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2016 DIGILAW 138 (JHR)

Ravi Kant Srivastava v. State of Jharkhand

2016-01-20

RONGON MUKHOPADHYAY

body2016
ORDER : Heard Mr. Saket Upadhyaya, learned counsel for the petitioners, Mr. Tapas Roy, learned counsel for the State and Mr. Pandey Neeraj Roy learned counsel for the opposiite party no.2. 2. In this application, the petitioner has prayed for quashing the order dated 18.04.2013 passed by the learned Chief Judicial Magistrate, Ranchi, in Kotwali (D.M.) P.S. Case No.94 of 2013, by which cognizance has been taken for the offence punishable under sections 498A and 323 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act against the petitioners. 3. The case was instituted by the opposite party no.2 against the petitioners and other co-accused persons on the allegation that after her marriage was solemnized with one Pranay Kumar, there was a demand of Rs. 5,00,000/- as dowry and on account of non-fulfillment of the demand she was subjected to physical and mental torture. 4. Basing on the aforesaid allegations Kotwali (D.M.) P.S. Case No.94 of 2013 was instituted. After investigation the Investigating Officer did not find the allegations to be true as against the petitioners, whereas the involvement of accused Pranay Kumar, who happens to be the husband of the informant, was found to be true and accordingly charge sheet was submitted against Pranay Kumar for the offence punishable under sections 498A and 323 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act and final report has been submitted against the petitioners. 5. Upon submission of charge sheet an order was passed by the learned Chief Judicial Magistrate, Ranchi, on 18.04.2013 by which cognizance was taken for the offence punishable under sections 498A and 323 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act against the accused persons including the petitioners and they were summoned to face trial. 6. Mr. Saket Upadhyay, learned counsel appearing for the petitioners has submitted that although final form was submitted finding the allegation are false so far as the petitioners are concerned but without assigning any reasons the learned Chief Judicial Magistrate, Ranchi, in most mechanical manner had taken cognizance for the offence mentioned therein. 6. Mr. Saket Upadhyay, learned counsel appearing for the petitioners has submitted that although final form was submitted finding the allegation are false so far as the petitioners are concerned but without assigning any reasons the learned Chief Judicial Magistrate, Ranchi, in most mechanical manner had taken cognizance for the offence mentioned therein. It has further been submitted that once the final form is submitted and if the learned Magistrate differs with the findings of the Investigating Officer mentioned in the final form there is no bar for him in taking cognizance and summoning the accused persons against whom final report has been submitted but in any case he has to assign reasons as to on what ground he was differing with the final report submitted by the police. In this context the learned counsel for the petitioners has referred to the several judgments more suitably the case of Nupur Talwar V. CBI & another reported in (2012) 2 Supreme Court Cases 188 and the case of Sunil Bharti Mittal V. CBI, reported in (2015) 4 Supreme Court Cases 609. 7. Mr. Pandey Niraj Rai, learned counsel appearing for the opposite party no.2, on the other hand, has submitted that the case diary would reveal that the learned Chief Judicial Magistrate, Ranchi, was legally justified in taking cognizance against the petitioners as several witnesses have supported the involvement of the petitioners. It has further been submitted that differing with the police report while taking cognizance is within the jurisdiction of the Magistrate. Learned Counsel further submits that the facts of the cases referred to above by the learned counsel for the petitioners would not apply in the facts of the present case. 8. It is not in dispute that the first information report was instituted against the accused persons including the petitioners. However, after investigation the allegations against the petitioners were found to be false leading to the submission of final form. Differing with the same cognizance was taken by the learned Chief Judicial Magistrate, Ranchi, vide order dated 18.04.2013 and issued summons against the petitioners to face trial. The order taking cognizance dated 18.04.2013 does not disclose any reason as to what ground or reason the learned Magistrate differed with the final report so submitted by the Police. Differing with the same cognizance was taken by the learned Chief Judicial Magistrate, Ranchi, vide order dated 18.04.2013 and issued summons against the petitioners to face trial. The order taking cognizance dated 18.04.2013 does not disclose any reason as to what ground or reason the learned Magistrate differed with the final report so submitted by the Police. When the final report has been submitted by the Investigating Officer it was incumbent upon the learned Magistrate, if he differs with the final report to assign ground/reason before taking cognizance and summoning the accused persons in favour of whom the final report was submitted. In the case of Sunil Bharati Versus C.B.I. reported in (2015) 4 Supreme Court Cases 609, the Hon'ble Supreme Court while considering the issues as to whether the Special Judge had to assign reasoning , had held thus: “Para 33:- In the first instance, we make it clear that there is no denying the legal position that even when a person is not named in the charge-sheet as an accused person, the trial Court has adequate powers to summon such a non-named person as well, if the trial Court finds that the charge-sheet and the documentation/material placed along with the charge-sheet disclose sufficient prima facie material to proceed against such a person as well. Kishun Singh and Dharam Pal are the direct decisions on this aspect. However, in the present case, the question is not as to whether there is sufficient material against the appellants filed in the trial Court to proceed against them. Whether such a material is there or not is not reflected from the impugned order as that aspect is not even gone into. The learned Special Judge has not stated in the order that after examining the relevant documents, including statement of witnesses, he is satisfied that there is sufficient incriminating material on record to proceed against the appellants as well. Para 34:- On reading of the impugned order which is already extracted verbatim, it is very clear that in para 2 of the order, the learned Special Jude discusses the submissions of the Public Prosecutor in respect of the persons who are made accused in the charge-sheet. Insofar as the charge-sheet is concerned, it has named Mr. Shyamal Ghosh, who was the public servant and other three accused persons are the corporate entities. Insofar as the charge-sheet is concerned, it has named Mr. Shyamal Ghosh, who was the public servant and other three accused persons are the corporate entities. Submission of the learned Public Prosecutor is recorded in this paragraph that there is enough incriminating material on record against them and they be proceeded against, as per law. Immediately thereafter in para 3, the learned Special Judge records his satisfaction on the perusal of the records, namely, FIR, charge-sheet, statement of witnesses and documents and states that he is satisfied that there is enough incriminating material on record to proceed against the ”accused persons”. Para 3 is clearly relatable to para 2. Here, the “accused persons” referred to are those four persons whose names are mentioned in para 2. Obviously, till that stage, the appellants were not the accused persons as they are not named as such in the charge sheet.” 9. As has been indicated above, although it was imperative upon the learned Chief Judicial Magistrate, Ranchi, to have assigned grounds/ reasons while differing with the final report submitted in favour of the petitioners but having acted otherwise, the impugned order dated 18.04.2013 cannot be sustained in the eyes of law, so far as the petitioners are concerned. Accordingly, the order dated 18.04.2013 passed by the learned Chief Judicial Magistrate, Ranchi, in Kotwali (D.M.) P.S. Case No. 94 of 2013 is quashed and set aside so far as the petitioners are concerned and the matter is remanded back to the learned Chief Judicial Magistrate, Ranchi to pass a fresh order in accordance with law. 10. This application is accordingly, disposed of. 11. Pending Interlocutory application, if any, stands disposed of.