MITHILESH KUMAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) Heard Shri Ramesh Kumar Singh, learned counsel, who was assisted by Shri Sanjay Kumar Singh, learned counsel for the petitioner, learned Additional Public Prosecutor appearing on behalf of opposite party no. 1/State of Bihar and Shri Anant Kumar Bhaskar, learned counsel appearing on behalf of the informant/opposite party no. 2. The sole petitioner, who is husband of the informant, has approached this Court, while invoking its inherent jurisdiction under Section 482 of the Code of Criminal Procedure for quashing of order dated 11.1.2011 passed by teamed Additional Chief Judicial Magistrate, Barh in Bakhtiyarpur P.S. Case No. 162 of 2006, whereby the learned Magistrate has taken cognizance of offence under Sections 498-A, 323, 354 and 504 of the Indian Penal Code. The petitioner has also prayed for quashing of entire prosecution in the said case.

(2.) Shri Singh, learned counsel for the petitioner, while assailing the order of cognizance as well as assailing entire prosecution, has firstly argued that the learned Magistrate was not having territorial jurisdiction to try the case and order of cognizance is without jurisdiction. He submits that in the F.I.R. itself, there was disclosure by the informant that marriage in between the petitioner and the informant was solemnized at Deoghar, which is out of State of Bihar and subsequently, after marriage, the informant with petitioner was residing at Asansol and all the allegations of atrocity indicates that same was done in Asansol and as such the case was to be initiated within the jurisdiction of Asansol not in a court at Barh.

(3.) In support of his argument that on lack of territorial jurisdiction, a court cannot proceed, he has relied on (Y. Abraham vs. Inspector of Police, Chennai, 2004 AIR(SC) 4286). He has referred to paragraphs 11 and 19 of the said judgment. He has also relied on , (Bhura Ram vs. State of Rajasthan, 2008 AIR(SC) 2666). In the said case, he has referred to paragraph-4. He further submits that allegation made in the F.I.R. appears to be not believable and improbable and on this ground also, the entire proceeding is liable to be set aside. He further submits that misuse of provision under Section 498-A of the Indian Penal Code has been noticed by Apex Court, time without number, and it has been deprecated, particularly in , (Preeti Gupta vs. State of Jharkhand, 2010 CrLJ 4303 relying on , (State of Karnataka vs. L. Munsi Swami, 1977 AIR(SC) 1489). He submits that the prosecution in the present case is liable to be set aside, since there is no corroborative material collected during the investigation of the case. Of course, in the F.I.R., it was alleged that part of the cause of action arose within territorial jurisdiction of Barh Court, but said fact was not corroborated during investigation, which is evident from the statement of father recorded under Section 161 of the Code of Criminal Procedure. He has referred to Annexure-2 to the supplementary affidavit, which is a photo-copy of paragraph-6 of purported case diary. Lastly it was argued that if there is bleak chance of conviction, then in that event, criminal proceeding should be set aside even at initial stage of a case. On this point, he has heavily relied on , (Madhavrao Jiwaji Rao Scindia and Another vs. Sambhajirao Chadrojirao Angre and Others, 1988 AIR(SC) 709). On the question of improbability of the allegation, he has relied on , (Stats of Haryana and Others vs. Ch. Bhajan Lal and Others, 1992 AIR(SC) 604) particularly, paragraphs 108(5) and 108(7) of the said judgment. He submits that after going through the allegations made in the said F.I.R., it can be inferred that the offence was not probable and on this ground also, the entire proceeding is liable to be set aside.