Shahzadi Khatoon vs State of Bihar and Another

P.K. Sinha, J.—Heard learned Counsel for the petitioner and learned Counsel for the State.

This application has been filed by Shahzadi Khatoon u/s 482 of the Cr.P.C. for quashing impugned order dated 25.5.1993 recorded by Sri R.S. Bahadur, J.M., 1st Class, Gayain Complaint Case No. 668/92/591/93 Tr. No. 258/94 (Tr. No. 157/96) whereby and whereunder after enquiring into the Complaint petition filed by Sanjari Khatoon @ Munni, the learned Magistrate had summoned the petitioner and three others to face trial u/s 498A of the I.P.C.

Allegation in the complaint petition, Annexure-1, in short is that the complainant was married to accused No. 1 Faizuddin Khan @ Faiyaz Khan in the year 1988. A few months after the marriage, husband started demanding Rs. 50,000/- from complainant''s father as dowry and the husband and his father, in conspiracy with this petitioner and her father, who are accused Nos. 3 and 4 in the complaint petition, started pressurizing the complainant to fetch the aforesaid amount and. on her refusal, started treating the complainant cruelly and also tortured and assaulted her, sometimes keeping her without food and water.

However, allegation is that after birth of a child some amount was paid and the complainant was brought back. The husband also took the ornaments and other articles given in marriage. Thereafter, since 22.8.92 which is the date of occurrence mentioned in the complaint petition, the complainant has been living in the house of her father.

In the complaint petition, it has been mentioned that after marriage complainant had come to know that her husband was having illicit relationship with this petitioner.

Learned Counsel for the petitioner has argued that u/s 498A of the I.P.C. the offence is made out only against the husband or relative(s) of the husband if they subjected the concerned woman cruelty mental or physical. It has been argued that petitioner Shahzadi Khatoon was not at all related to the husband so she could not have been made an accused in the case for an offence u/s 498A of the I.P.C.

About the allegation in paragraph-7 of the complaint petition that husband of the complainant and his father in conspiracy with this petitioner were pressurizing the complainant to bring money and on her failure, were treating the petitioner cruelly and had tortured her, learned Counsel submitted that there is no specific allegation of any offence other than 498-A of the I.P.C. having been committed by this petitioner so much so that neither the complainant in her statement under solemn affirmation nor any of her ten witnesses have said that, this petitioner had committed any other offence.

In this record, Annexure-2 series has also been pointed out which are copies of the depositions of the witnesses. It has been pointed out that these witnesses have only stated, about this petitioner, that the husband wanted to marry this petitioner and since the had relating with her, he had committed the offence against the complainant.

Learned Counsel for the petitioner has pointed out the averment in the petition in which it has been mentioned, in paragraph 13 that the complainant was divorced by her husband on 14.8.92 and subsequently it was mentioned that the petitioner was married to the husband on 16.10.92 whereas the date of filing of the complaint petition was 7.9.92 for an occurrence that allegedly took place on 23.8.92 (or before that). In this regard, statement of witness No. 9, examined in course of enquiry on 11.11.92 has been pointed but in which he said that Faizucldin Khan @ Faiyaz Khan had married this petitioner ten to fifteen days back.

Learned Counsel for the State has agreed, in course of arguments, that the petitioner not even having been claimed, in the complaint petition or in the statement of witnesses including that of the complainant herself, to be a relative of the husband on or prior to the date of filing of the complaint, cognizance of offence u/s 498A of the I.P.C. was not legally sustainable.

Learned Counsel for the complainant argued that a clear case of torture against the petitioner has been made out in the complaint petition as well in the statement of the witness as for having illicit relationship with the husband in presence of his legally married wife which would amount to mental torture. Learned Counsel also said that this petitioner was distantly related with the husband but against that neither in the complaint petition nor in the statement of the complainant or her witnesses, this fact has been brought on the record.

It appears that allegation in the complaint petition relates to an offence u/s 498A of the I.P.C. and no other specific offence has been alleged nor there is any material on the record even to justify that any offence other than 498-A of the I.P.C. could have been committed by the petitioner, and this not having been even alleged that the petitioner was related to the husband during the period the offence is said to have been committed, trial of the petitioner u/s 498A of the I.P.C. would be abuse of the process of the Court. Learned Counsel for the complainant could not controvert this legal position but said that if in course of evidence any relationship was proved, complainant could make to prayer to summon her as before an accused.

Be that as it may, as the materials on the record stand'' at present, I do not find that the petitioner Shahzadi Khatoon could have been summoned to face trial for offence u/s 496-A of the I.P.C. This being so, the impugned order dated 25.5.1999 in so far as it relates to Shahzadi Khatoon, and further prosecution of the petitioner Shahzadi Khatoon are thereby quashed.