IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.6 of 2007 1. BAHADUR SINGH 2. PANKAJ SHARMA ----------------- PETITIONERS Versus 1. STATE OF BIHAR 2. BHIM PD. CHOWDHARY ----------------- OPPOSITE PARTIES ----------- For the petitioners: Mr. P.K.JAIPURIYAR AND MR. ANSHUMAN JAIPURIYAR For the informant: Mr. BIMAL KUMAR AND BIRENDRA KUMAR For the State: Mr. Jitendra Kr.Singh I, APP -------- 4 11.05.2010 This revision application has been filed for setting aside the order dated 3.11.2006 passed by Additional Sessions Judge, F.T.C. V, Katihar in S.T.No. 184/2005 by which the petition under section 227 Cr.P.C. for discharge of petitioners, has been rejected and charges are framed under sections 314 and 497/34 IPC against the petitioners to face trial. Heard learned counsel for the parties. Widow of informant’s younger brother allegedly was in illicit relation with petitioners. She became pregnant. When the same was reported by the victim, she was given Rs. 200/- for abortion by the petitioners. She went Manihari, purchased some medicines and consumed, there was 2 excessive bleeding, taken to Katihar for better treatment but having no sufficient money, amounting Rs. 1300/- as demanded there could be no proper treatment. At home there was some treatment, in that course the victim Nilam Devi died. Petitioners’ are accusationed for the offence under sections 497 and 314 IPC. At the stage of framing of charge, a petition was filed on behalf of petitioners to discharge them as ingredient for constituting any offence under section 497 IPC or 314 IPC was lacking. After hearing parties, the same is dismissed. Now legality, correctness and proprietary of the impugned order has been questioned by filing this revision petition. Only point to be determined is whether ingredients for constituting offence under sections 497 or 314 IPC exist or not? Section 497 IPC runs as follows: “497. Adultery- Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with 3 fine, or with both. In such case the wife shall not be punishable as an abettor.” First ingredient, according to learned counsel for the petitioners, is the woman should be wife of another man then comes consent or connivance of the husband. In the instant case, deceased was widow, not wife of any one, so there was no need of taking consent of husband or being husband in connivance. This much of the ingredient according to learned counsel, should exist for framing of charge. In my view also prima facie case includes ingredients of definition of any offence which has not been considered in the case by the trial court. If it comes that definition was fulfilled then it was need of taking into consideration section 198(2) Cr.P.C. which also has not been taken into consideration. Another offence is under section 314 IPC which runs as follows: “314. Death caused by act done with intent to cause miscarriage.- Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. 4 If act done without woman’s consent.-and if the act is done without the consent of the woman, shall be punished either with imprisonment for life or with the punishment above mentioned.” Petitioners are said providing Rs. 200/- to purchase medicine for abortion. Prosecution case is doubted on the ground that the deceased was not pregnant at all as post mortem report is not speaking about pregnancy or abortion of the deceased. Another point raised on behalf of learned counsel for the petitioners is that providing Rs. 200/- if can be taken as any act done on their behalf that should be considered for framing charge or discharge that has also not been done. For opposite party no.2, it is stressed that now charge is framed and the revision has become infructuous. I do not agree with this submission as just after passing of the order, this Court was approached and if was not heard at early stage petitioners cannot be sufferer rather in case of discharge the trial will vitiate and in case of different charge trial will again commence from fresh prosecution evidence. Accordingly, this revision 5 application is allowed and the impugned order dated 3.11.2006 is set aside. The case is sent back to the Court of Additional Sessions Judge, F.T.C. V, Katihar to decide the matter afresh according to law keeping in view observations made above. Let the case diary be sent back to the court below. AI/ A.F.R. ( Mandhata Singh, J.)