Nutan Sinha And ORS v. State Of Bihar And ANR

IN THE HIGH COURT OF JUDICATURE AT PATNA

CRIMINAL MISCELLANEOUS No.30519 of 2015 Arising Out of PS. Case No.-797 Year-2013 Thana- BEGUSARAI TOWN District- Begusarai ====================================================== 1.

Nutan Sinha Wife of Late Ajay Kumar Sinha, 2.

Raushan Kumar Sinha, Son of Late Ajay Kumar Sinha, 3.

Prashun Praveen, Son of Late Ajay Kumar Sinha, 4.

Mamta Sinha, Wife of Prashun Praveen, All residents of Mohalla - Mungeriganj, Ward No. 33, Ps. - Begusarai Town, District - Begusarai Bihar. Presently residing at Udaiprastha, Nageshwar Colony, P.S. - Kotwali, District - Patna.

... ... Petitioner/s

Versus

1.

State Of Bihar 2.

Rishika, Wife of Rishi Praveen, Resdent of Mohalla - Mungeriganj, Ward No. 33, P.S. - Begusarai Town, District - Begusarai. ... ... Opposite Party/s ====================================================== Appearance :

For the Petitioner/s :

Mr. Saket Tiwary For the Opposite Party/s :

Ms. Gulnar Begum, APP ====================================================== CORAM: HONOURABLE MR. JUSTICE SANDEEP KUMAR ORAL ORDER 17-02-2023 Heard learned counsel for the petitioners and learned APP for the State.

The present application has been filed for quashing the cognizance order dated 19.04.2014 passed by learned Chief Judicial Magistrate, Begusarai in connection with Begusarai Town P.S. Case No. 797 of 2013 by which the cognizance has been taken against the petitioners for the offences under Section 498A/504/506 of the Indian Penal Code.

The prosecution story in short is that the opposite party no. 2 had solemnized intercaste marriage with Rishi

2/5 Praveen in the year 2003 and since then she was subjected to torture and harassment by these petitioners. It is further alleged that the petitioners used to call her by her caste name also tried to murder the son of the opposite party No. 2 when he was 15 months old only. It is also alleged that on 25.11.2013, the petitioners tried to kill her and her husband however, they managed to escape somehow.

Learned counsel for the petitioners submits that petitioner No. 1 (Nutan Sinha) is the mother-in-law, petitioner No. 2 and petitioner No. 3 (Raushan Kumar Sinha and Prashun Praveen) are brothers-in-law whereas Petitioner No. 4 (Manta Sinha) is the sisters-in-law and there are general and omnibus allegations against the petitioners No. 1, 2, 3, and 4 in the complaint.

Learned counsel for the petitioners has also relied upon the judgment of Hon'ble Supreme Court in the case of Kahkashan Kausar and Ors Vs State of Bihar and Ors reported in AIR 2022 SC 820.

The learned APP has submitted that the application of the petitioners may be dismissed and the petitioners be directed to raise all their grievances in the Court below at the time of framing of charge.

3/5 I have considered the submissions of the parties. So far as the allegations against the petitioner Nos. 1, 2, 3, and 4 are concerned, they are general and omnibus.

So far as the objection of learned APP for the State that the petitioners may be directed to raise all their grievances at the time of framing of charge, this objection is also fit to be rejected in view of the judgment of Hon'ble Supreme Court passed in the case of Ashok Chaturvedi & Ors Vs Shitul H. Chanchani & Anr reported in (1998) 7 SCC 698. The Hon'ble Apex Court in paragraph No. 5 has held as follows:- "5. But the question that yet remains for consideration is whether the allegations made in the petition of complaint together with statements made by the complainant and the witnesses before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of?

The learned counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and therefore, this Court should not interfere with the order of the Magistrate taking cognizance, at this stage.

This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of charges as provided in Section 245 of the Criminal Procedure Code, he is debarred from approaching the court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition.

4/5 of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under Section 482 of the Code, we have examined the allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offences have not been made out so far as the appellants are concerned.

The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion, even if the allegations made in the complaint petition and the statement of the complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 120-B of the Penal Code, 1860 cannot be said to have been made out. This being the position, the impugned order of the Magistrate taking cognizance of the offence dated 5.2.

1996 so far as it relates to the appellants cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.1996 taking cognizance of the offence as against the appellants stand quashed." In view of the law laid down by the Hon'ble Supreme Court in the case of Kahkashan Kausar and Ors (supra) and Ashok Chaturvedi & Ors (supra), this application is allowed.

5/5 Accordingly, the order dated 19.04.2014 passed by learned Chief Judicial Magistrate, Begusarai in connection with Begusarai Town P.S. Case No.797/2013 under Sections 498-A, 504 and 506 of the Indian Penal Code so far as the petitioners are concerned, is hereby quashed.

(Sandeep Kumar, J) Saif/-Sunny U T