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2010 DIGILAW 229 (JHR)

Sahdeo Prasad Verma v. State of Jharkhand

2010-02-10

R.R.PRASAD

body2010
Order An F.I.R. was lodged on 21.6.2008 by the petitioner-Sahdeo Prasad Verma stating therein ,that her daughter-Pinki Kumari had been married with Yogeshwar Mahto-respondent no. 2 and after the marriage when she came to her in-laws' place, she was subjected to torture not only by her husband but also by other members of her in-laws' family. Ultimately, on 21.6.2008 she was done to death after being subjected to torture on account of non-fulfillment of demand of dowry. Thus, it, has been alleged that all the accused persons, namely, Yogeshwar Mahto, Gango Mahto, Kokil Mahto and Pankaj Kumar, by hatching conspiracy with each other committed offence of dowry death. 2. On the aforesaid allegation, a case was registered as 8irni P .S. Case No. 64 of 2008 under Sections 3048/34 of the Indian Penal Code and the matter was taken up for investigation. However, the informant when felt that the investigation is not being made in right direction, filed a protest petition before the court below while the investigation was still going on. However, the police after completion of the investigation submitted charge-sheet under Section 306 of the Indian Penal Code against the husband-respondent no. 2 only, whereas final form was submitted against rest of the accused persons exonerating them from the accusation. The protest petition, which had been filed on behalf of the informant, was posted for hearing on 6.12.2008 on which date, the informant did not appear still it was recorded by the court that he heard the protest petition, but the court does not seem to have passed any order, rather he passed the order on the charge-sheet, whereby he having found the prima facie case under Section 306 of the Indian Penal Code against accused-Yogeshwar Mahto took cognizance of the offence, whereas the court dropped the proceeding so far as the other accused persons are concerned, who were exonerated from the accusation by the Investigating Officer. 3. Being aggrieved with the said order dated 6.12.2008 accepting the final form against the accused persons exonerated by the police and taking cognizance of the offence under Section 306 of the Indian Penal Code against Yogeshwar Mahto, this writ application has been filed for quashing the said order. 4. Mr. 3. Being aggrieved with the said order dated 6.12.2008 accepting the final form against the accused persons exonerated by the police and taking cognizance of the offence under Section 306 of the Indian Penal Code against Yogeshwar Mahto, this writ application has been filed for quashing the said order. 4. Mr. Yogesh Modi, learned counsel appearing for the petitioner, submits that when the protest petition had already been filed during investigation of the case raising doubt over the fairness of the inquiry, the same was posted for hearing and as such, the court should have proceeded with in accordance with the provision of Section 210(2) Cr.P.C. as the petitioner had put forth the accusation against all of the accused persons, but the court by not resorting to that provision committed illegality and hence, the said order is fit to be set aside. 5. However, Mr. Mahesh Tewary, learned counsel appearing for the respondent nos. 2 to 6, submits that though the F.I.R. was lodged against all the accused persons alleging therein that they had committed offence of dowry death, but the Investigating Officer in course of investigation did not find the allegation to be true, rather he did find that there is evidence against the accused-Yogeshwar Mahto only for commission of the offence under Section 306 of the Indian Penal Code and as such, the court did not commit any illegality by passing order dated 6.12.2008 and, therefore, the impugned order never warrants to be interfered with by this Court in exercise of jurisdiction under Article 226 of the Constitution of India, as the power under Article 226 of the Constitution of India or under Section 482 Cr.P.C. should be exercised sparingly. 6. Learned counsel in this respect has referred to a decision rendered in a case of Minu Kumari and Another vs. State of Bihar and Others [ (2006)4 S.C.C. 359 : 2006(3) JLJR (SC)197]. 7. Having heard learned counsel appearing for the parties, I do find that F.I.R. was lodged by the informant alleging therein that all the accused persons including Yogeshwar Mahto, husband of the deceased, in conspiracy with each other committed dowry death. On the said-information, F.I.R. was lodged under Sections 3046/34 of the Indian Penal Code. 7. Having heard learned counsel appearing for the parties, I do find that F.I.R. was lodged by the informant alleging therein that all the accused persons including Yogeshwar Mahto, husband of the deceased, in conspiracy with each other committed dowry death. On the said-information, F.I.R. was lodged under Sections 3046/34 of the Indian Penal Code. While the matter was pending for investigation, a protest petition was filed on' behalf of the informant, which was posted for hearing on 6.12.2008, but on that date though order was passed taking cognizance of the offence under Section 306 of the Indian Penal Code against one of the accused namely, Yogeshwar Mahto, only, whereas the proceeding was dropped against the other accused persons named in the F.I.R. and also in the protest petition, but the court did not pass order on the protest petition, rather in terms of Section 210(2) Cr.P.C., the court was obliged to proceed with. At this stage it would be relevant to take notice of Section 210 Cr.P.C. which reads as follows:- "Procedure to be followed when there is a complaint case and police investigation in respect of the same offence.-(1) When in a case instituted otherwise than on a police report (hereinafter referred to as a complaint case), it is made to appear to the Magistrate, during the course of the inquiry or trial held by him, that an investigation by the police is in progress in relation to the offence which is the subject-matter of the inquiry or trial held by him, the Magistrate shall stay the proceedings of such inquiry or trial and call for a report on the matter from the police officer conducting the investigation. (2) If a report is made, by the investigating police officer under Section 173 and on such report cognizance of any offence is taken by the Magistrate against any person who is an accused in the complaint case, the Magistrate shall inquire into or try together the complaint case and the case arising out of the police report as if both the cases were instituted on a police report. If the police report does not relate to any accused in the compliant case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code." 8. If the police report does not relate to any accused in the compliant case or if the Magistrate does not take cognizance of any offence on the police report, he shall proceed with the inquiry or trial, which was stayed by him, in accordance with the provisions of this Code." 8. From its perusal, it does appear that before resorting to provisions under Section 210(2) Cr.P.C., two essential requirements should be there- (1) on the submission of the police report, the Magistrate must take cognizance of any offence; it need not to be the same offence, mentioned in sub-section (1), and (2) the accused in the police report must be the same accused in the complaint case which was stayed. 9. Here in the instant case, both the situations were there, as when the protest petition had been filed, that was posted for another date awaiting final form meaning thereby that the court had postponed the hearing of the complaint case and that the court had taken cognizance under Section 306 of the Indian Penal Code against one of the accused. In that event, the court was obliged to proceed with the inquiry of the complaint in terms of Section 202 Cr.P.C. Admittedly, the court did not proceed with the matter, as indicated above, and hence, the court is directed to proceed with the matter of the protest petition treating it as a complaint case, in accordance with law, as only in that circumstance, provision of Section 210(2) Cr.P.C. can be given effect to and where the provision of Cr.P.C. is to be given effect to High Court must exercise its extraordinary jurisdiction which is well settled and has been enunciated in the case referred to on behalf of the respondents. 10. Accordingly, the order dated 6.12.2008 passed by Chief Judicial Magistrate, Giridih is hereby quashed and the court is directed to proceed with the matter, as indicated above. 11. In the result, this writ application is allowed.