IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.3213 of 2008 1. VEENA UPADHYAY, wife of Kunj Bihari Upadhyaya 2. Kunj Bihari Upadhyaya, Son of late Pandit Ram Nandan Upadhyaya Both resident of village- Chandawa, Police Station- Arrah, Nawada, District- Bhojpur. . . . . . Petitioners. Versus THE STATE OF BIHAR & ANR ----------- 5/ 13.05.2010 Heard learned counsel for the petitioners and the State. In this case notice was issued to opposite party no.-2 but no one has appeared on her behalf. The petitioners are aggrieved by order dated 31.08.2007 passed by Sub-Divisional Judicial Magistrate, Patna in G.R. No. 3143 of 2002, arising out of Gardanibagh (Shastrinagar) P.S. case no. 590 of 2002, whereby the petition for discharged filed under Section 239 of Cr.P.C., has been rejected. Learned counsel submits that for the same offence, the opposite party no.2 has also filed Ara (Nawada) P.S. case no.199 of 2001 dated 01.11.2001. The aforesaid fact has not been mentioned in the instant First Information Report. Learned counsel submits that no second First Information Report, in respect of the same offence, would be maintainable in view of decisions in case of T.T. Antony Vs. State of Kerala and Ors reported in (2001) 6 SCC 181. Learned counsel submits that the police has already submitted final form in the aforesaid case and the opposite party no.-2 has also filed protest petition. Learned counsel submits that up till now no order has been passed. - 2 - The Magistrate has not passed order on the police report submitted under Section 173(2) of the Cr.P.C. in the first case namely Ara (Nawada) P.S. case no. 199 of 2001. Heard counsel for the petitioners and the State. The submission of the learned counsel for the petitioners that the second F.I.R. in respect of same occurrence would not be maintainable in view of the decision relied upon in case of T.T. Antony (supra) has substance. The opposite party no.-2 may pursue her remedy in the earlier case filed by her under Section 498(A) of the I.P.C. being Ara (Nawada) P.S. case no. 199 of 2001 dated 01.11.2001. In the circumstances, the impugned order, rejecting the application for discharge is hereby quashed. Opposite party no.-2 would pursue her remedy in the first case filed under Section 498 (A) of the I.P.C. bearing Ara (Nawada) P.S. case no. 199 of 2001. Uday/ (Samarendra Pratap Singh, J.)