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Khandekar Farooq Hossain vs Unknown on 3 July, 2017


188 03.07.2017

AB Court 28 C.R.R. 2006 of 2017

In the matter of : Khandekar Farooq Hossain
alias Sajat


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 At that stage the said proceeding was withdrawn and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

similar relief.

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.)

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