Complainant refusing to bear witness

@ Author

Based on the briefs it is liable to be quashed and principles of Law being same in a hurry I am submitting a HC's view but more or less it applies in your presented briefs too........

IN THE HIGH COURT OF JUDICATURE AT PATNA

Cr.Misc. No.18717 of 2009

1. AJAY KUMAR, SON OF SHRI RAM CHANDRA LAL

2. RAM CHANDRA LAL, SON OF SHATRUGHAN LAL

3. VEENA DEVI, WIFE OF SHRI RAM CHANDRA LAL

ALL RESIDENT OF MEHSAUL, WARD NO. 19, WEST OF RAILWAY GENERATOR HOUSE, P.S. SITAMARHI, DISTRICT SITAMARHI.

4. ANJU DEVI ALIAS RUNNI, WIFE OF SHRI SURAJ KUMAR, RESIDENT OF VILLAGE KISHANPUR, P.S. BARITNAGAR, DISTRICT SAMASTIPUR. —— PETITIONERS

Versus

1. THE STATE OF BIHAR

2. SMT. RAJNI, WIFE OF AJAY KUMAR, DAUGHTER OF SHRI KAMESHWAR LAL KARN, AT PRESENT RESIDING AT MOHALLA AZAD NAGAR, RAM BAG CHAURI, P.S. MITHANPURA, DISTRICT MUZAFFARPUR. —– OPPOSITE PARTIES

———–

8 7.10.2010 The petitioners have challenged the order of cognizance dated 15.12.2007, passed by the Sub-divisional Judicial Magistrate, East, Muzaffarpur in Complaint Case No. 2025 of 2007 under Section 498A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act.

Learned counsel for the petitioners submits that the only aim of the complainant is to harass her husband by deliberately not appearing in Court. The petitioner husband had filed a restitution application in which his wife appeared and filed Vakalatnama, took time for filing a written statement and thereafter disappeared from the Court never to appear again. Opposite Party No. 2 has thereafter filed the complaint case numbered as 372 of 2006. When the Complaint Case No. 372 of 2006 was ready for hearing and the complainant was to produce witnesses before the charge, she disappeared from the Court. The Court indulged the complainant and postponed the matter for recording the evidence for 15 dates. Finally on 16.6.2007, the Court recorded that the complainant is not appearing in this case despite opportunities given to her and discharged the petitioners while dismissing the case. The question before this Court is whether the subsequent institution of the complaint case does not amount to misuse of the process of law?

The allegations as contained in Annexure-1 i.e. Complaint Case No. 2025 of 2007 and the allegations which are contained in Annexure-6 in Complaint Case No. 372 of 2006 are exactly the same except for a few discrepancies. In the second case, allegations have been made against the family members to the extent that it is said that her in-laws had also demanded money. Initially, this Court had called the parties and tried to resolve the differences between them. Both the parties were not ready to live with each other and as such all attempts of reconciliation failed. Therefore, this Court has to examine the allegations as set out in the complaint petition. On perusal of the two complaint petitions, it would appear that the allegations contained therein are vague inasmuch as no time, date etc. have been mentioned with respect to the demand of dowry. The opposite party no. 2 had been given opportunities to prove her case by getting herself examined and bringing witnesses for the purposes of proving prima facie case against her husband and the in-laws. As stated earlier, she failed to appear in Court and prove the allegations. After failure of the settlement proceedings before this Court against the opposite party no. 2 has absented herself and the counsel concerned submits that he has no instructions in this case on her behalf.

In the aforesaid circumstances, this Court finds that the allegations contained in Complaint Case No. 2025 of 2007 are exactly the same as the allegations in Complaint Case No. 372 of 2006, which are vague for the reasons stated in this order. Opposite party no. 2 had failed to substantiate her case on the first occasion and has filed the second complaint petition making an excuse that she could not pursue her case as she was sick. The type of sickness or the period for which she had fallen sick is not mentioned in the second complaint petition which leads this Court to the conclusion that it is an excuse given by the complainant, for filing the complaint petition after one year after the dismissal of the earlier complaint petition. In the facts of this case, it appears that the complainant is misutilizing the process of law by filing repeated complaints for the same offence having failed on the first occasion to pursue her case to its end, she has again filed a second complaint in the Court. No party can take advantage of the law while indulging in obvious lapses.

This Court finds that the allegations against the in- laws are vague and there is omnibus allegation that all persons demanded dowry. There is no specific allegation with respect to any one member of the family rather it is said that ‘Sasural Wale’ were making a demand, similarly this Court finds that in fact the allegations that there was a demand of dowry is not made out in the facts of the case. No person should be permitted to file repetitive case, having failed at the first instance to substantiate the allegations. The Court must put a stop to such petitions, as it amounts to abuse of the process of the Court. The findings by this Court however, shall not affect the case for maintenance filed on behalf of the opposite party. In the result, the order dated 15.12.2007, passed by the Sub-divisional Judicial Magistrate, East, Muzaffarpur in Complaint Case No. 2025 of 2007 is quashed.

This application is allowed.

Sanjay ( Sheema Ali Khan, J.)

thanx for the detailed citations and the suggestion.