Research › Search › Judgment

Jharkhand High Court · body

2017 DIGILAW 376 (JHR)

Baleshwar Pandey v. State of Jharkhand

2017-02-22

ANANDA SEN

body2017
JUDGMENT : Mr. Ananda Sen, J. The petitioner has challenged the part of the order dated 17.08.2015 passed in connection with Mahila P.S. Case No. 7 of 2015 corresponding to G.R. No. 506 of 2015 by the learned Judicial Magistrate, Koderma by which cognizance has been taken for the offence under Section 3/4 of the Prevention of Witch (Daain) Practices Act, along with Section 498-A of the I.P.C. and also under Section 494 of the I.P.C. 2. A complaint case was lodged under Sections 323, 379, 504 and 498-A and Section 3/4 of Prevention of Witch (Daain) Practices Act by the informant Sati Devi. The said complaint was registered as Complaint Case No. 283 of 2015, and in terms of section 156 (3) of the Cr.P.C., 1973 the same has been sent to Koderma (Mahila) Police Station for registering an F.I.R. for investigation. The police investigated the allegations after registering the same as Koderma Mahila P.S. Case No. 07 of 2015. After due investigation charge-sheet was submitted only for the offence under Sections 498-A, 494, 504, 120-B of the I.P.C. and not under the provisions of the Prevention of Witch (Daain) Practices Act. While taking cognizance the Magistrate vide order dated 17.08.2015 has taken cognizance for offence under Section 498 A of the I.P.C. and also under Section 3/4 of Prevention of Witch (Daain) Practices Act against all and also under Section 494 I.P.C. 3. Learned counsel for the petitioner submits that there is nothing on record to take cognizance under the provisions of 3/4 of Prevention of Witch (Daain) Practices Act. He submits that the police after proper investigation did not find any offence committed under the said act and thus, the cognizance taken by the Magistrate under Section 3/4 of the Prevention of Witch (Daain) Practices Act is absolutely bad. He lastly submits that no reasons have been assigned as to why cognizance has been taken under the provisions of said Act and what are the materials present which warrants taking cognizance under Section 3/4 of Prevention of Witch (Daain) Practices Act. He refers to an order passed in Cr.M.P. No. 1261 of 2015 dated 25.08.2015 Imran Ansari v. State of Jharkhand. 4. He refers to an order passed in Cr.M.P. No. 1261 of 2015 dated 25.08.2015 Imran Ansari v. State of Jharkhand. 4. After hearing both the parties and going through the materials including the impugned order, I find that initially the F.I.R. was lodged under Sections 341, 323, 379, 504, 498 A and 34 of the I.P.C. and Section 3/4 of the Prevention of Witch (Daain) Practices Act. The police investigated and filed charge sheet vide Charge Sheet No. 22 of 2015 dated 12.08.2015, under Sections 498 A, 494, 504, 120B of the I.PC. but charge sheet was not filed under Section 3/4 of the Prevention of Witch (Daain) Practices Act. The Magistrate after going through the case diary and the charge-sheet has come to a conclusion that offence under Section 498 A is made out against all the accused persons. Similarly offence under Section 3/4 of the Prevention of Witch (Daain) Practices Act is made out against all the accused persons and so far as Ashok Kumar Nirala @ Ashok Pandey is concerned, further offence under Section 494 of the I.P.C. is made out. After coming to the said conclusion the learned Magistrate issued summons. 5. It is admitted that the police after investigation did not file charge-sheet under the provisions of Section 3/4 of the Prevention of Witch (Daain) Practices Act. The learned Magistrate differed with the charge-sheet, has taken cognizance for the offence under Section 3/4 of the said Act. 6. No doubt the learned Magistrate has power to differ with the charge-sheet and can take cognizance of offence under any sections which has not been mentioned in the charge-sheet. While doing so the bare minimum reasoning has to be given, as to why the Magistrate is differing with the charge-sheet and taking cognizance of the offence which is not mentioned in the charge-sheet also. 7. This Hon'ble Court in the case of Imran Ansari (supra) after relying upon the case of Nupur Talwar v. C.B.I (2012) 11 SCC 465 has held that a reason has to be recorded by the Magistrate while differing with the charge-sheet. 8. Thus, applying the said ratio, I find that there is nothing in the impugned order to suggests as on what reasons the Magistrate has differed with the charge-sheet and has taken cognizance for the offence under Section 3/4 of the Prevention of Witch (Daain) Practices Act. 9. 8. Thus, applying the said ratio, I find that there is nothing in the impugned order to suggests as on what reasons the Magistrate has differed with the charge-sheet and has taken cognizance for the offence under Section 3/4 of the Prevention of Witch (Daain) Practices Act. 9. The part of the order, by which cognizance has been taken under the provision of Prevention of Witch (Daain) Practices Act is set aside. The matter is remanded to the Magistrate only to decide on the point whether there is any materials to take cognizance under Section 3/4 of the Prevention of Witch (Daain) Practices Act or not. 10. This Court has not interfered with the part order by which cognizance has been taken under Section 498 A of the I.P.C. and Section 494 of the I.P.C. 11. Thus, this application stands disposed of.