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2004 DIGILAW 901 (PAT)

Zarina Khatoon v. State Of Bihar

2004-09-06

R.M.PRASAD

body2004
Judgment R.M.Prasad, J. 1. This criminal miscellaneous application is directed against the order dated 18.8.2001 passed by Mr. Ram Snehi Thakur, 3rd Additional Sessions Judge, Darbhanga in Cr. Revision No. 282 of 2001, whereby and whereunder he has set aside the order dated 18.4.2001 passed by the Sub-divisional Judicial Magistrate, Biraul at Benipur in C.R. No. 85 of 2001 taking cognizance against all the accused persons under Secs. 498A and 379 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act. 2. In short, the relevant facts are that the petitioner filed complaint before the sub-divisional Judicial Magistrate. Biraul, which has been registered as C.R. No. 85 of 2001, making 15 persons as accused. A true copy of the said complaint has been annexed as Annexure 1. In the complaint it is alleged that the complainant was married with Soti @ Chhote Naddaf (accused No. 1) according to Muslim customs, 5-6 years back. In the said marriage the father of the complainant gave sufficient gift and other items including the ornaments as per the demand from the accused persons, but they were not satisfied with the same and they kept on pressurising the complainant to get the buffalo and Rs. 10,000.00 cash from her parents but the complainant kept on opposing and expressed helplessness. It is further alleged that they always tortured the complainant and also assaulted her and stopped giving food to her. Ultimately they conspired together and drove her out of the house by assaulting her and taking away ornaments, clothes etc. worth Rs. 10,000.00 . The complainant returned to her father and told him about the entire situation, upon which her father and other witnesses went to the in-laws of the complainant and asked them as to why they misbehaved with her. It is alleged that accused No. 1, who is the husband of the complainant, told them also that until 10,000.00 rupees in cash is not given in dowry they will not get back the complainant and further it is alleged that the accused persons abused her father and also assaulted which has been stated by the witnesses. 3. The Sub-Divisional Judicial Magistrate after examining the complainant on S.A. took cognizance against the husband and 14 others by the order dated 18.4.2001. 3. The Sub-Divisional Judicial Magistrate after examining the complainant on S.A. took cognizance against the husband and 14 others by the order dated 18.4.2001. Accused No. 6, Bachcha Naddaf, filed the aforementioned revision application against the said order, which has been allowed and the entire order taking cognizance has been set aside. 4. Learned Counsel for the petitioner has contended that the bare perusal of the impugned order of the learned Additional Sessions Judge would clearly show that the said order has been passed without application of mind and for extraneous reason. He contended that the revision application was filed by only one of the accused Bachcha Naddaf and while allowing his revision application the learned Additional Sessions Judge has set aside the entire order taking cognizance against other accused persons also without applying his mind to the allegations made in the complaint petition. He further contended that the learned Additional Sessions Judge has quashed the order taking cognizance on the simple ground that neither in the complaint petition nor in the examination of the complainant on S.A. relationship of the accused persons except accused Nos. 2 to 4 with the husband of the complainant has been mentioned anywhere, which is not the requirement of law for constituting an offence u/s. 498A or 379 of the Indian Penal Code and Secs. 3/4 of the Dowry Prohibition Act and is, thus, not tenable. Apart from this, the learned Additional Sessions Judge though has found that the relationship of the accused Nos. 2 to 4 with the husband of the complainant is there in the complaint and also in the examination of the complainant on S.A., still has quashed the order taking cognizance against them also without there being any ground for the same. 5. Mr. Shabbir Ahmad, learned Counsel appearing for the opposite parties, has submitted that it is true that the revision application was filed by only Bachcha Naddaf but other accused persons were also impleaded as opposite party 3rd party. However, he has not been able to defend the order of the Additional Sessions Judge quashing the entire order taking cognizance against those who were not the petitioners before him. Apart from this, the learned Counsel has not been able to defend the action of the Sessions Judge for quashing of the cognizance against accused Nos. However, he has not been able to defend the order of the Additional Sessions Judge quashing the entire order taking cognizance against those who were not the petitioners before him. Apart from this, the learned Counsel has not been able to defend the action of the Sessions Judge for quashing of the cognizance against accused Nos. 2 to 4 and husband, for which no reason has been assigned by the learned Sessions Judge. 6. I am shocked to find the manner in which the learned Additional Sessions Judge, Darbhanga has conducted himself in quashing the entire order taking cognizance even against those accused persons who did not challenge its validity. This itself shows that the learned Sessions Judge has acted for extraneous reasons at least while quashing the order taking cognizance against those accused persons who did not even challenge its validity. Moreover, I find that the order taking cognizance has been quashed simply on the ground that neither in the complaint petition nor in the examination of the complainant on S.A. relationship of the accused persons except accused Nos. 2 to 4 with the husband of the complainant has been mentioned anywhere, which, in my opinion, is not at all tenable. 7. It is true that for constituting the offence u/s. 498 of the Indian Penal Code, 1860 , a person is to be punished if woman is subjected to cruelty by husband or the relative of the husband, but in sec. 379, Indian Penal Code, 1860 there is nothing to show that unless relationship of the accused persons is established, they cannot be punished. What is relevant is the ingredients for constituting the offences under the aforesaid provisions and at his stage the Court is required to only examine as to whether in the complaint or statement on S.A. offence is made out against the accused persons before taking cognizance. 8. In the present case, the learned Magistrate after examining the complainant on S.A. and considering the complaint took cognizance against the husband and 14 other accused persons, in which I do not find any infirmity warranting interference at this stage. This Court, thus, finds that the impugned order setting aside the order taking cognizance suffers from the vice of extraneous considerations. 9. The criminal miscellaneous application is, thus, allowed. This Court, thus, finds that the impugned order setting aside the order taking cognizance suffers from the vice of extraneous considerations. 9. The criminal miscellaneous application is, thus, allowed. The impugned order of the learned Additional Sessions Judge, Darbhanga in Criminal Revision No. 282/2001 is set aside and the proceeding may proceed further, in accordance with law. 10. However, considering the conduct of the learned Additional Sessions Judge, this Court direct that let a copy of this order be placed before the Standing Committee for consideration and appropriate action.