CRIMINAL REVISION No.78 OF 2002 ******** Against the order dated 13.11.2001 passed by learned Sub-Divisional Judicial Magistrate, Gopalganj, in Enquiry No.78 of 2001 in Complaint Case no.968 of 2001. ******** SHEELA DEVI daughter of Hari Shankar Giri, wife of Bindeshwari Giri @ Raju, resident of village Lakshmipur Mahanth Tapa Khana, P.S.-Patherwan, District Kushinagar, Uttar Pradesh presently residing at village Tetaria Rikhai Post Panchdeori, P.S.- Kateya, District-Gopalganj------------------(Petitioner) Versus 1. STATE OF BIHAR 2. Bindeshwari Giri @ Raju 3. Shyam Sundar Giri @ Muna Giri 4. Krishna Mohan Giri @ Chhote All three sons of Paras Nath Giri 5. Paras Nath Giri, son of late Triveni Giri 6. Kushmawati Devi, wife of Paras Nath Giri 7. Fanindra Giri @ Maniji son of Omkar Giri All residents of village Lakshmipur Mahanth Tapakhana, P.O. Nadawan Bishunpur, P.S.-Patherwa District-Kushi Nagar(U.P.) 8. Urmila Devi, daughter of Paras Nath Giri, wife of Gyani Giri, village Parasauni, P.S. and Distt.-Kishinagar 9. Rita Devi, D/o Paras Nath Giri, wife of not known village-Sahpur Mathian, P.S.-Karkhana Rampur, Distt.-Deoria (U.P.) at present both residing at village-Lakshmipur Mahanth Tapakhana, P.S.-Patherwa, District- Kushinagar(U.P.)----------------------------------------------------(Opp. Parties). ********** For the Petitioner : Mr. Binay Kant Mani Tripathi, Adv. Mr. Sanjay Kumar Pandey, Adv. For the O.Ps. : Mr. Ram Kishore Singh, Adv. ********** P R E S E N T THE HON'BLE MR. JUSTICE MANDHATA SINGH Mandhata Singh,J. Complaint case, in brief , is that complainant Sheela Devi was married with Bindeshwari Giri @ Raju on 19.2.1993 according to - 2 - Hindu Customs and Rites. Her second marriage was also performed. Several gifts were given but one Hero Honda motorcycle and colour TV was demanded from the very beginning and due to its non- fulfilment in-law’s family members started torturing the complainant. Ultimately ousted from the matrimonial house. 2. Three witnesses are examined. They are Hari Shankar Giri, father of the complainant, Ashok Kumar Giri, brother of the complainant and Om Prakash Bharti, a relative of the complainant. All the witnesses have corroborated the complainant’s case as stated in the complaint petition. But complaint petition is dismissed on two grounds. First, there was delay of six months from the alleged date of occurrence and that also after filing of divorce case by the husband. 3. It is pertinent to mention here that enquiry witness nos.1 and 2 have stated about pendency of divorce case filed on behalf of the husband. The offence under section 498A of the Indian Penal Code arises upon recurring cause of action even desertion in certain cases can be taken as an act of torture. In this case torture for non- fulfilment of demand is asserted by all the three enquiry witnesses. Statement of the victim and her family members cannot be discarded on the ground that they are relations and interested witnesses that also at the stage of cognizance. Basic principles for cognizance appear ignored by the learned Magistrate. 4. Accordingly, the revision application is allowed. The order dated 13.11.2001 passed by Sub Divisional Judicial Magistrate, Gopalganj, in Enquiry No.78 of 2001 in Complaint Case no.968 of - 3 - 2001 is set aside. Case is sent back to the court of Sub-Divisional Judicial Magistrate, Gopalganj, to decide the matter afresh in accordance with law. Patna High Court, 7th September, 2009, NAFR/Sudip ( Mandhata Singh, J )