Jharkhand High Court
Md. Salim Sai @ Salim Sai vs The State Of Jharkhand on 21 February, 2024
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1 Cr.M.P. No.3739 of 2023
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P. No. 3739 of 2023
1. Md. Salim Sai @ Salim Sai, aged about 27 years, son of Jahangir Sai
2. Md. Jahangir Alam @ Jahangir Sai, aged about 62 years, son of
Mumtaj Sai
Both residents of Village, P.O. & P.S.-Manjhigaon, Dist.-West
Singhbhum at Chaibasa
.... Petitioner
Versus
The State of Jharkhand
.... Opp. Party
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
.....
For the Petitioners : Mr. Nitish Kr. Sahani, Advocate : Ms. Shridhi Priya, Advocate For the State : Mrs. Nehala Sharmin, Spl. P.P. : Mr. V.K. Vashistha, Spl. P.P. .....
By the Court:-
1. Heard the parties.
2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the order dated 02.09.2022 passed by the learned Chief Judicial Magistrate I/C, Seriakella, in G.R. No. 537 of 2022 arising out of Seraikella P.S. Case No. 108 of 2021 by which the learned Chief Judicial Magistrate I/C, Seraikella has found prima facie case against the petitioners for having committed the offence punishable under Sections 498A, 494 and 34 of Indian Penal Code and under Section 3/4 of Dowry Prohibition Act and took cognizance of the said offences.2 Cr.M.P. No.3739 of 2023
3. The brief fact of the case is that the petitioner no.1 earlier treated the informant with cruelty and in connection with that the opposite party no.2-informant prior to institution of this case lodged Seriakella P.S. Case No. 16 of 2019. There was a compromise during the pendency of that case consequent upon which the petitioner no.1 was admitted to bail. The informant was taken to her matrimonial house but again on 12.07.2021, the petitioner demanded dowry from the complainant, tortured her mentally and physically and dropped the complainant at his father's place with the threatening that unless her father will give Rs.10,00,000/- as dowry, the complainant will not be accepted in her matrimonial house. The complainant filed complaint case which upon being referred to police under Section 156 (3) Cr.P.C., the FIR of this case has been registered.
4. Police after investigation of the case found the allegation against the petitioners to be true so far as it relates to the offence punishable under Section 498A, 494 and 34 of Indian Penal Code inter alia against the petitioners and basing upon the same, the learned Chief Judicial Magistrate I/C, Seraikella has taken cognizance of the said offences as already indicated above.
5. It is submitted by the learned counsel for the petitioners relying upon the judgment of this Court in the case of Hrishikesh Tiwary & Ors. vs. The State of Jharkhand in Cr.M.P. No. 2228 of 2022 dated 22.11.2023 wherein, this Court relied upon the judgment of Hon'ble Supreme Court of India in the case of Babubhai vs. State 3 Cr.M.P. No.3739 of 2023 of Gujrat & Ors. reported in (2010) 12 SCC 254, paragraph no.25 of which reads as under:-
"25. While comparing both the FIRs there is no doubt that both the incidents had occurred at the same place in close proximity of time, therefore, they are two parts of the same transaction. More so, the death of Ajitbhai Prahladbhai has been mentioned in both the FIRs. From the report for deletion of Section 302 IPC, it is apparent that it is not the case of the investigating officer that the death of Ajitbhai Prahladbhai had not occurred during the course of the incident in connection with which CR No. I-154 of 2008 came to be registered."
6. As also the case of T.T. Antony vs. State of Kerala & Ors.
reported in (2001) 6 SCC 181 and has held that the two FIRs for the selfsame occurrence is not permissible in law.
7. Learned counsel for the petitioners next relied upon the judgment of a coordinate Bench of this Court in the case of Umesh Kumar & Ors. vs. The State of Jharkhand & Anr. in Cr.M.P. No. 257 of 2012 dated 06.07.2023 wherein, in the facts of that case, the coordinate Bench came to the conclusion that in the facts of that case there was a misuse of Section 498A of Indian Penal Code hence, quashed the entire criminal proceeding including the order taking cognizance.
8. Learned counsel for the petitioners next relied upon the judgment of a coordinate Bench of this Court in the case of Subhra Kanti Das & Ors. vs. The State of Jharkhand & Anr. in Cr.M.P. No. 1701 of 2015 dated 29.11.2023 wherein, in the facts of that case as there was general and omnibus allegation against the petitioner nos.2 and 3 of that case, the coordinate Bench quashed the entire criminal proceeding. It is next submitted by the learned counsel for the petitioners that as this FIR is the second FIR in 4 Cr.M.P. No.3739 of 2023 connection of the same occurrence for which Seraikella P.S. Case No. 16 of 2019 was instituted and that case is still sub judice hence, it is submitted that the order dated 02.09.2022 passed by the learned Chief Judicial Magistrate I/C, Seriakella, in G.R. No. 537 of 2022 arising out of Seraikella P.S. Case No. 108 of 2021 is not sustainable in law and the same be quashed and set aside.
9. Learned Special Public Prosecutor on the other hand vehemently opposes the prayer to quash the order dated 02.09.2022 passed by the learned Chief Judicial Magistrate I/C, Seriakella, in G.R. No. 537 of 2022 arising out of Seraikella P.S. Case No. 108 of 2021. It is next submitted by learned Spl. P.P. that this is a separate and distinct case. Relying upon paragraph no.19 of Babubhai vs. State of Gujarat & Ors. wherein, the Hon'ble Supreme Court relied upon the judgment in the case of Nirmal Singh Kahlon vs. The State of Punjab & Ors. reported in (2009) 1 SCC 441 wherein, the Hon'ble Supreme Court held that the second FIR would be maintainable not only if there was different version but when discovery is made on factual foundations and where discoveries may be made by the police authorities at a subsequent stage and discovery about a larger conspiracy can also surface in another proceeding. It is further submitted by learned Spl. P.P. that the date of occurrence involved in this case is 12.07.2021 and subsequent dates whereas the date of occurrence involved in earlier FIR was 15.02.2019 hence, by no stretch of imagination the occurrence which took place a little less than two years after another occurrence can be said to be in close proximity 5 Cr.M.P. No.3739 of 2023 with the first occurrence more so after compromise between the parties and resumption of conjugal life, a fresh cause of action has also arose when the petitioners treated the complainant with cruelty in connection with demand of dowry. Hence, it is submitted that there is no justifiable reason to quash the order dated 02.09.2022 passed by the learned Chief Judicial Magistrate I/C, Seriakella, in G.R. No. 537 of 2022 arising out of Seraikella P.S. Case No. 108 of 2021. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.
10. Having heard the submissions made at the Bar and after going through the materials in the record, the undisputed fact remains that there is direct and specific allegation against the petitioners of having treated the informant with cruelty in connection with demand of dowry after compromise of the first case and there was resumption of conjugal life between the parties. Under the facts of that case as consequent upon compromise between the parties, there was a resumption of conjugal life; so the petitioners were expected not to repeat their old habit of treating the informant with cruelty but they did not reform themselves; and have again perpetrated fresh round of cruelty upon the complainant after a period of two years. Thus certainly, it cannot be said that the fact and cause of action involved in the FIR of Seraikella P.S. Case No. 108 of 2021 is in respect of the same occurrence for which Seriakella P.S. Case No. 16 of 2019 was instituted. Hence, this Court is of the considered view that there is no justifiable reason to quash the order taking cognizance which has been taken by the 6 Cr.M.P. No.3739 of 2023 learned Magistrate on the basis of the police report submitted after due investigation of the case; after finding sufficient material to establish the charges against the petitioners during the investigation of the case.
11. The fact of this case is entirely different from the facts of Hrishikesh Tiwary & Ors. vs. The State of Jharkhand (supra), Babubhai vs. State of Gujrat & Ors. (supra), Umesh Kumar & Ors. vs. The State of Jharkhand & Anr. (supra) and Subhra Kanti Das & Ors. vs. The State of Jharkhand & Anr. (supra) as this case was not in continuation of the treatment of cruelty of the victim rather there was a break in the same allegation, and a fresh round of cruelty was perpetrated upon the complainant upon the resumption of conjugal life by the petitioners and the opposite party no.2. Hence, in the considered opinion of this Court the ratio of the said judgments is not applicable in the facts of the case and the facts involved in this case are separate and distinct from the facts involved in those cases; as there is ample material in the record to suggest that the petitioners have committed the offences for which charge sheet has been submitted against them. Hence, this Court is of the considered view that there is no merit in this criminal miscellaneous petition.
12. Accordingly, this criminal miscellaneous petition being without any merit is dismissed.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 21st February, 2024 AFR/Sonu-Gunjan/-