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Izhar Ansari son of Bashir Ansari v/s Bibi Rehana Khatoon wife of Izhar Ansari


    Criminal Miscellaneous No.28565 OF 1998

    Decided On, 01 April 2010

    At, High Court of Bihar

    By, THE HONOURABLE MR. JUSTICE RAKESH KUMAR

    For the Appearing Parties: Shabbir Ahmad, M.K. Khare, Advocates.



Judgment Text

RAKESH KUMAR, J.

(1.) Five petitioners, while invoking inherent jurisdiction of this court under section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) have prayed for quashing of the order dated 9.12.1997 passed in Complaint Case No.1685 of 1997 by Chief Judicial Magistrate, Katihar. By the said order the learned Magistrate had taken cognizance of the offences under sections 498A of the Indian Penal Code and 3/4 of the Dowry Prohibition Act.

(2.) Short fact of the case is that the complainant-opposite party no.1 filed a complaint petition vide Complaint Case No.1685 of 1997 alleging therein that after her marriage with the petitioner no.1, Bidagri was done and she arrived and stayed at her in-laws house for about two days. During her stay for a short-while, it was alleged that she was tortured by the petitioners for the purpose of extracting dowry from the father of the complainant. It has also been asserted in the complaint petition that the complainant over heard a conspiracy which was being hatched by the accused persons that in case of non-fulfillment of dowry she would be killed. After coming to know about such conspiracy, any how the complainant returned back to her parents house. She was expecting at her parents house that her husband would come to take her back but suddenly she received a notice from the court of Purnea. Thereafter she got the fact verified from the courts record and the present complaint petition was filed by the complainant. The complainant had explained regarding the delay in filing of the complaint petition.

(3.) Mr. Shabbir Ahmad, learned counsel appearing on behalf of the petitioners, challenging the order of cognizance, submits that prima facie initiation of the proceeding pursuant to the complaint petition amounts to be a malicious prosecution. He submits that the complainant at her own will had returned back to her parents house and thereafter she was not coming back. Constrained with her attitude, petitioner no.1 filed a petition of restitution of conjugal right and in that case notice was sent to the complainant and after coming to know that the petitioner no.1 had taken steps for restitution of conjugal right by way of approaching a competent court, the complainant with malice had filed the complaint petition and thereafter she was examined on solemn affirmation and some witnesses have also been examined. Thereafter, by order dated 9.12.1997 the learned Magistrate took cognizance of the offence as mentioned above and ordered for issuance of process for their appearance. The court also transferred the case to another court for its disposal. On sole ground of malicious prosecution learned counsel for the petitioner has prayed for quashing of the order of cognizance as well as for quashing of the entire proceeding pursuant to the aforesaid complaint case.

(4.) Mr. M.K.Khare, learned counsel for the State has opposed the prayer of the petitioner. Learned counsel, while referring to paragraphs 2 and 3 of the complaint petition, submits that the contents of those paragraphs make it clear that the petitioners had committed the offence. He further submits that at the initial stage of cognizance this court may mot interfere that too while exercising its inherent jurisdiction under section 482 of the Cr.P.C. He also brought to the notice of the court that against the order of cognizance dated 9.12.1997 the petitioners had filed a revision petition before the Sessions Judge vide Cr.Revision No.23 of 1998. The said revision was heard at length and by order dated 5.11.1998 the learned Sessions Judge has rejected the revision petition. Before revisional court also the petitioners had taken the stand that they have filed Title Suit No.258 of 1997 for restitution of conjugal right and thereafter the present complaint petition was filed. Accordingly, learned counsel for the State has made a prayer to reject this petition.

(5.) I have also examined the materials available on record. While approaching this court the petitioners to the reasons best known to them, did not challenge the revisional order nor initially the revisional order was brought on record by the petitioners. However, it appears from the record that after filing of the petition, the Stamp Report had pointed out the defect that revisional order was not brought on record and thereafter in view of the order dated 24.12.1998 of this court, the certified copy of the revisional order was filed through mentioning slip dated 24.12.1998 on behalf of the petitioners. I am of the view that once the petitioners have approached the revisional court challenging the order of cognizance, it was necessary on their part to challenge the order of the revisional court. In the present case no such prayer has been made by the petitioners. Moreover, section 397(3) of the Cr.P.C. does not prescribe the second revison. It appears that in the garb of filing the present petition under section 482 of the Cr.P.C. virtually the petitioner has filed second revision which, according to the statutory provision, is barred. Learned counsel for the petitioners submits that it has been held that even after rejection of revision petition a petition under section 482 of the Cr.P.C. can be entertained by this court.

(6.)

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Without recording any opinion of entertainment of a petition under section 482 of the Cr.P.C. even after rejection of the criminal revision, in the facts and circumstance of the present case, I am of the view that the petitioners do not deserve any relief from this court particularly in view of the fact that once first revision petition was rejected by the Sessions Judge, he did not even mention in his petition about challenging the said order and in absence of such challenge it would not be appropriate for this court to entertain this petition. Accordingly, this petition stands rejected.
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