Jharkhand High Court
Rajeev Kumar @ Rajiv Bouri vs The State Of Jharkhand on 14 February, 2022
Author: Sanjay Kumar Dwivedi
Bench: Sanjay Kumar Dwivedi
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 1575 of 2018
1. Rajeev Kumar @ Rajiv Bouri
2. Gandhari Devi
3. Sunita Bouri @ Sunita Devi
4. Hiru Bouri
5. Sanjay Bouri
All residents of village Andharteliya, P.O. Dudhi Gajar, P.S. Chas (M), District
Bokaro, Jharkhand
...... Petitioners
Versus
1.The State of Jharkhand
2. Chhepi Devi ...... Opp. Parties
CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
For the Petitioners:Mr. R.S. Mazumdar, Sr. Advocate
For the State : Mrs. Priya Shrestha, Spl. P.P.
For the O.P. No. 2 : Mr. Sanjay Kumar, Advocate
............
09/Dated: 14/02/2022 Heard Mr. R.S. Mazumdar, learned senior counsel for the petitioners, Mrs. Priya Shrestha, learned counsel for the State and Mr. Sanjay Kumar, learned counsel for the O.P. No.2.
2. This petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard.
3. The present petition has been filed for quashing of order dated 24.03.2018 passed in connection with Chas (M) P.S. Case No. 98 of 2017, corresponding to G.R. Case No. 1522 of 2017 whereby after submission of final form cognizance for the offence under section 304(B)/34 of the Indian Penal Code and under section 3/4 of the Dowry Prohibition Act has been taken against the petitioners, pending in the Court of learned Judicial Magistrate, 1st Class, Bokaro.
4. The mother of the deceased namely, Chhepi Devi has lodged the 2 F.I.R. alleging therein that she got her daughter Pushpa Devi ( now deceased) married to petitioner no. 5 namely Sanjay Bouri in the year, 2015. It is further alleged that after marriage, the daughter of the O.P. No. 2 went to her matrimonial house and started residing in Qr. No. 2 (C) with her husband, but after sometime the relatives of the O.P. No. 2 told her that her daughter was being tortured for the demand of dowry and was being threatened to kill her, if she did not bring the dowry. It is further alleged that on 27.11.2017 the daughter of the O.P. No. 2 was killed. The O.P. No. 2 has suspicion that the accused persons including the petitioners have killed her daughter.
5. Mr. R.S. Mazumdar, learned senior counsel for the petitioners submits that Final Form vide F.R.T. No. 14 of 2018 dated 28.02.2018 was filed stating therein 'mistake of fact'. He further submits that after submission of final form, learned Magistrate took cognizance under section 304-B/34 of the I.P.C. and under section 3/4 of the D.P. Act but he has not provided any reason as to what basis he came to the conclusion that the case is made out against the petitioners. To buttress his argument, learned senior counsel for the petitioners relied on judgment in the case of " Nupur Talwar Vs. Central Bureau of Investigation" reported in (2012) 11 SCC 465 wherein para 22 the Hon'ble Supreme Court has held as under:-
"22. Commitment of case to Court of Sessions when offence is triable exclusively by it.-When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of Section 207 or Section 208, as the case may be, the case to the Court of Sessions, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made:
(b).subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."
In this background, it was essential for the Magistrate to highlight, for the perusal of the Court of Session, reasons which had weighed with her, in not accepting the closure report submitted by CBI, as also, for not acceding to the prayer made in the protest petition, for 3 further investigation. It was also necessary to narrate what prompted the Magistrate to summon the complainant as an accused. For, it is not necessary that the Court of Session would have viewed the matter from the same perspective as the Magistrate. Obviously, the Court of Sessions would in the first instance, discharge the responsibility of determining whether charges have to be framed or not. Merely because reasons have been recorded, the Court of Session will have an opportunity to view the matter, in the manner of understanding of the Magistrate. If reasons had not been recorded, the Court of Session may have overlooked, what had been evaluated, ascertained and comprehended by the Magistrate. Of course, a Court of Session, on being seized of a matter after committal, being the competent court, as also a court superior to the Magistrate, has to examine all the issues independently, within the four corners of law, without being influenced by the reasons recorded in the order issuing process."
6. Learned senior counsel for the petitioners further submits that this issue has again been considered by this Court in the case of " Bigan Mian @ Siraj Mian Vs. State of Jharkhand" reported in 2014 (2) JLJR 95 (Jhr) wherein para 15 to 17 it has been held as under:-
"15.Therefore, upon a receipt of a police report under Section 173(2) of the Code of Criminal Procedure a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) even if the police report is to the effect that no case is made out against the accused. The Magistrate can ignore the conclusion arrived at by the I.O and independently apply his mind to the facts emerging from the investigation taking into account the statements of the witnesses examined by the police during the investigation and take cognizance of offence, if he thinks fit, in exercise of power under Section 190(1)(b) and direct the issue of process to the accused. The aforesaid proposition has been laid down in a case of M/s. India Corat Pvt. Ltd. vs. State of Karnataka and others [(1989) 2 SCC 132].
16. Similar view has been taken subsequently also in a case of Rajinder Prasad vs. Bashir and others (supra) wherein it has been held as under :
"a Magistrate has jurisdiction to take cognizance of offence against such person also who have not been arrested by the police as accused person, if it appears from the evidence collected by the police that they were prima facie guilty of the offence alleged to have been committed. Section 209 refers back to Section 190 as is evident from the words 'instituted on a police report' used in Section 190(1)(b) of the Code. The cognizance taken by the Magistrate was of the offence and not of the offenders. Having taken cognizance of the offence, a Magistrate can find out who the real offenders were and if he comes to conclusion that apart from the persons sent by the police some other persons were also involved, it is duty to proceed against those persons as well".
17. Here, it would be pertinent to record that if the Magistrate does differ from the finding given in the police report, then he is required to assign reason for differing with the opinion of the police which proposition has been laid down in a case of Nupur 4 Talwar vs. Central Bureau of Investigation [(2012) 2 SCC 188]."
7. Mrs. Priya Shrestha, learned counsel for the State and Mr. Sanjay Kumar, learned counsel for the O.P. No. 2 jointly submit that the learned Magistrate has given reasons and the petitioners have to demonstrate it at the stage of framing of charge that no case is made out against the petitioners.
8. In view of the aforesaid facts, the Court has gone through the materials on record. The final form is annexed with this petition. In the final form it is stated that since the delivery of her child all the medical prescriptions of the treatment of the deceased form part of the investigation. In the postmortem report of the deceased the cause of death has been shown to be uterine infection with septicemia and also no external injuries were found on the body of the deceased, thereafter final form has been submitted. The Court has perused the cognizance order wherein the learned Magistrate recorded that final form has been received with endorsement "mistake of facts". Thereafter the learned Magistrate proceeded and took cognizance under section 304-B/34 of the I.P.C. and under section 3/4 of the D.P. Act stating therein that on perusal of case diary and case record, it transpires that informant has supported the case.
9. There is no doubt that a Magistrate is entitled to take cognizance of an offence under section 190(1)(b) of the Code of Criminal Procedure even if the police report is to the effect that no case is made out against the accused. It is within the ambit of the learned Magistrate to come to the conclusion differing with the view of the I.O. and to apply independent mind to the facts emerging from the investigation. He in terms of exercising power under section 190 (1)(b) of Cr.P.C. can give direction to issue of process to the accused. This proposition of law has been laid down by the Hon'ble Supreme Court in the case of " M/s India Corat Pvt. Ltd. Vs. State of Karnataka and Others"
reported in (1989) 2 SCC 132. Identical view has been taken by the Hon'ble 5 Supreme Court in the case of "Rajinder Prasad Vs. Bashir and others"
reported in (2001) 8 SCC 522.
10. In view of above facts, it is pertinent to point out here that if the Magistrate after differing with the opinion of the police takes cognizance, he is required to assign reason differing with the facts of the police. Proposition has been laid down in the case of "Nupur Talwar) (supra). In the case in hand, the learned Magistrate differing with the opinion of the police has taken cognizance against the petitioners who have not sent up for trial, it transpires that the learned Magistrate has committed wrong in differing with the view of the police without assigning any proper reason.
11. Accordingly, cognizance order dated 24.03.2018 passed in Chas (M) P.S. Case No. 98 of 2017, corresponding to G.R. Case No. 1522 of 2017 is hereby quashed.
12. The matter is remitted back to the Court of learned Judicial Magistrate, Ist Class, Bokaro to proceed afresh in the matter in view of the discussions made here-in-above.
13. With the above observation, this criminal miscellaneous petition is allowed and disposed of.
( Sanjay Kumar Dwivedi, J.) Satyarthi/