Partly allowed

Husan Bano v. The State Of Bihar and Ors.

Patna HC8 Dec 2014CR. MISC./44390/2013

Case brief

AI extract

What is this about?

The petitioner sought modification of an order quashing a Section 498A charge. The High Court held the quashing order obtained by accused suppressing material facts that the complainant had already filed petitions to cancel the compromise and continue proceedings due to her death. Consequently, the fraud-indelible order was set aside, restoring the case to the stage of charge framing.

What did the court decide?

Order dated 18.04.2013 in Cr. Misc. No. 44243 of 2012 set aside; complaint case No. 9 of 2007 restored to the stage of framing charge.

Husan Bano Vs The State Of Bihar and Ors. — Dowry and Cruelty | Patna HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No.44390 of 2013

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====================================================== 1. Husan Bano W/O Shamsul Haque Resident of Village Rampur Kondar, P.S. Kesariya, District East Champaran .... Petitioner Versus

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The State Of Bihar.

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Md. Badrul Hasan S/O Late Md. Nayeem Resident of Village Mehsaul, P.S. And District Sitamarhi.

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Giria W/O Md. Badrul Hasan Resident of Village Mehsaul, P.S. And District Sitamarhi.

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Simmi D/O Late Abdul Hannan Najim Resident Of Mohalla Loharwaghat, P.S. Alamganj, District Patna.

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Nehala S/O Late Abdul Hannan Najim Resident Of Mohalla Loharwaghat, P.S. Alamganj, District Patna.

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Shiloo W/O Sahzada Resident Of Mohalla Loharwaghat, P.S. Alamganj, District Patna.

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Nimmi D/O Late Abdul Hannan Najim Resident of Mohalla Loharwaghat, P.S. Alamganj, District Patna. 8. Roohi W/O Zeyaur Rahman @ Jawahar Resident of Mohalla Loharwaghat, P.S. Alamganj, District Patna. 9. Payare @ Md. Hassa Sabit Najami S/O Late Andul Hannan Najmi Resident Of Mohalla Loharwaghat, P.S. Alamganj, District Patna. 10. Md. Affan Shaukat Najmi S/O Late Abdul Hannan Najmi Resident of Mohalla Loharwaghat, P.S. Alamganj, District Patna .... Opposite Parties

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======================================================

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Appearance :

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For the Petitioner : Mr. Farooque Ahmad Khan, Sr. Adv. with Mr. Mohammad Sufyan, Adv.

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For the Opposite Part : Mr. Shahin Begum (App)

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====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER

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12 08-12-2014 Heard the counsel for the parties.

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This is a petition for modification of the order, dated 18.04.2013, passed in Cr. Misc. No. 44243 of 2012 by which the charge framed by the Subdivisional Judicial Magistrate, Sadar, Motihari, in Complaint Case No. 9 of 2007 against opposite parties no. 2 to 10 for offence under Section 498A of the Penal Code has been quashed on the ground that there is compromise between the parties. The modification of the order has been sought on the ground that the said compromise were never acted upon and the complainant herself had filed application for cancellation of the said compromise before the Subdivisional Judicial Magistrate, Sadar, Motihari, and the petition filed by the complainant for cancellation of the compromise has been suppressed and produced before this Court and concealed by the

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Patna High Court Cr.Misc. No.44390 of 2013 (12) dt. 08.12.2014 2/6

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opposite parties, hence, the order, dated 18.04.2013, by which the charge framed having been quashed on the ground of compromise between the parties having been obtained by suppressing and concealing the fact that the complainant herself had filed a petition for cancellation of the said compromise petition and, further, suppressing the fact that the complainant having been died, a petition has been filed by the mother of the complainant to permit her to continue the complaint.

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The fact, in narrow compass that a complaint petition was filed by the complainant, Rukaiya Begum, deceased, against Affan Shaukat Najmi alleging therein that after the marriage there was demand of dowry and in pursuance of the judgment rupees two lakhs was paid and, again, there was demand of rupees ten lakh and for non-fulfillment of the demand, Rukaiya Begum was subjected to cruelty by assault and not giving food etc. The subjecting cruelty continued, which was intimated by the complainant to the naiher people, but, the accused persons threw the victim out from the matrimonial home by brute force. A complaint was filed in January, 2007, by Rukaiya Begum. On the complainant, the cognizance was taken and case transferred under Section 192 of the Criminal Procedure Code to the Court of the Subdivisional Judicial Magistrate, Sadar, Motihari, where the complainant was examined on 13.01.2007, and subsequently three witnesses examined on oath on 17.01.2007, 19.02.2007 and 20.03.2007. Taking into consideration the statement of the complainant and witnesses, the Subdivisional Judicial Magistrate, Sadar, Motihari, ordered to issue summon (processes) against the accused persons, after taking cognizance under Section 498A of the Penal Code. However, on 04.12.2009 a compromise petition was filed. On 18.02.2010 by Rukaiya Begum and was examined as a witness in complaint case before charge and after examination and cross examination was discharged stating therein that the case has been filed for subjecting cruelty for non-fulfillment of the

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Patna High Court Cr.Misc. No.44390 of 2013 (12) dt. 08.12.2014 3/6

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demand of dowry and the husband will give expenses for study of the children and the case be compromised. However, in the order sheet, there is no order, dated 04.09.2012, and a compromise petition on record with signature of both the parties. An affidavit has been filed dated 21.07.2011 to the effect that the compromise between the parties be filed. However, subsequently the order sheet, dated 23.07.2011 shows that complainant has filed a petition for quashing the compromise petition, dated 04.10.2009 (05.10.2009) with a power (vakalatnama) and order, dated 08.07.2011, shows that stamp pasted on the power and affidavit filed by the complainant. One said petition, dated 23.07.2011, and power is on record filed with averment to the effect that the husband has not complied with the condition and terms of compromise and not giving the money for study of children and treatment of the complainant, who is suffering from cancer and the compromise petition got signed by fraud, hence, the complainant is withdrawing the compromise. On the petition, for setting aside the compromise petition, dated 23.07.2011, a rejoinder was filed by the accused persons, however, no order was passed on the compromise petition filed by Rukaiya Begum and was pending. On 03.09.2012, a petition was filed that Rukaiya Begum is dead and in her place her mother is ready to contest the complaint case and on 19.09.2012 rejoinder filed on behalf of the accused persons that the petition is not legally maintained and the case has voluntarily compromised and the complainant has been examined before the charge on 18.02.2010.

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However, during the pendency of the complaint, Cr. Misc. No. 44243 of 2012 was filed for quashing the order taking cognizance for offence under Section 498A of the Penal Code by the Subdivisional Judicial Magistrate, Sadar, Motihari, by his order, dated 12.03.2010. The said criminal miscellaneous was filed on 31.10.2012 in the High Court on the ground that the complainant, Rukaiya Begum, and the petitioner in that case,

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Patna High Court Cr.Misc. No.44390 of 2013 (12) dt. 08.12.2014 4/6

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Badruddin Hassan and others, have settled the matter outside the Court on the intervention of their relations and they have filed joint compromise petition, dated 04.12.2009, signed by the parties and it is stated to live happy life peacefully and the statement of the complainant has also recorded on 18.12.2010. It was also stated that Rukaiya Begum died on 13.08.2011 after prolonged treatment, hence, the proceeding in the complainant is abuse of the process of the Court and no useful purpose will be served by continuing the complaint and so the proceeding quashed.

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However, opposite parties 2 to 10, in this case, are petitioners in Cr. Misc. No. 44243 of 2012 and they suppressed the fact that after filing the compromise petition the complainant, Rukaiya Begum, had filed a petition for cancellation of compromise outside the Court, dated 04.12.2009, and a petition, dated 23.07.2011, filed by Rukaiya Begum for setting aside the compromise petition, which is apparent in the order sheet as well as affidavit is on record and, further, a petition filed by the mother of Rukaiya Begum for allowing her to proceed with the complaint, dated 03.09.2012, and even a rejoinder filed by the accused persons to counter the petition, dated 04.12.2009 and 03.09.2012, but, the accused persons having knowledge of the petition filed by Rukaiya Begum for cancellation of the compromise and a petition filed by the mother of Rukaiya Begum to allow her to contest the complaint has been mischievously suppressed by opposite parties 2 to 10 in their petition for quashing, bearing Cr. Misc. No. 44243 of 2012, hence, obtained the order for quashing the complaint fraudulently and managed to get the order of this Court, dated 18.04.2013, passed in Cr. Misc. No. 444243 of 2012, hence, the order, dated 18.04.2013, obtained fraudulently by permeating fraud by misrepresenting and suppressing the fact relevant for consideration, hence, fraud devours justice, hence, the order tainted with fraud can not subsist

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However, the order quashing the order taking

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Patna High Court Cr.Misc. No.44390 of 2013 (12) dt. 08.12.2014 5/6

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cognizance and consequentially quashing of the criminal proceeding by order, dated 18.04.2013, passed in Cr. Misc. No. 444243 of 2012 is an order obtained by mischievously suppressing the fact that the compromise has been entered into by the parties were retracted and withdrawn and even mother on the death of the complainant filed petition to continue and suppressing the fact that the complainant herself filed a petition for cancellation of the said compromise, dated 04.12.2009, passed in Cr. Misc. No. 44243 of 2012, but, the said order has been obtained by suppressing the fact that the complainant herself has filed a petition for cancellation of the said compromise petition and, further, after the death of the complainant, Rukaiya Begum, her mother had filed petition for allowing her to contest the complaint filed by her daughter, hence, these two facts are very material, which have been suppressed by opposite parties 2 to 10.

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From the perusal of the record, itself, it is apparent that two petitions, compromise petition filed by Rukaiya Begum and, further, petition, dated 23.07.2011, for cancellation of the compromise filed and, further, the fact the mother of the complainant had filed petition for allowing her to contest were well within the knowledge of opposite parties 2 to 10 as they had filed a rejoinder to the petition filed by Rukaiya Begum for cancellation of compromise and the petition filed by mother of Rukaiya Begum to contest the complaint, hence, the accused persons, who were petitioners in Cr. Misc. No. 44243 of 2012, had the knowledge of the fact, but, the same has been mischievously suppressed to get the order for quashing the complaint or order taking cognizance, obtained the order by permeating fraud or suppressing the material fact, hence, any order passed or obtained in persuasion of suppression of the fact or by permeating fraud not sustainable as the fraud devour everything.

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Hence, the order, dated 18.04.2013, passed in Cr. Misc. No. 44243 of 2012, suffers from the malice that the order

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Patna High Court Cr.Misc. No.44390 of 2013 (12) dt. 08.12.2014 6/6

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has been passed in suppression of fact by permeating fraud and the fraud vitiates, hence, the order is hereby set aside and quashed and the complaint case no. 9 of 2007, Trial No. 2005 of 2012, is restored to it’s original position from the stage of framing charge.

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However, it is noted that I am not expressing any view on the compromise petition outside the Court, dated 04.12.2009, which shall be dealt with by the trial Court in accordance with law and the order, dated 18.04.2013, passed in Cr. Misc. No. 44243 of 2012 is modified to the extent indicated above.

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(Gopal Prasad, J)

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SA/-

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U U T T

Husan Bano v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

Husan Bano v. The State Of Bihar and Ors.

Case brief

What is this about?

What did the court decide?

What the court decided

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Issues for consideration

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Parties & counsel

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