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Vishnu Kant Pandit vs State Of Bihar And Anr on 12 March, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.49013 of 2014
Arising Out of Case No.-74C Year-2012 Thana- BEGUSARAI COMPLAINT CASE District-
Begusarai

Vishnu Kant Pandit Son of Shivjee Pandit, Resident of village Mau Bazar,
P.S. Vidyapati Nagar, District – Samastipur.

… … Petitioner/s
Versus

1. The State Of Bihar

2. Sanju Devi W/o Vishnu Kant Pandit, D/o Baleshwar Pandit Resident of
village Mau Bazar, P.S. Vidyapati Nagar, District – Samastipur. Present
address resident of village Rani, P.S. Bachhwara, District – Begusarai,
Naihar’s Address – Jalalpur, P.S. – Dalsingsarai, District – Samastipur.

… … Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Jai Prakash Singh, Advocate
For the State : Mr. Jharkhandi Upadhyay, APP
For the Complainant : Mr. Zeyaul Hoda, Advocate

CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date : 12-03-2019

Heard learned counsel for the petitioner; learned A.P.P.

for the State and learned counsel for the opposite party no. 2.

2. The petitioner has moved the Court under Section 482

of the Code of Criminal Procedure, 1973 (hereinafter referred to as

the ‘Code’) for the following relief:

“That this is an application for quashing the Order
dated 12.7.12 in Complaint Case No. 74C/12 by the
learned Sub-Divisional Judicial Magistrate, Begusarai,
whereby and where under Cognizance has been taken
for the offence under Section 498(A), 323, 379/34 of the
I.P.C. against the petitioner.”

Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
2/12

3. The opposite party no. 2, who was the wife of the

petitioner, had filed the complaint case alleging demand of dowry,

torture and also assault.

4. The petitioner had married the opposite party no. 2 on

24.07.2010 before the Special Marriage Officer, Registration

Department, Samastipur. The complaint states that she was

married to Sanjay Pandit who died seven years ago and from

whom she had three children and that it was the petitioner who had

proposed for marriage which was accepted by the family members

of the opposite party no. 2 and thereafter the same was solemnized

before the Special Marriage Officer. The opposite party no. 2 has

alleged that thereafter demand of Rs. 1,00,000/- cash and one

motorcycle was made due to which she was tortured mentally and

physically and finally on 08.01.2012 it is alleged that the accused,

including the petitioner, had come to her place at Begusarai and

had assaulted her. The complaint case was filed on 10.01.2012.

5. Learned counsel for the petitioner submitted that the

opposite party no. 2 is the wife of the maternal uncle of the

petitioner and, thus, there could not have been any marriage as the

relationship comes within the prohibited zone under the Hindu

Marriage Act. It was submitted that the opposite party no. 2 has

made false allegations only to put pressure on the petitioner and
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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his family members to keep her. Learned counsel submitted that

the petitioner had already filed Divorce Case No. 152 of 2011 on

08.09.2011 before the Court at Begusarai and the present case is

only by way of a counter-blast to the said case. It was submitted

that the ground taken for seeking divorce was that the opposite

party no. 2 had left the matrimonial home of the petitioner and was

living in her first matrimonial home. Learned counsel submitted

that the procedure required for the Court below before issuing

process as stipulated in Section 202(1) of the Code has not been

followed. For such proposition, learned counsel referred to the

decision of the Hon’ble Supreme Court in Udai Shankar Awasthi

v. State of U.P. reported as (2013) Supreme Court Cases 435. It

was submitted that no cause of action having taken place in the

jurisdiction of the Magistrate at Begusarai, the proceeding itself

before the Court below was not maintainable as all allegations

relate to Samastipur. For such proposition, learned counsel relied

upon the decision of the Hon’ble Supreme Court in Y. Abraham

Ajith v. Inspector of Police reported as (2004) Supreme Court

Cases 100. He further referred to the decisions of co-ordinate

Benches of this Court in Bhonu Idrisi vs. State of Bihar reported

as 2019 (1) PLJR 517 and Padam Chand Garg vs. State of

Bihar reported as 2016(3) PLJR 258. Learned counsel submitted
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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that the offence not being a continuing offence, for allegations

relating to the district of Samastipur, the opposite party no. 2 could

not have filed the complaint at Begusarai. Learned counsel

submitted that on 16.02.2019, a decree of divorce has been passed

in favour of the petitioner.

6. Learned A.P.P. submitted that the Court below had

only issued summons to the petitioner on the basis of enquiry

made under Section 202 of the Code and, thus, the compliance of

the statutory requirement has been fully met. It was submitted that

the Court below has rightly issued process on the basis of the

materials brought before it during enquiry pursuant to transfer of

the case by the learned Chief Judicial Magistrate to the Sub

Divisional Judicial Magistrate who has passed the order.

7. Learned counsel for the opposite party no. 2 adopted

the arguments of learned A.P.P. and added that the opposite party

no. 2 is ready to go and live with the petitioner.

8. At this juncture, when the Court called upon learned

counsel for the petitioner to know his view as to whether he was

ready to keep the opposite party no. 2 with him, he took a

categorical stand that he was not ready to keep the opposite party

no. 2. On a further query of the Court as to why the petitioner was

not ready to keep the opposite party no. 2 with him as his wife
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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when according to learned counsel, the main ground in the divorce

case was that the opposite party no. 2 was not willing to live in the

matrimonial home when now she is ready to go and live with him,

learned counsel for the petitioner could not give any reason.

9. Having considered the facts and circumstances of the

case and submissions of learned counsel for the parties, the Court

finds no merit in the present application. The main ground for

assailing the order itself appears to be misconceived. Learned

counsel has relied on the provision of Section 202 of the Code.

The same reads as under:

“202. Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint
of an offence of which he is authorised to take
cognizance or which has been made over to him under
section 192, may, if he thinks fit, [and shall in a case
where the accused is residing at a place beyond the area
in which he exercises his jurisdiction,] postpone the
issue of process against the accused, and either inquire
into the case himself or direct an investigation to be
made by a police officer or by such other person as he
thinks fit, for the purpose of deciding whether or not
there is sufficient ground for proceeding:

Provided that no such direction for
investigation shall be made,–

(a)where it appears to the Magistrate that the
offence complained of is triable exclusively by the Court
of Session; or

(b) where the complaint has not been made by
a Court, unless the complainant and the witnesses
present (if any) have been examined on oath under
section 200.

Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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(2) In an inquiry under sub- section (1), the
Magistrate may, if he thinks fit, take evidence of
witnesses on oath:

Provided that if it appears to the Magistrate
that the offence complained of is triable exclusively by
the Court of Session, he shall call upon the complainant
to produce all his witnesses and examine them on oath.

(3) If an investigation under sub- section (1) is
made by a person not being a police officer, he shall
have for that investigation all the powers conferred by
this Code on an officer- in- charge of a police station
except the power to arrest without warrant.”

10. Perusal of the same leaves no doubt that in a case

which has been made over to the Magistrate under Section 192 of

the Code, if the accused is residing at the place beyond the area in

which he exercises his jurisdiction, the issuance of process against

the accused shall be postponed and either the Magistrate is

required to inquire into the case himself or direct investigation to

be made by a police officer or by such other person as he thinks fit

for the purpose of deciding whether or not there is sufficient

ground for proceeding. In the present case, the order dated

12.07.2012 itself begins with the history that the matter had been

sent by the Chief Judicial Magistrate, Begusarai to the Sub

Divisional Judicial Magistrate under Section 192(1) of the Code.

Thus, it is clear that the cognizance of the offence had already

been taken by the Chief Judicial Magistrate, Begusarai earlier and
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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then the matter was sent to the Court of the Sub Divisional Judicial

Magistrate, Begusarai.

11. Section 192 of the Code reads as under:

“192. Making over of cases to Magistrates.

(1)Any Chief Judicial Magistrate may, after taking
cognizance of an offence, make over the case for
inquiry or trial to any competent Magistrate
subordinate to him.

(2) Any Magistrate of the first class empowered in this
behalf by the Chief Judicial Magistrate may, after
taking cognizance of an offence, make over the case for
inquiry or trial to such other competent Magistrate as
the Chief Judicial Magistrate may, by general or special
order, specify, and thereupon such Magistrate may hold
the inquiry or trial.”

12. From the above, it is clear that the transfer of the

case by the Chief Judicial Magistrate is only after taking

cognizance. Thus, rightly the Court has only issued process

holding that against the petitioner a trial was required and, thus,

process has been issued. The same is not an order taking

cognizance. The only stipulation which Section 202 (1) of the

Code lays down for the Magistrate before issuing process is that he

has to either inquire the matter himself or send it to the police

officer or any other person whom he thinks fit. In the present case,

the order dated 12.07.2012 itself mentions that pursuant to the

order being received from the Chief Judicial Magistrate,

Begusarai, inquiry was conducted by way of examination of three
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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witnesses. Thus, the requirement of holding inquiry has been

fulfilled in the present case. The objection on behalf of the

petitioner on this legal issue is totally misconceived and even

contrary to the factual position in this case.

13. Coming to the decision relied upon by the learned

counsel for the petitioner in Udai Shankar Awasthi (supra), the

facts were totally different. In the said case, a third complaint had

been filed in which the Court after taking cognizance had straight

away issued summons and later on non-bailable warrant was also

issued. In the present case, cognizance was taken by the Chief

Judicial Magistrate, Begusarai who had then made over the case

for enquiry/trial to the Sub Divisional Judicial Magistrate,

Begusarai under Section 192 (1) of the Code. Further, upon receipt

of such case, the Sub Divisional Judicial Magistrate, Begusarai

had proceeded under Section 202 (1) of the Code by holding

inquiry himself, in which he had examined three witnesses. Thus,

the ratio of the aforesaid case is not applicable to the facts of the

present case.

14. Similarly, in Y. Abraham Ajith (supra), the matter

related to the jurisdiction of the Court. In the said case, all the

offences were committed at place ‘N’ and no part of cause of

action arose at place ‘C’ where the proceedings were initiated and
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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in that context, the Court had held that the offence not being

continuing, the Magistrate at place ‘C’ had no jurisdiction to deal

with the matter and the proceedings were quashed. In the present

case, there is no issue with regard to offences being continuing or

not. When there is specific allegation in the complaint itself that at

Begusarai also the accused had come and assaulted the

complainant, which has been supported by a witness who was the

neighbour of the complainant at Begusarai, obviously there is

cause of action at Begusarai also and, thus, the discretion being

with the complainant with regard to which forum she would

approach and her filing the complaint at Begusarai where lastly the

offence is alleged to have been committed by the accused, in the

considered opinion of the Court, there is no infirmity with regard

to maintainability of the complaint case at Begusarai.

15. Coming to the decision in Bhonu Idrisi (supra),

again the facts were totally different. In the said case, as there was

absence of any occurrence having taken place at Bhabhua as the

alleged harassment pertained to matrimonial home at Mirzapur in

the State of UP, the Court had held that the Court at Bhabhua had

no jurisdiction to deal with the matter.

16. Likewise, in Padam Chand Garg (supra), the

factual position was that the accused were residing beyond the
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territorial jurisdiction of the Court and, thus, the Court was

required to conduct an enquiry as envisaged under the Act. In the

present case, at the cost of repetition, the Court finds that the

requirement of holding enquiry under Section 202 (1) of the Code

has been satisfied, inasmuch as, three witnesses have been

examined by the Sub Divisional Judicial Magistrate, Begusarai in

support of the complaint before processes have been issued to the

accused. Thus, the ratio of the said case is also not of any help to

the petitioner in the present case.

17. The Court would also observe that the plea taken of

marriage not being maintainable between the parties is also a lame

excuse for the reason that once the first husband of the opposite

party no. 2 died, she had become a widow and, thus, to whom she

was married prior to becoming a widow would not be of any

consequence for contracting the second marriage, provided the

same did not fall within the prohibited zone. Thus, there being no

objection raised with regard to even otherwise opposite party no. 2

not being permitted to contract marriage with the petitioner, the

Court finds that there is no basis for such stand. Further, such

stand, as per the submissions of learned counsel for the petitioner

himself, not being taken in the divorce petition cannot be allowed
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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to be raised before this Court, more so when no such stand has

been taken even in the pleadings.

18. In this connection, the Court would observe that the

petitioner, being a qualified Engineer, taking a conscious decision

to marry the opposite party no. 2 and, that too, before the Special

Marriage Officer is self indicative of the fact that a conscious and

willing decision was taken by the petitioner to marry the opposite

party no. 2.

19. At this juncture, learned counsel for the opposite

party no. 2 informed that the petitioner was unemployed and when

he got employment, demand of dowry and torture started. This

fact, in the aforesaid background, clearly appears to be the reason

why the divorce case was filed and the opposite party no. 2 was

ousted from the matrimonial home. Further, the submission of

learned counsel for the petitioner that the main ground taken in the

divorce case was the desertion by the opposite party no. 2 to live in

the matrimonial home, is falsified, when today the opposite party

no. 2 being ready to live with the petitioner, the stand on his behalf

is that he is not ready to keep her. Thus, when the divorce case

itself was on the ground that the opposite party no. 2 is not

willingly to live in the matrimonial home and the stand taken

before the Court on behalf of the opposite party no. 2 being that
Patna High Court CR. MISC. No.49013 of 2014 dt.12-03-2019
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she is ready to live in the matrimonial home and learned counsel

for the petitioner, on instructions, flatly refusing such offer, the

Court finds that the divorce case itself had been filed for oblique

reasons.

20. Be that as it may, there being a decree of divorce, the

matter has to be dealt with by the parties before the appropriate

forum.

21. Coming to the merits of the present case, the Court

finds that the materials before the Court below, both in the

complaint and on the basis of statement of the witnesses, appears

to be enough for the Court to proceed with issuing of process to

the accused for facing trial.

22. For reasons aforesaid, the application stands

dismissed.

(Ahsanuddin Amanullah, J)

Anjani/-

AFR/NAFR
U
T

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