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.”
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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
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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
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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
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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.
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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
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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
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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
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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
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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
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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