ARVIND KUMAR SINHA Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) Heard Sri Avanish Kumar Singh, learned counsel for petitioners, learned Addl. Public Prosecutor as well as Sri K.N. Diwakar, learned counsel appearing on behalf of complainant/opp. party No. 2. Three petitioners, who are in-laws family members of complainant/opp. party No. 2, have approached this Court, with a prayer to quash an order dated 7.5.2010 passed by learned Sub-Divisional Judicial Magistrate, East Muzaffarpur (hereinafter referred to as "S.D.J.M.") in Complaint Case No. 2609(C) of 2005, Trial No. 906 of 2010. By the said order, learned S.D.J.M. had allowed the prayer of opp. party No. 2 for adding the petitioners as accused and face trial with accused, who was already put on trial.

(2.) Short fact of the case is that the complainant/opp. party No. 2 had earlier filed a complaint case, vide Complaint Case No. 2609(C) of 2005 for the offence under Section 498-A and Sections 3 & 4 of the Dowry Prohibition Act, 1961 against her husband namely Major Ranjit Soni Sinha and others including petitioners. However, during course of inquiry, learned S.D.J.M. was of the opinion that no offence was made out against any of the accused persons, save and except, husband of the complainant and thereafter, order of cognizance was passed on 6.1.2006 and only husband was summoned to face trial. During trial, after examination of four witnesses, a prayer was made on behalf of opp. party No. 2 for summoning present petitioners also to face trial with the main accused, which has been allowed by learned S.D.J.M., Muzaffarpur. The same order has been impugned in the present petition.

(3.) Learned counsel for petitioners, besides raising other pleas, has raised an issue that once the petitioners were made accused in the complaint petition and after thorough inquiry, learned S.D.J.M. had found no material to take cognizance against petitioners, the learned S.D.J.M., at the stage, during trial under Section 319 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C"), was not at all empowered to add the same persons as accused, who were already exonerated from facing trial earlier. He has categorically stated that Section 319 of the Cr.P.C. shows that only those persons can be summoned who are not accused in the case. Besides this issue, learned counsel for petitioners has further argued that though cognizance order in the complaint petition was passed only against husband of the complainant, the husband had subsequently assailed the order of cognizance before this Court by filing a quashing application, vide Cr. Misc. No. 9454 of 2009 and a Bench of this Court by its order dated 10.1.2013 was pleased to allow the quashing application and quashed the order of cognizance against the husband (Annexure '8' to the Supplementary Affidavit). He further submits that this Court, while quashing the order of cognizance in case of husband of the complainant, had noticed the point of cruelty caused on complainant itself was examined in a matrimonial case i.e. Matrimonial Case No. 153/05 and in the matrimonial case, issues, framed on the point of cruelty, were decided against the complainant and the said fact was also noticed by this Court and considering all these facts, this Court by its order dated 10.1.2013 had quashed the order of cognizance. Learned counsel for petitioners submits that since the order of cognizance in respect of main accused i.e. husband of the complainant has already been quashed and complaint case had come to an end in respect of only one accused, who was facing trial, there is no question for allowing the complainant to add petitioners to face trial alongwith the accused who was already facing trial. He submits that main trial has already come to an end and as such, impugned order is required to be quashed.