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Baidyanath Rai vs State Of Bihar & Anr on 24 August, 2017


Criminal Miscellaneous No.15289 of 2014
Arising Out of PS.Case No. -2597 Year- 2011 Thana -PATNA COMPLAINT CASE District-

Baidyanath Rai Son Of Nagendra Rai Resident Of Village:- Subhai, Police Station:-
Hajipur Sadar, District:- Vaishali

…. …. Petitioner/s

1. The State Of Bihar

2. Satya Prakash Son Of Ramyatan Yadav Resident Of Mohalla:- Punaichak, P.S.:-
Shashtri Nagar, District:- Patna

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Ashok Kumar, Advocate
For the Opposite Party/s : Mr. Rajendra Singh Shastry, A.P.P.

Date: 24-08-2017

Heard learned counsel for the parties.

This application under Section 482 of the Code of
Criminal Procedure has been filed by the petitioner for quashing of
an order dated 16.04.2012 passed by the learned Judicial
Magistrate, 1st Class, Patna in Complaint Case No. 2597(C) of 2011
whereby the learned court below took cognizance against the
petitioner under Sections 448, 380 and 34 of the Indian Penal Code.

The brief facts of this case is that the complainant was
married with co-accused Kiran Kumari in the year 2003 and out of
their bedlock, a female baby was born. There after, the wife of the
complainant filed a complaint case No. 630 of 2006 against the
complainant along with his family members for the offences
punishable under Section 498A of the Indian Penal Code. Despite
several efforts when the matter could not resolved, the complainant
filed a Matrimonial Case No. 369 of 2007 for restitution of conjugal
rights and in retaliation the wife of the complainant also filed a
Patna High Court Cr.Misc. No.15289 of 2014 dt.24-08-2017


Divorce Case No. 201 of 2010 against him. Thereafter the
complainant also filed a Guardianship Case No. 30 of 2009 for his
daughter and the same has been decided in his favour. In
continuation of aforesaid series of litigation, the complainant again
filed the entire compliant for the alleged offence of assault and theft
against the petitioner and other accused persons.

Learned counsel for the petitioners has submitted that
petitioner has not committed any offence as alleged in the
complaint. As a matter of fact, there are series of litigation between
the complainant and his wife and when the wife of the complainant
performed marriage with this petitioner, he has falsely been
implicated in this case with general and omnibus allegation only to
harass the petitioner and her wife. The manner of allegation leveled
in the complaint itself goes to show that this petitioner has not
played any role in the entire matter rather he made a victim of
circumstance only. Moreover, no any witnesses have supported the
prosecution version. Therefore, no specific case is made out against
the petitioner but the court below without appreciating the material
on record has taken cognizance in a routine manner. On the above
ground, it is submitted that the cognizance order is bad in law and is
fit to be quashed.

Learned counsel appearing for the State opposes the
application by contending that there are allegations against the
petitioner and the court below after going through the materials
available on record has found a prima facie case made out against
the petitioner and rightly taken cognizance for the offence under
Sections 448, 380 and 34 of the Indian Penal Code. Therefore, the
order taking cognizance does not require any interference.

From perusal of the material on record and looking into
the facts of the case at this stage, it cannot be said that no offence is
Patna High Court Cr.Misc. No.15289 of 2014 dt.24-08-2017


made out against the petitioners. All the submissions made at Bar
relates to disputed question of fact, which cannot be adjudicated
upon by this Court in exercise of power conferred under Section
482 Cr.P.C. Only a prima facie satisfaction of the Court about the
existence ground to proceed with the matter is required. At this
stage, only prima facie case is to be seen in the light of the law laid
down by the Supreme Court in cases of R.P. Kapur Vs. State of
Punjab, A.I.R. 1960 SC 866, State of Haryana Vs. Bhajan Lal,
1992 SCC (Cr.) 426, State of Bihar Vs. P.P. Sharma, 1992 SCC
(Cr.) 192, Zandu Pharmaceutical Works Ltd. Vs. Mohd. Saraful
Haq and another (Para-10) 2005 SCC (Cr.) 283 and recently in
A.R.C.I. Vs. Nimra Cerglass Technics (P) Ltd. (2016) 1 SCC 348.
The submission made by the learned for the petitioner call for
adjudication on pure question of fact which may be adequately
gone into by the trial court in this case. This Court does not deem it
proper, and therefore, cannot be persuaded to have a pre-trial before
the actual trial begins. The disputed defense of the accused cannot
be considered at this stage. Moreover, the petitioner has got a right
of discharge through a proper application for the said purpose and
he is free to take all the submission in the said discharge application
before the trial court. The prayer for quashing the order taking
cognizance is refused.

The application accordingly stands dismissed.

(Arvind Srivastava, J)


Uploading Date 24.08.2017
Transmission 24.08.2017

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