S M AKHTAR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under section 482 of the Code of Criminal Procedure is directed against an order dated 29/5/1985 of the Chief Judicial Magistrate, Dhanbad, taking cognizance against the petitioner for an offence under sections 380, 454, 500 and 323 of the Indian Penal Code.

(2.) The petitioner is the father of the deceased son, S.M. Azhar. He was working in the Eastern Railway, Dhanbad, as second fire man. He died on 7/5/1985. The complainant is the second legally married wife of late S.M. Azhar. She and her husband along with their children were occupying the Railway quarters allotted to them vide Qr. No. A/69, in Matkoria Rly. Colony, since June. 1984 The first wife, the father (the petitioner herein) and the children from the first wife were living separately because of bad relations. After the murder of her husband on 7/5/1985, the complainant was continuing to live in the said quarter along with the children until 23/5/1985. In the morning of 23rd May, 1985, the complainant and the children had gone to her mothers place. While she returned back on 25/5/1985 she found that a different lock had been put in the house and her lock was found broken. She along with her mother approached the police station and lodged an information with the police but the police refused to help them and asked her to break open the lock. She expressed her fear to the police and did not like to take law in her own hands. Further, she remained helpless and the police did not help her in this matter. When she again visited the said quarter on 26/5/1985, they found that the said quarter had been occupied by the petitioner and other members of his family. She tried to enter into the house but she was prevented by the petitioner and was threatened to be killed if she would make any attempt to enter into the house. She was shocked at the behaviour of the petitioner. When she requested him that she may be allowed to take her belongings from the quarter which were worth Rs. sixty to seventy thousand. She was abused by the petitioner in most filthy language and she was told that the articles did not belong to her and the petitioner is the owner of these Articles. Left with no remedy, she complained to the Chief Judicial Magistrate against the petitioner. The complaint was filed on 29-5-1985. The complainant was examined on solemn affirmation by the Chief Judicial Magistrate. After perusing the contents of the complaint petition, the statement of the complainant taken, on solemn affirmation and the documents filed on her behalf, the Chief Judicial Magistrate found that a prima facie case under sections 454, 380, 500 and 323 of the Indian Penal Code was made out against the petitioner. Accordingly, cognizance of the said offence was taken and summons were issued to the petitioner for his appearance. Mr. Debi Prasad appearing for the petitioner contended that in the facts and circumstances of the case. Section 210 of the Code is attracted and the facts alleged do not constitute the offence charged.

(3.) Section 210 of the Code is a new provision. It prescribes a procedure to be followed when there is a complaint case and also the police investigation in respect of the same. Section 210 reads as follows: (1) When in a case instituted otherwise than on a police report thereinafter referred to as a complaint case it is made to appear to the Magistrate during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him the Magistrate shall stay the proceedings of such inquiry of trial and call for a report on the matter from the police officer conducting the investigation.