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2004 DIGILAW 584 (PAT)

Sita Ram Mahto v. State of Bihar

2004-06-21

body2004
ORDER Heard learned counsel for the petitioner. No one appears on behalf of opposite party no. 2 Earlier. also the case was adjourned due to non appearance of the counsel for the opposite party no. 2. 2. This application has been filed for quashing the order dated 27.8.2001. passed by the Addl. Chief Judicial Magistrate, Barh, Patna in Pandarak P.S. Case No. 02 of 2001 in which cognizance has been taken under Sections 379/498A of the Indian Penal Code. 3. The facts of the case is that on 22.5.2000 the complainant opposite party no. 2 filed a complaint case stating therein that she was married 15 years ago with Sitaram (Petitioner) and thereafter she gave birth to a son and a daughter. The accused Sitaram got service as Diesel Operator in Barh Sub-divisional Office and he fell in love with other women to which the complainant protested all along. Her husband started assaulting and torturing the complainant. The complainant was abused, assaulted and thrown away from the house. Her clothes and ornaments were taken away by the accused. It has been submitted by the counsel for the petitioner that on the basis of the complaint Pandarak P.S. Case No. 02 of 2001 was instituted and finally cognizance has been taken. 4. It has also been submitted by the counsel for the petitioner that the informant is not the wife of this petitioner. Petitioner is married to Veena Devi Since a false case was instituted against the petitioner, during investigation the wife of the petitioner namely Veena Devi on 6.4.2001 presented an application, before the Superintendent of Police (Rural), Patna stating therein the entire facts. She presented application along with documentary evidence showing that she is the legally wedded wife of the petitioner. The S.P (R) directed the 1.O. to investigate the case properly after through enquiry. The Investigating Officer ignoring all these evidence and all documents, submitted chargesheet. The Additional C.J.M. took coglizance mechanically without considering the case diary. It has been submitted by the counsel for the petitioner that with malafide the case was instituted. The informant is not the wife of the petitioner. It has also been submitted by the counsel for the petitioner that unless there is legal relationship of husband and wife no offence under Section 498A of the Indian Penal Code can be constituted. 5. The informant is not the wife of the petitioner. It has also been submitted by the counsel for the petitioner that unless there is legal relationship of husband and wife no offence under Section 498A of the Indian Penal Code can be constituted. 5. To attract the offence under Section 498A I.P.C. the offence must be committed either by husband or relatives of the husband. In the present case the relationship of husband and wife between the informant and opposite party no. 2 is itself under protest. In such cases cognizance under Section 498A will amount to be an abuse of the process of the Court. It has been prayed that no prima - facie case under Section 498A of the Indian Penal Code is made out and the order taking cognizance is bad in law and it should be quashed. 6. Taking into consideration the facts and circumstances of the case and also as provided under Section 498A of the Indian Penal Code that there should be valid and legal marriage between the parties for making out a prima facie case. 7. The order taking cognizance by the Chief Judicial Magistrate, without considering the documents which were part of case diary indicating that the complainant is not the married wife of the petitioner is bad. 8. In the facts and circumstances of the case the order taking cognizance is not sustainable and order dated 27.8.2001 is hereby quashed and this application is allowed.