CRIMINAL MISCELLANEOUS No.23714 OF 2000 -------- In the matte of an application under section 482 of the Code of Criminal Procedure. ------- SUBUHI IMAM wife of Md.Sayeed Ahmad @ Major, Resident of Darul Aman, Mohalla-Samanpura, P.S.- Shashtri Nagar, Dist.-Patna ………Petitioner Versus 1.STATE OF BIHAR 2.Shaheen Qaiser son of late Wasi Ahmad Qaiser resident of Nasheman Apartment, Flat No.104, Salimpur Ahra, P.S.-Gandhi Maidan, District- Patna. ……. ……..Opp.Parties. ------- For the petitioner: Mr. S. Arshad Alam For the State: Mrs. Indu Bala Pandey, A.P.P. ------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar,J. The sole petitioner, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 26.4.2000 passed by Sri Bhanu Pratap Singh, Judicial Magistrate, Patna in Complaint Case No.196C of 2000. By the said order the learned Magistrate has taken cognizance of the offence under section 494 of the Indian Penal Code against the petitioner. 2. Short fact of the case is that opposite party no.2 claiming to be the husband of the petitioner filed a complaint in the court of Chief Judicial Magistrate, Patna which was numbered as Complaint Case No.196C of 2000. In the complaint the complainant had arrayed the petitioner and other two accused persons as abettor for committing offence under section 494 of the Indian Penal Code. The learned Magistrate after conducting enquiry by its order dated 26.4.2000 took cognizance of the 2 offence under section 494 of the Indian Penal Code against the petitioner and against the remaining accused persons cognizance order was passed under section 109 of the Indian Penal Code and directed for issuance of summons to the accused persons. 3. Aggrieved with order of cognizance, the petitioner approached this court by filing the present petition. This court on 8.10.2001 while issuing notice to opposite party no.2 directed that in the meantime further proceeding in Complaint Case No.196(C) of 2000 pending in the court of Sri Bhanu Pratap Singh, Judicial Magistrate, Patna shall remain stayed. Despite service of notice on opposite party no.2, the opposite party no.2 did not appear and, as such, on 18.2.2002 the case was admitted for hearing and it was directed that pending hearing of this application the interim order passed on 8.10.2001, shall remain operative. The order of stay is still continuing. 4. In this case despite opposite party no.2 had entered his appearance through his counsel, earlier on different dates none had appeared on his behalf. Even today at the time of hearing none has come forward on behalf of opposite party no.2. 5. Mr. S. Arshad Alam, learned counsel appearing on behalf of the petitioner, while challenging the order of cognizance dated 26.4.2000, submits that the present complaint petition was not maintainable. He submits that in the facts and circumstances of the present case section 494 of the Indian Penal Code was not applicable. It was argued that the petitioner had already taken divorce from opposite Party no.2 on 21.6.1999 by 3 the Court of Darul Qaza, Imarat Shariah, Bihar and Orissa, Phulwarishariff, Patna. In this regard learned counsel for the petitioner has referred to annexures-4 and 4A to the petition. In the present case the petitioner has also filed a supplementary affidavit. In the supplementary affidavit dated 28.7.2000 it was categorically asserted by the petitioner that while divorce proceeding was pending in the court of Darul Qaza, opposite party no.2 had filed a written statement and after hearing the parties on 21.6.1999 the divorce order was passed by Darul Qaza. It has further been stated in the supplementary ffidavit that against the order dated 21.6.1999 passed by Darul Qaza, the opposite party no.2 had preferred appeal which too stood rejected on 16.2.2000. It was submitted that once divorce order was passed declaring the petitioner as divorcee of opposite party no.2, the opposite party no.2 was not entitled to lodge the present case against the petitioner for commission of offence under section 494 of the Indian Penal Code. On the sole ground of non-applicability of the provision contained in section 494 of the Indian Penal Code, it has been prayed that order of cognizance dated 26.4.2000 may be quashed. 6. I have also heard Mrs. Indu Bala Pandey, learned Addl. Public Prosecutor appearing on behalf of the State. 7. Besides hearing learned counsel for the parties. I have also perused the materials available on the record. In view of the facts and circumstances of the present case particularly in view of the fact that it is not in dispute that the petitioner was divorcee 4 Patna High Court The 25th August, 2010 Md.S./NAFR of opposite party no.2, this court is satisfied that order of cognizance was not sustainable in the eye of law. 8. Accordingly, the order of cognizance dated 26.4.2000 passed by Sri Bhanu Pratap Singh, Judicial Magistrate, Patna in Complaint Case No.196C of 2000 is hereby set aside and the petition stands allowed. (Rakesh Kumar,J.)