IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.19708 of 2007 MEHRUN NESA & ORS Versus STATE OF BIHAR & ANR ----------- For the petitioner : M/s M.N.Parwat & Praween Prabhakar, Advocates For the State : Mr. Jharkhandi Upadhaya, A.P.P. For O.P. No. 2 : Mr. Zainul Abedin, Advocate ------ O R D E R Nine of the ten persons who have been impleaded as accused in Complaint Case No. C 702 of 2004 have filed this application for quashing of the entire criminal proceeding arising therefrom including the order dated 30.3.3005 passed therein by the learned Sub Divisional Judicial Magistrate, Bagha, whereby he has taken cognizance of offence under section 498A IPC against the petitioners and one other. The complainant Farnaz Khanam, impleaded herein as O.P. No. 2, filed the aforesaid complaint on 26.10.2004 inter alia stating that her marriage with Javed Alam (other than the petitioners) took place according to Muslim rituals on 26.10.2002 whereafter she went to the marital home where for the initial period the behaviour and conduct of her husband and other relations were cordial but soon thereafter her husband and his parents started pressurising her to bring Rs. 2 lacs from her father to set up a business and on her refusing to oblige, in view of the financial stringency of her father, all the accused persons started misbehaving with her, subjected her to cruelty and torture and even threatened her with separation in the event that - 2 - the demand was not met. It is alleged that on her giving information to her father regarding the happenings in the matrimonial home, the father along with his relations and witnesses came over to reason with the accused persons and also pacify them but without any success and thereafter the intensity of her torture, both mental and physical, increased and even she was subjected to assault even as she conceived and efforts were made to terminate her pregnancy. It is said that she again gave information regarding her torture to her father who arrived just in time at her matrimonial home along with witnesses on 14.6.2004 to save her even as her mother-in-law was sprinkling kerosene oil on her and her sister-in-laws, Sahida and Zahida, had caught hold of her and her father-in-law had provided her husband with a matchbox and instigated him to set her on fire. The other accused persons are said to have been present at the relevant time. The other allegation is that the accused persons had forcibly taken her signature on blank paper. The submission on behalf of the petitioners is that they have been falsely made to figure as accused on concocted allegation due to enmity since while the husband and wife after the marriage were living together at Gorakhpur, matrimonial differences had cropped up between the husband and the complainant as a result thereof they had divorced each other vide registered deed of divorce dated 8.6.2004 at Gorakhpur and ever since they had no concern with each other. It is further - 3 - submitted that after the divorce the complainant was residing at Bagha in West Champaran and the present case had been filed after more than 4 months of divorce by implicating all the family members of Javed Alam. It was sought to be submitted that having divorced each other on 8.6.2004 the allegation of the occurrence taking place on 14.12.2004 could not in any way be related to, in any way, with the petitioners and Javed. Grievance has also been raised of the case having been filed with malicious intention to harass the petitioners with oblique purposes. The informant – O.P. No. 2 has appeared and filed her counter affidavit inter alia stating that she happens to be the unfortunate second wife of Javed and that the said Javed was in the habit of contacting one marriage after another wherein all his family members used to participate. With reference to a letter written to the National Commission for Woman by Naznin claiming to be the wife of said Javed by virtue of marriage contacted on 3.2.2005 (Annexure A) notice had been issued to Javed. It was further submitted that on 25.1.2006 the said husband entered into his fourth marriage with one Amina even as Naznin committed suicide by the reason of the torture she was subjected to by her husband and parents –in – law and a case being Jahangirpuri P.S. Case No. 143 of 2006 (Annexure C) was registered against the husband and parents wherein they continued to remain in custody. The submission on behalf of the petitioners regarding the divorce has been denied and even - 4 - Annexure 2 the photocopy of the registered deed of divorce is claimed to be forged and fabricated. Her torture at the hands of the petitioner and her husband has been reiterated. The submissions advanced by the learned counsel for the petitioners unfortunately happen to be their defence. Admittedly the case has proceeded on a plaint filed by the complainant – O.P. No. 2 and cognizance has been taken after holding an inquiry under section 202 Cr.P.C. At this stage the court taking cognizance is only to see whether the allegation made in complaint are intrinsically true and for the purpose the Magistrate has to satisfy himself that there is sufficient ground for proceeding. In order to come to such conclusion he is entitled to consider the evidence taken by him or recorded by him in the inquiry under section 202 Cr.P.C. he is not entitled to rely upon any other material. Reference in this connection may gainfully be made to the case of Chandradeo Vs. Prokash Chandra (AIR 1963 SC 1430). From the impugned order dated 30.3.2005, it appears that the learned Magistrate from the materials available on the record has come to the conclusion that a prima facie case for proceeding against the petitioners and the said Javed had been made out. Whether the complaint is frivolous or not, has, necessarily to be determined on the basis of the materials placed before him by the complainant. Whatever defence the accused may have can only be inquired into at the trial. - 5 - In the facts and circumstances of the case I find no merit in the application which is accordingly dismissed. Patna High Court, Patna. Dated : The 8th of May, 2009 Sanjay Pd./A.F.R. (Abhijit Sinha, J.)