KEDAR NATH SINGH Vs. STATE OF BIHAR

JUDGEMENT

(1.) Having heard the learned counsel for the parties and perused the materials on record, this application is being disposed of at the time to admission itself. In this case the prayer of the petitioner is for quashing the order dated 17.9.1999 taking cognizance of an offence punishable under Sections 451 and 364 of the Indian Penal Code against the petitioners. The cognizance of the alleged offence was taken on the basis of the complaint petition filed by opposite party No.

(2.) Admittedly, petitioner No. 2 Sailendra Kumar is the husband of the complainant. Out of wedlock a daughter was born. The complainant having felt insecure at the hands of husband, filed a petition judicial separation which was registered as 88/1990. A decree of divorce was passed on 17.3.1999 and since then the complainant is living with her daughter Nibha Kumari. It is alleged that on 6.6.1999 the accused- persons came to her residence situated at Dhurwa, Ranchi and asked for her daughter. The complainant refused to hand over the daughter to them and, accordingly, she was abused by her husband Sailendra Kumar and assaulted her by fists and slaps. It is alleged that the complainant has a reasonable apprehension that her daughter may killed by the husband. On the basis of the aforesaid allegation the cognizance was taken of an offence punishable under Sections 451 and 364 of the Indian Penal Code. Learned counsel has challenged the order on the ground that the petitioners were not present at the relevant time and, as such, the very order of taking cognizance of the alleged offence is an abuse of the process of Court. It is further submitted that in the facts and circumstances, the petitioners cannot be prosecuted for the offence punishable under Section 364 of the Indian Penal Code. In opposite Mr. Sahani, learned counsel appearing on behalf of opposite party No. 2, however, submits that by a judicial order the child was handed over to the complainant on the basis of which the complainant was living with her child. It is further submitted that in spite of the judicial order, the petitioners had forced the complainant to , part with her child which amounts to an offence punishable under Section 364 of the Indian Penal Code. Even if the allegation as made in the complaint petition is taken on its face value, no offence punishable under Section 364 of the Indian Penal Code is made out. Since the taking away the child by the husband from the possession of the mother cannot be said to be an offence punishable under Section 364 of the Indian Penal Code as it has been held in the case of Chandrakala Menon V/s. Capt. Vipin Menon,1993 EastCriC 285. That apart no order has been produced by Mr. Shahani to show that the petitioners had violated the judicial order while taking away the child from the lap of the complainant. Be that as it may. no offence under Section 364 of the Indian Penal Code is made out. However, petitioners can be prosecuted for other offences on the basis of the allegation made in the complaint petition. Accordingly, order taking cognizance of the alleged offence under Section 364 of the Indian Penal Code is quashed. However, learned Magistrate, will proceed in the matter in the light of the observation made hereinabove in accordance with law. This application is, accordingly disposed of.