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2009 DIGILAW 603 (PAT)

Md. Shahabuddin v. State Of Bihar

2009-04-15

AJAY KUMAR TRIPATHI

body2009
JUDGEMENT 1. Heard learned counsel for the parties. 2. Vide order dated 15.1.2009 on a prayer made by learned counsel for petitioner no. 1, he was allowed to withdraw the quashing application in question is so far as it related to him. The application stood dismissed against petitioner no. 1. 3. Petitioner no. 1 is alleged to be the person who committed offence under section 493 of the Indian Penal Code. The present petition is therefore confined to petitioner nos. 2, 3 and 4. Petitioner no. 2 happens to be the father of petitioner no. 1 Md. Shahabuddin, petitioner no. 3 is the wife of petitioner no. 2 (mother of petitioner no. 1) and petitioner no. 4 is the daughter of petitioner nos. 2 and 3 (sister of peti-. tioner no. 1). 4. This application has been filed for quashing the order dated 5.7.2006 passed by Sri P.C. Verma, Judicial Magistrate, 1st class, Darbhanga in Tr. No. 2864 of 2006 (G.R. No. 333 of 2005) by virtue of which learned Magistrate has taken cognizance under section 493 of the Indian Penal Code against all the petitioners. The background to the present case is filing of a complaint petition where allegation has been made against petitioner no. 1 that he had committed rape on the informant with a promise to marry her at an appropriate time. It was on this promise based on which the offence continued to be committed against the complainant. The complainant is alleged to be working in the house of the petitioners as maid servant. After due investigation the police found the allegation to be false and submitted final form. Thereafter on a protest petition the present proceeding has reached the stage of cognizance against the petitioners. 5. Learned counsel representing the petitioners submits that on bare perusal of section 493 of the Penal Code and its ingredients laid down therein no offence is made out against left over petitioners in the present case. At the most even if for the sake of argument a substantive offence under section 493 of the Penal Code is made out it would be utmost against erstwhile petitioner no. 1, against whom the present petition has already been withdrawn. 6. Learned counsel representing opposite party no. At the most even if for the sake of argument a substantive offence under section 493 of the Penal Code is made out it would be utmost against erstwhile petitioner no. 1, against whom the present petition has already been withdrawn. 6. Learned counsel representing opposite party no. 2 submits that even though the substantive offence under section 493 of the Penal Code is not made out against these petitioners but some offence is made out and that will be decided at the time of framing of charge. This may not be an occasion for this Court to interfere with the order of cognizance. 7. The basic contention of learned counsel of opposite party no. 2 cannot be accepted since after due deliberation of the fact and after keeping in mind the evidence of the complainant/informant and the so called witnesses, learned Magistrate had taken cognizance under section 493 of the Indian Penal Code. Section 493 of the Penal Code reads as under: 493. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage:- Every man who by deceit causes any woman who is not lawfully married to him to believe that she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 8 A bare perusal of the above section leads this Court to only one conclusion that no offence of the above kind is made out against these petitioners and the order taking cognizance under section 493 of the Indian Penal Code is misplaced. This quashing application is allowed and the order dated 5.7.2006 passed by Sri P.C.Verma, Judicial Magistrate, 1st Class, Darbhanga in Tr. No. 2864 of 2006 (GR No. 333 of 2005) is hereby quashed in so far as it relates to these petitioners.