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2006 DIGILAW 1118 (PAT)

Abhay Kumar v. State Of Bihar

2006-11-24

AJAY KUMAR TRIPATHI, NARAYAN ROY

body2006
Judgment 1. Heard Mr.Ram Suresh Roy, learned counsel for the petitioner, learned Government Pleader No.3 for the State and considered the affidavits exchanged in between the parties. 2. This habeas corpus application has been filed by the petitioner, Abhay Kumar, who claims to be husband of Nidhi Pratap, praying therein to restore her for happy conjugal life. 3. This case has chequered career. It appears that earlier a habeas corpus application was filed by Nidhi Pratap in Cr.W.J.C. No. 444 of 2006 for her release from the After Care Home, Gaighat, Patna. 4. During the pendency of the application aforesaid, the victim girl was released by virtue of order dated 30th June, 2006 passed by the Chief Judicial Magistrate, Gaya allowing her to go to her home as per her prayer. 5. The writ application aforesaid, in that view of the matter, was dismissed as not maintainable with an observation that the matter may be pursued in accordance with law, if so desired. 6. Now this application has been filed by Abhay Kumar for the custody of Nidhi Pratap. 7. It is submitted by learned counsel for the petitioner that the statement of the victim girl under Sec. 164 of the Code of Criminal Procedure (hereafter to be referred to as "Code") actually was not recorded, as would appear from the two statements of the victim girl one recorded at Patna and another at Gaya, and, therefore, a petition was filed before the learned Magistrate, Gaya, to decide the question as to the genuineness of the statement of the victim girl under Sec. 164 of the Code, which is still pending. Learned counsel further submitted that since the victim girl, Nidhi Pratap, is the legally wedded wife of the present petitioner and she is major she should be allowed to go with her husband. 8. From the counter affidavit filed on behalf of the State, it appears that the statement of the victim girl was recorded by the Judicial Magistrate, Patna City, under Sec. 164 of the Code, which has been brought on record and marked as annexure B to the counter affidavit. 9. From annexure B to the counter affidavit, it appears that the victim girl at her own volition stated that she was never married with Abhay Kumar, rather she was kidnapped. 9. From annexure B to the counter affidavit, it appears that the victim girl at her own volition stated that she was never married with Abhay Kumar, rather she was kidnapped. This statement was recorded at the preliminary stage of investigation of the criminal case lodged for the substantive offence of kidnapping while she was in the Remand Home. 10. This statement, as such, however, is being disputed by Mr. Ram Suresh Roy, learned counsel for the petitioner, saying that the sister of the victim girl was produced placed (illegible) which cannot be said to be the statement of the victim girl. 11. Disputed questions of facts have arisen in this matter about the genuineness of the statement of the victim girl recorded under Sec. 164 of the Code. The matter is still sub-judice before the learned Magistrate and in view of the tenor of the prayer of the petitioner for restoration of conjugal life, the petitioner if so satisfied may file a suit for restoration of conjugal life, where necessary evidence would be led and question would be decided on the basis of evidence. At the same time, the learned Magistrate is also directed to dispose of the matter pending before him forthwith. 12. For the reasons aforementioned and in view of disputed questions of facts, as referred to above, we are not inclined to interfere in the matter in our writ jurisdiction. This application is, accordingly, dismissed.