Patna High Court
Case Details
Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 11729 of 2012 ====================================================== Sayed Salim Ali Akhtar @ Jahid, S/O Late Kazi Ali Akhtar, R/O Gauri Shankar Road, Jugsalai, P.S. Jugsalai, District - Jamshedpur, (Jharkhand) .... .... Petitioner/s Versus 1. The State of Bihar 2. Shabnam Praveen @ Ruby, W/O Sayed Salim Ali Akhtar @ Jahid and D/O Late Sayed Faiz Ahmad, Matrimonial House, Gauri Shankar Road, Jugsalai, P.S. Jugsalai, District - Jamshedpur, (Jharkhand), present Address Kazi Manzie, Near Budha Murti, Baldeo Sahay Road, New Area, Kadamkuan, P.S. Kadamkuan, District - Patna - 3 .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Md. Nadim Seraj, Advocate Mr. Shailesh Kumar, Advocate. Mr. Satish Kumar Sinha, Advocate. For the O. P. No. 2 : Mr. Anil Kumar Sinha, Advocate. For the State : Smt. Reena Sinha, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 4 29-01-2013 Heard learned counsel for the petitioner, Opposite Party No. 2 and the State. This petition is directed against the order dated 22.12.2011 passed by the learned Judicial Magistrate-1st Class, Patna in Complaint Case No. 267(C)/2011 by which the learned court below took cognizance for the offence under Section 498(A) of the Indian Penal Code. The prosecution case as alleged in the complaint petition is that the complainant was married to the petitioner in the year 2002. There was demand of Rs.1,00,000/- and the complainant protested the physical relation of the petitioner
Facts
Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 with Rabia Khatoon, accused no. 2. The matter was settled on execution of a memorandum. Again victim was assaulted in the year 2005 for which a complaint was filed in 2006 bearing Complaint Case No. 1830(C) of 2006. The complaint case ended in acquittal in view of a compromise. After compromise the victim was living with the petitioner and again the complainant tortured for non-fulfilment of demand and she was brought to Patna and was left at Patna by the petitioner and hence the complaint. The learned court below on inquiry under Sections 200 and 202 of the Cr. P. C. recorded statement of complainant and witnesses and issued process after taking cognizance for the offence under Section 498(A) of the Indian Penal Code. The learned counsel for the petitioner submitted that identical allegation made in the year 2006 has ended in acquittal and hence second prosecution on fresh complaint is barred. It has further been contended that victim and her daughter used to live at Jamshedpur along with the petitioner and hence Patna Court has no jurisdiction to entertain the complaint. The allegations are general and vague. The learned counsel for the Opposite Party No. 2, the complainant contended that the Complaint Case No. 1830(C) Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 of 2006 had been filed for occurrence of the year 2005 which ended in acquittal in view of the compromise between parties. As Section 498A of the Indian Penal Code was not compoundable so victim compelled to depose favourable to accused. However, the present complaint is with regard to occurrence of November, 2010, hence, acquittal of accused for offence of the year 2005 is of no consequence or bar to the subsequent act. It is further submitted that occurrence took place at Jamshedpur but after occurrence the victim was brought to Patna and left over at Patna and further part of occurrence took place at Patna attract the jurisdiction of Patna Court. However, it is well settled that while exercising the jurisdiction under Section 482 of the Cr. P. C. this Court would not give the course of proceeding to be of a mini trial The Court is only to look into allegation as to whether it makes out an offence. This Court cannot embark on enquiry under Sections 200 and 202 of the Cr. P. C. about the genuineness of allegation nor about the truth of allegations nor can appreciate the evidence to usurp the jurisdiction of the trial court. However, taking into consideration the case of the Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 parties and considering the respective submissions, it is apparent that the allegation made in complaint is with regard to an occurrence of November 2010. It has been specifically alleged that after compromise in complaint case the accused started torture and then brought her to Patna on 26.06.2010 and told her to take back in fortnight. In the month of November, 2010 demanded Rs.50,000/- and when complainant’s brother and maternal uncle refused to pay, the petitioner assaulted, hence, allegation is made out with regard to occurrence at Patna. At the stage of taking cognizance, the
Legal Reasoning
Court only has to look into the allegation whether prima facie it makes out an offence. The earlier complaint was with regard to occurrence of the year 2005 which ended in acquittal on basis of compromise and hence the 2nd complaint on basis of occurrence of the year 2010 cannot be barred on ground of earlier complaint for occurrence of the year 2005 having been dismissed on the basis of compromise. This Court at this stage can not appreciate the evidence. On the said complaint the Court proceeded on inquiry under Sections 200 and 202 of the Cr. P. C. and thereafter the process was issued after taking cognizance for the offence under Section 498(A) of the Indian Penal Code against the Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 petitioner. Learned counsel for the petitioner submits that a similar identical allegation was made in the year 2006 in Complaint Case No. 1830(C) of 2006 which was ended in acquittal. It has further been contended that complainant used to live at Jamshedpur and her daughter also lives at Jamshedpur and pursuing her study and hence Patna Court has no jurisdiction and further that case has been filed maliciously after losing the first battle in 2008 and hence Patna Court has no jurisdiction. Learned counsel for the Opposite Party No. 2, however, submits that earlier Complaint Case No. 1830(C) of 2006 was filed under Section 498(A) of the Indian Penal Code with regard to the occurrence 2005 and the said complaint was disposed of in view of the compromise between the parties and the fact mentioned in the order that the victim-wife compromised the case under Section 498(A) of the Indian Penal Code but since offence was non-compoundable so had to depose to give way for acquittal but the fresh cause of action has taken place with regard to the occurrence in the year 2010 and victim was, after assault, taken to Patna and was left at this place and further the Court cannot take into Patna High Court Cr.Misc. No.11729 of 2012 (4) dt.29-01-2013 consideration defence of accused at this stage. Hence, taking into consideration the allegation made in the complaint, prima facie a case is made out and hence, I do not find that the fact of the present complaint case and allegation made in the earlier complaint are same and similar and hence, having regard to the facts and circumstances, I do not feel inclined to interfere with the impugned order. Hence, the petition is hereby dismissed. However, the petitioner may raise the issue at the time of framing of the charge. Kundan/- (Gopal Prasad, J.)