MD.YUSUF AZAD Vs. STATE OF BIHAR

JUDGEMENT

(1.) HEARD Sri S.K. Mishra, the learned counsel for the petitioner and Sri Jharkhandi Upadhaya, the learned A.P.P. for the State. Although O.P. No. 2, the complainant, was validly served with notice, she has chosen not to appear to contest this application.

(2.) THROUGH this application, the petitioner has sought to question the legality of order dated 5.5.2006 passed by learned Sessions Judge, West Champaran at Bettiah in Cr. Revision No. 92 of 2006. whereby while approving the order dated 13.4.2006 passed by Sri N.B. Lal Judicial Magistrate, First Class, Bettiah, in Complaint Case No. 235C of 1999 allowing the complainant to examine witness under Section 311 Cr.P.C, has dismissed the revision as not being maintainable in view of the Magisterial order being an interlocutory order. A further prayer has been made for quashing the order dated 13.4.2006 of the learned Judicial Magistrate as also the entire proceeding. It appears that the petitioner herein had preferred Matrimonial Suit No. 29 of 1998 for restitution of conjugal rights and as notwithstanding several attempts by various agencies no reconciliation between the two parties was possible, the relief in the Suit was amended and a decree of divorce was prayed for which was eventually decreed by order dated 21.2.2003 passed by Sri Md. Shamim, learned 3rd Additional District Judge, East Champaran at Motihari. It also appears that the decree of divorce was passed on the basis of a compromise petition filed by the parties which formed a part of the decree. It further appears from perusal of the compromise petition (Annexure -5 in this application) that the wife -O.P. No. 2 had agreed to withdraw all litigations against her husband and that she would not lay any claim against each other for dower debt, maintenance including benefits relating to the service of the husband or the share in the property of the husband.

(3.) HOWEVER , as it appears, throwing the compromise petition and the decree passed in Matrimonial Suit No. 29 of 1998 on the basis thereof to the winds, O.P. No. 2 herein persisted with the instant complaint case to vex the divorced husband. It appears that in the complaint case after framing of charges against the petitioner, several dates were fixed for the production and examination of the witnesses of the complainant but as no witness was produced the complainant 'sevidence was eventually closed by order dated 2.2.2006. It further appears that on the basis of a petition filed on 13.2.2006 under Section 311 Cr.P.C. the learned Magistrate allowed the petition by order dated 13.4.2006 on the ground that the complainant was present in another court.