IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.40416 of 2007 MAHESH PRASAD SAH, S/o Late Panno Lal Sah, R/o Mohalla Chhoti Khanjarpur, P.S. Barari, District Bhagalpur ……… Petitioner Versus 1. STATE OF BIHAR 2. Pramila Devi, W/o Mahesh Prasad Sah, R/o Mohalla Chhoti Khanjarpur, P.S. Barari, District Bhagalpur …. Opp. Parties ----------- 4 16.12.2008 Heard Mr. Dhananjay Kumar Pandey, learned counsel for the petitioner, Mr. Jharkhandi Upadhaya, the learned A.P.P. for the State and Mr. Uma Kant Prasad, learned counsel for O.P .No. 2. By this application the petitioner prays for the quashing of the entire proceeding including the order dated 28.3.2007 passed by the learned Chief Judicial Magistrate, Bhagalpur in Complaint Case No. 1688(C) of 2006, whereby he has taken cognizance of offences under sections 498A, 323 and 504 I.P.C. against the petitioner. The submissions advanced by the learned counsel for the petitioner is that he was never married to the complainant – O.P. No. 2 and he is not her husband. In support of his submissions he has referred to a sale deed purported to have been executed by the complainant on 2.6.2003 wherein she has been referred as wife of Late Dhanik Sao. On the contrary the learned counsel for O.P. No. 2 has referred to the order dated 9.8.2007 passed in A.B.P. No. 562 of 2007 by the Sessions Judge, Bhagalpur, wherein the learned Sessions Judge has taken into consideration the voter list, the certificate issued by Ward Commissioner, the red ration card, in all of which she has been - 2 - referred to as the wife of the petitioner. To a query by this Court the learned counsel for O.P. No. 2 submits that the anticipatory bail of the petitioner has been rejected by this Court also. I have perused the submissions of the complainant on S.A. and evidence of the witnesses and inquiry under section 202 Cr.P.C. The unanimous view gathered therefrom is that all the witnesses have supported the fact of the complainant being wife of the petitioner. The law by now well settled by the Apex Court in the case of Chandradeo Vs. Prokash Chandra, reported in AIR 1963 SC 1430, it has been held therein that since the object of an inquiry under section 202 Cr.P.C. is to ascertain whether the allegations made in the complaint are intrinsically true, the Magistrate acting under section 203 Cr.P.C. has to satisfy himself that there is sufficient grounds for proceeding. In order to come to this conclusion he is entitled to consider the evidence taken by him or recorded in an inquiry under section 202 Cr.P.C , he is not entitled to rely upon any material besides this where there is prima facie evidence, even though an accused may have a defence that the offence is committed by some other person or persons, the matter has to be left to be decided by the appropriate forum at the appropriate stage and issue of process cannot be refused. The learned Magistrate in the instant case having considered the statement on S.A. of the complainant and the evidence adduced by her came to be conclusion that the petitioner - 3 - was the husband and the wife and directed for issuance of process. I find no apparent illegality in the impugned order. The claim of the petitioner that he is not the husband of the complainant is his defence which he is required to prove by leading cogent evidence during the trial. Even the sale deed referred to by the learned counsel for the petitioner cannot be looked into at this stage in a proceeding under section 482 Cr.P.C. since that is his defence. Due regard being had to the facts and circumstances of the case and the discussions made above I find no merit in this application which is dismissed. spd/- (Abhijit Sinha, J.)