Rakhi Mishra vs The State Of Bihar

CRIMINAL APPEAL No. 1499 of 2017 (Arising out of SLP (Crl.) No. 2185 of 2015)

RAKHI MISHRA .....Appellant(s) Versus STATE OF BIHAR & ORS. ….Respondent(s) JUDGMENT

L. NAGESWARA RAO, J.

Leave granted.

This Appeal is filed against an order dated 22.09.2014

passed by the High Court of Judicature at Patna allowing the

application filed under Section 482 Cr. P.C. by Respondents 2

and 4 to 10.

2. A complaint was preferred by the Appellant on 18.07.2013 to the SHO, Police Station Bihiya, District Bhojpur, Bihar

which was registered as FIR No.140 of 2013 dated

18.07.2013 under Section 498 A, 323, 354 A (1), 354 B read

with Section 34 of the Indian Penal Code, 1860 and Sections

3 and 4 of the Dowry Prohibition Act, 1961. It was stated in

Signature Not Verified the said complaint that the Appellant was married to Digitally signed by CHARANJEET KAUR

Santosh Kumar Tiwari son of Shivdhyan Tiwari on Date: 2017.08.24 16:47:40 IST Reason:

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18.02.2012. She complained of ill-treatment at the hands of

her husband and the other members of his family. She

mentioned about the demand of a car. She further stated in

the complaint that her father had already given a dowry of

Rs.4 lakhs besides gifts like motor-cycle, T.V. fridge, cooler,

washing machine, sofa, bed, almirah, five suit cases, one big

box and gold ornaments in which necklace, chain, 6 pieces

bangles, ear rings, jhumka, tops, ring and silver ornaments

in which two payals, bichiyas and other things, the price of

which was around Rs.5 lakhs.

3. The Appellant’s husband was working in the Air Force and he was threatening that she would be killed if the demand of

additional dowry was not met. She also complained of

attempted rape by her father-in-law. Allegations were made

by the Appellant in her complaint against ill-treatment by

the Respondents. On completion of investigation, a

charge-sheet was filed on 11.10.2010 against Santosh

Kumar Tiwari. The Investigating Officer did not find any

material regarding the involvement of the Respondent

Nos.2, 3, 4 and 5. By an order dated 20.01.2014, the Chief

Judicial Magistrate, while taking note of the fact that the

names of Santosh Kumar Tiwari and Respondent Nos. 6 to

2 12 were mentioned in column No.11 of the charge-sheet,

issued summons to Respondent Nos.2 to 11 along with

Santosh Kumar Tiwari. The Chief Judicial Magistrate found

that a prima facie case was made out against the

Respondents also for their involvement in offences under

Sections 498 A/34, 354 A, 354 B of IPC and Sections 3 and 4

of the Dowry Prohibition Act, 1961. The Respondents filed

an application under Section 482 Cr. P.C. seeking quashing

of the proceedings which was allowed by an order dated

22.09.2014 by the High Court, the legality of which is

assailed in this appeal.

4. We have heard learned counsel appearing for the parties. We are of the considered opinion that the High Court erred

in allowing the application filed by Respondent Nos.2, 4, 5,

6, 7, 8, 9 and 10 and quashing the criminal proceedings

against them. A perusal of the FIR would clearly show that

the Appellant alleged cruelty against Respondent Nos.2, 4,

5, 6, 7, 8, 9 and 10. This Court in Sonu Gupta v. Deepak

Gupta and Ors. (2015) 3 SCC 424, 426 held as follows:

“At the stage of cognizance and summoning the Magistrate is required to apply his judicial mind only with a view to take cognizance of the offence to find out whether a prima facie case is made out for summoning the accused persons. At this stage, the Magistrate is not

3 required to consider the defence version or materials or arguments nor he is required to evaluate the merits of the materials or evidence of the complainant, because the Magistrate must not undertake the exercise to find out at this stage whether the materials would lead to conviction or not.”

5. The order passed by the Trial Court taking cognizance

against R-2 and R-4 to R-9 is in conformity with the law

laid down in the above judgment. It is settled law that the

power under Section 482 Cr. P.C. is exercised by the High

Court only in exceptional circumstances only when a prima

facie case is not made out against the accused. The test

applied by this Court for interference at the initial stage of a

prosecution is whether the uncontroverted allegations prima

facie establish a case.

6. A perusal of the complaint would disclose a prima facie case against Respondent Nos.2, 4 to 10. The order passed by the

Chief Judicial Magistrate by which cognizance was taken

ought not to have been interfered with by the High Court.

7. For the aforementioned reasons the Appeal is allowed and the order of the High Court quashing the criminal

proceedings against Respondent Nos.2, 4, 5, 6, 7, 8, 9 and

10 is set aside. The Respondents are not precluded from

4 availing remedies available to them.

..…..............................J [S.A.BOBDE]

..…................................J [L. NAGESWARA RAO] New Delhi, August 24, 2017

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