Judgment:
ORDER
Jaya Roy, J.
1. This revision application is directed against the order dated 27.8.2008 passed in complaint case No. 43 of 2003 by the court of Shri Rakesh Kumar Judicial Magistrate, Ranchi, whereby the petition filed under Section 245 Cr.P.C. by the petitioner is rejected.
2. The case in brief is that the opposite party No. 2 filed a complaint petition before the court of C.J.M. Ranchi, stating therein that the complainant Zohara Khatoon married with Jamil Akhtar (petitioner) on 5.5.1992 according to Muslim Law and Rites and they are living peacefully with his matrimonial family. Thereafter from the said wedlock two children were born to the complainant. The petitioner is employed at Central Institute of Psychatry Kanke as Clerk. The accused No. 3 Olga Pentoni is also working at the same Hospital as Nurse. The accused No. 1 (petitioner) and accused No. 3 had developed extra marital relations between them and on protest made by the complainant the husband used to assault and ill treatment with the complainant. On 26.1.2002 at 7.30 P.M. the accused No. 1 along with accused No. 2 came to the complainant and when she made objection the accused No. 1 started beaten the complainant and badly injured the complainant and she fell down on the roof. In the mean time accused No. 2 reached there and snatched the gold chain from the complainant and gave to the accused No. 3. The complainant when asked to return the same the accused No. 1 objected to it.
3. Further case of the complainant is that she has purchased a piece of land with the help of her father and constructed a Pucca house over it and practically the same is gifted by her father to her children and to herself. But the accused No. 1 sold the said land to another person playing fraud upon the complainant for an amount of Rs. 2,70,000/- and did not give a single rupee to the complainant. Inspite of the all this things the complainant made all her efforts to make the situation good and peaceful but the accused No. 1 on 20.6.2002 kicked out the complainant from his house and snatched two sons and threatened her that if she returns to his house she would be killed. On the basis of the complaint petition a case has been registered i.e. Complaint Case No. 43 of 2003 under Sections 494, 511, 406, 420, 323, 324/34 and 379 I.P.C. against the accused persons including the petitioner.
4. Thereafter the trial court after taking cognizance transferred the case to the court of Judicial Magistrate, Ranchi for the trial. The court below had taken cognizance by its order dated 24.3.2003 for the offence under Section 406, 323, 379 I.P.C. against the present petitioner and for the offence under Section 323, 379 I.P.C against the accused Nos. 2 and 3 and directed to issue summons to them. Thereafter in course of the trial the petitioner filed a petition on 2.7.08 under Section 245 Cr.P.C. for discharging him. The complainant had also filed a rejoinder. After considering the arguments advanced by the parties and the materials on records, the trial court has rejected the said petition under Section 245 Cr.P.C. filed by the petitioner.
5. Mrs. Majushri Patra, the learned Counsel appearing for the petitioner submits that the complaint has earlier filed three cases i.e. Comp. Case No. 664 of 2002, Comp. Case No. 750 of 2002 and Jagarnathpur P.S. Case No. 111 of 2002 regarding same allegations and same cause of action against same set of accused person. Aforesaid two complaint cases were dismissed at initial stage and the remaining Jagarnathpur P.S. Case No. 111 of 2002 was quashed by the Hon'ble High Court in Cr.M.P. No. 446 of 2003 dated 28.4.2004. Thus, the complainant having ulterior motive is filing cases one after another against the petitioner. She further submits that the complainant herself executed the sale deed after taking full consideration money. Thus, there is no question of playing any fraud on her. Lastly it is submitted that this case was filed after long timer.
6. Mr. R.S. Mazumdar, the counsel for the opposite party No. 2 submits that the Comp. Case No. 664 of 2002 was dismissed for not taking steps in the case. The another Complaint Case i.e. Compt. Case No. 715 of 2002 was filed under Section 497 I.P.C. and the same was dismissed as prima-facie no case was made out against the petitioner. No doubt Jagarnathpur P.S. Case No. 111 of 2002 the petitioner moved before the Hon'ble court for quashing the entire Criminal Proceeding initiated against him in Cr.M.P. No. 446 of 2002 and the same has been allowed and the entire Criminal proceeding has been quashed by the Hon'ble High Court in Cr.M.P. No. 446 of 2003 vide order dated 28.4.04.
7. It is significant to note that Jagarnathpur P.S. Case No. 111 of 2002 has been quashed only because the complaint case No. 664 of 2002 which was under the same Section under same Act under which the Jaggarnathpur P.S. Case No. 111 of 2002 was also registered, was dismissed. Practically, the said Jagarnathpur P.S. Case No. 111 of 2002 was quashed having an impression that the cases were lodged with an ulterior motive of harassment to the petitioners.
8. It is further argued by the counsel of the opposite party No. 2 that Cr.M.P. No. 416 of 2006 was filed by family members of the husband of the complaint and the same has been allowed in respect to them only vide order dated 16.3.07. The petitioner in the case at hand is husband of the complaint. Admittedly the complainant has filed this complaint case regarding allegations of torture for the period before her divorce.
9. Mr. Mazumdar, the counsel for opposite party No. 2 further submits that it is very clear that one case i.e. Compt. Case No. 715 of 2002 which was under 497 I.P.C was dismissed on the ground prima-facie no case is made out against the petitioner under Section 497 I.P.C. The second Case i.e. Compt. Case No. 644 of 2002 (which was not under Section 497 I.P.C.) was dismissed for not taking steps in the case and third case i.e. Jagarnathpur P.S. Case No. 111 of 2002 was rejected wholly on the ground of rejection of Compt. Case No. 644 of 2002 as both are practically under same sections.
10. On careful consideration of the submission of the learned Counsel of both the sides, in my view the opposite Party has made out an exceptional circumstance for consideration her instant complaint case as a special case to entertain her complaint. From the impugned order I find that two witnesses including the complainant were examined before framing charge. It further transpires that the evidence produced on behalf of the complainant shows prima-facie sufficient materials against the petitioner (husband) for framing the charge under Section 323, 379, 406 I.P.C. It is well settled the principle that under Section 244 of the Cr.P.C. the Magistrate is required to consider the evidence with a view to forming prima-facie case for trial. Where Prima-facie case is made out charges should be framed.
11. It is significant to mention that the learned Magistrate while passing the impugned order has fortified his order by relying on a decision reported in 2005 (1) J.L.J.R. (S.C.) 348 State of Orissa v. Debendra Nath Padhi. The principle of Law laid down in the aforesaid decision is absolutely applicable in the present case. Moreover the recent decision of Hon'ble Apex Court reported in : 2009CriLJ338 Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary and Ors. after considering the scope of the Sections 227, 239, 245 and 482, held at Para 13 of its judgment which reads as follows:
After analyzing the terminology used in the three pairs of Sections it was held (in Antulay case) that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima-facie case is to be applied.
12. After considering the facts and circumstances of the case at hand and in view of the decisions of Hon'ble Apex Court as mentioned above, I find no reason to interfere with the impugned order. Accordingly this revision application is dismissed.