SHANKAR RAI Vs. STATE OF BIHAR

JUDGEMENT

(1.) Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 3.6.2003 passed by the learned Sub Divisional Judicial Magistrate, Sitamarhi in Complaint Case No.584 of 2003. By the said order, the learned Magistrate has taken cognizance of offences under Sections 498A and 380 of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act. The petitioners have also prayed for quashing of entire proceeding in Complaint Case No.584 of 2003.

(2.) Short fact of the case is that Opp.Party no.2 filed a complaint in the court of learned Chief Judicial Magistrate, Sitamarhi , which was numbered as Complaint Case No.584 of 2003, against all the petitioners for offences under Sections 498A, 323, 380 of the Indian Penal Code and 3 / 4 of the Dowry Prohibition Act . After filing of the complaint petition and examining the complainant on S.A., the learned Magistrate took cognizance of offences under Sections 498A and 380 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. It was alleged in the complaint petition that the complainant was married 15 years ago with petitioner no.1. Immediately after the marriage, accused persons started torturing the complainant for extracting some more dowry. However, due to non-fulfilment of the dowry, finally she was ousted from the house of her in-laws and thereafter complaint petition was filed.

(3.) Sri Uday Chand Prasad, learned counsel appearing on behalf of the petitioners has confined his argument on the point that the complainant was never married with petitioner no.1 and she was a stranger. Learned counsel for the petitioners, while referring to Annexure-2 to the present petition, i.e. Admit Card of petitioner no.1, submits that even if the averment made in the complaint petition is accepted that 15 years back the marriage of complainant-Opp.Party no.2 was solemnized with petitioner no.1, on the date of alleged marriage the petitioner no.1 was minor. Learned counsel for the petitioner has also referred to Annexure-3 to the present petition, which is photo copy of the Voter List. It has been argued that even in the Voter List for the locality, neither name of the complainant nor name of petitioner no.1 was appearing, whereas name of other family members appears in the Voter List. On the aforesaid ground, it has been submitted that since the petitioner no.1 was never married with Opp.Party no.2, no offence under Section 498A can be made out. In support of his stand, learned counsel for the petitioners has referred to a recent Judgment reported in 2010 (2) PLJR 529; Hari Prasad Sah Vs. State of Bihar as well as Judgment of this Court reported in 1999 (3) PLJR 531; Kishore Kumar & Ors. Vs. Ritu Kumari . It has been submitted that this Court has already held that if the complainant fails to establish the marriage, no offence under Section 498 can be applicable and on this ground this Court in the aforesaid two Judgments has already set aside the entire proceeding. It has been submitted that the present case is squarely covered by decision of this Court as referred above. It has been submitted that while admitting the present case, notice was issued to Opp.Party no.2 on two occasions. However, despite Opp.Party no.2 has entered her appearance before this Court, Opp.Party no.2 has not brought on record anything in support of marriage and on this ground alone, the order of cognizance as well as entire proceeding is liable to be set aside.