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Md. Mustaque Alam @ Md. Mustaque & … vs State Of Bihar & Anr on 28 February, 2018

Patna High Court Cr.M isc. No.14300 of 2014 dt.28-02-2018

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IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.14300 of 2014
Arising Out of PS.Case No. -1453 Year- 2012 Thana -COM PLAINT CASE District- KISANGANJ

1. Md. Mustaque Alam @ Md. Mustaque Son Of Tafejul

2. Tammena, Wife Of Tafejul Both Resident Of Village – Jamnigurri, P.S.
Kuirlikot, Distt.-Kishanganj

…. …. Petitioner/s
Versus

1. State Of Bihar

2. Muhful Khatton Wife Of Md. Mustaque, D/O Najrul, Resident Of Jamanigurri,
P.S. Kurlikot, Distt.-Kishanganj, At Present Resident Of Aamtola, P.S. Thakurganj,
Dist.-Kishanganj

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Diwakar Sinha, Adv.
For the Opposite Party/s : Mr. Md. Najmal Hodda, Adv.

For the State : Mr. Pranav Kumar, A.P.P.

CORAM: HONOURABLE MR. JUSTICE ARVIND SRIVASTAVA
CAV JUDGMENT
Dated: 28-02-2018

Heard learned counsel for the parties.

This application under Section 482 of the Code of
Criminal Procedure has been filed by the petitioners for quashing of
order dated 26.02.2013 passed by the learned Sub-Divisional
Judicial Magistrate, Kishanganj in Complaint Case No. 1453 of
2012, whereby the learned court below took cognizance against the
petitioners under Section 498A of the Indian Penal Code.

The brief facts of the case are that the complainant, after
dissolution of her earlier marriage with Md. Isrial, was married to
one Md. Mustaque on 21.05.2015 and several articles were given to
him as gift and after completion of six months, the petitioners have
made a demand of Rs. 50,000/- and non-fulfillment of the same, she
was being abused, tortured and assaulted. On being so, the mother
of the complainant given a legal notice to the petitioners, thereafter,
Patna High Court Cr.M isc. No.14300 of 2014 dt.28-02-2018

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the husband of the complainant appeared before the lawyer of the
complainant and gave undertaking that he would not made any
demand and even not torture and assault her wife-complainant but
subsequently after some time, again demand was made and non-
fulfillment of the same on the instigation of her father-in-law,
complainant was subjected to torture and assault she was tried to
kill after sprinkling kerosene oil but some how she saved her life at
the instance of villagers. Hence, this complaint petition has been
filed by the complainant.

Learned counsel for the petitioners has submitted that
petitioners have not committed any offence as alleged in the
complaint. In fact, as per own admission of the complainant in the
complaint that on 16.5.2010, she divorced by her earlier husband
Md. Israil and on the same day she got married to petitioner No.1,
which is evident from Annexure-3, is not permissible as per Islamic
rituals. Further, the complainant herself has admitted that her
husband lives in Delhi for his livelihood alone, this fact clearly
reflects from Annexure-4, therefore, the question of involvement of
petitioner No.1 in the alleged offence does not arise. Moreover,
petitioner and his family members never demanded any dowry and
tortured her rather the complainant, a lady being of questionable
character, has filed a false and frivolous case against the petitioners
in order to extort money from the petitioner and his family
members. However, the learned Magistrate without considering the
aforesaid facts has, erroneously, taken cognizance under Section
498(A) of the Indian Penal Code against the petitioners. Therefore,
the order taking cognizance deserves to be quashed.

Learned counsel appearing for the opposite party No.2
opposed the application by contending that there are allegations of
Patna High Court Cr.M isc. No.14300 of 2014 dt.28-02-2018

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demand of dowry and non-fulfillment of the same, the complainant
was subjected to torture and assault and she was also tried to kill by
sprinkling kerosene oil against the petitioners and the court below
after going through the materials available on record has found a
prima facie case made out against the petitioners and rightly taken
cognizance for offence under Section 498(A) 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
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 of 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 counsel for the petitioners 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 petitioners have got a
right of discharge through a proper application for the said purpose
Patna High Court Cr.M isc. No.14300 of 2014 dt.28-02-2018

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and they are 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.)

Brajesh/-

AFR/NAFR NAFR
CAV DATE 09.10.2017
Uploading Date 28.02.2018
Transmission 28.02.2018
Date

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