IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34967 of 2007 Ashwani Kumar @ Banti, Son of Shri Indradeo Prasad,Resident of K/216, Road No.18 Telco, P.S. Telco, District-Jamshedpur, Jharkhand -------------- Petitioner Versus 1. THE STATE OF BIHAR 2. Yogendra Kumar Singh, Son of Late Ram Khelawan Singh, Resident of Chaukua , Police Station-Parsa Bazar, District-Patna --------------- Opp.Parties. ----------- For the petitioner: M/S. Sanjeev Ranjan, and Satish Narayan Singh Advocates. For the State : Mr. R.B.S. Pahepuri, A.P.P. For Opp.Party no.2: Mr. S.K.Verma, Advocate ----------- O R D E R The petitioner, one of the F.I.R. named accused, of Patna G.R.P.Case No.383 of 2006, has prayed for the quashing of the order dated 26.3.2007 passed by the learned Judicial Magistrate, Railways,Patna , whereby he has taken cognizance under Sections 366,498A, 120B I.P.C. against the petitioner only. The aforesaid case was registered on the basis of a written report submitted by one Yogendra Kumar Singh, impleaded herein as Opp.Party no.2, on 9.11.2006 inter alia stating that the marriage of his son,Anjani Kumar , who was employed with the Central Reserve Police Force and is posted at Delhi, was solemnized with Binita Kumari on 15.2.2006 at Jakkanpur in the house of one Gorakh Singh. It is said that although Binita visited her matrimonial home occasionally most of her time was spent in her paternal home. It is alleged that on 26.9.2006,Binita accompanied by her mother, came to the house of the informant and informed that Anjani had sent a - 2 - railway ticket for her through courier to go to Delhi on the occasion of Dashahara festival and accordingly she boarded the Sampurn Kranti Express at Rajendra Nagar Terminal on 28.9.2006 for going to Delhi in the presence of her mother and other relatives who travelled with her up to Patna Junction. It is alleged that when on the very same day the informant gave information to his son at Delhi regarding the travel of Binita to Delhi on the basis of the railway ticket sent by him through courier, he expressed surprise and denied having sent any ticket, whereupon the informant is said to have advised his son to receive Binita at the Station at Delhi. It is further alleged that on 29.9.2006 his son informed him of Binita not being present on the train, whereupon he inquired from the relatives of Binita who in answer stated that they had got down from the train at Patna Junction five minutes prior to the departure of the train. It is further alleged that after some time he received a phone call from his son informing him of his having received a phone call from Telephone no.1141349529 and the caller identifying himself as the father of Binita advised him to forget Binita and also stated that the papers for divorce were being sent which he should sign, failing which dire consequences would result. It is further alleged that Binita was in possession of Mobile set bearing no. 9334347342 and frequent calls were received in the said phone from Mobile no.9334648765.It was also learnt that on enquiry that Binita had, prior to her marriage, acquaintance and relationship with one Ashwani Kumar, a neighbour of the Sasurali - 3 - house of Manoj Kumar Singh, the brother of Binita and that one Sonu @ Sandeep , the fufera brother of Ashwani , had purchased ticket for Binita to go to Delhi. The informant was sanguine in his mind that it were Ashwani and Sonu who had taken away Binita on false pretext. It was alleged that Binita was carrying Rs.25,000/- in cash and ornaments at the time of her departure for Delhi. The police after due investigation submitted chargesheet against the petitioner on 26.3.2007 and cognizance as stated above was taken on the same day. Assailing the impugned order, it was submitted on behalf of the petitioner that without getting the statement of Binita recorded under Section 164 Cr.P.C. the police had proceeded in a haphazard manner with the investigation in order to shield the true picture of the incident. In this connection it was submitted that the victim of the case, namely, Binita filed a petition on 4.12.2006 before the court below alleging therein that her statement under Section 164 Cr.P.C. was deliberately not being recorded and in view thereof she had submitted her statement on affidavit before a Notary Public, Patna, wherein she disclosed that her marriage with Anjani had been solemnized against her wishes and she was not happy in the matrimonial home and that it was she who had purchased the ticket for going to Delhi by Sampurn Kranti Express and instead of going to Delhi she had, out of her free will and volition, gone to Bhubaneshwar where she had taken admission in NIIT to complete her course in computer which she had started prior to her marriage - 4 - and had remained incomplete because of her marriage. She also pleaded that the said statement of hers be treated as statement under Section 164 Cr.P.C. It was further submitted on behalf of the petitioner that he had been implicated falsely in this case and that he had no role to play in the alleged kidnapping of Binita who admittedly as per her affidavit filed in the court had left the matrimonial home on her own accord. It was also submitted that Binita had filed Matrimonial Case no.114 of 2007 before the Principal Judge, Family Court , Patna , praying for divorce in view of her strained relationship with her husband and in- laws. On the aforesaid premise, it was submitted that no case either under Sections 366,498 and 120B I.P.C. can be said to have been made out against the petitioner and the taking of cognizance by the learned Judicial Magistrate, Railways, was an abuse of the process of the court and was fit to be quashed. Opp.Party no.2 has appeared by filing Vakalatnama and although no show cause or counter affidavit has been filed, the impugned order was sought to be justified by making oral submissions. It is true that the statement of the victim, Binita, was not sought to be recorded by the Investigating Officer in course of investigation which is a mere irregularity and the same cannot be a matter for agitation. That apart, Binita’s volutary affidavit in court cannot be acted upon, since it is not a part of the investigation and it is not disclosed therein as to what prompted her to file such affidavit in - 5 - court. These are matters which can be raised and disposed of at the time of framing of charge and cannot be looked into at this stage since the purported affidavit filed by Binita is required to be proved by cogent evidence. Due regard being had to the facts and circumstances of the case I find no merit in this application which is accordingly dismissed.However,the petitioner shall be at liberty to raise all these issues at the time of framing of charge. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 30th June,2009 Nawal Kishore Singh/A/F.R.