IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.33808 of 2006 YOGENDRA PRASAD @ YOGENDRA KUSHWAHA & ORS Versus STATE OF BIHAR & ANR ----------- 5 7.8.2008 Heard Mr. Akhileshwar Kumar Shrivastava, learned counsel for the petitioners and Mr. Jharkhandi Upadhaya, learned A.P.P.for the State. Although O.P. No. 2, the complainant wife, had been duly served with notice and she infact appeared in this application by filing a vakalatnama, curiously no one appears at the time of hearing nor has any counter affidavit or show cause been filed on her behalf. Through this application the petitioner questions the validity of order dated 17.5.2006 passed by Sri Sanjay Kumar, Judicial Magistrate, 1st Class, West Champaran at Bettiah in Compliant Case No. 1063 C of 2002, T.R. No. 1315 of 2006, whereby he has rejected the prayer of the petitioners for their discharge under section 245 Cr.P.C.. The marriage of petitioner no. 2 with O.P. No. 2, the complainant wife, was solemnized in the year 1986 and since then they were spending their conjugal life in bliss. However, it has been alleged that some months following the marriage the O.P. wife started visiting her parental home frequently without the permission or consent of the husband or in his absence of other family members and since February 1999 having refused - 2 - to live with husband she deserted the matrimonial home and started living with her parents. It is also the case of the petitioners that since the wife, notwithstanding all pleadings and cajoling, refused to return to the marital home petitioner no. 1 filed Divorce Case No. 29 of 2002 before the District Judge, West Champaran at Bettiah on 11.4.2002 seeking divorce under the provisions of section 13 of the Hindu Marriage Act. The wife is said to have appeared and filed her show cause in the divorce case but thereafter she remained conspicuous by her absence and no pairvi was done on her behalf and in that view of the matter the learned District Judge, by his judgment and order dated 1.2.2005 granted divorce to petitioner no. 1 on a categoric finding that the wife had deserted the husband for over 3 years prior to the filing of the divorce case. While pronouncing the judgment the learned District Judge had taken into consideration the fact that the wife had filed a case under section 498 A I.P.C. which was pending in the Court of Judicial Magistrate. It is submitted on behalf of the petitioners that the instant complaint case and had been filed as a counter blast to the divorce case and even after divorce has been granted on cogent grounds the learned Magistrate through the impugned order on erroneous grounds had rejected the petition for discharge. - 3 - The reasons assigned by the learned Magistrate do not appear to be compatible or in consonance with the law in force. True it is that on the basis of the evidence led at the inquiry by the complainant a prima facie case had been made out but at the time of framing charge or hearing a discharge petition the court concerned is under law and bounden duty to take into consideration all relevant matters and facts in issue which have a bearing in the case and unfortunately the learned Magistrate has tried to distinguish the matter by stating that on the divorce case was a civil case and the complaint case was a criminal case as if decision in the civil case can obviously have no bearing on a criminal case. Due regard being had to the facts and circumstances of the case it appears that learned magistrate in the impugned order has misdirected himself. Accordingly the impugned order is quashed and this application is allowed. Spd/- (Abhijit Sinha, J.)