CRIMINAL MISCELLANIOUS No.21931 OF 2005 (In the matter of an application under Section 482 of the Code of Criminal Procedure) AWDHESH KUMAR, son of Ganpat Panda. Resident of Village-Rangaav P.S. Tarapur, District- Munger -------------Petitioner Versus 1. THE STATE OF BIHAR 2. Pushpa Devi D/o Krityanand Modi. Resident of Village-Manoharpur, P.O.- Shahjadpur, P.S.- Nathnagar, District-Bhagalpur ---------------Opposite Party *********** For the Petitioner:- Mr. Raj Kumar, Adv. Mr. Praveen Kumar, Adv. For the O.P. No. 2:- Mr. Krishna Mohan, Adv. Mr. Praveen Kumar, Adv For the State:- Mr. Parmanand Prasad, Adv. *********** P R E S E N T THE HON'BLE MR. JUSTICE AKHILESH CHANDRA *********** Akhilesh Chandra, J. Heard learned counsel for the petitioner, Additional Public Prosecutor for the State and Counsel for the complainant/opposite party. 2. This is an application under Section 482 Cr.P.C. seeking quashing of the order dated 27.1.2003 passed by the learned Sub-Divisional Judicial Magistrate, Bhagalpur taking cognizance of investigation under Sections 498A, 323 of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act in Complaint Case 2 No. 400 of 2000. 3. It is admitted that parties have directly or indirectly related to each other. The complainant is undisputedly own younger sister of the elder brother of the petitioner. The complainant has come out with the case that she was married with the petitioner which was earlier being obstructed on one or other ground by his parents but it was supported by elder brother and sister-in-law who are non else than her own sister and brother-in-law of the complainant. Further case of the complainant is that she gave birth of a male child at civil hospital, Ahmadabad after surgery on 28.11.1997 and the petitioner never cared her or the child rather demanded initially for some help in business and subsequently as dowry etc. on refusal in spite of initial part payment, she was assaulted further more the petitioner has now another wife Archana Kumari with whom that he married on 24.2.1999. 4. On receipt of the complainant some witnesses were examined during enquiry as cognizance was taken giving rise to this case. 5. Learned Counsel for the petitioner laid emphasis on some contradiction as regard to place of alleged marriage and vehemently denies the marriage with the petitioner and the complainant at any point of 3 time. He further placed reliance on statements made on affidavit of the parents and other family members alleging some forgery committed by his elder brother who is in service in army as regard to his date of birth etc. and further it is stated that in fact complainant is the third wife of elder brother of the petitioner, Poonam Kumar Gupta @ Poonam Panda who initially after death of first wife got married with sister of the complainant but when no issue was born out of this wed lock the couple with consent of each other got the complainant married with said Poonam Kumar Gupta and at their instance, the present case has been instituted on wrong and false allegations. On the other hand, learned counsel for the opposite party though has not filed any counter affidavit, in spite of appearance years much before submits that this is not the stage where interference of this Court is required with the impugned order. The petitioner may agitate his point before the Trial Court at appropriate stage. 6. Learned counsel for the petitioner further placed reliance upon order dated 14.7.2005 passed in Case No. 61 of 2001 under Section 125 Cr.P.C. filed by the complainant against the petitioner which was dismissed for non prosecution on failure of the complainant to adduce any evidence in support of her 4 claim wherein also the petitioner has denied factum of marriage. 7. The complainant has come out with a case that she has been married with the petitioner and also averted about the demands made by him coupled with factum assault etc. Normally female member in our society may not file such petitions claiming a stranger as their husband but at the same time there are several exceptions also but only on basis of such exceptions this court cannot interfere at the very initial stage of the case wherein such type of assertion by a female is made. 8. In view of undisputed position of giving birth of the male child by the complainant after surgery in civil hospital there is possibility of documentary evidence, apart from other oral evidence which may come in favour of either side and if available documentary evidence is not produced the parties coming forward with a claim may have to face the consequences and all such aspects may be considered by the trial Court even at the stage of hearing on the point of charge. Though it is not permissible or required by the accused persons to produce evidence oral or documentary at such stage but at the same time the witnesses examined before charge may be cross examined and the accused persons may also on basis of such evidence show the trial Court 5 that no case is made out against them and they deserve discharge if such materials brought on record are sufficient. The trial Court must not hesitate in exercising their power to curb criminal proceeding at their initial stage. 9. In view of the fact and circumstances and observations made above at this stage I do not find any reason to interfere with the impugned order. Accordingly, this petition stands disposed of at the same time. Now the trial Court is directed to proceed expeditiously and preferably concluded the proceeding at least up to the stage of hearing of the charge within three months with receipt of copy of this order. 10. Let a copy of this order be communicated through F.A.X. at the cost of the petitioner. Patna High Court Date: 19th August, 2010 Anand Kr./- (Akhilesh Chandra, J.)