In complaint cases, discharge under Section 245 CrPC required if pre-charge evidence under Section 244, even unrebutted, lacks specific allegations warranting accused's conviction.

JUDGMENT :

Anil Kumar Choudhary, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer to quash and set aside the order dated 26.06.2024 passed by learned Additional Sessions Judge-IV, Bokaro in Criminal Revision No.133 of 2023 whereby and where under the learned Additional Sessions Judge-IV, Bokaro has allowed the criminal revision and allowed the petition filed by the opposite party no.2 under Section 245 of Cr.P.C. for discharging from the case and acquitted the opposite party and discharged the opposite party no.2 in Complaint Case No.96 of 2019.

3. The brief facts of the case is that the petitioner filed Complaint Case No.96 of 2019 in the Court of learned Chief Judicial Magistrate, Bokaro and the learned Judicial Magistrate to which Court the case was transferred, on the basis of the complaint, statement on solemn affirmation and the statement of the enquiry witnesses found prima facie case for the offence punishable under Section 498A & 323 of the Indian Penal Code inter alia against the opposite party no.2 who is the husband of the petitioner as well as Dev Nandan Singh, Geeta Devi and Loknath Singh @ Banerjee Singh. The opposite party no.2 filed a petition under Section 239 of CrPC in the Court of SDJM, Bokaro to which Court, the case was subsequently transferred, contending therein that if the allegations made against the petitioner are considered to be true in their entirety, still the offence punishable under Section 323 & 498A of the Indian Penal Code is not made out against the petitioner and the marriage between the petitioner and the opposite party no.2 has been dissolved by a decree of divorce and the petitioner has been paid Rs.6 lakhs as one time permanent alimony by the opposite party no.2. The appeal filed by the petitioner against the decree of divorce passed in O.S. Case No.486 of 2018 dated 23.11.2022 by the Family Court, Bokaro has been dismissed by the High Court. The two children of the petitioner and the opposite party no.2 are residing with the family members of the opposite party no.2. The opposite party no.2 and his son have made a complaint to the Deputy Commissioner, Bokaro for unwanted intervention in the studies of his son and the matter was forwarded to Child Welfare Committee, Bokaro and the custody of the son of the opposite party no.2 has been handed over to the father of the opposite party no.2. The learned SDJM, Bokaro considered that the contention raised by the petitioner is subject matter of trial and rejected the petition under of CrPC.

4. Being aggrieved by the same, the opposite party no.2 preferred Criminal Revision No.133 of 2023 which was heard and allowed vide order dated 26.06.2024 by the learned Additional Sessions Judge-IV, Bokaro. The learned Additional Sessions Judge-IV, Bokaro considered that the undisputed facts remains that the marriage between the petitioner and the opposite party no.2 has been dissolved by the decree of divorce and the appeal filed against the same has been dismissed by the High Court. There was no material placed before the Revisional Court to suggest that the dismissal order of the appeal passed by the High Court was challenged before Hon’ble Supreme Court of India. The learned Revisional Court considered the evidence before charge in the Court in which the complainant has not stated anything against the opposite party no.2 of having committing any act or omission to constitute the offence punishable under Section 498