Jharkhand High Court
Samsul And Ors. vs The State Of Jharkhand And Anr. on 16 June, 2008
JUDGMENT D.K. Sinha, J.
1. Heard Mr. S.K. Dwivedi, learned Counsel on behalf of the petitioners, Mr. K.P. Deo, learned Counsel on behalf of the opposite party No. 2 and the learned A.P.P. on behalf of the State.
2. Petitioners, ten in number, have invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure with a prayer for setting aside the order dated 27.3.2003, passed by the Judicial Magistrate, 1st Class, Dumka, whereby and whereunder, after enquiry was initiated and upon being satisfied with the prima facie case, he directed that the summons be issued to the petitioners for the alleged offence under Sections 149, 120B, 302, 201 of the Indian Penal Code as also under Sections 3/4 of the Prevention of Witch (Daain) Practices Act, 1999.
3. Prosecution story in short was that the complainant had gone to Kashmir for his livelihood. When he returned only ten days ago from the date of filing of the compliant, he learnt that his mother was forcibly taken out by the petitioners towards Southern Bahiyar where she was killed and her dead body was buried on the allegation that she was playing witch. The father of the complainant and the members of his family tried to rescue his deceased mother Manchurni Bibi but all the witnesses were kept confined by the accused persons who bolted the door from outside and the occurrence was given effect to in the night of 21.5.2001.
4. It was attributed against the petitioners that they after forcibly entering into the house, variously armed with weapons, took away his mother who was an old woman and helpless and could not be rescued. After 5/6 days of the alleged occurrence the father of the complainant when attempted to inform the Taljhari Police he was held up by the petitioners and could not be allowed to inform the police. On 28.10.2001 the complainant lodged information to the police but he came to learn that only Station Diary Entry was made and F.I.R. was not lodged. Delay was explained that on account of helplessness of the family members the case could not be instituted at the police station.
5. The complainant was examined on solemn affirmation and enquiry was initiated under Section 202 of the Code of Criminal Procedure in which four witnesses were produced and examined on behalf of the complainant and upon being satisfied, learned Magistrate found it to be a fit case to issue summons to the petitioners to stand charge for the offence under Sections 147, 148, 149, 302, 364, 448, 342 and 201 of the Indian Penal Code as also under the provisions of Sections 3/4 of the Prevention of Witch (Daain) Practices Act, 1999.
6. In the argument of learned Counsel for the petitioners certain inconsistency in the dates was pointed out. Learned Counsel attracted the attention that the complainant came to know about the occurrence on 10.4.2001 whereas alleged occurrence took place on 21.5.2001, may be on account of inadvertence, but still there is inconsistency which could not be rectified at any stage either by the Court on its own motion or at the instance of the complainant-opposite party No. 2.
7. It is relevant to mention that in the instant case there is serious allegation against the petitioners, ten in number, for committing murder of helpless woman on the pretext that she was playing witch. The occurrence as alleged was given effect to in prosecution of common object whereas other members of her family were restrained, while she was being taken out, killed and buried.
8. As it was a serious case, instead of initiating enquiry, what the learned C.J.M., Dumka was required to do was to send it under Section 156(3) Cr.P.C. for institution of police case and to file final form after investigation. During inquiry under Section 202 of the Code of Criminal Procedure the body of the mother of the complainant could not be recovered dead or alive and the learned Counsel for the petitioners consistently submitted that the petitioners have been falsely implicated.
9. In the facts and circumstances of the case, order impugned dated 27.3.2003 passed by the Judicial Magistrate, 1st Class, Dumka is set aside with the direction that P.C.R. No. 378 of 2001 be sent to the Dumka Police for institution of a regular case under Section 156(3) of the Code of Criminal Procedure and to submit report under Section 173 of the Code of Criminal Procedure with the case diary after investigation before the competent Court.
10. This order will not in any manner prejudice the right of the complainant-opposite party No. 2 enshrined under law.
Accordingly, this Cr.M.P. is disposed of.