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2002 DIGILAW 22 (PAT)

Abdul Shubhan Mian v. State

2002-01-04

CHANDRAMAULI KR.PRASAD

body2002
Judgment 1. This application has been filed for quashing the order dated 24.8.2000 passed by the Chief Judicial Magistrate, Nawadah, in Complaint Case No. C-636/90 whereby he has taken cognizance of the offence under Section 302/201 of the Indian Penal Code and directed for issuance of non bailable warrant of arrest against the petitioners. 2. Shorn of unnecessary details, facts giving rise to the present application are that the complainant-opposite party No. 2 filed a petition of complaint in the Court of Chief Judicial Magistrate, Nawadah, on 26.11.90 inter alia alleging that his sister Rahisha Khaton was married to petitioner No. 3 Shyamuddin and after the marriage her husband and other relations of her husband had assaulted her and were harassing her to compel her parents to meet illegal demands including cash of Rs. 5000/-. According to the complaint petition her sister was killed by the accused persons on account of non fulfillment of demand and her dead body was secretly burried. According to the complainant; he came to know about the occurrence on 6.5.90 and went to the village of her sister to enquire about her whereabout but the accused persons left the house without disclosing anything and the complainant could know from the villagers that her sister was killed, 3. On receipt of the complaint the learned magistrate referred the matter to the police for investigation under Section 156(3) of the Code of Criminal Procedure and in pursuance of the said order Kawakole Police Station Case No. 41/90 was registered. The police, after investigation, submitted final form stating that the accusation made against the petitioners-accused persons to be false. 4. The complainant then filed protest petition. The learned Chief Judicial Magistrate by order dated 28.11.90 accepted the final report and at the same time directed for examination of the complainant on solemn affirmation on protest-cum-complaint petition filed by him. The learned magistrate held an enquiry and examined number of witnesses; and on consideration of the same by order dated 15.10.97 dismissed the protest-cum-complaint petition. 5. Aggrieved by the same the complainant preferred Cr. Rev No. 8/98 and the 1st Additional Session Judge, Nawadah by order dated 21.8.98 dismissed the revision application. The learned magistrate held an enquiry and examined number of witnesses; and on consideration of the same by order dated 15.10.97 dismissed the protest-cum-complaint petition. 5. Aggrieved by the same the complainant preferred Cr. Rev No. 8/98 and the 1st Additional Session Judge, Nawadah by order dated 21.8.98 dismissed the revision application. Aggrieved by the same the complainant preferred Cr WJC No. 17/1999 before this Court and by order dated 17.4.2000 the orders of the learned magistrate as also of the Sessions Judge were quashed and the case was remitted back to the Court of learned Magistrate for holding further enquiry. While doing so this Court observed as follows: "It appears that the Courts below have given much stress on the point that the petitioner has not been able to bring on record any direct evidence on the point of murder of his sister. They overlooked the fact that the case of petitioner was not under Section 302, IPC but was under Section 304-B, IPC and admittedly the sister of petitioner died within a period of about 6-7 months after her marriage and in the protest cum complaint petition (Annexure 1) the petitioner has alleged that information about the date of death of his sister was not given to him, besides the allegation of demand of dowry and harassment of her sister by her husband and others for such demand. It appears that the learned Chief Judicial Magistrate and learned 1st Additional Sessions Judge also failed to consider the presumption under Section 113-B of the Indian Evidence Act raised in such type of cases. I further find that the learned CJM by his order (Annexure 8) which has been affirmed by learned Additional Sessions Judge (Annexure 9) dismissed the protest cum complaint petition of petitioner by observing that the petitioner has not been able to prove the allegation by cogent evidence and there is no reliable and trustworthy witness to support the case of petitioner It appears that the learned CJM was perhaps looking for evidence sufficient to warrant conviction of the persons complained against. This is against the provisions of Section 202, Cr PC under which a Magistrate after postponing the issue of process against the accused either enquires into the case himself or directs investigation by police or any other person for the purpose of deciding whether or not there is sufficient ground for proceeding. This is against the provisions of Section 202, Cr PC under which a Magistrate after postponing the issue of process against the accused either enquires into the case himself or directs investigation by police or any other person for the purpose of deciding whether or not there is sufficient ground for proceeding. Once materials collected during inquiry by Magistrate himself under Section 202, Cr PC or in investigation ordered under this Section by Magistrate made out a prima facie case, the Magistrate has to issue process because the object of Section 202, Cr PC is limited to find out whether a prima facie case is made out by the materials collected in the inquiry or investigation for issue of process." 6. The learned Magistrate thereafter considered the matter afresh and took cognizance of the offence and directed for issuance of non bailable warrant of arrest. While doing so the learned Magistrate observed as follows: "Having thus reconsidered the allegation in the complaint, the statement of the complainant on S. A. and the materials available on record as collected in the course of inquiry under Section 202, Cr PC and over and above, the observation of the Hon ble High Court in its order dated 17.4.2000 passed in Cr WJC No. 17 of 1999. I find at this stage that there are reasonable grounds for proceeding against the accused persons under Sections 304-B/201, IPC and summoning them for their appearance requiring them to take their trial in accordance with law." 7. Mrs. Anjana Prakash appearing on behalf of the petitioners contends that after the case was remitted back to the learned Magistrate, he was under obligation to hold further enquiry and without doing so he has taken cognizance of the offence, which is vitiated in the eye of law. She submits that the learned magistrate ought to have examined further witnesses and only then could have taken cognizance and having failed to do so the order taking cognizance is bad in law. 8. I am not at all impressed by this submission of the learned counsel for the petitioner. This Court while setting aside the order of the learned Magistrate dismissing the complaint as also the order of the Sessions Judge dismissing the revision application had directed the learned Magistrate to hold further enquiry. This Court no where directed the learned Magistrate to examine further witnesses. This Court while setting aside the order of the learned Magistrate dismissing the complaint as also the order of the Sessions Judge dismissing the revision application had directed the learned Magistrate to hold further enquiry. This Court no where directed the learned Magistrate to examine further witnesses. The learned Magistrate on consideration of the allegation made in the complaint petition, the statement of the complainant on solemn affirmation and the materials available on record as collected in course of enquiry under Section 202 of the Code of Criminal Procedure, had prima facie found that offence has been made out and accordingly took cognizance of the offence and directed for issuance of non-bailable warrant of arrest. Neither on the scheme of the Code nor on account of the order of this Court the learned Magistrate was under any obligation to examine further witnesses. I am of the opinion that earlier order of the learned Magistrate dismissing the complaint having been set aside, nothing prevented him to take cognizance of the offence without examination of further witnesses. 9. Mrs. Prakash then contends that while taking cognizance the learned Magistrate was greatly influenced by the observation made by this Court while allowing Cr WJC No. 17/99 and that vitiates his order. This argument of the learned counsel also does not appeal to me. 10. From perusal of the order of the learned Magistrate, it is evident, that while passing the impugned order he has taken into consideration the allegation made in the complaint petition, the statement of the complainant on solemn affirmation and the statement of the witness recorded in course of enquiry under Section 202 of the Code of Criminal Procedure and alongwith the same it has also taken note of the observation made by this Court. In my opinion, the learned Magistrate was well within his right to consider the aforesaid materials. 11. Here I must answer an ancillary submission of Mrs. Prakash that this Court while setting aside the orders of the learned Magistrate and the learned Sessions Judge ought not to have observed on the merit of the case. 12. In my opinion, the learned Magistrate was well within his right to consider the aforesaid materials. 11. Here I must answer an ancillary submission of Mrs. Prakash that this Court while setting aside the orders of the learned Magistrate and the learned Sessions Judge ought not to have observed on the merit of the case. 12. In support of her submission the learned counsel has placed reliance on a judgment of this Court in the case of Sheikh Manjan Mian V/s. Rajballabh Singh and others, 1969 PLJR 251, and my attention has been drawn to the following paragraph of the said judgment : "Learned counsel submitted that the enquiring Magistrate Shri Mahto was perfectly justified in going into the question whether the opposite party had a right of private defence and the manner in which the occurrence took place, and the Sub-divisional Magistrate was also justified in dismissing the complaint. The observation of the learned Additional Sessions Judge, in his order dated the 20th January, 1967, (in Criminal Revision No. 172 of 1966) holding a prima facie case is without taking into account the plea of right of private defence, which, in view of the admitted position that a Magistrate with armed force had gone there in course of which this occurrence took place, ought to have been taken into consideration before holding any prima facie case, in view of the Supreme Court decision in the case of Vadilal Panchal V/s. Dattatraya Duloji Ghandigaonkar and another, AIR 1960 SC 1113 , which decision, though referred to in the case of Chandradeo Singh V/s. Prakash Chandra Bose, AIR 1963 Supreme Court 1430, has not been overruled. Learned counsel submitted that the learned Additional Sessions Judge was not justified in holding that the enquiring Magistrate was wrong in cross-examining the prosecution witnesses regarding the posting of the armed force, etc. I do not wish to go into this question at this stage, in view of the fact that the decisions relied upon by the learned counsel for the petitioner are distinguishable, inasmuch as in those cases there was direction to put the accused on trial, which is not the position in the order of the learned Additional Sessions Judge dated the 20th January, 1967. There being no order to put the accused on trial, I do not think that on the facts and in the circumstances of the case, the order of further enquiry passed by the Sub-divisional Magistrate, i.e. the impugned order, can be said to be illegal so as to warrant any interference in the exercise of the revisional jurisdiction of this Court." 13. Another decision on which reliance has been placed is the judgment of this Court in the case of Baban Sharma and others V/s. State of Bihar, 1981 PLJR 197 and my attention has been drawn to the following paragraph of the said judgment: "Shri Umeshwar Prasad, learned counsel for the informant, however, contended that although the powers given to the revisional Court under Section 398 of the New Code appeared to be restrictive in nature, the revisional powers stood broadened in Section 399 of the New Code. It would suffice to say that when there are two provisions in a statute they should receive harmonious construction and on doing so it would be apparent that while dealing with the question of dismissal of complaint under Section 203 or Sub-section (4) of Section 204 or with the question of discharge a person accused of an offence, the revisional Court may direct only for further enquiry in the manner laid down in Section 398 of the New Code. In this view of the matter, as rightly contended by Shri Rai, the Additional Sessions Judge, while rightly setting aside the order of discharge passed by Sub-Divisional Judicial Magistrate, wrongly ordered for framing of charge against the petitioners and to proceed with the trial of the case. The proper order which he ought to have made was to direct the trial Court to make further enquiry into the matter, within the meaning of these terms as used in Section 398 of the New Code and to decide the question of the framing of the charge or otherwise afresh on the materials on the record." 14. I am afraid I cannot go into this question as the same will amount to sitting over the judgment of this Court in Cr. W.J.C. No. 17/1999. Petitioners did not challenge the said order and accepted the same without any murmur. After the order of the learned Magistrate having gone adverse to them, they cannot be permitted to question the same. W.J.C. No. 17/1999. Petitioners did not challenge the said order and accepted the same without any murmur. After the order of the learned Magistrate having gone adverse to them, they cannot be permitted to question the same. In this view of the matter the authorities cited on in no way support the case of the petitioners. 15. Even on facts, I may state that the learned Magistrate while taking cognizance of the offence has considered the allegation made in the complaint petition, the statement of the complainant on solemn affirmation and the statement of the witness recorded during the course of enquiry to come to the conclusion that prima facie an offence under Section 302/201, IPC is made out and while doing so it has taken into consideration the observation made by this Court while directing for further enquiry. The learned Magistrate has not straightaway taken cognizance of the offence only on the basis of the order passed by this Court. 16. Mrs. Anjana Prakash lastly submits that the learned Magistrate had taken cognizance on the basis of second complaint. She points out that as the earlier complaint having been dismissed cognizance on the basis of second complaint having same and similar allegation is not permissible. This submission of the learned counsel for the petitioner is an argument in desperation. The complaint filed earlier was dismissed under Section 203 of the Code of Criminal Procedure and the said order was affirmed in revision but both the orders have been set aside by this Court in the Writ application referred to above and the case was remitted back for further enquiry. In that view of the matter it cannot be said that the learned Magistrate has taken cognizance of the offence on the basis of the second complaint. 17. In the result, I do not find any merit in this application. The application stands dismissed.