IN THE HIGH COURT OF JUDICATURE AT PATNA Cr. Misc. No.71 of 2008 1. DURGA DEVI, Wife of Shyam Jee Jha. 2. Annu Kumari, daughter of Shyam Jee Jha Both resident of village Kaithinia, P.S. R.S. Sivir, Jhanjharpur. At present residing at Mohalla Ganga Sagar, Near Marwari College, P.S. – Naka No. 5 (Laheriasarai), District – Darbhanga. 3. Archana Devi, Wife of Sri Krishna Kumar Jha, D/o. Shyam Jee Jha, resident of village Harai, P.S. – Andharathaddi, District – Madhubani. 4. Prabha Thakur, wife of Sri Krishna Madhav Thakur, D/o. Shyam Jee Jha, resident of village Kharraua, P.S. – Ghoghardiha, District Madhubani, at present residing at Plot No. 552 House No. 1.2.288/22/4-B Fulbagh, Domlaguda, Hydrabad. ......................... Petitioners. Versus 1. THE STATE OF BIHAR. 2. Shyama Nand Jha, Son of Late Bhagirath Jha, resident of village Ghoghardiha, P.S. – Ghoghardiha, Jhanjharpur, District – Madhubani. ........................ Opp. Parties. ----------- 04/ 12.05.2010 This petition is directed for quashing the order dated 04.12.2007 passed by Additional Chief Judicial Magistrate, Jhanjharpur by which after perusal of the supplementary charge sheet and other materials on record, he has taken cognizance of the offence under Sections 498 A and 304 B of the Indian Penal Code in connection with Madhupur (R.S. Sivir) P. S. Case No. 169 of 2003, G. R. 556 of 2002 and has ordered transferring the case to the court of Shri D.K. Singh, Judicial Magistrate, Jhanjharpur for its commitment to the court of Sessions. 2. Learned counsel for the petitioners, however, 2 challenged the order dated 04.12.2007 alleging that the magistrate has taken cognizance against these petitioners as the police in course of investigation did not find the case true against the petitioners and the same be quashed. The petitioners have been found innocent and the leaned court below has not applied its mind and without applying its mind and without taking notice of FIR, case diary, charge sheet and the facts on record and even on consideration of the defence of the accused has passed the impugned order and further the allegation is patently absurd and inherently improbable and that no offence is made out against the petitioner no. 2 to 5 and the prosecution has supported the fact that in earlier case under Section 498A of the IPC filed by the victim, the victim has deposed that only father-in- law, mother-in-law and her husband subjected her to cruelty and has placed reliance upon decision reported in 2005(1) PLJR 179 (Md. Ibrar Khan & Ors. Vs. State of Bihar) and contended that the criminal proceedings ought to be quashed on the ground of suppression of the fact. 3. Learned counsel for the opposite party, however, contended that the extra ordinary jurisdiction of quashing the petition under Section 482 shall be sparingly used in 3 rarest of the rare cases and the probative value of document can be assessed only in course of trial and thus no case for quashing is made out for which the reliance has been placed upon decision reported in 2000(3) PLJR 695 (Satyendra Kumar Sinha Vs. State of Bihar). 4. Hence on rival contention between the parties the question for consideration is whether under the facts and circumstances requires interference for quashing the order taking cognizance. 5. However, the prosecution case as alleged in the ferdebeyan by the informant that the marriage was solemnized in the year 1998 and there was demand of colour television, VCD, freeze, washing machine and motor-cycle and when the victim wife reached to the Sasural then her husband, father-in-law, mother-in-law, Nanad Sri Archana Devi, Annu Kumari and other subjected her to cruelty and thereafter a Sanha was lodged on 07.08.2002. But the Sasural people continued the subjecting cruelty and on 12.05.2002 the accused persons even assaulted and for which a case was instituted and the accused persons got a compromise petition filed by Guria causing the compromise petition ended on the basis of 4 compromise but after some time the in-laws start subjected her to cruelty on 17.07.2003. It was informed by some unknown persons that the victim has been done to death by burn injury and then the informant reached there and did not find the in-laws where as he found the Guria lying dead on the floor with burn injury. 6. Hence on the fact of the allegation itself, the marriage was solemnized in the year 1998. There is allegation of demand and subjecting cruelty and death in suspicious circumstance within seven years of the marriage and hence a prima facie case is made out. This can neither be said to be inherently improbable nor the allegation can be said to be patiently absurd and the allegation made in complaint prima facie make out a case. However, on the fardbeyan FIR lodged and the police submitted charge- sheet. However, at this stage of taking cognizance the learned Magistrate is not required to go into the defence of the accused persons and has only to see whether prima facie material in case diary for proceeding with the case and even after taking cognizance shall proceed to issue summon under Section 204 of the Cr.P.C and at this stage the mere opinion of the Magistrate shall prevail that there is 5 sufficient ground for proceeding. However, on the facts and the allegation in the FIR itself make out a case and the learned Magistrate by the impugned order has specifically mentioned that earlier the cognizance in the case has already been taken and against the three accused persons the supplementary charge sheet has been submitted for offence under Section 304 B and 498 A against these accused persons who are petitioners and the learned Magistrate has recorded in the impugned order that he have perused the case record, supplementary case diary, carbon copy of the original case diary, supplementary case diary and other relevant papers on the record and having satisfied the involvement of the aforesaid accused persons issue process after taking cognizance being satisfied that prima facie case is made out and hence from the order itself it is apparent that the learned Magistrate has applied its mind. He has stated in the impugned order that he perused the record and perusal means the active consideration of the fact and having taken into consideration of the fact has ordered to issue summon and hence it is apparent that the learned Magistrate has applied its mind on the material on record i.e. the case diary, original and supplementary and 6 other relevant papers. 7. Learned counsel for the petitioners submits that one of the documents, the deposition of the victim in earlier case under Section 498 A and various materials on case diary about the alibi has not been taken into consideration. However, it has come in the FIR that the said case was compromised fraudulently and the deposition of the victim in earlier case for offence under Section 498A is not very much relevant as the Magistrate has only to consider whether prima facie case is made out or not, and is not required to meticulously examine the fact as required at trial. 8. The learned counsel for the petitioners submits that the victim had earlier filed a case under Section 498 A and in that case she had deposed but had not stated the name of some of these petitioners in her deposition and this fact has been suppressed in fardbeyan is a ground for holding that this case has been filed by suppression of the fact, be a ground for quashing as prosecution as malicious. However, learned counsel for the petitioners has relied upon decision 2005 (1) PLJR 179. However, the facts and circumstance of the case reported in 2005 (1) PLJR 179 is quite different 7 which is not applicable in the facts and circumstance of the present case. 9. The fact in decision reported in 2005 (1) PLJR 179 is that Asafia Khanam was the daughter of the petitioner no. 1 in that case and the said Asafia Khanam was married to Rafi Azam, Debar of opposite party no. 2 in that case and said Asafia Khanam was subjected to cruelty for non- fulfillment of demand for not bringing a handsome dowry. The father of Asafia Khanam i.e. petitioner no. 1 visited the Sasural but the daughter Asafia Khanam was not allowed to go with the father till the demand is fulfillment and ultimately father had to file a Sanha before the Chief Judicial Magistrate narrating the facts and subsequently complaint was filed which was sent for institution of FIR under Section 156 (3) and thereafter a search warrant was issued by CJM, Munger for recovery of Asafia Khanam from her Sasural and thereafter the search warrant was issued executed by the Officer-In-Charge of Nath Nagar Police Station, Bhagalpur on 14.08.2003 and Asafia Khanam was recovered from the custody from her Sasural on the same day by police on 14.08.2003 by police. She was produced before the Court of learned SDJM, Munger 8 on the same day on 14.08.2003 and expresses her desire to go with her father and she was permitted to go with her father who was petitioner no. 1. 10. However, the opposite party no. 2 filed a complaint as counter blast alleging the occurrence as of 14.08.2003 therein that one police in Sub-Inspector and four constable on 14.08.2003 itself forming an unlawful assembly armed with weapon unauthorizedly enter into the house of complainant (opposite party no. 2) along with the father of the said Asafia Khanam and three others and terrorize and stolen away the articles at the point of pistol under threat to kill and collected ornaments and on Halla villagers assembled but the police and other members took away the articles. 11. That being aggrieved that the occurrence alleged dated 14.08.2003 father of Asafia Khanam filed a petition under Section 482 under the circumstance for quashing the case filed by the opposite party no. 2 in that case. It was found that this subsequent case alleging the date of occurrence 14.08.2003 was filed by the opposite party no. 2 as a counter blast to action of the Court for issuing search warrant the police having executed the search warrant by 9 virtue of order of Chief Judicial Magistrate, Munger thereupon it was held that the complaint case filed by the opposite party no. 2 against the petitioners is without any basis as filed suppressing the fact the police had came to execute search warrant in pursuance of executing the order of case but case has been filed suppressing this fact so it was held that the case was filed without any basis and it cannot be allowed to continue and set aside. 12. However, the facts and circumstance of the case reported in 2005 (1) PLJR 179 is a case in which the case was instituted without any basis as no occurrence has allegedly occurred and really the police in pursuance of the order of the Court when executed a search warrant proceeding the victim in Court a false case has been lodged alleging that the police has committed a theft. However, under the facts and circumstance of the present case it is not a case in which it can be said that the case has been flied without a basis where the victim has been done to death and a dead body has been recovered from the Sasural or in her in-laws place and there is allegation of demand and subjecting cruelty and even there is prior to this case under Section 498 was instituted though compromise and hence it 10 is not a case without a basis rather may be more than a prima facie case has been established and hence there is no merit in the submission that the case is inherently improbable or patently absurd and at the stage of taking cognizance the court has only to see prima facie case is made out to proceed with against the accused persons and at this stage the Court may not look into the supervision notes or meticulously examine the fact or take into consideration the defence of accused but only to see there is a prima facie case and there is material to proceed. It is pertinent to mention that cognizance is taken of the offence and once offence is made out and there is prima facie material for satisfaction the cognizance cannot be said to be illegal. 13. However, learned counsel for the petitioners has relied upon decision to consider the defence as required to be seen at fag end of the trial as meticulous examination to be seen at fag end of the trial cannot be looked at this stage. However, the principles which are to be applied at the fag end of the trial is not required to be applied at this initial stage of taking cognizance or issuance process and at this stage a cognizance can be taken if there is prima facie 11 material for proceeding with a case and even at the stage of framing of the charge even on strong suspicion a charge can be framed. However, the matrix applicable at the fag end of the trial is quite different from the matrix to be applied at the stage of taking cognizance and issuing process and even from framing of charge, hence, the principle applied in 2001 SCC 1226 and 1999 (1) BLJ 621 is not applicable under the facts and circumstance of the case, under the facts and circumstance, I do not find any merit in the petition and hence the petition is dismissed. Kundan (Gopal Prasad, J.)