Md. Hazrat & Ors vs State Of Bihar & Anr on 6 December, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.49983 of 2014
Arising Out of PS.Case No. -403 Year- 2014 Thana -COMPLAINT CASE District- SUPAUL

1. Md. Hazrat son of Md. Khuda Baksh

2. Md. Daud son of Md. Khuda Baksh

3. Md. Kudwa son of Md. Khuda Baksh

4. Md. Khuda Baksh son of Late Kinu Miya

5. Bibi Sadina wife of Md. Khuda Baksh All are resident of village –
Simrahi, P.S. Raghopur, District – Supaul
…. …. Petitioners
Versus

1. The State of Bihar

2. Khairul Khatoon wife of Md. Hazrat, D/o Md. Juman resident of
village – Rampur, P.S. Raghopur, District – Supaul
…. …. Opposite Party

Appearance :

For the Petitioner/s : Mr. Amrit Abhijat, Advocate
For the Opposite Party/s Mrs. Rina Sinha, APP

CORAM: HONOURABLE MR. JUSTICE RAJEEV RANJAN PRASAD
ORAL JUDGMENT
Date: 06-12-2017

Heard learned counsel for the petitioners and

learned Additional Public Prosecutor for the State.

Petitioners are aggrieved by the order dated

12.11.2014 passed by learned Sub-Divisional Judicial

Magistrate, Birpur, District – Supaul by which learned

Magistrate has taken cognizance under Sections 498A, 341 of

the Indian Penal Code and Section 4 of Dowry Prohibition Act,

1987 in Complaint Case No. 403C/2014.

Patna High Court Cr.M isc. No.49983 of 2014 dt.06-12-2017

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A supplementary affidavit on behalf of the

petitioners has been filed today. Submission is that the father

of Khairul Khatoon (complainant) has stated on affidavit filed

before the learned Sub-Divisional Judicial Magistrate in the

present case that he is not interested in deposing as a witness

in the present case. He has further stated that his daughter

Khairul Khatoon has married to one Md. Rahbul and has gone

with him along with her two sons and one daughter. It is

stated in the affidavit that, according to the father of the

complainant-Opposite Party No. 2, she is presently living with

Md. Rahbul in New Delhi.

Learned counsel has further drawn my attention

towards the order-sheets enclosed with the supplementary

affidavit to contend that in fact the complainant-Opposite

Party No. 2 is not doing any kind of pairvy in the complaint

case since 19.08.2015. Submission is that immediately after

the issuance of summon to the present petitioners, the

complainant-Opposite Party No. 2 has left pairvy, but for the

last two years, these petitioners are being harassed due to

pendency of the complaint case in absence of the

complainant-Opposite Party No. 2.

Patna High Court Cr.M isc. No.49983 of 2014 dt.06-12-2017

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In the present case, notice was issued to

complainant-Opposite Party No. 2 and she has appeared

through Vakalatnama, but no one appears to represent her

when the case is taken up for hearing and disposal.

I find substance in the submission of learned

counsel for the petitioners, at least to this extent that for the

last two years the complainant-Opposite Party No. 2 is not

putting her appearance in the court below and her father has

filed affidavit in the complaint case stating the facts noted

hereinabove. In the facts and circumstances, the continuation

of the complaint case without any further progress for over

two years is definitely in the nature of harassment to these

petitioners.

Learned counsel for the petitioners submits that

since it is a complaint case and the complainant-Opposite

Party No. 2 is not bringing any evidence at the stage of

evidence before charge as has been envisaged under Section

244 Cr.P.C., he may be advising these petitioners to file an

application under Section 245(2) Cr.P.C. in the court below for

an appropriate order.

In the facts and circumstances stated
Patna High Court Cr.M isc. No.49983 of 2014 dt.06-12-2017

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hereinabove, it is observed that, if the petitioners file an

application in the court below in accordance with law, the

same shall be considered by the learned Sub-Divisional

Judicial Magistrate, Birpur and an order shall be passed

thereon within a period of two months from the date of filing

of such an application.

In the aforesaid view of the matter, this Court is

not interfering with the order taking cognizance at this stage.

This application is, accordingly, disposed of.

(Rajeev Ranjan Prasad, J.)
Rajeev/-

AFR/NAFR NAFR
CAV DATE NA
Uploading Date 07.12.2017
Transmission Date 07.12.2017

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