negotiated amongst the parties free from curse of dowry. The whole thing visualized when the girl had gone to her Sasural and even as per disclosure made in a written report, there happens to be physical deformity. So in the background of the terms of negotiation followed with the subsequent event in the background of physical deformity appears to be the bone of contention for institution of the case and therefore it suggest application of category no.5 as identified in Bhajan Lal case. Not only this, from the written report itself it is evident that no part of occurrence so alleged had ever taken place within the jurisdiction of Bhagalpur, nay the allegations suggest it to be a continuing offence covering the Bhagalpur Jurisdiction. As such the place of prosecution should have been the place where the occurrence took place and according to Section 177 of the Cr.P.C., it happens to be the court within whose local jurisdiction it was committed. That means to say the jurisdiction of Gaya court instead of Bhagalpur court is found to be competent to proceed with the trial.
Thus, in the background of aforesaid deficiencies persisting on the record, it looks difficult to accede with the finding of the learned lower court. Therefore, the prosecution of Tilka Manjhi Kotwali P.S. Case No.424 of 2005, G.R. No.1770 of 2005 followed with an order dated 12.8.2010 whereby and where under petitioner has been summoned to face trial for an offence punishable under Section 498(A), 406, 323 of the IPC is quashed. Consequent thereupon petition is allowed.
(Aditya Kumar Trivedi, J) PN