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2012 DIGILAW 92 (PAT)

Md. Qamar Rehan v. State of Bihar

2012-01-16

HEMANT KUMAR SRIVASTAVA

body2012
JUDGMENT : Hemant Kumar Srivastava, J. This petition has been filed u/s 482 of the Cr.P.C for quashing order dated 18.5.2009 passed by learned Sub-Divisional Judicial Magistrate, Sasaram (wrongly mentioned in para 1 and prayer portion of the petition as Sub-Divisional Magistrate, Sasaram) in Complaint Case No. 127/2009 by which and whereunder he having found prima facie case u/s 498A of the IPC and Section 3/ 4 of the D.P. Act ordered to issue summons against the petitioner and two other accused persons for procuring their attendance to face trial in the above stated Complaint Case No. 127/2009. The brief fact, which lies to file this quashing petition, is that opposite party No. 2, namely, Sadaf Fatma filed complaint case bearing Complaint Case No. 127/2009 in the Court of learned Chief Judicial Magistrate, Sasaram, Rohtas against the petitioner and six other accused persons alleging therein that her marriage was solemnized on 17.4.2006 according to rites and rituals of Mohammedan Law. On the date of marriage, petitioner and other accused demanded Rs. 3 lakh for purchasing a car and one flat at Allahabad (U.P.) but any-how, marriage was solemnized and opposite party No. 2 went to her matrimonial home. It is further alleged that other accused did not behave properly with opposite party No. 2 and her parents-in-law as well as Nanad used to abuse her as well as pass sarcastic comments against her and, accordingly, she was put into mental and physical harassment. Her father several times tried to pacify the matter but the petitioner and his family members did not pay any heed towards the request of her father. Lastly on 25.12.2008 she was driven out from her matrimonial home and her belongings were kept by the petitioner as well as his other family members. 2. The learned Sub-Divisional Judicial Magistrate, Sasaram enquired into the above stated complaint petition and having found prima facie case against the petitioner as well as two other accused persons namely, Md. Alhaj Ali Hussain @ Siddique and Ahmadi Begum, ordered to issue summons whereas he did not find any case against rest accused persons. Being aggrieved by the above stated impugned order dated 18.5.2009, the petitioner has filed this quashing petition. 3. Opposite party No. 2 was noticed by this Court and she made her appearance through her Counsel and also filed counter affidavit. 4. Being aggrieved by the above stated impugned order dated 18.5.2009, the petitioner has filed this quashing petition. 3. Opposite party No. 2 was noticed by this Court and she made her appearance through her Counsel and also filed counter affidavit. 4. I have already heard all the parties and with consent of all the parties, this petition is being disposed of on admission stage itself. 5. Learned Counsel appearing for the petitioner submits that petitioner had already given divorce to opposite party No. 2 which is evident from perusal of Annexure 2 series and had also paid Mahar amount to opposite party No. 2 but the learned Court below did not take note of the aforesaid fact and passed the impugned order which is not in accordance with law. It is further contended by him that, as a matter of fact, petitioner was in Kuwait in connection with his job at the relevant time and the aforesaid fact is evident from Annexure 5 to the supplementary affidavit. It is further contended by him that when the petitioner was in Kuwait at the relevant time, the question of torturing and harassment at the hands of the petitioner does not arise and, therefore, Section 498A of the IPC is not applicable against the petitioner. On the basis of the aforesaid submissions, learned Counsel for the petitioner prays before this Court for quashing of the impugned order. 6. Learned Counsel appearing for opposite party No. 2 refuted the above stated submissions and submitted that the factum of divorce as well as plea of alibi taken by petitioner would be considered at the time of trial and it is not proper stage to interfere into the impugned order on the basis of documents adduced on behalf of the petitioner before this Court. It is further contended by him that the petitioner is husband of opposite party No. 2 and, as a matter of fact, after taking cognizance of the offence in Complaint Case No. 127/2009, petitioner came before this Court for anticipatory bail and his prayer for bail was allowed by this Court vide order dated 25.2.2010 passed in Cr. Misc. No. 2276/2010 with certain conditions but the petitioner did not comply with the conditions Imposed upon him by this Court and uptil now, he has not surrendered before the learned Court below. Misc. No. 2276/2010 with certain conditions but the petitioner did not comply with the conditions Imposed upon him by this Court and uptil now, he has not surrendered before the learned Court below. Highlighting the aforesaid conditions, learned Counsel for opposite party No. 2 submitted that this Court had directed the petitioner to pay a sum of Rs. 70,000 to opposite party No, 2 at the time of his surrender and also give a written undertaking of paying monthly amount of Rs. 5,000 from the month of April, 2010 on every 10th of next successive months but uptil now, not a single penny has been paid by the petitioner to opposite party No. 2. It is further contended by him that so far as alleged divorce is concerned, the same is not in accordance with law and the alleged document of Nikah has been issued by a Madarsa which is not a competent authority for issuing such type of document because Madarsa is not a religious body to issue document either in respect of Nikah or divorce rather Madarsa is nothing but only a learning institution. 7. Having heard rival contentions of both the parties I have gone through the record. 8. Undisputedly, marriage of petitioner was solemnized with opposite party No. 2 on 17.4.2006 and Complaint case No. 127/2006 was filed by opposite party No. 2 on 2.2.2009 whereas the date of divorce has not been disclosed by the petitioner and Annexure 2 series reveals that so-called divorce was given by the petitioner after three years of his marriage. So, the aforesaid document clearly indicates that the aforesaid document was prepared some time in the year 2009. It is also an admitted 5 position that opposite party No. 2 has filed the above stated Complaint Case No. 127/2009 for the occurrence which had taken place much prior to the year 2009. So, the aforesaid document clearly indicates that the aforesaid document was prepared some time in the year 2009. It is also an admitted 5 position that opposite party No. 2 has filed the above stated Complaint Case No. 127/2009 for the occurrence which had taken place much prior to the year 2009. Moreover, learned Counsel for opposite party No. 2 has rightly submitted that the aforesaid fact can only be investigated in course of trial and I am also of the opinion that the aforesaid fact requires deeper investigation which is only possible in course of trial because at the inquiry stage, the inquiry Court has only to see as to whether any prima facie case is made out or not and in the aforesaid limited scope, it is not possible for inquiry Court to judge the geniuses of any document. Similarly, the plea of alibi can also be investigated at the time of trial because at the time of enquiry stage, the defence of an accused cannot be looked into. 9. So far as merit of the case is concerned, the learned inquiry Court has specifically mentioned that in course of inquiry, witnesses supported the contents of the complaint petition. It is well settled proposition of law that in exercising of power u/s 482 of the Cr.P.C., this Court has no concern with truthiness of the prosecution case and the aforesaid fact can be tested in course of trial. 10. On the basis of the aforesaid discussions, I am of the opinion, that this quashing petition has got no merit and liable to be dismissed on admission stage itself. Accordingly, this petition stands dismissed on admission stage itself. 11. Let a copy of this order be sent to the Court of learned Sub-Divisional Judicial Magistrate, Sasaram in Complaint Case No. 127/2009. It goes without saying that stay granted by this Court vide order dated 14.2.2011 shall stand vacated.