Ashwani Kumar @ Banti v. THE STATE OF BIHAR & Ors.

Assailing the impugned order, it was submitted on behalf of the petitioner that without getting the statement of Binita recorded under Section 164 Cr.P.C. the police had proceeded in a haphazard manner with the investigation in order to shield the true picture of the incident. In this connection it was submitted that the victim of the case, namely, Binita filed a petition on 4.12.2006 before the court below alleging therein that her statement under Section 164 Cr.P.C. was deliberately not being recorded and in view thereof she had submitted her statement on affidavit before a Notary Public, Patna, wherein she disclosed that her marriage with Anjani had been solemnized against her wishes and she was not happy in the matrimonial home and that it was she who had purchased the ticket for going to Delhi by Sampurn Kranti Express and instead of going to Delhi she had, out of her free will and volition, gone to Bhubaneshwar where she had taken admission in NIIT to complete her course in computer which she had started prior to her marriage - 4 - and had remained incomplete because of her marriage. She also pleaded that the said statement of hers be treated as statement under Section 164 Cr.P.C. It was further submitted on behalf of the petitioner that he had been implicated falsely in this case and that he had no role to play in the alleged kidnapping of Binita who admittedly as per her affidavit filed in the court had left the matrimonial home on her own accord. It was also submitted that Binita had filed Matrimonial Case no.114 of 2007 before the Principal Judge, Family Court , Patna , praying for divorce in view of her strained relationship with her husband and in- laws. On the aforesaid premise, it was submitted that no case either under Sections 366,498 and 120B I.P.C. can be said to have been made out against the petitioner and the taking of cognizance by the learned Judicial Magistrate, Railways, was an abuse of the process of the court and was fit to be quashed. Opp.Party no.2 has appeared by filing Vakalatnama and although no show cause or counter affidavit has been filed, the impugned order was sought to be justified by making oral submissions. It is true that the statement of the victim, Binita, was not sought to be recorded by the Investigating Officer in course of investigation which is a mere irregularity and the same cannot be a matter for agitation. That apart, Binita’s volutary affidavit in court cannot be acted upon, since it is not a part of the investigation and it is not disclosed therein as to what prompted her to file such affidavit in - 5 - court. These are matters which can be raised and disposed of at the time of framing of charge and cannot be looked into at this stage since the purported affidavit filed by Binita is required to be proved by cogent evidence. Due regard being had to the facts and circumstances of the case I find no merit in this application which is accordingly dismissed.However,the petitioner shall be at liberty to raise all these issues at the time of framing of charge. ( Abhijit Sinha, J ) Patna High Court,Patna Dated : the 30th June,2009 Nawal Kishore Singh/A/F.R.