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2008 DIGILAW 190 (PAT)

Matuk Nath Choudhary v. State Of Bihar

2008-01-29

ANWAR AHMAD

body2008
Judgment 1. This is an application filed under section 482 of the Code of Criminal Procedure by the accused Matuk Nath Choudhary for quashing the order dated 28.09.2007 passed by 10th Additional Sessions Judge, Patna, in Criminal Revision No. 409 of 2007 rejecting the revision and also for setting aside the order dated 16th June, 2007 passed by Sub-Divisional Judicial Magistrate, Patna, in Complaint Case No. 2055C of 2006 rejecting the petition filed u/s. 210 of the Code of Criminal Procedure. 2. Abha Choudhary lodged a first information report on 7.7.2006 against her husband Matuk Nath Choudhary stating therein that her husband is a professor and lives in B Block, Professor Colony at Saidpur. It is stated that her husband has not a good character and runs a racket by allurement his girl student. It is stated that when she came to know thereof, she protested and thereupon her husband assaulted her and threatened to kill. Thereafter, her husband started living in Professor Colony on the plea that she would open one Prakashan in the of Momuksha Prakashan. It is alleged that in the evening at 6 P.M. on 7.7.2006 she went to the residence of her husband at Professor Colony and gave a knock to the door and her husband opened the door. She found a girl lying half nacked on the bed and also her husband in abnormal position. She protested and as a result her husband and the girl Juli Kumari caught hold of her from the back side and began to press her neck. The girl Juli Kumari came with a knife and wanted to hurl the knife on her neck. It is alleged that she made a cry and thereupon nearby people came there and she was saved. It is alleged that she has got letters and photograph of that girl Juli Kumari and that girl has not a good character. A case under Ss. 341, 323 and 307/34 of the Indian Penal Code was registered. Thereafter, the complainant filed a petition of complaint on 19.07.2006 giving details of the conduct and misbehaviour of her husband prior to the date 7.7.2006 and also gave a detail of the occurrence that took place on 7.7.2006. After investigation charge-sheet has been submitted under Ss. 341 and 323/34 of the Indian Penal Code After enquiry, cognizance has been taken under Ss. After investigation charge-sheet has been submitted under Ss. 341 and 323/34 of the Indian Penal Code After enquiry, cognizance has been taken under Ss. 323, 342 and 498A of the Indian Penal Code in the complaint case. 3. Learned counsel for the petitioner submits that the allegations in both the police case and the complaint case are substantially the same and hence the provisions of Sec. 210 of the Code of Criminal Procedure are attracted. He, therefore, submits that both the cases i.e. the police case and the complaint case be tried together and hence the impugned order be set aside. 4. Learned counsel for the State submits that cognizance in the police case has been taken under Ss. 341 and 323/34 of the Indian Penal Code whereas in the complaint case cognizance has been under Ss. 323. 341 and 498A of the Indian Penal Code. He submits that the allegations in the complaint case disclose offence u/s. 498A of the Indian Penal Code and after enquiry cognizance has been taken thereunder. He submits that in the police case charge-sheet has not been submitted u/s. 498A of the Indian Penal Code and cognizance has also not been taken thereunder. He, therefore, submits that the allegations in both the cases are different and hence the provisions of Sec. 210 of the Code of Criminal Procedure are not attracted and hence the miscellaneous case be dismissed. 5. Section 210 of the Criminal Procedure Code prescribed the procedure to be followed when there is a complaint case and the police investigation in respect of the same offence: (1) When in a case instituted otherwise then on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made by the investigating police officer under section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. (3) If the police report does not relate to any accused in the complaint case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code. 6. In the police case Abha Choudhary first of all lodged a first information report of the occurrence which took place on 7.07.2006 and in that first information report she has given a reference of the conduct and misbehaviour of her husband prior to the date of occurrence. In the complaint case she has elaborately given the details of the conduct of her husband prior to the date of occurrence dated 7.07.2006 and she has also given the details of the occurrence that took place on 7.07.2006. From a perusal of the first information and the petition of complaint it appears that the allegations in the first information report and in the complaint case are substantially the same. The difference is that in the complaint petition the detail account of the conduct of her husband has been given. So, I find that the allegations in the first information report and in the complaint petition are substantially the same, of course, the cognizance of the offence u/s. 498A of the Indian Penal Code has been taken in the complaint case but such section is lacking in the first information report. Learned counsel for the petitioner submits that as per the allegation in the petition of complaint the provisions of Sec. 498A of the Indian Penal Code are not attracted and hence the offence u/s. 498A of the Indian Penal Code is not made out though cognizance has been taken thereunder in the complaint case. 7. Learned counsel for the petitioner submits that as per the allegation in the petition of complaint the provisions of Sec. 498A of the Indian Penal Code are not attracted and hence the offence u/s. 498A of the Indian Penal Code is not made out though cognizance has been taken thereunder in the complaint case. 7. Considering the allegation in the police case as well as in the complaint case, the provisions of Sec. 210 of the Code of Criminal Procedure and the submissions advanced on behalf of both sides, I am of the opinion that the provisions of Sec. 210 of the Code of Criminal Procedure in the present case are attracted as the allegations in the police case and the in the complaint case are substantially the same. 8. In the result, the miscellaneous case is allowed and the impugned orders are quashed with the direction to the trial court to try both the cases together in accordance with the provisions contained in Sec. 210 of the Code of Criminal Procedure.