IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.29813 of 2008
1. Ashok Tiwari @ Ashok Kumar Tiwari
2. Sitaram Tiwari
3. Sawitri Devi..............Petitioners.
Versus
State Of Bihar & Anr
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03. 28.09.2011 This is an application for quashing the order of
cognizance dated 27.3.2008 passed by learned S.D.J.M., Muzaffarpur in
Complaint Case No.64 of 2008 (Trial No.1749 of 2008) filed by the
Opposite Party No.2 for the offences under Sections 498A, 323, 379 of
the I.P.C. and Section 3 /4 of the D.P. Act through which the learned
S.D.J.M., Muzaffarpur has been pleased to take cognizance of offences
under Section 498A of the Indian Penal Code and Section 3 /4 of
D.P.Act against the petitioners.
Heard learned counsel for the petitioners and learned
counsel for the State. Learned counsel for the informant is also present.
Marriage is of the year 2002, allegation is that at the time
of ‘Gauna’ (Second marriage) a demand was made of motorcycle and
Rs.50,000/- cash, anyhow, Bidai was possible, on reaching Sasural, in
laws including petitioners started to torture for non-fulfilment of
demand. On 22.9.2004, a written petition was given to Officer-in-
Charge, Maker Police Station, but no consequence either towards action
by the police or torture, which was being caused upon the complainant
and that remained continued in different ways even she was poured
kerosene oil and attempt was made to set her on fire, but running from
the place, she saved herself and went to her maika. Matter was taken up
by his brother and others. Further it is said that she was taken to
matrimonial home by the husband, but was again ousted just after
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reaching her matrimonial home.
There is some admitted fact in the case that for the
incident till 22.9.2004, police was informed and now it has come in
picture that Maker P. S. Case No.39 of 2004 was lodged, charge sheet
was submitted and matter is under trial and for the same offence present
Complaint Case No.54 of 2008 is filed, but not within the jurisdiction of
Chapra Court where the F.I.R. was lodged rather at Muzaffarpur.
Legal and factual position is that in the case instituted
otherwise than on police report (Complaint Case), it is made appeared
to the Magistrate, during the course of enquiry or trial held by him, that
an investigation by the police is in progress in relation to the offence,
which is subject matter of the enquiry or trial held by him, the
Magistrate shall stay the proceeding and in case, a report is submitted
under section 173 of the Cr.P.C. and cognizance is taken by Magistrate,
the Magistrate shall enquire into or try together the Complaint Case and
the case arising out of the police report as if both the cases where
instituted on a police report.
In case in hand, complaint is filed in a Court at
Muzaffarpur, so it is proper to transfer the instant case that is Complaint
Case No.64 of 2008, Tr. No.1749 of 2008 from the S.D.J.M.,
Muzaffarpur in the Court of Mr. R. K. Srivastava, Judicial Magistrate,
Ist Class, Chapra.
Before ending, it is made clear that S.D.J.M., Muzaffarpur
was never informed about pendency of a case at Chapra though
complaint petition is clear that police was informed about the incident
taken place in the year 2004. There appears some contradiction in both
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the cases that also will be taken into consideration by the Trial
Magistrate in reaching the final conclusion by believing or disbelieving
the allegation.
In the result, this quashing application is allowed in part,
Complaint Case No.64 of 2008 pending in the Court of S.D.J.M.,
Muzaffarpur is hereby ordered to be transferred in the Court of Mr. R.
K. Srivastava, Judicial Magistrate, Ist Class, Chapra for its trial and
disposal along with Maker P. S. Case No.39 of 2004, G.R. No.3039 of
2004.
Vikash ( Mandhata Singh, J.)