IN THE HIGH COURT OF JUDICATURE AT PATNA CR. REV. No.1537 of 2009 Rakesh Kumar, s/o Ramjee Sharma, r/o vill- Chnaki, P.S.- Dhanarua, Dist. – Patna. …. Petitioner. Versus The State Of Bihar … Opposite Party. ----- For the petitioner :Mr. Sanjay Kumar,Adv. For the State :Dr. Rabindra Kumar, APP ----------- 2. 11.11.2011 The complainant- petitioner has preferred this revision application against the order dated 19.8.2009 passed by the learned Chief Judicial Magistrate, Jehanabad in Complaint Case No. 595 of 2009 by which a petition under Section 210(3) Cr.P.C. filed by the petitioner has been dismissed. The complainant- petitioner filed Complaint Case No. 595 of 2009 on 29.6.2009 in the Court of learned Chief Judicial Magistrate stating therein that his brother Mukesh Kumar was married to accused Smita Devi in the year 1997. Two daughters and one son aged about 10 year, 7 year and 5 year respectivey were born out from the said wedlock. After the birth of the son, Smita Devi, wife of the deceased pressurized him for partition in the family. Earlier Smita Devi filed criminal case in the year 2006 against her husband and his relatives as Dhanarua P. S. Case No. 193 of 2006 in which 2 his relatives are on bail. About two months prior to occurrence Naihar people of Smita Devi called the deceased to Jehanabad and they physically and mentally tortured him for partition in the family. On 21.6.2009, the father of Smt. Smita Devi called the deceased at his Jehanabad residence in the night and all the accused brutally assaulted him with iron rod and also by fists and slaps and confined him in a room and at 5 a. m. morning he was released by them. The deceased any how reached his village at about 8 a.m. and stated about the mishappening and injuries caused to him by his sasural people. He was brought to Masaurhi for treatment where he was referred to PMCH but in the way he died. The complainant and his family members went to the police station at Jehanabad but no case was registered. After Sharadh Karm the complaint was lodged. Complaint Case No. 595 of 2009 was lodged by the petitioner for the offence punishable under Sections 302 and other minor sections of the IPC. The case was sent to the Jehanabad Police Station under Section 156(3) I.P.C. for instituting an FIR and for investigation. Jehanabad Officer 3 Incharge, Jehanabad police Station sent a report dated 21.7.2009 to the learned Chief Judicial Magistrate that Dhanarua P. S. Case No. 191 of 2009 has already been instituted by the wife of the deceased against the complainant and his family members rather he without making any investigation of the present matter suggested that the complaint case has been lodged as a defence case by the complainant-petitioner. After getting this information learned Chief Judicial Magistrate stayed the proceeding of complaint petition on 4.8.2009. The complaint case was transferred to the Court of ACJM, Jehanabad. Complainant filed a petition under Section 210(3) Cr.P.C. with a prayer to hold the enquiry of complaint case on the ground that the complaint petition is exclusively comes under the jurisdiction of Jehanabad Court and also the set of accused are entirely different and the manner of the occurrence is also quite different hence enquiry proceeding should not be stopped. The petition filed by the petitioner has been dismissed by the impugned order. It is submitted by the learned counsel for the petitioner that Smita Devi wife 4 of the deceased Mukesh Kumar has lodged Dhanarua P. S. Case no. 191 of 2009 under sections 302/201/34 I.P.C. against Ramji Sharma, Kanti Devi, Rakesh Sharma and Lalasha Devi, the relative of the deceased Mukesh Kumar, whereas, the petitioner has lodged the Complaint Case No. 595 of 2009 against Shivdutt Sharma, Bhagwati Devi, Niraj Kumar, Chandresh Kumar, Lav Kumar, Kush Kumar and Smita Devi for causing death of her husband Mukesh Kumar. All the accused are the relative of Smita Devi. He has further submitted that since the accused are different for the same occurrence as such the enquiry in the complaint case could not be stopped. In support of his contention he has relied upon a decision of this Court in the case of Upendra Yadav vs. State of Bihar & Ors, reported in 2002(3) PLJR 9 in which it has been held that when the complaint case and the police case are in respect of the same offence, the accused persons in the complaint case who have not been involved in the police case can be proceeded. If the enquiry is made in the complaint case and in case commission of offence triable by a court of session is made out both cases should 5 be tried in the same court. Learned counsel for the State could not controvert the contention of learned counsel for the petitioner. Considering the facts and circumstances, it appears that it is an admitted fact that Dhanarua P. S. Case No. 191 of 2009 has been lodged under Sections 302/201/34 for the commission of murder of Mukesh Kumar and the petitioner Rakesh Kumar has also lodged complaint case No. 595 of 2009 in the Court of learned Chief Judicial Magistrate, Jehanabad for murder of the same person Mukesh Kumar against Smita Devi and her parents and brother. In view of the aforesaid discussions, enquiry in the complaint case cannot be stayed. The impugned order is not fit to be sustained. The impugned order is set aside and the enquiry in the complaint case will proceed in accordance with law. In the result, this revision application is allowed. Kanchan (Amaresh Kumar Lal, J.)