MD IDRIS Vs. STATE OF BIHAR

JUDGEMENT

(1.) THE petitioner has preferred this petition under Section 482 of the Code of Criminal Procedure, 1973 praying that the order dated 23.8.1996 passed by the learned Sub -divisional Judicial Magistrate, Barh in Complaint Case No. 250 (C) of 1996 by which cognizance under Sections 323, 379 and 363 of the Indian Penal Code had been taken by the learned Sub -divisional Judicial Magistrate against the accused including the petitioner.

(2.) THE case of he petitioner is that Opposite Party No. 2 on 16.8.1996 filed a complaint in the Court of Additional Chief Judicial Magistrate, Barh against the petitioner and five other under Sections 323,420,406,353,379 and 363 of the Indian Penal Code in respect of an occurrence on 15.8.1996 said to have been taken place at 8 a.m. The case of the Opposite Party No. 2, as set out in the complaint was that his daughter Zarina Khatoon had been married to Md. Ashraf son of the petitioner about six years ago and from the wedlock they had a son aged about one and a half year and thereafter she again conceived and on the date preceding the date of occurrence the accused including the petitioner along with Zarina and her son came to the house of Opposite Party No. 2 on the occasion of Milad and stayed there. On the date of occurrence Zarina and her son accompanied the accused persons to their house but at about 2 p.m. Zarina came to the complainant and told him that petitioner and his wife took away her one and a half year old son and forcibly sent her back after taking away her clothings and ornaments valued at Rs. 5,000/ - and she was further told that unless Opposite Party No. 2, the complainant, gave Rs. 5,000/ - they would not release the son of Zarina from their custody. A copy of the complaint has been annexed as An -nexure 1.

(3.) THE learned Additional Chief Judicial Magistrate, Barh on 16.8.1996 without taking cognizance or examining the complainant on solemn affirmation transferred the complaint under Section 192 (1) of the Code of Criminal Procedure to the Court of Sub -divisional Judicial Magistrate, Barh who on 21.8.1996 examined the complainant Opposite Party No. 2 on solemn affirmation and fixed 23.8.1996 as the date of enquiry and on 23.8.1996 Zarina was examined behind the back of the petitioner and other accused persons and the evidence of Opposite Party No. 2 was closed. The learned Sub -divisional Judicial Magistrate by the impugned order dated 23.8.1996 heard the complainant on the point of cognizance and took cognizance of the offences under Sections 323,379 and 363, IPC against the petitioners and other accused persons and directed issuance of processes against them including the petitioner.