BADRI CHOUBEY Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS petition under sec. 482 Cr.P.C. seeks the quashing of the order dated 4.1.2005, passed by the learned Chief Judicial Magistrate Sasaram in Complaint Case No. 6/2005 by which the cognizance of the offence under sections 498 -A, 406 323 and 504 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act was taken by the learned court below and the petitioners were summoned to stand their trial. The above order was passed on the basis of the complaint petition bearing no. 06/ 2005 which was filed by the wife of petitioner no. 2 Balendra Choubey @ Birendra Choubey.

(2.) IT is not disputed that the complainant was married to the above noted petitioner Balendra Choubey @ Birendra Choubey and it also appears that the petitioner Balendra Choubey @ Birendra Choubey has children also from the complainant. The relationship between the two appears strained and there was earlier litigation also vide Karagahar PS. Case No. 46/2002 and it also appears admitted that there was a compromise and that the accused of that case which included some of the petitioners were acquitted by the judgment and order of acquittal dated 24.11.2004, passed by the learned S.D.J.M., Sasaram in trial no. 662/02 (C.G. No. 799/ 04). A copy of the judgment of acquittal has been annexed as Annexure -2. It is stated in the complaint petition that the accused persons of the above case gave an undertaking that the complainant shall enjoy the usufructs of 1/3 share of the land which the husband was holding in the entire landed property. It is alleged that the complainant spent some peaceful days with her husband. Thereafter on account of the health of her father having fallen down she moved out to her father 'shouse along -with her children with the permission of the husband and came back again one week prior to 19.6.2003 and went to her husband 'shouse at about 7 A.M. for getting her share of land settled to some persons. The husband of the complainant went out of the house and after some time again came back with his father namely Badri Choubey, mother Shiv Kumari Devi and brother Ashok Choubey and his wife Manju Devi and all started abusing the complainant and assaulted her with fists and slaps and also turned her out of the matrimonial house and told her that she did not have any share in the property and further that she would not be allowed to reside in the house, if she did not bring Rs. 50,000.00 in cash and a motorcycle from her father. It was further stated to the complainant by the accused persons as per allegations, that if she again came to the house of the accused persons she would be killed. For the above occurrence Karagahar PS. Case No. 84 of 2003 was registered and the case was pending before a court. It is stated that the accused persons, the complainant and her father were called to the police station by the officer -in -charge who got some signatures and thumb impression over some stamp paper and asked the complainant to go and live with her husband who would keep her with respect and dignity and accordingly she again came back to her husband 'shouse.

(3.) IT was contended that the petitioners were separate from each other and there is a partition through a deed of agreement (Annexure -4) executed by all the accused persons between themselves as a result of which the husband of the complainant got his share separately from the other accused persons. The fact of the matter was that the husband was living with the complainant separately and the complainant was in fact enjoying the entire, usufruct of the land falling in the share of her husband accused Balendra Choubey @ Birendra Choubey. It was also contended that the complainant was in fact filing one case after the other in order to harass and humiliate the accused persons with some ulterior motive and in one of such cases the court acquitted the petitioners after considering the allegations on its merit as may appear from Annexure - 2. the judgment and order of acquittal. It was contended that the prosecution appears started on account of mala fide and grudge in order to humiliate and spit at the accused persons and the same must be quashed.