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2012 Supreme(Pat) 941
IN THE HIGH COURT OF JUDICATURE AT PATNA
SHIVAJI PANDEY, J.
Asha Devi W/o Suresh Singh, Resident Of Muhalla, Kathari-bagh, P.S- Chapra(T) , Distt- Saran At Chapra & Ors. : Petitioners
Versus
The State Of Bihar & Anr. : Opp. Parties.
Criminal Miscellaneous No.17039 of 2011
Decided On : 24-07-2012
For the Petitioners: M/s. Jitendra Singh, Sr. Adv. Mr. Rakesh Singh, Adv.
For the Opposite Parties : Mr. Kamaluddin.
Headnote:
(A) Indian Penal Code, 1860 – Sections 494 and 498-A – Cruelty and second marriage – When a lady enters into second marriage and lady is treated as a wife by the husband, relative, friends or society will be construed as a relative of husband for the purpose of Section 498A of IPC – Second marriage with another woman may be treated as void for the purpose of Hindu Succession Act or for Hindu Marriage Act, but for the purpose of Section 498A, if second marriage with another woman be treated as void marriage Section 494 of IPC will be difficult to be applied because Section 494 presupposes a second marriage – It cannot be brushed aside status of woman arising from second marriage as a wife when husband, relative or society considered and recognized second wife as a wife – Second wives are not excluded from purview of Section 498A of IPC. (Paras 17 and 22)
(B) Criminal Procedure Code, 1973 – Section 482 – Quashing of criminal case – Scope and ambit of Court power under Section 482 are inherent power ex debito Justitiae to do real and substantial justice to parties – High Court should normally refrain from giving prima facie decision in a case where all facts are completely hazy, more so when evidences have not been produced before Court and issue involved whether factual or legal are of such magnitude that they cannot be seen in their true perspective without sufficient material. (Para 23)
(C) Indian Penal Code, 1860 – Sections 379 and 498-A – Criminal Procedure Code, 1973 – Section 239 – Cruelty and theft – Dismissal of petition for discharge – Petitioners are second wife of husband of complainant and her parents – Last date of incident that had taken place with prosecutrix before second marriage was solemnized – There was no occasion for petitioners either to commit cruelty and to assault prosecutrix or any act connected with earlier marriage – Petitioners cannot be held responsible for offence under Sections 379 and 498A – Entire proceedings against second wife quashed. (Paras 24 and 26)
Heard learned counsel for the petitioners, for the State and for the O.P. No. 2.
2. In this case, petitioners are challenging the order dated 18th April 2011 passed in T.R. No. 188 of 2011 by Sub-Divisional Judicial Magistrate, Chapra whereby and whereunder the petition filed on behalf of petitioners under Section 239 of the Code of Criminal Procedure has been dismissed and the case has been fixed for framing of charge.
3. It appears from the record that a Complaint petition, vide Complaint Case no. 3338 of 2008 was filed by one Priyanka Soni. The Chief Judicial Magistrate under Section 156(3) of the Code of Criminal Procedure (hereinafter, in short, referred to as the „Code?) sent the matter for investigation to the Police and later on the case was instituted as Chapra Mufassil P.S.Case no. 154 of 2008. In the complaint petition, the complainant has stated, Sri Rakesh Kumar Singh, Manoranjan Prasad Singh, Indu Singh and Upendra Singh are accused persons claiming that Rakesh Kumar Singh is her husband, Manoranjan Prasad Singh is her father in-law, Indu Singh is her mother in-law. In the complaint petition it has been alleged that on 9th July 2008 the complainant had married with Rakesh Kumar Singh according to Hindu rites and rituals. It has been stated that her father had given Rs.2,00,000/- (Rupees two lacs), ornament, clothes and articles. It has been alleged that the complainant at the time of Ruksadi, demanded Rs.2,00,000/- (Rupees two lacs) and one Maruti car within one month, otherwise it may lead to bad consequence. The complainant went to her in-laws? place (Sasural) at Shakti Nagar where Rakesh Kumar Singh and the complainant lived as husband and wife. The marriage could not move smoothly as they were exerting pressure for money and Maruti car. When her father could know about the behaviour of husband and in-laws, he went and tried to assuage that they should not behave in such a way with his daughter but Rakesh Kumar Singh and Indu Singh caught hold her hair and all the four accused persons assaulted and asked her father to take away his daughter otherwise her dead body would go from the in-laws? place. It has been stated that on 10th October 2008 the accused persons forcefully expelled the complainant from the house and when she resisted, they tried to kill the prosecutrix. On the next day, her father went to her in-laws? place to settle the dispute but the accused persons did not mollify the demand for money.
4. It appears that at three stages, charge sheets have been submitted by Police. At the first instance, the Police submitted charge sheet No. 45 of 2009 dated 17th April 2009 (Annexure-4) for the offences under Sections 498A, 379, 376 and 494 of the Indian Penal Code against Rakesh Kr. Singh, Manoranjan Pd. Singh and Indu Singh. It also appears that there was a 107 Cr.P.C. proceeding in between the parents of the prosecutrix as well as the accused persons. The learned court below vide order dated 26th May 2009 took cognizance under Sections 498A, 379, 376 and 494/34 of the Indian Penal Code and Sections 3 /4 of the Dowry Prohibition Act.
5. It appears that a discharge application dated 17th August 2009 was filed making a prayer that no case is made out under Section 376 of the Indian Penal Code. The learned Additional Sessions Judge-IX, Saran at Chapra, vide order dated 21st October 2009 rejected the application which was challenged before this Court in Cr.Misc. No. 39879 of 2009 and this Court vide order dated 19th February 2010 (Annexure-7) has held that no case is made out under Section 376 of the Indian Penal Code. Thereafter 1st supplementary charge sheet No. 211 of 2009 was filed against Upendra Singh and Birendra Singh. They were made accused in the case. Upendra Singh and Birendra Singh had challenged the order of cognizance before this Court, vide Cr. Misc. No. 8422 of 2010 and this Court quashed the cognizance taken against Sri Birendra Singh, but allowed the case to continue against Upendr
