CRIMINAL MISCELLANEOUS No.17087 OF 2003 In the matter of an application under Section 482 of the Code of Criminal Procedure ------------ 1. SHANKAR RAI , Son of Sri Matheran Rai 2. Matheran Rai, Son of Late Sheo Nandan Rai 3. Bhagwati Devi, Wife of Sri Matheran Rai 4. Dev Nath Rai, son of Sri Matheran Rai 5. Smt. Reena Devi, Wife of Sri Dev Nath Rai All residents of village-Rasalpur, Police Station-Dumra, District- Sitamarhi --------------------- Petitioners Versus 1. THE STATE OF BIHAR 2. Rani Devi, daughter of Rajendra Rai, resident of Village- Punra, Police Station-Sitamarhi, District-Sitamarhi -------------------Opp.Parties. --------------- For the petitioners: S/ Sri Uday Chand Prasad, B.K.Sinha, Advocates For Opp.Party No.2: Sri Nirmal Kumar Sinha No.3, Advocate For the State: Smt. Indu Bala Pandey, A.P.P. ----------- P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. Five petitioners, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, have prayed for quashing of an order dated 3.6.2003 passed by the learned Sub Divisional Judicial Magistrate, Sitamarhi in Complaint Case No.584 of 2003. By the said order, the learned Magistrate has taken cognizance of offences under Sections 498A and 380 of the Indian Penal Code and also under Section 4 of the Dowry Prohibition Act. The petitioners have also prayed for quashing of entire proceeding in Complaint Case No.584 of 2003. 2. Short fact of the case is that Opp.Party no.2 filed a complaint in 2 the court of learned Chief Judicial Magistrate, Sitamarhi , which was numbered as Complaint Case No.584 of 2003, against all the petitioners for offences under Sections 498A, 323, 380 of the Indian Penal Code and 3 / 4 of the Dowry Prohibition Act . After filing of the complaint petition and examining the complainant on S.A., the learned Magistrate took cognizance of offences under Sections 498A and 380 of the Indian Penal Code and Section 4 of the Dowry Prohibition Act. It was alleged in the complaint petition that the complainant was married 15 years ago with petitioner no.1. Immediately after the marriage, accused persons started torturing the complainant for extracting some more dowry. However, due to non- fulfilment of the dowry, finally she was ousted from the house of her in- laws and thereafter complaint petition was filed. 3. Sri Uday Chand Prasad, learned counsel appearing on behalf of the petitioners has confined his argument on the point that the complainant was never married with petitioner no.1 and she was a stranger. Learned counsel for the petitioners, while referring to Annexure-2 to the present petition, i.e. Admit Card of petitioner no.1, submits that even if the averment made in the complaint petition is accepted that 15 years back the marriage of complainant-Opp.Party no.2 was solemnized with petitioner no.1, on the date of alleged marriage the petitioner no.1 was minor. Learned counsel for the petitioner has also referred to Annexure-3 to the present petition, which is photo copy of the Voter List. It has been argued that even in the Voter List for the locality, neither name of the complainant nor name of petitioner no.1 was appearing, whereas name of other family members appears in the Voter List. On the aforesaid ground, it has been submitted that since the petitioner no.1 was never married with Opp.Party no.2, no 3 offence under Section 498A can be made out. In support of his stand, learned counsel for the petitioners has referred to a recent Judgment reported in 2010 (2) PLJR 529; Hari Prasad Sah Vs. State of Bihar as well as Judgment of this Court reported in 1999 (3) PLJR 531; Kishore Kumar & Ors. Vs. Ritu Kumari . It has been submitted that this Court has already held that if the complainant fails to establish the marriage, no offence under Section 498 can be applicable and on this ground this Court in the aforesaid two Judgments has already set aside the entire proceeding. It has been submitted that the present case is squarely covered by decision of this Court as referred above. It has been submitted that while admitting the present case, notice was issued to Opp.Party no.2 on two occasions. However, despite Opp.Party no.2 has entered her appearance before this Court, Opp.Party no.2 has not brought on record anything in support of marriage and on this ground alone, the order of cognizance as well as entire proceeding is liable to be set aside. 4. Sri Nirmal Kumar Sinha no.3 , learned counsel appearing on behalf of Opp.Party no.2 has opposed the prayer of the petitioners. 5. Smt. Indu Bala Pandey, learned Addl.Public Prosecutor appearing on behalf of the State has vehemently opposed the prayer of the petitioners. It has been submitted by the learned counsel for the State that those questions are not required to be looked into by this Court while hearing a petition under Section 482 of the Code of Criminal Procedure. It was submitted that all those facts are required to be examined by the concerned court, where the complaint case is pending. Accordingly, it has been prayed to reject the present petition. 6. Besides hearing learned counsel for the parties, I have also 4 perused the materials available on record. Prima facie allegation made in the complaint petition makes out a case and this Court is satisfied that the learned Magistrate has rightly taken cognizance of offences. So far as ground taken by the learned counsel for the petitioners that petitioner no.1 had denied the marriage with the complainant-Opp.Party no.2 is concerned, this Court is of the opinion that those facts cannot be decided by this Court at this stage. So far the case of Kishore Kumar (Supra) is concerned, the Court is of the opinion that the said case was not similar to the facts and circumstances of the present case. In Hari Prasad Sah’s case (Supra), the complainant who had claimed to be the wife of petitioner had stated in her S.A. that one Chinta Devi was the first wife of her husband. Accordingly, no benefit can be given to the petitioners on the strength of Hari Prasad Sah’s case (Supra). Regarding Kishore Kumar’case (Supra), the Court is of the opinion that the said Judgment does not help the petitioners. In the said case, the complainant, who had claimed to be the wife of petitioner Kishore Kumar had earlier married to one Ratan Murari Prasad and marriage with Ratan Murari Prasad was dissolved and immediately thereafter the complaint was filed against Kishore Kumar and others on allegation of commission of offences under Sections 498A and 323 of the Indian Penal Code. The fact of the present case is not similar to the case of Kishore Kumar’s case (Supra). Accordingly, I am of the view that no benefit can be given to the petitioners on the strength of the aforesaid two Judgments. The question whether the complainant was actually married to petitioner no.1 or not can be examined in detail by the court below and at the stage of cognizance , only requirement is to see as to whether prima facie case is made out or not. The order of cognizance cannot be examined by this Court 5 meticulously and in detail. This Court, while hearing a petition under Section 482 of the Code of Criminal Procedure, is required to see only as to whether a prima facie case is made out or not. If offence is made out, it is advisable for this Court to refrain from interfering with the order of cognizance. 7. Accordingly I do not find any merit in the present petition and the petition stands rejected. 8. In view of the rejection of the present petition, interim order of stay dated 8.7.2004 stands automatically vacated. Let a copy of this order be sent to the court below forthwith. Patna High Court,Patna Dated : the 17th September,2010 Nawal Kishore Singh/N.A.F.R. ( Rakesh Kumar, J.)