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2018 DIGILAW 283 (PAT)

Shree Narayan Jha v. State of Bihar

2018-02-08

RAJEEV RANJAN PRASAD

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JUDGMENT : Rajeev Ranjan Prasad, J. Heard the parties. They have concluded their arguments. 2. In the present case, petitioner is the father-in-law of respondent no.11. He has prayed for quashing of the order dated 27.06.2016 passed by learned S.D.J.M., Darbhanga by which the learned S.D.J.M. has upon perusal of the supplementary charge sheet and the case diary held that a prima facie case is made out against the charge sheeted persons under Section 498A/34 I.P.C. and directed to issue summons against them. The present case seems to have arisen out of matrimonial dispute where under the daughter-in-law (respondent no.11) of this petitioner has alleged that after her marriage with the elder son of the petitioner on 01.07.2009 till date of lodging of the F.I.R. she had been subjected to torture in various manners. The allegations have also been made that her parents were called upon to pay dowry and because of the demands made by the petitioner her parents had given more than Rs.25 lacs to her in-laws. The allegations are that she was abused, assaulted and twice burnt with cigarette by her husband and father-in-law. It is alleged that on 03.11.2014, attempts were made to strangulate her but fortunately, her neighbours came and saved her life. According to respondent no.9, her father-in-law (the petitioner) allegedly informed her that he had got solemnized marriage of her husband with a girl, namely, Anita and out of the said marriage, there is child of two years. 3. In view of the allegations made by respondent no.11, a formal F.I.R. giving rise to Mahila P.S. Case No.40 of 2014 dated 22.04.2014 was lodged under Sections 323, 494, 498A/504/34 of the I.P.C. read with Sections of the Dowry Prohibition Act. It is the case of the petitioner that in course of investigation and supervision of the case by the Senior Police Officers, the allegations of torture could not be substantiated by respondent no.11 and when a charge sheet was filed initially, the investigation against the petitioner was kept pending. The learned Magistrate took cognizance of the offences under Section 498A/34 I.P.C. and issued process only against the accused Ashish Narayan Jha (son of the petitioner). The order taking cognizance and issuance of summons against accused Ashish Narayan Jha was passed as back as on 06.08.2014. The learned Magistrate took cognizance of the offences under Section 498A/34 I.P.C. and issued process only against the accused Ashish Narayan Jha (son of the petitioner). The order taking cognizance and issuance of summons against accused Ashish Narayan Jha was passed as back as on 06.08.2014. Since the investigation against this petitioner was kept open, the Investigating Officer continued with the investigation and finally on the basis of materials which were collected in course of investigation a supplementary charge sheet was filed against this petitioner and one of his sons namely Manish Narayan Jha. Upon perusal of the supplementary charge sheet and the case diary, the impugned order was passed. 4. Mr. D.K. Sinha, learned Senior counsel assisted by Mr. Girish Chandra Jha, learned Advocate has assailed the impugned order mainly on the ground that there is in fact no material at all for forming a prima facie opinion to issue summons against this petitioner. Contention is that in the supplementary charge sheet, the Investigating Officer could not bring any material subsequent to the order taking cognizance earlier passed by the learned Magistrate, at least against this petitioner and if there was no material to form an opinion for purpose of summoning, the learned Magistrate has passed order issuing summons without application of his judicial mind. Learned Senior counsel submits that it is a kind of routine order which has been mechanically passed and his liable to be set aside by this Court. 5. Learned counsel submits that even though in the supplementary case diary, certain references have been made to the supervision notes of the Senior Police Officers but those are not part of the investigation and only on that basis the supplementary charge sheet could not have been filed. He has placed reliance upon the judgments of the Hon'ble Supreme Court in the case of Sunita Devi vs. State of Bihar and another, (2005) 1 SCC 608 , Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, (2011) 1 SCC 694 , Shri Gurbaksh Singh Sibbia and others vs. State of Punjab, (1980) 2 SCC 565 and Manilal Keshri and others vs. State of Bihar and another, (2006) CriLJ 3981 (Patna). Learned Senior counsel submits that the petitioner being father-in-law has been implicated in the present case only because he happens to be a close kith and kin of the husband of the informant and as has been the temperament in such matters the entire family members are implicated in the case. 6. Learned Senior counsel has also pointed out on the strength of the emails exchanged by respondent no.11 with the present petition that in fact the respondent no.11 had admitted good relationship with this petitioner and has not alleged anything against him during the period of correspondences which were exchanged admittedly during the period 2010, 2012 and 2013. Certain documents have also been brought on record by way of Annexure-5 to the present application to show that the Senior Police Officers have earlier recorded in connection with the present case that the informant had failed to substantiate the allegations of demand of dowry as also the allegation of torture. It is further submitted that from perusal of Annexure-5 to the present application, it would appear that for the same allegations respondent no.11 had lodged Laheriasarai P.S. Case No.48 of 2014. A fact which has not been denied by learned counsel representing respondent no.11 on repeated query. 7. On the other hand, learned counsel representing respondent no.11 has opposed the allegations and submitted that the order issuing summons against the petitioner has been passed on the basis of the materials available on the record and the prima facie satisfaction of the Judicial Magistrate in this case cannot be faulted with because the opinion has been formed on the basis of what has transpired in course of investigation. Learned counsel has placed reliance on the statements made in paragras 7, 8 and 9 of the case diary which contain the statement of independent witnesses as claimed by learned counsel for the informant. These witnesses have stated that this petitioner along with his two sons, namely, Ashish Narayan Jha and Manish Narayan Jha had been torturing the informant and that they had also attempted to kill her by pressing her neck on 03.04.2014. These witnesses have stated that this petitioner along with his two sons, namely, Ashish Narayan Jha and Manish Narayan Jha had been torturing the informant and that they had also attempted to kill her by pressing her neck on 03.04.2014. Statement in paragraph-7 is of Shri Dilip Kamti, who is said to be a domestic servant, the statement made in paragraph8 is that of Smt. Abha, who is said to be a neighbour and the statement made in paragraph-9 is of one Randhir Kumar Jha, who is also a neighbour. Learned counsel submits that apart from the statements of the independent persons, there are investigations from different points by the I.O. even subsequent to the order taking cognizance dated 06.08.2014. Paragraphs 93, 97, 101 and 104 have been referred to by learned counsel representing the informant to show that in all these paragraphs the views of the Investigating Officer and Senior Police Officers on analysis of the materials have been referred to. 8. It is his submission that the contention of the learned Senior counsel representing the petitioner that there is absolutely no material to form an opinion for purpose of finding a prima-facie case so as to issue a summon against the petitioner is not correct and such contention is liable to be rejected outrightly on the face of the materials referred by him from the case diary. Learned counsel submits that there is a fallacy in the arguments of the learned Senior counsel that the materials collected by the I.O. prior to the order taking cognizance and issuing a summon dated 06.08.2014 cannot be referred to or looked into by the learned Magistrate for purpose of issuing process or summon to this petitioner. He submits that during the supplementary charge sheet filed with the further statements recorded by the police in course of investigation, the entire case diary along with the supplementary charge sheet were available to the learned Magistrate for perusal and forming an opinion based on that and if he has found sufficient materials to proceed against this petitioner by issuing summons it cannot be allowed to be argued that the materials which were collected prior to passing of the order dated 06.08.2014 cannot be looked into by learned Magistrate. 9. 9. Learned counsel opposing the application also submits that it is also settled by the Hon'ble Supreme Court that this Court while examining the order taking cognizance and issuance of summons would not go into the niceties of the evidences as the quality of the evidence may only be judged at the stage of trial and not at this stage. At this stage only a prima face view is to be taken by learned Magistrate. So far as the judgment relied upon by learned Senior counsel on behalf of the petitioner is concerned. Learned counsel representing the informant submits that in those cases the issues raised herein were not the subject matter for consideration and these issues were neither raised nor decided, therefore, those judgments are not authority on the issues canvassed before this Court. 10. Learned counsel for the State has also opposed the application by filing a counter affidavit. 11. In view of the rival submission at the Bar and upon perusal of the records, I am of the considered opinion that in view of the statements made by the witnesses in paragraphs 7, 8 and 9 of the case diary it cannot be said that there is absolutely no material so as to form an opinion for purpose of issuing summon against the petitioner. This Court would not appreciate the evidences at this stage. The quality of the evidences had to be judged only at appropriate stage by the competent Court. 12. This Court sitting in constitutional jurisdiction under Section 226 of the Constitution of India would not be inclined to interfere with the order issuing summon against the petitioner in the facts and circumstances of the present case which are apparent from the case diary. Submission of learned Senior counsel for the petitioner that the materials collected by the I.O. prior to 06.08.2014 could not be looked into when a supplementary charge sheet was filed along with further materials is not fit to be accepted. As no such Bar may be created on the jurisdiction of the Court taking cognizance and issue a process, in the opinion of this court, this is not the stage where order issuing process against the petitioner may be interfered with. 13. This application is thus devoid of merit and is, therefore, dismissed.