IN THE HIGH COURT OF JUDICATURE AT PATNA
Cr.Misc. No.31158 of 2007
RAM NIWAS CHOUDHARY & ORS
Versus
STATE OF BIHAR
With
Cr.Misc. No.20197 of 2008
RAM NIWAS CHOUDHARY & ORS
Versus
STATE OF BIHAR & ANR
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7 17.07.2008 Two quashing applications have been filed. The first
application is Criminal Miscellaneous No. 31158 of 2007 challenging
the order dated 30.4.2007 by which the Magistrate has taken
cognizance for the offences under Section 498A of the Indian Penal
Code. The second application is Criminal Miscellaneous No. 20197 of
2008 which challenges the order passed on 5.5.2008 whereby the Sub-
divisional Judicial Magistrate has rejected the petitioners’ petition
under Section 245 of the Code of Criminal Procedure.
The facts are that one Kumud Choudhary filed a
complaint against her husband (petitionerno. 7) Manoj Kumar
Choudhary and her inlaws alleging therein that they had demanded a
sum of Rs. 2 lacs and had ousted her from her matrimonial home
because the money was not paid by her father.
The complainant in support of her allegations had
named five persons as witnesses. Out of the five persons her parents
were examined and thereafter she sought permission of the Court on
16.8.2005 to permit her brother to be examined as a witness which was
allowed by the Court below. Again the complainant sought permission
that one Md. Mushtaq should be examined on her behalf, that too was
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allowed by the Court below.
All these three witnesses were examined and after
examination of the witnesses the court by order dated 22.8.2006 found
that the conduct of the complainant and the improbability in his
evidence was such that offences under Section 498A were not made out
against the petitioners. According to the Court below Md. Mushtaq and
the brother of the complainant Harish Agrawal did not support the
allegations made in the complaint petition. The complainant filed a
Revision before the Sessions Judge, Katihar and the matter was
remitted back to the Magistrate for consideration. The Magistrate
passed an order dated 30.4.2007 taking cognizance for the offences
under Section 498A. The order dated 27.2.2007 is annexed as
annexure-6 to this application.
From perusal of the order it appears that the Sessions
Judge, Katihar had gone through the evidence produced on behalf of
the complainant and found that there was sufficient material to issue
summons against the accused persons for facing trial.
On the basis of the observation made by the Sessions
Judge, Katihar, the Magistrate took cognizance on 30.4.2007.
Learned counsel on behalf of the petitioner has
submitted that after the matter was remitted by the Sessions Judge,
Katihar by order dated 27.2.2007, the Magistrate ought to have held an
enquiry to determine whether the allegations made out in the complaint
petition against the accused persons are supported in further enquiry.
I do not find any merit in the submissions made on
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behalf of the petitioner as the order of the Sessions Judge, Katihar is
quite explicit inasmuch as he has stated that from the evidence on
solemn affirmation and the evidence of the witnesses examined on
behalf of the complainant a prima facie case has been made out.
Therefore, the order dated 30.4.2008 taking cognizance does not suffer
from any illegality.
Learned counsel for the petitioner also challenged the
order refusing to discharge the petitioners on the ground that the
evidence that has come on record is full of improbabilities and the
witnesses contradict each other on material facts. The question whether
the evidence is reliable or is full of improbabilities or whether the
witnesses
contradict each other would be considered in a full
fledged trial and the Court after hearing the matter will decide these
submissions on the evidence which comes on record, and it would not
be proper at this stage to discharge the petitioners.
In the result I do not find any illegality in the orders
before this Court. As a result the two abovementioned applications are
dismissed.
Sanjay (Sheema Ali Khan,J.)
