IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.25616 of 2007 1. LAKSHMAN TIWARY, son of Late Jangli Tiwary 2. Shivjee Tiwary, son of Late Jangli Tiwary 3. Anant Tiwary, son of Lakshman Tiwary 4. Kumauti Devi, wife of Lakshaman Tiwary 5. Deepak Tiwary @ Deepu Tiwary, son of Shivjee Tiwary All resident of Village-Laukan Sheikh Tola, P.S. Ghorasahan, District- East Champaran ……. Petitioners Versus 1. The State of Bihar 2. Radhika Devi, wife of Lakshaman Tiwary At laukhan Sheikh Tola, P.S. Ghorasahan, District-East Champaran …….Opposite parties ----------- 5. 03.08.2009 Heard learned Counsel for the petitioners and the learned Counsel for the State. Despite service of notice opposite party no. 2 has not appeared. The prayer of the petitioners is for quashing the order dated 20.3.2007, whereby and whereunder the prayer of the petitioners for discharge in a complaint case instituted under Sections 498A, 323, 420, 364, 471 of the Indian Penal Code has been refused. Mr. Uma Shankar Prasad, learned Counsel for the petitioners, has assailed the impugned order primarily on two grounds:- (a) it is unthinkable that a seventy years old man i.e. accused husband-petitioner no. 1 will indulge in all sort of atrocities as alleged in the complaint petition by opposite party no. 2 who is also said to be of the same age; (b) the allegations of complainant do not inspire confidence inasmuch as from 1975 under the family arrangement both the husband, petitioner no. 1, and wife, opposite party no. 2, are living separately and in fact when a complaint was made by the opposite party no. 2 to claim maintenance against the husband petitioner no. 1 the same was 2 refused by the Principal Judge, Family Court, Motihari by an order dated 21.12.2005. In the opinion of this Court neither of the aforesaid two grounds would be good enough to quash the impugned order, which has to be strictly tested under the parameters of Section 227 of the Code of Criminal Procedure. An order refusing an accused to be discharged cannot be tested on the line of the defence on behalf of the petitioners. That apart, when from the reading of the complaint itself, it is very clear that during the subsistence of the first marriage of the petitioner no. 1 with opposite party no. 2, he had entered into a second marriage with the petitioner no. 4 and that it was for the son, petitioner no. 3, born out from the marriage between petitioner nos. 1 and 4 that coercive steps for the transfer of the land by the opposite party no. 2 in the name of petitioner no. 3, the son born out of the marriage of petitioner nos. 1 and 4 were taken, it cannot be said that there was no material for framing of charge. The allegations, complaint petition, thus by itself was sufficient to frame the charge and therefore this Court would not find any merit in the first part of the submission that the case of complainant is unbelievable or that the advanced age of two persons does not inspire possibility of torture by the husband against the wife. The wife, opposite party no. 2, who has been suffering for the last 34 years on account of an illegal marriage entered into by the petitioner no. 1, cannot therefore be heard to say that opposite party no. 2 had not undergone torture either physical or mental in the hands of her husband, the petitioner no. 1. The last part of the submission that since the Family Court has held that petitioner no. 1 is an old man and having no 3 means to maintain his wife that by itself should be sufficient for quashing the order refusing to discharge is also to be noted for its being rejected. The consideration which was made for the family Court for refusal in grant of the amount of maintenance can not be applicable for examining the allegations in petition of complaint constituting offence under Section 498A, as also under Section 323, 420, 364, 471 of the Indian Penal Code. That being so this Court would not find any substance in either of the submission of the learned Counsel for the petitioners. Accordingly this application must be and is hereby dismissed with a direction to the trial court to conclude the trial itself within a period of one year from the date of receipt/production of a copy of this order. Akumar/- (Mihir Kumar Jha,J.)