Patna High Court - Orders
Md.Irfanullah & Ors vs State Of Bihar & Anr on 11 October, 2012
Author: Mandhata Singh
Bench: Mandhata Singh
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.26795 of 2009
======================================================
1. Md. Irfanullah S/o Abdul Qaiyum
2. Abdul Qaiyum S/o Abdul Hai Peyami @ Peyami
3. Alassaba Tabassum @ Tabassum W/o Abdul Qaiyum
4. Md. Imramullah @ Prince S/o Abdul Qaiyum
5. Sabiha W/o Wasim Ahmad
6. Siddique W/o Samsad Ahmad
7. Shagufta Yasmin W/o Ibrarul Haque
8. Rubina Shaheen W/o Jawaid Iqbal
9. Zakia Shabnam D/o Abdul Qaiyum
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Sahla Jawed D/o Jawed Ahmadlari
R/o Marwari Bazar, P.S. Town, Dist.Samastipur
.... .... Opposite Party/s
======================================================
Appearance :
For the Petitioner/s : Mr. S.M. Shabbir Alam
For the Opposite Party/s : Mr. Chandra Sen Pd. Singh, A.P.P.
======================================================
CORAM: HONOURABLE MR. JUSTICE MANDHATA SINGH
ORAL ORDER
8 11-10-2012Heard learned counsel for the petitioners and learned counsel for the State.
This application is filed for quashing the order dated 13.07.2009 passed by the Sub-divisional Judicial Magistrate, Samastipur in Trial No. 1524 of 2009/C.R. No. 1351 of 2006.
Allegation against petitioners is about causing torture to Opposite Party No.2 for demand of dowry, ouster from matrimonial home and taking away her ornaments and other articles.
Patna High Court Cr.Misc. No.26795 of 2009 (8) dt.11-10-2012 2
A prayer was made in the trial Court, as submitted, that marriage was not subsisting as was declared null and void by an order/judgment (ex parte) dated 27.06.2007 in Title Suit No. 372 of 2006 from the Court of 2nd Civil Judge, Sealdah, West Bengal to discharge the petitioners which (discharge petition under Section 245 Cr. P.C.) has been dismissed doubting the validity of Title Suit No. 372 of 2006. It is pertinent to mention here that allegation leveled against petitioners are of different kind that of making out an offence under Section 498A of the I.P.C. and further under Sections 379 and 406 of the I.P.C. It is made clear to be observed by the trial Court that ex parte decree is also effected till it is not set aside by superior Court or by the same Court for hearing the same on merit. In case proceeding to set aside the decree is pending either in the same Court or in superior Court, matter can be said subjudiced but in absence of any of the proceeding that (ex parte decree) cannot be ignored nor its validity can be questioned by any Court, as has been done in this case.
Further, it is made clear that once the marriage is declared null and void, there remains no chance of commitment of offence under Section 498A of the I.P.C. but no such condition requires for constitution of offences under other Patna High Court Cr.Misc. No.26795 of 2009 (8) dt.11-10-2012 3 sections of the I.P.C. or other penal acts. In any case, order in question is not liable to sustain.
Accordingly, the order dated 13.07.2009 passed by the S.D.J.M., Samastipur in Trial No. 1524 of 2009 is hereby quashed and the case is remanded to the Court below to decide the same afresh in accordance with law.
With the above observation, this quashing application is disposed of.
(Mandhata Singh, J.) Shail/-