IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.53983 of 2007 SAFALI GHOSH @ SAFO DEVI @ SAFALI DEVI, wife of Dr. Jai Prakash Azad, resident of J.L.N. Hospital, Mayaganj P.S.-Kotwali, District- Bhagalpur. ……..Petitioner Versus 1. The State Of Bihar 2. Anita Kumari, wife of Dilip Kumar Vishwakarma and daughter of Ganga Sharma, resident of Purani Ganj, P.S.-Kasim Bazar, District- Munger. ………Opposite Parties. ----------- 03. 19.03.2010 Heard learned counsel for the petitioner and the State. This application has been filed for quashing the order dated 24.09.2007 passed by Sri. Govind Prasad Singh, Additional District & Sessions Judge, F.T.C. V, Munger in Criminal Revision No. 411 of 2004 which was preferred against the order dated 03.09.2004 passed by the S.D.J.M., Munger in G.R. No. 467 of 2001 whereby and whereunder petitioner’s application for discharge under Section 239 Cr. P.C. has been rejected. Vide order dated 17.02.2009, notices were issued by this Court to Opposite Party No. 2. Office note dated 29.04.2009 suggest that notices were served but the Opposite Party No. 2 chose not to appear. No one appeared even today when the case is called out. The contention of the learned counsel for the petitioner is that in the complaint which was 2 subsequently registered as a police case, the allegation against this petitioner who is outsider is that this petitioner has some illicit relationship with the husband of the complainant and at the behest of this petitioner, the in-laws of the complainant assaulted the complainant. It is submitted that after investigation, the police submitted charge sheet under Sections 498(A), 494, 323 of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act and consequently cognizance was also taken. An application was filed by the petitioner who is an outsider for discharge under Section 239 Cr. P.C. on the ground that no offence is made out against the petitioner. It is submitted that in para 14 of the case diary which is the statement of one Hamimudding who is hearsay witness, he simply stated that he learnt from the informant about the allegation against present petitioner. In para 5 and 6 of the case diary the witnesses has deposed as a hearsay witnesses. It is further submitted by the learned counsel for the petitioner that the Trial Court vide order dated 03.09.2004 has not found any prima- facie case against this petitioner under Section 498(A) of the Indian Penal Code and Section ¾ of the Dowry Prohibition Act but has only found sufficient evidence under Section 323 of the Penal Code and thereby rejected 3 the discharge application. The petitioner preferred Criminal Revision No. 411 of 2004 against the order dated 03.09.2004 passed by the learned S.D.J.M., Munger in G.R. No. 467 of 2001 which has been dismissed on 24.09.2007 by the Additional District & Sessions Judge, F.T.C. V, Munger on the ground that prima facie case appears against petitioner under Sections 498(A), 494, 323, I.P.C. and ¾ of Dowry Prohibition Act, hence learned S.D.J.M. has rightly rejected to discharge application of the petitioner. After hearing learned counsel for the petitioner, learned counsel for the State and going through the materials on record, I find that learned Magistrate has find only prima facie case against petitioner under Section 323 I.P.C. for framing charge against petitioner for which she having lady is dragged in the case since 2001, hence I do here by quash the order dated 03.09.2004 passed by the S.D.J.M., Munger in G.R. No. 467 of 2001 as well as the order dated 24.09.2007 passed by the Additional District & Sessions Judge, F.T.C. V, Munger in Cr. Revision No. 411 of 2004 with a liberty to the Trial Court to reexamine the discharge application afresh and pass the appropriate order and if no direct material is there as against the petitioner, then order should be passed accordingly. 4 It has also been submitted on behalf of the petitioner’s counsel that now the complainant is residing peacefully with the husband. While considering the discharge application afresh, the Trial Court will take into account this submission of the counsel for the petitioner. The present application is allowed, with the aforesaid observations and directions. Shageer (Dinesh Kumar Singh, J)