Patna High Court
Mahendra Singh And Ors vs The State Of Bihar on 5 February, 2025
Author: Shailendra Singh
Bench: Shailendra Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.2303 of 2017
Arising Out of PS. Case No.-55 Year-2007 Thana- KUTUMBA District- Aurangabad
======================================================
1. Mahendra Singh, S/O Keshav Singh
2. Upendra Singh S/O Keshav Singh
3. Shalendra Singh @ Guddu Singh S/O Keshav Singh
4. Savitri Devi W/O Keshav Singh All resident of Village- Simari Khurd P.S.-
Kutumba, District- Aurangabad.
... ... Petitioner/s
Versus
1. The State of Bihar
2. Premshila Musmat, W/o- Late Surendra Singh @ Bablu Singh, Vill.-Simri
Khurd, P.S.- Kutumba, District- Aurangabad
... ... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Ms. Leelawati Kumari, Advocate
Mr. Aman Vishal, Advocate
For the State : Mr. Arun Kumar Singh -5, APP
======================================================
CORAM: HONOURABLE MR. JUSTICE SHAILENDRA SINGH
CAV JUDGMENT
Date : 05 -02-2025
Heard Ms. Leelawati Kumari, learned counsel for the
petitioners and Mr. Arun Kumar Singh -5, learned APP for the
State.
2. The instant petition has been filed for quashing the
order dated 25.03.2015 passed by the Court of learned Judicial
Magistrate- 1st Class, Aurangabad whereby the learned
Magistrate has taken cognizance of the offences under Sections
304 and 498A read with Section 34 of the Indian Penal Code ( in
short 'IPC') against the petitioners and others on the basis of
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
2/9
chargesheet filed against the petitioners after the investigation of
Kutumba P.S. Case No. 55 of 2007.
3. The main grounds taken by the petitioner's counsel
to assail the order impugned are that except suspicion raised by
the O.P. No.2 in her complaint which was sent to police for
investigation, there is nothing in support of the allegations and
from the bare perusal of the complaint filed by the O.P. No.2, it is
clearly evident that the first alleged occurrence took place on
10.05.2007
but the complaint was filed on 13.09.2007 after the
delay of more than four months, in fact, the O.P. No.2, wife of
late Surendra Singh @ Bablu Singh had illicit relationship with
one namely, Mritunjay, due to this reason, the deceased (husband
of the O.P. No.2), himself consumed poison and in this regard,
statements of some material witnesses mentioned in the
paragraph nos. 10, 11, 12, 13 and 15 of the case diary are
relevant and all the witnesses of said statements, did not support
the allegations, in fact, co-accused, Savitri Devi, who is now no
more, filed an FIR by filing a complaint against the O.P. No.2
and other persons with the allegations of committing murder of
the deceased and in the said case, investigation is still pending. It
is further submitted that petitioner nos.1, 2 and 3 are full brothers
of the deceased and brother-in-law of the O.P. No.2. He further
submits that on account of demise of petitioner no.4, her prayer
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
has already been withdrawn on account of her prayer being
inftructous. Petitioner's counsel has further argued that the case
of prosecution is an example of misuse of the process of law and
the same has been initiated with a malafide intention to harass
the petitioners, so, the instant matter falls under one of the
categories described in the case of State of Haryana and Others
vs. Bhajan Lal and Others reported in 1992 Supp (1) SCC
335.
The second important ground taken by the petitioners'
counsel is the non-compliance of the Hon'ble Apex Court's
observation made in the case of Priyanka Srivastava and Anr.
vs. State of U.P. and Ors. reported in (2015) 6 SCC 287 and in
this regard, he has referred the paragraph no. 23 and onwards
paragraphs and has also placed reliance upon two judgments of
this Court passed in Cr. Misc. No. 17247/2017 and Cr. W.J.C.
No. 214 of 2017 in which the principle of requirement of
affidavit of the complainant with complaint laid down in
Priyanka Srivastava (supra) case was followed.
4. On the other hand, Mr. Arun Kumar Singh-5,
learned APP appearing for the State has vehemently opposed this
petition and submitted that the deceased, Surendra Singh @
Bablu Singh, husband of the O.P. No.2, was assaulted by the
petitioners, that incident was witnessed by the O.P. No.2 and she
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
fully supported the allegations levelled by her in her complaint
during the course of investigation and the police finding the
allegations to be true, chargesheeted the petitioners and there is
sufficient materials in the case diary to proceed with the alleged
offences against the petitioners and the cognizance of the alleged
offences has rightly been taken by the learned Magistrate and
there is no illegality in the order impugned.
5. Heard both the sides and perused the order
impugned as well as other relevant materials. O.P. No.2 is the
wife of the deceased, Surendra Singh @ Bablu Singh and the
complaint was filed by her against the petitioners and others
which was sent for investigation. As per the allegations levelled
by the O.P. No.2 in her complaint, her marriage took place ten
years ago and one daughter namely, Priti Kumari took birth from
the conjugal relationship of Surendra Singh @ Bablu Singh (the
deceased) and her and after marriage, the petitioners who are her
in-laws, started torturing her for the demand of Rs. 1,00,000/- in
dowry which was being objected by her husband and the accused
used to assault her and her husband on account of the non-
fulfillment of the demand. The O.P. No.2 further alleged that on
10.05.2007, when she insisted her husband to take her to her
parental home so that she could attend the marriage ceremony of
her brother then her husband informed her brother through phone
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
and asked him to come at her Sasural, at his home, to take the
O.P. No.2 with him to his home. As per the O.P. No. 2, on
13.05.2007, she became ready to go with her husband to her
Naihar then suddenly, the accused persons (petitioners) started
assaulting her badly and during that course, the mother-in-law of
O.P. No.2 who is now no more, inflicted a knife blow in the
stomach of the husband of O.P. No.2 and she was also assaulted
by them thereafter, she and her daughter were locked inside a
room by the accused. According to the O.P. No.2, her husband
died of the injuries on the same day of the alleged occurrence of
assault and she and her daughter were threatened by the accused
with dire consequences if they would reveal the commission of
the alleged occurrence to anyone, owing to which, both became
terrified and the accused asked her to reveal the cause of death of
her husband to the villagers as due to consuming of liquor. The
O.P. No.2 further alleged that the dead body of her husband was
cremated by the accused with the help of villagers and on the
next day of the cremation, her brother, Ashok Singh and cousin
brother, Krishna Singh came to take her and at that time, the
father-in-law and mother-in-law of the O.P. No.2 disclosed them
about the death of her husband on account of consuming liquor
and also revealed them about the cremation of dead body and she
was shown as unconscious by the accused due to shock after the
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
death of her husband, so, her brothers returned back as there was
marriage ceremony in the house of her brothers, the O.P. No.2
further alleged that after the murder of her husband, the accused
started torturing her by calling her a Dayan and ousted her and
her daughter on 10.09.2007 after snatching her ornaments and
cloths, thereafter, she informed her brother and father about the
entire occurrence. During the course of investigation, the police
recorded the restatement of the O.P. No.2 in which she fully
supported the allegations levelled by her in her complaint. Some
other witnesses revealed the unnatural death of the husband of
O.P. No.2 and one witness namely, Anant Singh, stated that on
10.05.2007, the date of incident, he saw abusing with the
deceased by his mother and during that course, she started
assaulting her son by means of a danda and then the accused,
Mahendra Singh and Guddu Singh came rushing and started
assaulting the husband of O.P. No.2 by using fist and slap. The
witness further stated that he tried to intervene to save the
deceased but he was threatened by the accused and according to
him, he heard the cry of the deceased coming from inside the
house of the accused. Though in the present matter, the complaint
was filed by the O.P. No.2 after an inordinate delay of four
months from the commission of the main occurrence but in the
complaint itself the O.P. No.2 disclosed the reason of delay,
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
however, the same is to be examined by the trial court after
taking evidences. However, three things are completely evident,
firstly, the husband of the O.P. No.2 died an unnatural death,
secondly, the dead body of the deceased was cremated without
giving information to the police and thirdly, there was no good
relation in between the O.P. No.2 and the petitioners during the
relevant period of the alleged occurrence. The petitioners have
taken the defence that the mother of the deceased had filed
Kutumba P.S. Case No. 50 of 2007 on 08.09.2007 with the
allegation of murder of her son against the O.P. No.2 and others
and the copy of the said FIR, has also been filed with the
petition as Annexure-2. Though, the O.P. No.2 filed her
complaint case after the registration of the Kutumba P.S. Case
No. 50 of 2007 but one thing is also evident that if something
wrong had been committed by the O.P. No. 2 and others with the
son of late Savitri Devi then why had a legal action to register the
FIR in connection with the alleged murder not been taken by the
petitioners who are relatives of the deceased immediately and
further, as per the petitioners' counsel, the investigation in
Kutumba P.S. Case No. 50 of 2007 is still pending, so, merely by
the registration of the Kutumba P.S. Case No. 50 of 2007 prior to
the filing of the complaint of O.P. No.2, the case of O.P. No.2
cannot be thrown away entirely at the initial stage, particularly,
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
when the police have found substance in the allegations levelled
by the O.P. No.2 and chargesheeted the petitioners for the alleged
offences. So far as, the non-compliance of the principle laid
down by the Hon'ble Apex Court in the case of Priyanka
Srivastava (supra) as to non-filing of affidavit by the O.P. No.2
with her complaint is concerned, though the compliance of the
said principle was not made by the O.P. No.2 but the concerned
Magistrate, while entertaining the complaint of O.P. No. 2 and
directing the same to be investigated by the police also remained
some negligent as in a case which is based on complaint filed by
a rustic man or woman, the Judicial Magistrate should remain
alert while entertaining such type of complaint if the same is not
supported with an affidavit then the complainant must be asked
to furnish an affidavit in support of his or her allegations
mentioned in the complaint. As, such procedural lapses may stop
an offence from to be unearthed if a complaint giving the details
of the commission of serious offences is dismissed at the initial
stage on account of non-filing of the affidavit without giving an
opportunity to a rustic complainant to remove such procedural
lapses. Furthermore, the purpose of filing of an affidavit with the
complaint is to stop one from filing frivolous complaint who files
such complaint with a prayer to send the same to police for
investigation. And in the present matter, in view of the presence
Patna High Court CR. MISC. No.2303 of 2017 dt.05-02-2025
of above discussed circumstances going in favour of
prosecution's allegation, it will not be proper to reject the
prosecution case, which relates to heinous offences, at the
beginning. Accordingly, the petitioners are not entitled to be
exonerated from the alleged offences of which cognizance has
been taken by the learned Magistrate at the initial stage of their
case without facing the trial for the alleged offences and the facts
and circumstances of the cases relating to Cr.W.J.C No. 214 of
2017 and Cr. Misc. No. 34406 of 2017 in which the above
discussed principle laid down by the Hon'ble Apex Court in the
case of Priyanka Srivastava (supra) was followed by the
learned coordinate Benches of this Court while giving a relief to
the accused/petitioners are completely different from the facts
and circumstances of the present matter. Accordingly, this Court
finds no merit in the present matter, so, it stands dismissed.
(Shailendra Singh, J)
maynaz/-
AFR/NAFR AFR
CAV DATE 23.01.2025
Uploading Date 05.02.2025
Transmission Date 05.02.2025
