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1997 DIGILAW 812 (PAT)

Md. Idris v. State Of Bihar

1997-11-18

A.N.TRIVEDI

body1997
Judgment Ashish N.Trivedi, J. 1. The petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 praying that the order dated 23.8.1996 passed by the learned Sub-divisional Judicial Magistrate, Barh in Complaint Case No. 250 (C) of 1996 by which cognizance under Sections 323, 379 and 363 of the Indian Penal Code had been taken by the learned Sub-divisional Judicial Magistrate against the accused including the petitioner. 2. The case of he petitioner is that Opposite Party No. 2 on 16.8.1996 filed a complaint in the Court of Additional Chief Judicial Magistrate, Barh against the petitioner and five other under Sections 323,420,406,353,379 and 363 of the Indian Penal Code in respect of an occurrence on 15.8.1996 said to have been taken place at 8 a.m. The case of the Opposite Party No. 2, as set out in the complaint was that his daughter Zarina Khatoon had been married to Md. Ashraf son of the petitioner about six years ago and from the wedlock they had a son aged about one and a half year and thereafter she again conceived and on the date preceding the date of occurrence the accused including the petitioner along with Zarina and her son came to the house of Opposite Party No. 2 on the occasion of Milad and stayed there. On the date of occurrence Zarina and her son accompanied the accused persons to their house but at about 2 p.m. Zarina came to the complainant and told him that petitioner and his wife took away her one and a half year old son and forcibly sent her back after taking away her clothings and ornaments valued at Rs. 5,000/- and she was further told that unless Opposite Party No. 2, the complainant, gave Rs. 5,000/- they would not release the son of Zarina from their custody. A copy of the complaint has been annexed as An-nexure 1. 3. 5,000/- and she was further told that unless Opposite Party No. 2, the complainant, gave Rs. 5,000/- they would not release the son of Zarina from their custody. A copy of the complaint has been annexed as An-nexure 1. 3. The learned Additional Chief Judicial Magistrate, Barh on 16.8.1996 without taking cognizance or examining the complainant on solemn affirmation transferred the complaint under Section 192 (1) of the Code of Criminal Procedure to the Court of Sub-divisional Judicial Magistrate, Barh who on 21.8.1996 examined the complainant Opposite Party No. 2 on solemn affirmation and fixed 23.8.1996 as the date of enquiry and on 23.8.1996 Zarina was examined behind the back of the petitioner and other accused persons and the evidence of Opposite Party No. 2 was closed. The learned Sub-divisional Judicial Magistrate by the impugned order dated 23.8.1996 heard the complainant on the point of cognizance and took cognizance of the offences under Sections 323,379 and 363, IPC against the petitioners and other accused persons and directed issuance of processes against them including the petitioner. 4. The contention of the learned counsel for the petitioner is that the learned Sub-divisional Judicial Magistrate, Barh had no authority in law to take cognizance as it was only the Additional Chief Judicial Magistrate, Barh who could have taken cognizance and then could have transferred the com- plaint case to the learned Sub-divisional udicial Magistrate, Barh for enquiry and trial. The other contention of the learned counsel for the petitioner is that no case has been made out against the petitioner as the petitioner being the grand father of the minor child of Zarina was the natural guardian of the minor child and therefore the minor child was under the lawful custody of the grand father. 5. Despite service of notice, Opposite Party No. 2, did not enter appearance. 6. Having considered the submissions made by learned counsel for the petitioner and the material on record, I am of the opinion that it is not a case where there is an abuse of process of law either in taking cognizance of offences by the learned Sub-divisional Judicial Magistrate or in issuing processes against the petitioner and other accused persons. 7. Learned counsel for the petitioner conceded that Sub- divisional Judicial Magistrate, Barh is a Judicial Magistrate, Ist Class. 7. Learned counsel for the petitioner conceded that Sub- divisional Judicial Magistrate, Barh is a Judicial Magistrate, Ist Class. Further, that the Additional Chief Judicial Magistrate had specifically authorised the learned Sub-divisional Judicial Magistrate to proceed with the complaint. 8. A learned single Judge of this Court in Prithvi Raj Sinha v. State of Bihar and another, 1997 (1) PLJR 559 : 1997 (1) East Cr C 852, after examining the provisions of Sections 190, 191 and 192 of the Code of Criminal Procedure, in which precisely the similar controversy was involved held thus : "From bare reading of the aforesaid sections of the Code, I do not find any force in the submission of the learned counsel to the effect that transfer of file by the Chief Judicial Magistrate to another Magistrate without taking cognizance is bad in law. Taking cognizance does not mean issuance of processes against the persons named in the first information report or in the complaint. It is not the case of the petitioner that the learned Magistrate to whom the file was transferred had no authority to take cognizance. From the reading of Sections 202 and 203 of the Code, together it is evident that the Chief Judicial Magistrate either himself proceed with the complaint and examine the witnesses before issuance of processes or make over the file to another Magistrate having jurisdiction to take cognizance for the purpose of enquiry and trial. It is well settled that the word cognizance means application of mind by the Magistrate. In the instant case, the learned Chief Judicial Magistrate firstly applies his mind to the complaint filed by the opposite party and then made over the file to another Magistrate for proceeding with the matter in the manner provided under the aforesaid sections." 9. In this view of the matter, there is no infirmity in taking cognizance of the offences against the petitioner and other accused persons by the learned Sub-divisional Judicial Magistrate, Barh in absence of the Additional Chief Judicial Magistrate having taken cognizance of the alleged offence and, therefore, the first contention of learned counsel for the petitioner is rejected. 10. In this view of the matter, there is no infirmity in taking cognizance of the offences against the petitioner and other accused persons by the learned Sub-divisional Judicial Magistrate, Barh in absence of the Additional Chief Judicial Magistrate having taken cognizance of the alleged offence and, therefore, the first contention of learned counsel for the petitioner is rejected. 10. The second contention of learned counsel for the petitioner is equally untenable as learned counsel could not point out any provisions of Rule of Mohemmadan law in support of his contention that when father and mother of the minor child are alive the parental grand father or parental grand mother could be the natural guardian of the minor grand son and, therefore, this contention is also rejected. 11. In the result, the petition fails and is accordingly dismissed.