IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.25601 of 2005 1. MAULWI MOHAMMAD RAFIK ALAM Son of Md. Ayub Ali 2. Md. Aiyub Ali Son of Md. Irfan Ali. 3. Armani KHatoon Wife of Md. Aiyub Ali. 4. Amjad Ali Son of Md. Aiyub Ali. 5. Abdush Salam Son of Amjad Ali All are resident of Village- Basantpur, Farsa, Dangi, P.S. Kishanganj, District- Kishanganj. . . . . . . Petitioners. Versus 1. THE STATE OF BIHAR 2. Ajrul Haque S/o Ash Mohamad, resident of Panta Pana, P.S. Gual Pokhar, Distt. Uttar Dinajpur, West Bengal. 3. Josan Ara Khatoon W/o Maulvi Md. Rafique Alam D/o Ash Mohamad, resident of Panta Pana, P.S. Gual Pokhar, Distt. Uttar Dinajpur, West Bengal. . . . . . . . . . Opposite parties. ----------- 9/ 08.02.2010 Heard. Despite issuance of notice no one appeared on behalf of opposite party no.2 Ajrul Haque, complainant and Josan Ara Khatoon, opposite party no.3. In the instant application, the petitioners pay for quashing the order dated 25.06.2005 passed by Judicial Magistrate, 1st Class, Kishanganj in which cognizance has been taken under Sections 498 A and 504/34 of the I.P.C in Complaint case no. 300 C of 2005. The petitioner states that the instant complaint has not been filed by Josan Ara Khatoon, who is alleged to have been tortured by petitioner no.1, her husband and other accused persons, who are petitioner nos. 2 to 5. Learned counsel submits that even in enquiry under Section 202 of Cr.P.C., the victim did not examine herself as a - 2 - witness. Learned counsel submits that learned Judicial Magistrate on 18.05.2005 asked to produce the sister of the complainant, who happens to be the wife of petitioner no.1. Despite the aforesaid order, opposite party no.3 Josan Ara Khatoon was not produced. The petitioner submits that petitioner no.1 filed a petition before the Superintendent of Police, Kishanganj alleging false implication and blackmailing by the prosecution side, as such he pleaded for making an enquiry in respect of the same. The aforesaid petition was signed by the other villagers as well. The officer-in-charge, Kishanganj police station after enquiry found the complaint of petitioner no.1 to be correct. Heard counsel for the petitioner and the State. The victim Josan Ara Khatoon, who is alleged to have been tortured by her husband, petitioner no.1, and others, is not the complainant in this case nor she was even examined in enquiry under Section 202 of Cr.P.C. It further appears that the Magistrate by his order dated 18.05.2005 also sought for production of Josan Ara Khatoon, however, the latter did not appear in court. The allegation leveled in the complaint case against opposite party no.2 to 5 also seems improbable. Thus, I find that the main aggrieved person has not turned up in court to support the allegations made on her behalf. Non-examination of the victim alleged to have been tortured even at the stage of enquiry under Section 202 of Cr.P.C. cut at the root of the prosecution case and makes the prosecution doubtful. - 3 - In face of such glaring omissions and inexplicable attitude, continuance of proceeding under Sections 498 A and 504/34 of the I.P.C. against the accused persons would be an abuse of the process of law. In the circumstances, the impugned order dated 20.06.2005 passed by Judicial Magistrate, 1st Class, Kishanganj taking cognizance is hereby quashed. This application is, accordingly, allowed. Uday/ (Samarendra Pratap Singh, J.)