Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Criminal Miscellaneous No. 24306 of 2012 ====================================================== 1. Noor Mohammad @ Noore Alam, S/O Md. Gafoor 2. Md. Gafoor, S/O Late Bhutta Mian 3. Sabila Khatoon @ Samila Khatoon, W/O Md. Gafoor 4. Amrirul Khatoon @ Amirul Begum, W/O Phool Mohammad 5. Phool Md., S/O Md. Gafoor 6. Md. Mosim @ Md. Mozim Nadaf, S/O Late Bhutta Mian 7. Md. Sultan, S/O Late Bhutta Mian 8. Mariyam Khatoon, W/O Md. Mozim 9. Sahidan Begam, W/O Md. Sultan 10. Dil Mohammad @ Dil Md., S/O Md. Gafoor All resident of village Bedaul Asli, P.S. - Aurai, Distt. – Muzaffarpur .... .... Petitioner/s 1. The State of Bihar 2. Md. Habib, S/O Late Md. Yasin, R/O Vill. - Sherna Basatpur, P.S.- Versus Kanti, Distt. - Muzaffarpur .... .... Opposite Party/s ====================================================== Appearance : For the Petitioner/s : Mr. Nachiketa Jha, Advocate For the Opposite Party/s : Mr. Parmeshwar Mehta, A.P.P. ====================================================== CORAM: HONOURABLE MR. JUSTICE GOPAL PRASAD ORAL ORDER 3 25-09-2013 Heard. This is a petition for quashing the order dated 09.05.2012 passed by the 2nd Additional Sessions Judge, Muzaffarpur in Session Trial No. 667 of 2011 by which petition under Section 227 Cr.P.C. for discharging the petitioners from the aforesaid case has been rejected.
Facts
The prosecution case as alleged in the complaint/First Information Report by the informant is that the victim, Munni Khatun, aged about 20 years was married with petitioner no. 1 Patna High Court Cr.Misc. No.24306 of 2012 (3) dt.25-09-2013 2 on 27.06.2008 and there is allegation of demand of colour T.V. and golden chain and the second marriage was performed on 20th January, 2009. It is further alleged that the victim informed on mobile that she is being subjected to cruelty by assaulting, closing her in a room, devoiding her from the food and she will be killed if the demand is not fulfilled. It is further alleged that on 28.02.2009 informant learnt that the victim has been done to death and the dead body has been disposed of. When the complainant and witnesses went to Sasural of the victim then the accused persons said that his daughter died a month ago. On the complaint the case was sent for institution of the First Information Report and First Information Report was lodged bearing Aurai P.S. Case No. 32 of 2009 dated 18.05.2009. However, the police after investigation submitted final form. However, the case was proceeded on protest cum complaint and after recording the statement of the complainant and witnesses during inquiry under Sections 200 and 202 Cr.P.C. order was passed dismissing the complaint under Section 203 Cr.P.C. However, the order under Section 203 Cr.P.C. passed by the Magistrate was challenged by the complainant in revision bearing Cr. Revision No. 131 of 2010. Patna High Court Cr.Misc. No.24306 of 2012 (3) dt.25-09-2013 3 However, in the said revision the order dismissing the complaint under Section 203 Cr.P.C. was set aside and the revision was allowed with a direction for further inquiry and to pass fresh order. After the said order having been received by the lower court, the lower court took cognizance for offence under Sections 304B and 201 of the Indian Penal Code and subsequently the case was committed to the court of sessions. In the court of sessions a petition under Section 227 Cr.P.C. was filed for discharge on the ground that the victim died out of “Tetnus” and was not killed. It is submitted that the learned Magistrate after remand of the case, in Cr. Revision 131 of 2010 after setting aside the order of dismissal of the Complaint under Section 203 Cr.P.C. ordered to pass order afresh on further inquiry but the learned Magistrate without going for further inquiry under Section 202 Cr.P.C. and recording the de novo statement of the complainant and witnesses passed the impugned order on the basis of the material already on record taking cognizance and issuing process under Section 204 Cr.P.C. and hence, it is submitted that order taking cognizance and issuing process against the accused persons on the same material amounts to Patna High Court Cr.Misc. No.24306 of 2012 (3) dt.25-09-2013 4 review of the own order of Magistrate or by the learned court below of his own order on the material on which he has earlier dismissed the complaint under Section 203 Cr.P.C. which is bad in law and has placed reliance upon a decision in the case of Vidya Bhushan Pandey vs. The State of Bihar & Anr. reported in 2012 (2) PLJR 652 and hence, the petitioners be discharged. However, neither the order passed in Cr. Revision No. 131 of 2010 has been annexed in the petition nor the order dismissing the complaint dated 26.05.2010 is annexed nor the order passed in Cr. Revision No. 131 of 2010 has been challenged. It is stated that the order was passed by Revisional Court in Cr. Rev. No. 131 of 2010 while setting aside the order of dismissal of complaint by the Magistrate to pass order for further inquiry. However, neither the said order passed in Cr. Revision No. 131 of 2010 nor the order passed by Magistrate under Section 204 Cr.P.C. issuing process has been challenged by the petitioners. The petitioners appeared in this case after issuing process under Section 204 Cr.P.C. and case committed to the court of sessions. However, it is settled position of law as decided in the case of Udit Narayan Patwari and others v. Emperor reported in AIR 1938 Patna High Court Cr.Misc. No.24306 of 2012 (3) dt.25-09-2013 5 Patna 369, and in the case of Shyamlal Ruia and another v. State and another reported in AIR 1954 Patna 441. A Division Bench of this Court has held that on a dismissal of the complaint under Section 203 Cr.P.C. a revision having been preferred and the Sessions Judge ordered further inquiry then the word further enquiry has got only technical meaning and it means reconsideration. It is the discretion of the Magistrate either to go for an enquiry under Section 202 Cr.P.C. or to consider the material already on record and order for issuing process as per the discretion of the revisional court. However, in the case of Vidya Bhushan Pandey vs. The State of Bihar & Anr. reported in 2012 (2) PLJR 652 it has been held that passing the order on same material issuing process in review is an order in per enquirum as it has
Legal Reasoning
not considered the earlier decision by this Court in the case of Udit Narayan Patwari and others v. Emperor reported in AIR 1938 Patna 369 and in the case of Shyamlal Ruia and another v. State and another reported in AIR 1954 Patna 441. However, taking into consideration on merit of the case, there is allegation of demand and subjecting cruelty and the Patna High Court Cr.Misc. No.24306 of 2012 (3) dt.25-09-2013 6 death is in suspicious circumstance as it is asserted by the learned counsel for the petitioners that the death is on account of “Tetnus” and has produced a certificate of the doctor and has also asserted that the complainant and the witnesses have participated in the funeral at the time of occurrence. However, these are the defence of the accused and at the time of framing of the charge the trial court is not required to go into the documents produced by the complainant or his defence at the stage of framing of the charge. The document produced by the prosecution is not required to be looked into nor the defence of the accused is required to be considered at this stage which is well settled in the case of State of Orissa vs. Debendra Nath Padhi reported in 2005(1) SCC 568. Hence, I do not find any merit to interfere with the order impugned. The petition is dismissed. Kundan/- (Gopal Prasad, J)