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2007 DIGILAW 329 (PAT)

Dilip Kumar Mandal v. State Of Bihar

2007-02-13

ABHIJIT SINHA

body2007
Judgment 1. The four petitioners herein who have been made to figure as accused in complaint Case No. 2268 of 2004 are aggrieved by order dated 27.4.2005 passed therein by learned Chief Judicial Magistrate, Katihar, and have sought to question the propriety thereof through this application. By the aforesaid order the learned Magistrate on finding a prima facie case under Sec.364 I.P.C. to have been made out against the accused persons has summoned them. 2. Briefly stated the prosecution case as culled out from the complaint petition filed by O.P. No. 2 herein, inter alia, is that the marriage of his daughter, Punam Devi, was solemnized with Dilip Kumar Mandal (petitioner no. 1 herein) on 16.6.1991 and three children were born out of the wedlock. It is alleged that the first year after the gauna passed off peacefully for Punam Devi but thereafter accused nos. 1 to 3 started demanding Rs. 25,000.00 in cash, one T.V. set and one motor cycle and for the non-fulfilment thereof the accused persons did not permit the bidaigiri of Punam Devi. Consequently, Punam lodged a F.I.R. against the accused, being Kadwa RS. Case No. 149/95 and also a Maintenance Case being No. 76/95, both which were disposed of on amicable compromise. It is said that petitioner no. 1 got married to petitioner no. 4, Meena Devi, before the compromise was recorded and in the year 2002 following the compromise Punam Devi was taken back to her marital home. It is further alleged that when Punam Devi became pregnant and the accused persons did not care for her, the complainant brought her to his house after performing bidai in August, 2002 and ever since Punam has been residing in her maika as the accused persons did not take her back on the plea that it was not possible to manage two wives and their children and requesting Punam Devi to stay in her naihar executed an agreement on 9.4.2004 to the effect that all his share would be given to Punam Devi. However, he also surreptitiously filed matrimonial Suit No. 27/2004 under Section 9 of the Hindu Marriage Act. It is said that Punam Devi returned to her sasural on 2.7.2004 and has been staying there. However, he also surreptitiously filed matrimonial Suit No. 27/2004 under Section 9 of the Hindu Marriage Act. It is said that Punam Devi returned to her sasural on 2.7.2004 and has been staying there. It is the complainants case that although the District Judge, Katihar, directed Dilip Kumar Mandal to appear in court alongwith Punam Devi, Dilip never brought Punam to the court and on visiting the sasural of Punam Devi, the complainant found her absent. He also learnt from a petition filed in court by Dilip Mandal that Punam Devi had left her sasural on 4.10.2004. The complainant was apprehensive that his daughter had been abducted and hence the complaint petition. 3. It appears that after* the enquiry under Sec.202 Cr.P.C. and having summoned the accused persons, the learned Magistrate on 20.7.2005 wrote a letter to the Officer-in-Charge, Kadwa PS. for making enquiry regarding the missing Punam Devi. The Officer-in-Charge through his report dated 24.7.2005 informed that Punam was not available in her sasural at village Baida and on enquiry he learnt that in the year, 2004 Punam had been taken away by her father uncle and two brothers and that she had not returned ever since. It was further reported that it was Punams father and brother who had hidden Punam Devi and had lodged a false case. 4. It has been submitted on behalf of the petitioners that they are innocent and have been falsely implicated in this case as would be evident from the report of the Officer-in-Gharge. It has also been submitted that petitioner no. 2 had already filed Complaint Case No. 2239/04 after Punam left her sasural. 5. O.P. No. 2 has appeared and filed a counter affidavit to contest the application. The learned counsel for opposite party no. 2 submitted that soon after matters were amicably settled and Kadwa RS. Case No. 149/05 and Maintenance Case No. 76/95 were disposed of in terms of compromise, the husband, Dilip Kumar Mandal, had already married Mira Devi prior to the compromise and when Punam Devi following the compromise was taken to her sasural a dispute arose between the two wives. He ousted Punam Devi and subsequently handed over all his share and right to Punam Devi by executing an agreement on 9.4.04 and thereafter filed Matrimonial Suit No. 27/04 under Section 9 of the Hindu Marriage Act on 15.4.2004. He ousted Punam Devi and subsequently handed over all his share and right to Punam Devi by executing an agreement on 9.4.04 and thereafter filed Matrimonial Suit No. 27/04 under Section 9 of the Hindu Marriage Act on 15.4.2004. The learned counsel further urged that on 2.7.2004 both the parties, namely, Dilip Mandal and Punam Devi appeared in the court where Punam Devi gave out that she was always ready and willing to live with her husband and she left with Dilip Mandal for her sasural but on the next date fixed in the case, i.e. 9.7.2004 and thereafter she could not be seen by any one. Referring to order dated 29.10.2004 passed by the learned District Judge the learned counsel pointed out that the District Judge observed that Punam Devi was neither in her naihar nor in her sasural and directed both parties to produce her in court. It was further submitted that soon Punam Devi could not be traced out in her sasural the instant complaint was filed and in the consequent application for anticipatory bail filed by Dilip Mandal the same was dismissed with an observation that the prayer may be renewed if the girl was produced in a court and a direction was given to the concerned police officer to produce the victim girl. He further submitted that on 18.7.05 the Officer-in-Charge, Kadwa Police Station produced a girl in court who appeared to be a fake one and accordingly fresh notice was issued to the Officer-in-Charge to produce the proper girl. On 24.7.2005 the said Officer-in-Charge filed a report in court stating that on enquiry he had found out that Punam Devi had been taken from her sasural by her father and brother and thereafter she was never seen, she was missing. The report was found unsatisfactory by the learned Magistrate who again directed the Officer Incharge to produce the girl but she had not been produced. 6. From the rival contentions of the parties the question which arises is to where was Punam Devi residing prior to her disappearance. This appears to be a question of fact and its decision would hinge, inter alia, on evidence. Such evidence has not so far been led by the parties. 6. From the rival contentions of the parties the question which arises is to where was Punam Devi residing prior to her disappearance. This appears to be a question of fact and its decision would hinge, inter alia, on evidence. Such evidence has not so far been led by the parties. It is not usual for this Court to go into disputed questions of fact in an application under Sec. 482 Cr.P.C. Where the matter is the subject matter between the parties in a competent court the High Court will not interfere by exercising power under Sec. 482 Cr.P.C. 7. Accordingly I find no merit in this application which is dismissed. However, since the missing of Punam Devi is a serious matter the court below is directed to direct the Superintendent of Police, Katihar to look into the matter himself and make an appropriate enquiry so that the missing Punam Devi is traced out at the earliest.