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2010 DIGILAW 216 (PAT)

Manoranjan Singh v. State Of Bihar

2010-02-19

SHEEMA ALI KHAN

body2010
JUDGEMENT 1. Heard learned Counsel for the petitioners, the informant/Opposite Party No.2 and the A. P. P. appearing on behalf of the State. 2. The petitioner has challenged the order dated 21.1.2009 passed by the Additional Sessions Judge IX, Chapra in Sessions Trial No. 505 of 2009. The Court while hearing the discharge application has found that a case is made out under Sections 498-A, 494 and 376 of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. 3. Learned Counsel for the petitioners has confined his argument by submitting that no offence is made out under Section 376 of the Indian Penal Code on the basis of the prosecution case. The prosecution case specifically states that the informant was married to Rakesh Kumar Singh according to the Hindu rites and that they lived together as husband and wife. Later on, it is said that there was a demand of dowry and it is also alleged that the petitioner Rakesh Kumar Singh has remarried. 4. It is prosecution to prove its case. The case cannot proceed on the basis of a defence raised on behalf of the accused persons in this case. There is no allegation whatsoever in the First Information Report or otherwise that Priyanka Soni was forced into sexual relationship or that Rakesh Kumar Singh forced her to enter into physical ralationship. Unless there is specific statement or allegation with respect to an offence as described under Section 375 of the Indian Penal Code, it cannot be said that the offence is made out under the said section. 5. I find that the Court below has erred in law in taking into account the statement made by the petitioner after his arrest that he is not married with Priyanka Soni. Even if it is presumed for the time being that there was no marriage between the two, then also the prosecution has to make out a case with respect to offence under Section 376 of the Indian Penal Code before the Court can proceed and charge the petitioner Rakesh Kumar Singh for the offences under Section 376 of the Indian Penal Code. 6. 6. The impugned order further suffers from the defect that the Court ought to have taken into consideration that the petitioner no.2 could not have been charged, under any circumstances, for offences under Section 376 of the Indian Penal Code and there is no allegation of any sort against petitioner no.1, the supposed father-in-law of Priyanka Soni. Therefore, I quash the order inasmuch as the Court has observed that the petitioners are liable to be charged under Section 376 of the Indian Penal Code. 7. Learned Counsel for the petitioners at this stage submits that Section 376 of the Indian Penal Code is triable by the Court of Sessions whereas the other sections are triable by the Court of Magistrate. In that view of the fact, it is submitted that the petitioners may be given an opportunity to address the Judicial Magistrate with respect to the charge under Sections 498-A and 494 of the Indian Penal Code and Sections 3/4 of the Dowry Prohibition Act as the Judicial Magistrate would have to apply his judicial mind before framing of the charges. 8. I, therefore, direct that the Judicial Magistrate may give the petitioners an opportunity without causing further delay in the trial of the case. 9. The consequence of quashing the order would naturally mean that all subsequent orders by the Sessions Judge, Chapra would be non-est in the eyes of law. 10. This application is allowed to the extent indicated above.