CRIMINAL MISCELLANEOUS No.17498 OF 2000 In the matter of an application under Section 482 of the Code of Criminal Procedure. --------- 1. Syed md. Wajahul islam, Son of Late Syed Md. Kabir, resident of Village- Baghol, P.S. Jale, District-Darbhanga 2. Naseem Akhtari, wife of Shohail Ahmad, resident of Village- Urdu Bazar, Darbhanga, P.S. Darbhanga, District-Darbhanga --------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Smt. Firoza Daughter of Late Mr. M.N.Doza, resident of Mohalla- Fakir Takia, M.G. Road, Katihar, P.S. & District-Katihar -------------------Opp.Parties. ------------ For the petitioners: S/Sri N.K.Agrawal, Sr. Advocate M.S.Hoda, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. ------------ P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. In this case earlier notice through substituted service was issued to Opp.Party no.2, even though she preferred not to appear. However on 28.7.2010, while hearing the present petition, it was felt by this Court to again send notice to Opp.Party no.2 through advocate, who was conducting complaint case before the court of learned Judicial Magistrate, 1st Class, Katihar in Complaint Case No.833 of 1999. The report suggests that the notice was validly served on learned counsel for Opp.Party no.2, who was appearing before the court below. Again she has not preferred to appear before this Court. 2. Two petitioners, while invoking inherent jurisdiction under Section 482 of the Code of Criminal Procedure, have prayed for quashing 2 of an order dated 23.09.1999 passed by the learned Judicial Magistrate, 1st Class, Katihar. By the said order, the learned Magistrate has taken cognizance of offence under Section 498A of the Indian Penal Code. 3. Short fact of the case is that Opp.Party no.2 claiming to be the wife of son of petitioner no.1 filed a complaint in the court of learned Chief Judicial Magistrate, Katihari, which was numbered as Complaint Case No.833 of 1999. In the complaint petition, the complainant had arrayed her husband, namely, Syed Md. Rezaullah Torabi as accused no.1 and petitioner nos.1 and 2 were arrayed as accused nos.2 and 4 in the complaint petition. It was alleged that accused persons had committed offence under Section 498A of the Indian Penal Code. The date of occurrence was mentioned as 21.3.1999. In the complaint petition, it was disclosed that the complainant had solemnized marriage with son of petitioner no.1 in the year 1994 according to Muslims Marriage Act 1956. It was alleged that after the marriage for about two years, she lived peacefully with her husband and her in-laws. Subsequently, her husband took her to Delhi. She lived there peacefully. It was further stated that from time to time her husband used to bring her to native place at Darbhanga as well as Katihar, the place of complainant’s parents. It was alleged that accused persons thereafter started pressurizing the complainant to bring Rs.2,00,000/- as dowry and due to non-fulfilment of the same, accused persons started torturing mentally and physically and finally accused persons after forcibly taking the ornaments for an amount of Rs.60,000/- from the complainant asked her to leave the house and thereafter the complainant returned back to Katihar. It was further alleged that on one occasion i.e. on 14.5.1999, accused persons along with 10 other accused 3 entered into the house of the complainant and assaulted her. On the aforesaid allegation, the complaint was filed on 21.5.1999. After filing of the complaint petition, the complainant was examined on S.A. and in support of the complaint case four witnesses were examined as enquiry witnesses and after being satisfied with prima facie offence under Section 498A of the Indian Penal Code, the learned Magistrate directed for summoning the accused persons. 4. Aggrieved with the order of cognizance, both the petitioners approached this Court by filing the present petition. On 14.12.2000, while issuing notice to Opp.Party no.2, this Court directed that in the meantime , further proceeding of Complaint Case No.833 of 1999 pending in the court of Judicial Magistrate, 1st Class, Katihar shall remain stayed. Subsequently, on 12.2.2002, the case was admitted for hearing and it was directed that interim order of stay dated 14.12.2000 shall continue during the pendency of this application. It has already been indicated that despite valid service of notice, Opp.Party no.2 has chosen not to appear before this Court. 5. Sri N.K.Agrawal, learned Senior Counsel appearing on behalf of the petitioners, while challenging the order of cognizance, has argued that the son of petitioner no.1 was never married with the complainant. The stand has been taken on behalf of the petitioners that the complaint with a view to extract illegal money from the family of the petitioners had filed the present complaint petition. It has been argued that in the entire complaint petition, the complainant even has not indicated the date of marriage. According to the learned Senior Counsel for the petitioners, as per Mohammdan Law, the marriage is settled on consideration of Dain Mohar and without fixation of Dain Mohar , marriage is considered to be 4 void. In the complaint petition, it has not been whispered whether Dain Mohar was accorded or not. Besides this, it has been submitted that the complainant had claimed that she got a son born through wedlock with the son of petitioner no.1. It has been submitted that the complainant had also examined her so called son during the enquiry as enquiry witness no.3. While referring to Annexure-4B, i.e. typed copy of the deposition of son of the complainant, namely, Md. Farhan, it has been argued that at the time of deposition, which was recorded on 13th September 1999, the witness had disclosed his age as 8 years. It was submitted that if for the time being it is accepted that the marriage of the complainant with the son of petitioner no.2 was solemnized in the year 1994,on the date of deposition of enquiry witness no.3, he would have been hardly 4 years of age. It was further submitted that deposition of witness no.3 indicates that the witness was not of four or even eight years old. Learned Senior Counsel for the petitioners has also referred to certain documents to suggest that the complainant was actually wife of one Md. Aslam. Annexure-2 is photo copy of the certified copy of Voter List, which was prepared in the year 1995. It was further submitted that since the son of petitioner no.1 was earning his livelihood in Saudi Arabia, with a view to extract or extort money from the family of the petitioners, the present case was filed in a well designed manner and it has further been submitted that this is one of the reasons that Opp.Party no.2 has not preferred to appear before this Court. Accordingly, it has been prayed to set aside the order of cognizance. 6. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor has vehemently opposed the prayer of the petitioners. 7. Besides hearing learned counsel for the petitioners and the 5 State I have also perused the materials available on record. Of course, at the time of hearing a petition under Section 482 of the Code of Criminal Procedure that too against an order of cognizance, it is not required to examine the materials meticulously and in detail, but in the facts and circumstances of the case, since the stand has been taken by the petitioners that Opp.Party no.2 had filed a false complaint claiming to be the wife of son of petitioner no.1 with a view to extort money from his family, it was earlier felt necessary to hear other side. Despite best efforts taken by this Court, complainant/ Opp.Party no.2 has not appeared before this Court. On perusal of the complaint petition, it appears that vague assertion was made by the complainant that she was married with the son of petitioner no.1 in the year 1994. The detail of the marriage has not at all been indicated. The deposition of son of the complainant also strengthens the allegation of the petitioners regarding marriage of the complainant with the son of petitioner no.1. However, it would not be appropriate for this Court to record any specific finding on the question whether Opp.Party no.2 was legally married wife of the son of petitioner no.1 or not. 8. Keeping in view the fact that the petitioners in the present petition has categorically asserted relying on number of documents that the complainant was not wife of son of petitioner no.1, which has not been denied by Opp.Party no.2 either personally or through advocate and the matter remained pending before this Court for about 10 years, it appears that for the ends of justice it would not be appropriate to allow the prosecution of both the petitioners and, as such, order of cognizance dated 23.09.1999 passed by the learned Judicial Magistrate, 1st Class, Katihar in Complaint Case No.833 of 1999 is hereby set aside and the petition stands 6 allowed. 9. It is made clear that whatever observation has been made in the present case has been made for the purpose of disposing of the present criminal prosecution which may not be used at any subsequent stage or in any subsequent proceeding either criminal or civil. Patna High Court,Patna Dated : the 24th September,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J.)