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Tanweer Alam And Ors vs State Of Bihar And Anr on 31 July, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.21294 of 2015
Arising Out of PS. Case No.-387 Year-2012 Thana- SITAMARHI COMPLAINT CASE
District- Sitamarhi

1. Tanweer Alam, Son of Abdul Khair, resident of Garha, P.S. Pupri, District
Sitamarhi

2. Ahmad Ali, Son of Late Nayeemuddin, resident of village Kanhwa, P.S.
Bela, District Sitamarhi

3. Jamil Ahmad Siddiqui, Son of Late Khalil Hafiz, resident of village –
Bariyarpur, P.S. Sitamarhi, District Sitamarhi

4. Khurshida Begum, wife of Jamil Ahmad Siddique, resident of village
Bariyarpur, P.S. Sitamarhi, District Sitamarhi
… … Petitioner/s
Versus

1. The State of Bihar

2. Md. Mansoor Alam, Son of Md. Wasir, resident of village Mirjapur, P.S.
Baspatti, District Sitamarhi
… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Farooque Afzal, Advocate
For the Opposite Party/s : Mr. Shyam Kumar Singh, APP

CORAM: HONOURABLE MR. JUSTICE BIRENDRA KUMAR
ORAL JUDGMENT
Date : 31-07-2019

Heard the parties.

2. Opposite Party No. 2-Md. Mansoor Alam had filed

Pupri P.S. Case No. 19 of 2012 against the petitioners for offences

under Sections 328 and Section307/Section34 of the Indian Penal Code with

allegation that the complainant had gone to his Sasural where the

petitioners pressurized the complainant to give divorce to his wife.

The complainant did not agree then the accused persons

administered poison to the complainant with intent to kill him. The

complainant became unconscious. The motive behind the

occurrence was that wife of the complainant was in extra marital
Patna High Court CR. MISC. No.21294 of 2015 dt.31-07-2019
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relation with her brother-in-law and she wanted to take divorce

from the complainant to get permanent company of the brother-in-

law.

3. After investigation, the police had not sent up the

petitioners for trial and final form was accepted by the learned

Magistrate. However, a protest was already there on the record

which was treated as Complaint Case No. 387 of 2012. After

inquiry, the learned Magistrate dismissed the complaint petition

under Section 203 Cr.P.C. by the order dated 03.04.2013. The said

order was challenged before the Sessions Court in Cr. Revision

No. 78 of 2013. The Revisional Court set aside the order of the

learned Magistrate on 28.03.2014. The order of the Revisional

Court is under challenge in their application under Section 482

Cr.P.C.

4. While setting aside the order of the learned

Magistrate, the Revisional Court in para 9 and 10 of the judgment

observed as follows:-

“9. The learned Magistrate is not required to
take into consideration any other circumstance
which has not come in evidence during
inquiry. From the impugned order, it appears
that the learned Magistrate has not mentioned
anything about the S.A. of the complainant as
well as statement of the witnesses recorded
during inquiry, rather the learned Magistrate
Patna High Court CR. MISC. No.21294 of 2015 dt.31-07-2019
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has mentioned in the impugned order that it
transpires that complainant’s wife does not
want to live with her husband and his wife has
left her in-laws house and started living with
her parents. She has also filed case u/s 498A
of SectionI.P.C. and 3/4 of D.P. Act against her
husband and in-laws, and this case has been
filed in order to given undue pressure by the
complainant.

10. This Court finds that such observation
made by the learned Magistrate, in the
impugned order, is not based on any evidence
recorded during inquiry, rather these are the
observation in defence of the accused persons,
which is not permissible in law, at the stage of
inquiry. The learned Magistrate is only
required to appreciate the statement of the
witnesses including S.A. of the complainant
recorded during inquiry u/s 202 SectionCr.P.C., to
find out whether prima facie case is made out
against the accused persons. The learned
Magistrate is not required to consider any
defence version of the accused at the stage of
inquiry. Accordingly, this Court finds that the
learned Magistrate has committed illegality in
passing the impugned order dated 03.04.2013
passed in Complaint Case No. C-I/387/12.

Therefore, the impugned order dated
03.04.2013, is hereby set aside. The learned
Magistrate is directed to hold further inquiry
and pass fresh order in accordance with law
after taking into consideration the S.A. of the
complainant as well as statement of the
witnesses recording during inquiry.”

Patna High Court CR. MISC. No.21294 of 2015 dt.31-07-2019
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5. Learned counsel for the petitioners does not dispute

that the finding of the Revisional Court does not suffer from error

of record. The learned Magistrate has to pass the summoning order

on the basis of material on the record and it cannot travel beyond

the material on the record, especially, without discussing and

considering the material on the record. The Revisional Court has

referred to the statement of the complainant on oath and statement

of the inquiry witnesses who supported the allegation disclosed in

the complaint petition.

6. Learned counsel for the petitioners further submits

that the present case was lodged to wreak vengeance as wife of the

complainant, namely, Tarannum Fatima had already filed Bajpatti

P.S. Case No. 04 of 2012 for offences under Section 498A of the

Indian Penal Code and Sections 3/Section4 of the Dowry Prohibition Act

against the husband and other in-laws. Just to pressurize the

present case, the police case was lodged by opposite party no. 2

which was found untrue after investigation of the case.

7. The probable defence of motive of false implication

can be looked into at the appropriate stage of the trial only.

Moreover, the order of the Revisional Court cannot be faulted in

any way, hence, there is no question of failure of justice if the

order of the Revisional Court is sustained.

Patna High Court CR. MISC. No.21294 of 2015 dt.31-07-2019
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8. In that view of the matter, I do not find any merit in

this application. Accordingly, it stands dismissed.

(Birendra Kumar, J)

Kundan/-

AFR/NAFR N.A.
CAV DATE N.A.
Uploading Date 07.08.2019
Transmission Date 07.08.2019

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