IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.34238 of 2007 1. Shyam Sundar Prasad, Son of Late Mahavir Prasad. 2. Savitri Devi, Wife of Shyam Sunder Prasad. Both residents of Mohalla Araria Basti, P.S. Araria, District Purnia. -------- Petitioners Versus 1. State f Bihar. 2. Rekha Devi, D/o Kusheshwar Prasad, P.O. Bansbit, Araria, P.S., Distt. Purnea. -------- Opposite Parties ----------- 6 16.2.2010 Heard learned counsel for the petitioners and counsel for the State. The prayer of the petitioners in this application to quash the impugned order dated 1.6.2007 rejecting the prayer for their discharge has been sought to be pressed on the following grounds:- (i) Earlier the police had submitted the final form against the petitioners and therefore, once the court had also accepted such final form and the petitioners were also discharged, there was no question of continuing prosecution against them. (ii) In any event, even after further investigation, if the court had ultimately taken cognizance against the petitioners, they could not have been 2 subjected to any further prosecution beyond under Section 498A of the Indian Penal Code, inasmuch as, the allegation against the main accused, the husband of the complainant being now made subject matter of trial only for offence under Section 498A against him, the two petitioners, Nanad and Nandoshi, cannot be subjected to any further prosecution much less for offence under Section 494/109 of the Indian Penal Code. So far the first issue is concerned, that stage was reached by the court below by order taking cognizance dated 23.5.1997 and that order was never assailed by the petitioners. In that view of the matter, this Court can not allow the petitioners to now assail the order taking cognizance in the garb of impugning the order rejecting their prayer for discharge. Even otherwise, it is well settled that mere acceptance of a final form would not amount to discharge of an accused and it will be always open for the police to bring some materials on the basis of which the court if approached can take cognizance. Here 3 in this case, the Court would find that there are two supervision notes on record, being part of investigation of the police, wherein the case was found to be true against the petitioners and yet for the unknown reasons the police had not filed the charge-sheet against these petitioners. Consequently, if the court below had passed an order dated 23.5.1997 by way of taking cognizance against the petitioners, no error can be said to have been committed in doing the same. As with regard to the second issue that the petitioners cannot be subjected to charge under Section 494 of the Indian Penal Code and their prosecution must also remain confined to the offence under Section 498A of the Indian Penal Code for which the husband, the main accused is being proceeded, all that can be held is that if there are materials to show that the second marriage of the husband in the life time of his first wife, the complainant, had been facilitated by the petitioners, they would definitely be liable for being charged under Section 494/109 of the Indian Penal Code. In fact, merely because the court till 4 date has not framed charge under Section 494 of the Indian Penal Code against the husband would not be a ground to hold that the charge against the petitioners cannot be framed. Nonetheless, the court below is directed to look into this aspect of the matter and if there are materials to frame charge against the husband under Section 494 of the Indian Penal Code, it would proceed to hold trial afresh from the stage of altering or modifying the charge. That being so, this application, is devoid of any merit and is accordingly dismissed. Rsh (Mihir Kumar Jha, J.)