CRIMINAL MISCELLANIOUS No.10839 OF 2007 ----- In the matter of an application under Section 482 of the Code of Criminal Procedure, 1973. ----- Shyamanand Yadav, S/O Sri Abhidev Yadav, Resident of Village- Chhaprahi, P.S.-Khajauli, District- Madhubani. ……………Petitioner. Versus 1. The State of Bihar, 2. Archana Devi, W/O Shyamanand Yadav, Resident of Village- Chhaparahi, P.S. Khajauli, District- mMadhubani. …………Opposite Parties. ------ For the Petitioner :Shailendra Kumar Singh, Advocate. :Ratnakar Jha, Advocate. For the State :A.M.P. Mehta, APP. P R E S E N T THE HON'BLE MR. JUSTICE RAKESH KUMAR Rakesh Kumar, J. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the code of Criminal Procedure, has prayed for quashing of an order dated 24.09.2005 passed by Sri S.M.F. Rai, Judicial Magistrate, Ist Class, Madhubani, in Complaint Case No. 502 of 2005 (T.R. No. 2372 of 2005). By the said order, the leaned Magistrate has taken cognizance of offences under Sections 498A, 323 and 379 of the Indian Penal Code. 2. Short fact of the case is that opposite party no. 2 filed a complaint in the Court of Chief Judicial Magistrate, Madhubani against the petitioner and his family members on allegation of commission of offences under Sections 498A, 323 and 379 of the Indian Penal Code and Sections 3 and 4 of the Dowry Prohibition Act. It was disclosed in the complaint petition that the petitioner by giving assurance of marriage to the complainant had developed illicit relation with her since last one year. On 20.04.2005 in the night at about 1 A.M. the petitioner entered into the house of the complainant and tried to 2 commit rape. On alarm being raised by the complainant the petitioner was apprehended by the family members of the complainant. Subsequently, this petitioner agreed to solemnize marriage with the complainant. The marriage of the petitioner with the complainant was solemnized on 21.04.2005 and complainant went to the house of the petitioner and started to live as wife. However, the accused persons started demanding dowry and due to non-fulfillment of the said demand, all the accused persons conspiring with each other tried to put the complainant on fire. Anyhow the complainant escaped. It was alleged that the accused persons had forcibly taken cloths and ornaments of the complainant. After filing of the complaint petition, the complaint was inquired and the learned Magistrate vide its order dated 24.09.2005 has taken cognizance of offences under Sections 498A, 323 and 379 of the Indian Penal code and summoned the accused persons including the petitioner to face trial. 3. Aggrieved with the order of cognizance the petitioner approached this court by filing the present petition. On 03.09.2008 the case was admitted for hearing and while admitting it was directed that in the meantime further proceeding in Complaint Case No. 502 of 2005 pending in the court of learned Judicial Magistrate, Madhubani, shall remain stayed. 4. Sri Shailendra Kumar Singh, who was assisted by Sri Ratnakar Jha, learned counsel appearing on behalf of petitioner, while challenging the order of cognizance and initiation of proceeding in Complaint Case No. 502 of 2005, has argued that the present complaint petition was filed in a well design manner. It has been submitted that the petitioner comes from an affluent family and reside in the locality of the complainant. He was kidnapped by henchman of 3 the opposite party no. 2 and thereafter by force marriage was solemnized. It has further been submitted that after the said occurrence the petitioner had filed a complaint in the court of Chief Judicial Magistrate, Madhubani, which was registered as Complaint Case No. 463 of 2005 against parents and family members of opposite party no. 2 for the offences under Sections 323, 344, 347, 328, 363 and 384 of the Indian Penal Code and 27 of the Arms Act. Learned counsel for the petitioner has argued that while the complainant on the eve of Durga Puja was watching a cultural programme at about 12 in night he was kidnapped by the accused persons i.e. family members of the opposite party no. 2. He was forcibly given some medicine and in his unconscious position marriage was solemnized with opposite party no. 2. The said complaint was referred to the police and thereafter F.I.R. has been lodged vide Khajauli P.S. Case No. 100 of 2005 on 25.08.2005 against the accused persons i.e. father of the opposite party no. 2 and other family members under Sections 341, 342, 323, 343, 347, 328/34 of the Indian Penal Code. Learned counsel for the petitioner has referred to annexure 2 to the petition i.e. copy of F.I.R. in Khajauli P.S. Case No. 100 of 2005. Learned counsel for the petitioner has submitted that since marriage with the opposite party no. 2 with petitioner was not valid, Section 498 A of the Indian Penal Code is not applicable in the facts and circumstances of the case. It has further been submitted that the allegation made in complaint petition appears to be unbelievable. It has been prayed to set aside the order of cognizance date 24.09.2005. 5. In this case despite the fact that opposite party no. 2 had appeared through her Advocate, at the time of hearing none appeared on behalf of opposite party no.2. 4 Present case was taken up for hearing yesterday. In absence of opposite party no. 2 the hearing was deferred and today again none appeared on behalf of the opposite party no.2. 6. Sri. A.M.P. Mehta, learned Additional Public Prosecutor appears on behalf of the State. 7. Besides hearing learned counsel for the petitioner and State, I have also perused the material available on the record, particularly the contents of the complaint petition. In the complaint petition the opposite party no. 2 had firstly asserted that the petitioner on the assurance of marriage with opposite party no. 2 had developed illicit relation with her since last one year. It is difficult to understand that once the complainant admits that she was having illicit relation with the petitioner since last one year what was the occasion for the petitioner to attempt for committing rape on her. In the complaint petition it was disclosed that on 20.4.2004 in night at about 1 A.M. this petitioner had tried to commit rape which was opposed by the complainant and on her alarm her family members apprehended the petitioner. On the next date it has been alleged in the complaint petition that on 21.04.2005 marriage of petitioner was solemnized with the opposite party no. 2. After going through the averments made in the complaint petition the Court is satisfied that that allegation appears to be unbelievable. Moreover, in view of the fact that petitioner had already filed a complaint case against the father of the complainant opposite party no. 2 and other family members on allegation of kidnapping and forcibly marriage, the Court is of opinion that it is a fit case for interfering with the order of cognizance. 8. Accordingly, the order of cognizance dated 24.09.2005, passed by Sri S.M.F. Rai, Judicial Magistrate, 5 Ist Class, Madhubani, in Complaint Case No. 502 of 2005 (T.R. No. 2372 of 2005) is hereby set aside and petition stands allowed. (Rakesh Kumar, J.) Patna High Court, The 27th October, 2010, Bhardwaj/NAFR