AB Court 28 C.R.R. 2006 of 2017
In the matter of : Khandekar Farooq Hossain
Mr. Tara Charan Mukherjee …for the Petitioner.
Liberty to amend the cause title of the petition in the course
of the day.
Petitioner – husband has assailed the maintainability of
proceeding under Section 125 Cr.P.C. at Katwa in the district of
It has been contended that an earlier proceeding of similar
nature was instituted at Katwa and the parties agreed that the
proceeding be transferred to Kandi, Murshidabad on the point of
jurisdiction. At that stage the said proceeding was withdrawn and
the impugned proceeding was subsequently instituted at Katwa for
It was also submitted that the criminal prosecution under
Section 498A IPC is pending against the petitioner at Kandi,
I have considered the submissions of the petitioner in the
light of the materials on record. Pleadings in the application
under Section 125 Cr.P.C. show that the opposite party / wife is
presently residing at Katwa in the district of Burdwan.
Hence, institution of the proceeding before the learned
Magistrate at Katwa cannot be said to be without jurisdiction in
view of Section 126 Cr.P.C. Withdrawal of an earlier proceeding on
consent from the selfsame court does not operate as issue
estoppel, particularly when documents were placed before the
learned Magistrate to show that the opposite party – wife was
residing within the territorial jurisdiction of the said Magistrate.
Jurisdiction to entertain an application under Section 125
Cr.P.C. is also different from a prosecution under Section 498A of
the Indian Penal Code.
For the aforesaid reasons, I do not find any reason to
interfere with the impugned order. Petitioner, however, will be at
liberty to take all his just defences in the course of the said
proceeding before the learned Magistrate in accordance with law.
With the aforesaid observation, the petition is disposed of.
Urgent Photostat Certified copy of this order, if applied for,
be supplied expeditiously after complying with all necessary legal
(Joymalya Bagchi, J.)