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2014 DIGILAW 1539 (ALL)

Anamika v. State of U. P.

2014-05-12

MAHENDRA DAYAL

body2014
JUDGMENT Mahendra Dayal, J.: - 1. Heard learned counsel for the parties. The petitioners have assailed the order dated 27.7.2013, passed by the Chief Judicial Magistrate, Sultanpur, in Criminal Case No. 2715 of 2013, arising out of Crime No. 464 of 2012, under Sections 498A & 304B IPC and Section 3 /4 D.P. Act, relating to P.S. Gauriganj, District Amethi and the judgment and order dated 12.3.2014, passed by the Additional Sessions Judge, Court No. 2, Sultanpur, in Criminal Revision No. 359/2013, whereby the revision against the summoning order dated 27.7.2013 has been dismissed. 2. The brief facts are that the opposite party No. 2 lodged an FIR on 22.9.2012 with Police Station Gauriganj, District Amethi against the petitioners and two others with the averment that his daughter was married to one Alok Kumar Tiwari on 1.5.2007, according to the Hindu Rites and Customs. The opposite party No. 2 had given a Maruti Car at the time of marriage but since the air conditioner was not fitted in the car, the petitioners and other co-accused persons were not satisfied and have been continuously treating the deceased with cruelty. 3. It was further stated in the FIR that on 20.9.2012 the petitioner No. 2 took away the daughter of the opposite party No. 2 and in the night of 21/22.9.2012 at about 12.30 a.m. the co-accused Alok Tiwari informed the opposite party No. 2 on phone that his daughter was serious. On receiving the aforesaid information the opposite party No. 2 reached SGPGI, Munshiganj, District Amethi, where he found his daughter dead. It was also mentioned in the FIR that from the appearance of the dead body it appeared to be a case of dowry death. On the basis of the written FIR the police registered the case at Crime No. 464/2012 and proceeded with the investigation. After the inquest the body of the deceased was sent for post mortem and after the detailed investigation the police submitted final report. From the perusal of the record it reflects that the investigation was conducted by several Circle Officers but ultimately the investigation concluded in the submission of final report. 4. After the inquest the body of the deceased was sent for post mortem and after the detailed investigation the police submitted final report. From the perusal of the record it reflects that the investigation was conducted by several Circle Officers but ultimately the investigation concluded in the submission of final report. 4. Feeling aggrieved by the submission of final report, the opposite party No. 2 filed a protest petition on 3.5.2013 and the learned Chief Judicial Magistrate after considering the material on record, passed the order dated 27.7.2013, whereby he rejected the final report and took cognizance under Section 190(1)(b) Cr.P.C. and issued process against the petitioners as well as two other accused persons under Sections 498A and 304B IPC and Section 4 of Dowry Prohibition Act. When the petitioners got knowledge of the aforesaid order of the Chief Judicial Magistrate, they preferred a criminal revision being Criminal Revision No. 359 of 2013, before Sessions Judge, Sultanpur, which was heard and disposed of by the Additional Sessions Judge, Court No. 2, Sultanpur, vide judgment and order dated 12.3.2014, whereby the revision was dismissed and the order passed by the Magistrate dated 27.7.2013 was confirmed. The petitioners have challenged both the aforesaid orders before this Court by way of filing the instant petition under Section 4 82 Cr.P.C. 5. The learned counsel for the petitioners has submitted that the deceased was suffering from several ailments since much before her marriage in the year 2007 and this fact was concealed by the opposite party No. 2. However, the petitioners and other co-accused persons took responsibility of the deceased and started her treatment. First of all the deceased was operated upon for the treatment of stones in Gall Bladder in the year 2008 and again in the year 2010 the deceased was found to be suffering from Tuberculosis with Filaria and Eosinophilia. 6. In the night of 21/22.9.2012, the deceased suddenly became serious and developed breathing problem. She was immediately taken to SPGPI, Munshiganj, District Amethi, where she was declared brought dead. The opposite party No. 2 was informed about the death of the deceased by her husband immediately thereafter. Since the deceased had died under unnatural circumstances, the police reached the hospital and after preparation of inquest, sent the body for post mortem. 7. She was immediately taken to SPGPI, Munshiganj, District Amethi, where she was declared brought dead. The opposite party No. 2 was informed about the death of the deceased by her husband immediately thereafter. Since the deceased had died under unnatural circumstances, the police reached the hospital and after preparation of inquest, sent the body for post mortem. 7. The post mortem report of the deceased clearly indicates that no internal or external injury was found on her body. Since the team of the doctor conducting post mortem could not ascertain the cause of death, the viscera was preserved and sent to Forensic Lab for examination. The viscera has also been received and no poison or other foreign material was found. Thus even from the viscera report the cause of death could not be ascertained. The Investigating Officer after conducting a detailed investigation came to the conclusion that no case of dowry death was made out against the petitioners and other co-accused persons and accordingly he submitted the final report on 22.3.2013. 8. The opposite party No. 2 while submitting the protest petition against the final report, incorporated some new facts in the protest petition and the learned Magistrate proceeded to decide the matter after taking into consideration the contents of the protest petition as well as the material available in the case diary collected during the investigation. 9. The submission of learned counsel for the petitioners is that after submission of the final report by the police, the Magistrate has four options. The first option is that the Magistrate may accept the final report and in such a case the matter ends. The second course open to the Magistrate is that he may take cognizance on the basis of material collected during the investigation and disagree with the conclusion arrived at by the Investigating Agency. The third course open to him is to order further investigation in case he finds that further investigation is necessary in the circumstances of the case. The fourth and the last course open to the Magistrate is to take cognizance on the protest petition under Section 190(1)(a) Cr.P.C. and treat the protest petition as complaint case and then adopt the procedure as contemplated under Sections 200 & 202 Cr.P.C. There is no other option open to the Magistrate except the aforesaid four options. 10. The fourth and the last course open to the Magistrate is to take cognizance on the protest petition under Section 190(1)(a) Cr.P.C. and treat the protest petition as complaint case and then adopt the procedure as contemplated under Sections 200 & 202 Cr.P.C. There is no other option open to the Magistrate except the aforesaid four options. 10. The submission of learned counsel for the petitioners is that in the instant case the Magistrate has obviously adopted the second course i.e. he while disagreeing with the conclusion arrived at with the Investigating Agency, rejected the final report and took cognizance on the basis of the material available on record as provided under Section 190(1)(b) Cr.P.C. 11. The submission on behalf of the petitioners is that in such a case where the Magistrate proceeds to take cognizance under Section 190(1)(b)Cr.P.C., it is not open to him to consider any other material except those which are available in the case diary, which are collected during investigation. In the instant case the learned Magistrate while considering the case diary has also taken into account the averments made in the protest petition and has thus exceeded his jurisdiction. When the Magistrate was taking cognizance under Section 190(1)(b) Cr.P.C. it was not open to him to consider at all either the protest petition or any material foreign to the case diary. 12. It has further been submitted on behalf of the petitioners that even from the material collected during the investigation, no offence under Section498A & 304B IPC was made out against any of the petitioners or other co-accused. There was allegation of demand of dowry but as is clear from the perusal of the FIR itself that a Maruti Alto Car was given at the time of marriage, although it is not a case of the opposite party No. 2 that the Maruti Car was given as a result of demand made by the petitioners or other accused persons. It is also mentioned in the FIR that the opposite party No. 2 had spent about Rs. 10,00,000/- in marriage apart from the aforesaid Maruti Car. It has been stated in the FIR that the petitioners were dis-satisfied with the car because it was not fitted with air conditioner. It was only because of this, that the petitioners became angry and started treating the deceased with cruelty. 10,00,000/- in marriage apart from the aforesaid Maruti Car. It has been stated in the FIR that the petitioners were dis-satisfied with the car because it was not fitted with air conditioner. It was only because of this, that the petitioners became angry and started treating the deceased with cruelty. It was after more than 5 years of the marriage that the petitioner No. 2 brought back the deceased to her matrimonial home and on the very next day she died. Although it is not mentioned in the FIR but while presenting the protest petition the opposite party No. 2 contended that when the petitioners were not satisfied with the ordinary car, he got the air conditioner fitted in the car but even after that the petitioners kept on demanding Rs. 1,50,000/- cash. As per the opposite party No. 2 he gave Rs. 50,000/- as additional dowry and the co-accused Alok Kumar who is the husband of the deceased purchased a new car after disposing of the old Maruti Car in year 2011. It has further been stated in the protest petition that the petitioners had also started making demand of Rs. 20,00,000/- for Post Graduation since last few months prior to her death. The deceased lived in her matrimonial home till 11.9.2012, when the son of the opposite party No. 2 brought her back to her parental house and she lived there till 19.9.2012. Thereafter on 20.9.2012, the petitioner No. 2 again brought back the deceased to her matrimonial home where she died in the night 21/22.9.2012. It has also been averred in the protest petition that in the night of 21/22.9.2012 the opposite party No. 2 had a talk with his daughter on telephone when she told him that her husband had administered her an injunction saying that it was necessary for her health. However, soon after the injection she felt drowsy and hungry and after some time developed breathing problem. When her condition became serious the petitioners took her to the hospital and informed the opposite party No. 2. When the opposite party No. 2 reached the hospital he found her daughter dead. 13. The submission on behalf of the petitioners is that all these facts narrated in the protest petition are missing in the FIR. When her condition became serious the petitioners took her to the hospital and informed the opposite party No. 2. When the opposite party No. 2 reached the hospital he found her daughter dead. 13. The submission on behalf of the petitioners is that all these facts narrated in the protest petition are missing in the FIR. If the petitioners had actually any intention to kill the deceased and had administered her some injection to cause her death then they would certainly have not informed the opposite party No. 2 to reach hospital. Since it was a natural death on account of some ailment, the doctors did not find any abnormality in post mortem and even in the viscera sent to the Forensic Lab, no poison of any kind was found. The learned Magistrate while rejecting the final report and while taking cognizance has taken into consideration all these materials which are contained in the protest petition, although it was not within his jurisdiction to consider all these averments when he was taking cognizance under Section 190(1)(b) Cr.P.C. 14. In a case reported in MANU/UP/0911/2001 : 2001 (43) ACC 1096 : (2002 Cri.L.J. 1210 (All)) Pakhando and others v. State of U.P. and another, a Division Bench of this Court has held that upon receipt of police report under Section 173(2) Cr.P.C. a Magistrate is entitled to take cognizance of offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statement of witnesses examined by the police during the investigation and take cognizance of the offence. But in such a situation the Magistrate can act only upon the statements of witnesses recorded by the police in the case diary and other material collected during the investigation. It is not permissible for him at that stage to make use of any material other than investigation records unless he decides to take cognizance under Section 190(1)(a) of the Code and call upon the complainant to examine himself and the witnesses present, if any. It is not permissible for him at that stage to make use of any material other than investigation records unless he decides to take cognizance under Section 190(1)(a) of the Code and call upon the complainant to examine himself and the witnesses present, if any. Thus the legal position which emerges out from the aforesaid case law is that the Magistrate is not bound by the conclusion arrived at by the Investigating Officer and even if the Investigating Officer has submitted final report, the Magistrate is fully competent to take cognizance on the basis of the material available in the case diary or in the alternative he may take cognizance and treat the protest petition as complaint case. While taking cognizance straightway, the Magistrate cannot look into any other material except the material available in the case diary. 15. In the instant case it appears that the learned Magistrate has proceeded to take cognizance under Section 190(1)(b) Cr.P.C. but while doing so he has also considered the contents of the protest petition as is clear from the order passed by the Magistrate. The averments made in para 1 of the protest petition are certainly missing from the FIR and there is no material on record to show as to whether the witnesses examined during the interrogation also supported the averments made in para 1 of the protest petition. The opposite party No. 2 did not choose to file any counter affidavit inspite of opportunity given to him to show that the contents of para 1 of the protest petition were also stated by the witnesses interrogated during the investigation. 16. In another case reported in MANU/SC/7055/2007 : AIR 2007 Supreme Court 1117 Harishchandra Mani and others v. State of Jharkhand and another; Hon'ble the Apex Court has held as follows: - "13. It is well-settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab (MANU/SC/0086/1960 : (1960) 3 SCR 388 : AIR 1960 SC 866 ), State of Haryana v. Bhajan Lal (MANU/SC/0115/1992 : (1992) Suppl. It is well-settled by a series of decisions of this Court that cognizance cannot be taken unless there is at least some material indicating the guilt of the accused vide R.P. Kapur v. State of Punjab (MANU/SC/0086/1960 : (1960) 3 SCR 388 : AIR 1960 SC 866 ), State of Haryana v. Bhajan Lal (MANU/SC/0115/1992 : (1992) Suppl. (1) SCC 335 : AIR 1992 SC 604 ), Janta Dal v. H.S. Chowdhary (MANU/SC/0532/1992 : (1992) 4 SCC 305 : AIR 1993 SC 892 ), Raghubir Saran (Dr.) v. State of Bihar (MANU/SC/0061/1963 : (1964) 2 SCR 336 : AIR 1964 SC 1 ), State of Karnataka v. M. DevendrappaMANU/SC/0027/2002 : (2002) 3 SCC 89 : ( AIR 2002 SC 671 ) and Zandu Pharmaceutical Works Ltd. v. Mohd. Saraful Haque MANU/SC/0932/2004 : (2005) 1 SCC 122 : ( AIR 2005 SC 9 ). In the present case, there is not even an iota of material indicating the guilt of the accused persons. It is true that at the stage of taking cognizance adequacy of evidence will not be seen by the Court, but there has to be at least some material implicating the accused, and cognizance cannot be taken merely on the basis of suspicion as it appears to have been done in the present case. To take a contrary view would only lead to harassment of people." 17. From the law laid down by the Hon'ble Apex Court it is clear that while taking cognizance the Magistrate has to ensure that there is at least some material indicating guilt of the accused. In the case before the Hon'ble, Supreme Court it was alleged that the wife was having illicit relation with co-accused and both of them killed the husband of that lady by administering poison. There was no material on record to indicate that the death of the deceased was due to poisoning and as such the Hon'ble Supreme Court found that there was absolutely no evidence against the accused persons that they have killed the deceased by administering poison. It has clearly been laid down by the Hon'ble Apex Court that the cognizance of an offence cannot be taken merely on the basis of suspicion. 18. The learned counsel for the petitioners has submitted that in this case also there was no evidence against the petitioner that they had actually killed the deceased. It has clearly been laid down by the Hon'ble Apex Court that the cognizance of an offence cannot be taken merely on the basis of suspicion. 18. The learned counsel for the petitioners has submitted that in this case also there was no evidence against the petitioner that they had actually killed the deceased. It is established from the record and it is also an admitted fact that the deceased was suffering from various ailments prior to her death and from the postmortem report as well as the viscera report it could not be ascertained as to what was the actual cause of death of the deceased. 19. The material referred to by the learned Magistrate has been taken from para 1 of the Protest Petition but whether it was actually in the statement of the witnesses interrogated during the investigation, is not clear because those statements are not on record. As pointed out earlier the opposite party No. 2 has also not brought on record those statements by filing counter affidavit. The learned Magistrate has passed a very detailed order but there is no doubt that he has also taken into consideration the contents of the protest petition as is clear from the order itself. 20. The learned Revisional Court has also discussed in detail the various aspects of the case but has overlooked this important aspect of the matter that the Magistrate has taken into consideration the contents of the protest petition, while it was not permissible for him to do so. Thus both the courts below have committed gross illegality in considering the averments made in the protest petition without indicating whether these averments were stated by the witnesses also during the investigation. 21. In view of what has been stated above, I am of the view that the orders passed by both the courts below, are against the law as well as the law laid down by the Hon'ble Supreme Court, and as such, both the orders are liable to be quashed. 22. In the result petition succeeds and is allowed. 21. In view of what has been stated above, I am of the view that the orders passed by both the courts below, are against the law as well as the law laid down by the Hon'ble Supreme Court, and as such, both the orders are liable to be quashed. 22. In the result petition succeeds and is allowed. Both the orders impugned in this petition i.e. order dated 27.7.2013, passed by the C.J.M., Sultanpur, in Criminal Case No. 2715 of 2013 and the judgment and order dated 12.3.2014, passed in Criminal Revision No. 359 of 2013, are hereby quashed and the matter is sent back to the C.J.M. Sultanpur for considering of the final report afresh in the light of observation made in this judgment as well as the law laid down by the Hon'ble Apex Court.