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Basant Sharma, Bishun Sharma v/s State Of Bihar


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    Criminal Miscellaneous No.20246 OF 1998

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Sudarshan Sharma, Raj Ballabh Singh, Advocates.



Judgment Text

RAKESH KUMAR,J.

(1.) The sole petitioner, who is husband of opposite party no.2, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of the order dated 31.3.1998 passed by Shri A.K. Thakur, Judicial Magistrate, Ist Class, Nawadah in G.R. No.638 of 1997/Tr. No.463 of 1998. By the said order, the learned Magistrate has rejected the petition filed on behalf of the petitioner and others for discharge.

(2.) In brief, the case of the prosecution is that opposite party no.2, who was wife of the petitioner, on 26.8.1996 filed a complaint vide Complaint Case No.319 of 1996 in the court of Chief Judicial Magistrate, Nawadah. Subsequently, the complaint was referred to the police for investigation under Section 156(3) of the Cr.P.C. Accordingly, first information report vide Nadriganj P.S. Case No.29 of 1997 was registered on 2.5.1997 for the offences under Sections 498A, 406, 494 and 109 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. It appears that after registering the case, the police investigated the same and thereafter, charge sheet was submitted in the case. Subsequent to the submission of charge sheet, the court took cognizance. At the stage of charge, a petition was filed on behalf of the petitioner and other accused persons for their discharge and by order dated 31.7.1998, the learned Judicial Magistrate, Ist Class, Nawadah rejected the discharge petition. At the stage of hearing on discharge petition, sole ground was taken on behalf of the petitioner that on the date of filing of the complaint, the complainant was not wife of the petitioner and as such on a petition of stranger, first information report was not required to be lodged for the offence under section 498A of the Indian Penal Code.

(3.) In the present case while challenging the order of rejection of discharge petition dated 31.7.1998, learned counsel for the petitioner has again confined his argument to the point that the opposite party no.2 was not entitled to institute a case under section 498A and others sections of the Indian Penal Code. Learned counsel for the petitioner while referring to annexure-2 which is an ex-parte judgment and order dated 11th March, 1996 passed in Misc. Suit No.29A of 1994 submits that a competent court had already passed a decree of divorce against opposite party no.2. The order was passed on 11.3.1996. He submits that it is not in dispute that opposite party no.2 had filed a complaint on 26.8.1996 i.e. after the decree of divorce. Accordingly, learned counsel for the petitioner submits that the entire proceeding on the said complaint is liable to be set aside including the order whereby the discharge petition was rejected, is also liable to be set aside.

(4.) Despite issuance of notice none has appeared on behalf of opposite party no.2. However, Mr.Raj Ballabh Singh, learned counsel appearing on behalf of the State, opposed the prayer of the petitioner. He submits that on perusal of first information report it is evident that opposite party no.2 had made specific allegation against the petitioner that before passing of the order/decree of divorce i.e. order dated 11.3.1998, the opposite party no.2 was mentally and physically tortured by the petitioner and other family members only with a view of extract dowry from the parents of opposite party no.2.

(5.) I have examined the materials available on record including first information report and the impugned order. The contents of the first information report categorically makes it clear that opposite party no.2 was mentally and physically tortured for the purpose of extracting dowry from the parents of opposite party no.2. It has also been asserted in the first information report that the opposite party no.2 gave birth to two female child out of the wedlock with this petitioner. Thereafter, torture against her was enhanced by the accused persons and finally she was ousted from the house of in-laws and thereafter she was compelled to reside with her father. It has also been asserted in the first information report that steps were taken by the father of opposite party no.2 to get the matter settled. However, on his repeated visit the father of the informant/opposite party no.2 was informed that this petitioner had gone to Bhopal for earning his livelihood and on this pretext father of opposite party no.2 was never allowed to meet the petitioner. Subsequently, it was noticed that the petitioner had solemnized second marriage and thereafter opposite party no.2 left with no option was constrained to file this present case. It is true that second marriage was solemnized on 23.5.1996 i.e. after the date of decree of divorce. However, at this stage, I am not recording any opinion regarding application or non-application of section 494 of the Indian Penal Code. So far as other offences are concerned, I am of the view that there are sufficient materials on record to proceed against thi

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s petitioner. (6.) Accordingly, I do not find any merit in this petition and the petition stands rejected. (7.) By order dated 27.1.1999 this petition was admitted. While admitting the case, this court directed that during the pendency of this application, further proceeding in the court below shall remain stayed. The stay order is still continuing. In view of rejection of the present petition, the interim order of stay stands automatically vacated. (8.) Let a copy of this order be communicated to the court below forthwith.
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