Criminal Miscellaneous No.6549 OF 1999 ---- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ---- 1. MAHJABIN KHATOON, DAUGHTER OF MD. RAHMAN KHAN, RESIDENT OF MOHALLA KASAB-MAHAL, MUGALSARAI, POLICE STATION MUGALSARAI, DISTRICT VARANASI. 2. MD. RAHMAN KHAN, SON OF LATE AHMADDULLAH KHAN, RESIDENT OF MOHALL KASAB-MAHAL, MUGALSARAI, POLICE STATION MUGALSARAI, DISTRICT VARANASI. 3. HARUNA KHATOON, WIFE OF MD. RAHMAN KHAN, RESIDENT OF MOHALLA KASAB-MAHAL,-MUGALSARAI, POLICE STATION MUGALSARAI, DISTRICT VARANASI. 4. AFROJ KHATOON @ AFROJ BANU, DAUGHTER OF MD. RAHMAN KHAN, WIFE OF GHIASUDDIN KHAN, RESIDENT OF MOHALLA SAMANPURA, POLICE STATION RAZA- BAZAR, DISTRICT PATNA. 5. MD. YUNUS KHAN @ MD. YUNUS, SON OF MD. RAHMAN KHAN, RESIDENT OF MOHALLA POLICE LINE,- MOTIHARI, DISTRICT WEST CHAMPARAN. 6. MD. SARWAR KHAN, SON OF MD. RAHMAN KHAN, RESIDENT OF MOHALLA-KASAB-MAHAL, MUGALSARAI, POLICE STATION MUGALSARAI, DISTRICT VARANASI. 7. SAHJEHAN BANO, DAUGHTER OF RAHMAN KHAN, WIFE OF MD. FIROJ KHAN, RESIDENT OF MOHALLA KADRU, POLICE STATION KADRU, DISTRICT RANCHI. 8. SMT. WAZIDA KHATOON, DAUGHTER OF MD.RAHMAN KHAN, WIFE OF MD. SAHIN KHAN, RESIDENT OF MOHALLA LODI SAHID, POLICE STATION SHERGHATI, DISTRICT GAYA. 9. SMT. ANJUM ARRA, WIFE OF MD. YUNUS KHAN, RESIDENT OFMOHALLA POLICE LINE, MOTIHARI, DISTRICT WEST CHAMPARAN. 10. MD. MASLEUDDIN, SON OF NOT KNOWN, RFESIDENT OF MOHALLA POLICE LINE, PATNA, DISTRICT PATNA. ... ... PETITIONERS Versus 1. THE STATE OF BIHAR 2. MD. JAMSHED KHAN, SON OF LATE ABDUL KUDUS KHAN, RESIDENT OF MOHALLA GAIBAL BIGHA, KHAGARIA TOLA, POLICE STATION RAMPUR, DISTRICT GAYA, AT PRESENT POSTED AS COOPERATIVE EXTENSION OFFICER, DEOGHAR, POLICE STATION DEOGHAR, DISTRICT DEOGHAR. ... ... OPPOSITE PARTIES. ---- For the Petitioners : M/S Ajay Kumar,Thakur,Adv. Md. Imteyaz Ahmad,Adv. For the State : Mr. Damodar Prasad Tiwary,A.P.P. ---- - 2 - P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. Petitioner no.1, who was wife of complainant-opposite party no.2 has been made accused by the complainant in Complaint Case No.104 of 1997/T.R. No.238 of 1999. In the said complaint petition besides petitioner no.1 her entire family members were made accused and as such the present petition has been filed by ten petitioners for quashing of the order dated 23.2.1999 passed by Shri P.R. Mishra, Judicial Magistrate, Ist Class, Gaya in Complaint Case No.104 of 1997/T.R. No.238 of 1999. By the said order, learned Magistrate had rejected the petition filed on behalf of the accused-petitioners for their discharge. 2. The case of the complainant, as appears from the record, is that the complainant filed the complaint petition alleging therein that petitioner no.2 Md.Rahman Khan persuaded the complainant for marrying him with his daughter Mahjabin - 3 - Khatoon (petitioner no.1). It was disclosed in the complaint petition that on persuasion of accused persons, he agreed to marry with the petitioner no.1 and subsequently, marriage was settled and marriage was solemnized according to Muslim law. It has further been alleged that subsequent to the marriage, one Md. Safique sent a letter to the complainant disclosing therein that she was husband of petitioner no.1 and by suppression of fact, the petitioner no.1 got married with the complainant. It was also intimated by the said letter that regarding marriage dispute, the said Md. Safique had also filed a case and case was still pending. On those allegations, the complaint petition was filed. In the complaint case, the complainant examined two witnesses in his support and thereafter, at the stage under Section 245 of the Code of Criminal Procedure, the impugned order was passed. 3. In the case, the petitioners filed petition for their discharge. After hearing the parties, the learned - 4 - Magistrate, though, was convinced that there is no sufficient material for further proceeding under Section 245 of the Code of Criminal Procedure, the learned Magistrate in view of decision cited on behalf of the complainant i.e. a case reported in 1996(3) Criminal Law Journal 2448 (State of Maharashtra Vrs. Somnath Thapa), the learned Magistrate rejected the discharge petition and fixed the case to 9.3.1999 for framing of the charges. The learned Magistrate was persuaded on behalf of the complainant that if there is strong suspicion for commission of the offence that would be sufficient for proceeding with the case and in view of the matter, the learned Magistrate though was not satisfied with the evidence brought on record by the complainant, rejected the discharge petition by its order dated 23.2.1999. 4. Aggrieved with the order of rejection of their discharge petition, the petitioners approached this Court by filing the present petition. By order dated - 5 - 8.9.2000, this petition was admitted for hearing and notice was directed to be issued to opposite in hearing matter. It was further directed that during the pendency of this petition, further proceeding in Complaint Case No.104 of 1997/T.R. No.238 of 1999 pending in the court of Shri P.R. Mishra, Judicial Magistrate, Ist Class, Gaya with regard to petitioners shall remain stayed. It also appears that notices were issued in the admission stage of the case, but neither during the admission stage nor at the stage of hearing, any one has come forward to support the stand of opposite party no.2. 5. The learned Magistrate, while passing the impugned order, had also noticed that before charge only hearsay evidence was brought on record by the complainant. It was also indicated that neither Safique was examined by the complainant nor the said letter was brought on record, which was the source of information to the complainant in respect of earlier marriage of petitioner no.1. - 6 - 6. Shri Imteyaz Ahmad, learned counsel appearing on behalf of the petitioners, while challenging the order dated 23.2.1999 passed by learned Magistrate, has submitted that the present complaint was filed against petitioners maliciously and only with a view to create a defence by the complainant in a criminal case in which he was charge sheeted. Learned counsel has referred to paragraph- 18 of the present petition as well as he has referred to Annexure-3 to the petition. He submits that in the year 1996 itself after being tortured for extracting dowry, the petitioner no.1 had filed a case vide Rampur P.S. Case No.126 of 1996 for the offence under Section 498A of the Indian Penal Code and 3 and 4 of Dowry Prohibition Act. Learned counsel further submits that after registering the said F.I.R., police investigated the same and finally in the month of April, 1997, charge sheet was submitted against opposite party no.2. He has referred to Annexure-3 to the petition, which is photo copy of final form dated - 7 - 30.4.1997 submitted in Rampur P.S. Case No.126 of 1996. He further submits that since the opposite party no.2 was already charge sheeted in a case instituted by petitioner no.1, the opposite party no.2 has filed a complete false and concocted complaint petition and as such besides quashing the order dated 23.2.1999, entire proceeding in said complaint petition is liable to be set aside. 7. Shri Damodar Prasad Tiwary, learned counsel appearing on behalf of the State has opposed the prayer of the petitioners. He submits that there is no infirmity in the impugned order. He further submits that for the purposes of proceeding in a criminal case only requirement is to see as to whether a prima facie case is made out or not. On the basis of averments made in the complaint petition, he submits that in the present case, specific prima facie offence has been made out and as such this Court may not interfere with the impugned order. 8. Besides hearing the parties, - 8 - I have also examined the materials available on record. In view of averment made in paragraph-18 of the petition as well as Annexure-3 to the petition, it is evident that the complaint petition, which was filed on 7.2.1997 by the opposite party/complainant, was filed only with a view to create a defence in his favour. Besides this, the perusal of the impugned order also makes it clear that there were no specific material to proceed with the complaint case. At internal page-3, paragraph-3 of the impugned order, the learned Magistrate has recorded as follows : “ Though it is a fact that the evidence recorded up till now can not pass the test of Section 245 of the Cr.P.C., if put strictly but from the years to year till recent Hon’ble Supreme Court’s of records have narrowed down the scope of charge under Section 245 of the Cr.P.C.” The materials further indicates that though there was suspicion regarding the fact of earlier marriage of petitioner no.1. I am of the view that said suspicion was not - 9 - PATNA HIGH COURT Dated 15.4.2010 N.A.F.R./N.H. strong enough to further proceed in the matter. 9. In view of the facts and circumstances as indicated above, I am of the view that to prevent the abuse of the process of the court, it is necessary to interfere even at this initial stage of the complaint case and as such the order dated 23.2.1999 passed by Shri P.R. Mishra in Complaint Case No.104 of 1997/T.R. No.238 of 1999 is hereby set aside and all further proceeding in respect of petitioners in the said complaint case is also quashed. 10. Accordingly, the petition stands allowed. ( Rakesh Kumar,J.)