Patna High Court - Orders
Smt. Nilu Kumari vs The State Of Bihar on 30 August, 2013
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Revision No.436 of 2011
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SMT. NILU KUMARI, WIFE OF RANJIT THAKUR AND DAUGHTER
OF PROF. DALJIT NARAIN TIWARI, RESIDENT OF VILLAGE-
BARHARWA KALA, POLICE STATION-KOTWA, DISTRICT-EAST
CHAMPARAN (MOTIHARI), MATRIMONIAL HOME AT HOUSE
NO.357-358, „J‟ BLOCK, NEW GENERATION APARTMENT,
DAKOLI, JIRAKPUR, MOHALI, POLICE STATION-MOHALI,
DISTRICT-MOHALI, STATE OF PUNJAB.
.... .... PETITIONER/S
VERSUS
1. THE STATE OF BIHAR.
2. RANJIT THAKUR, S/O OF BHAGWAT THAKUR.
3. BHAGWAT THAKUR, S/O LATE AMAR THAKUR.
4. BIBHA THAKUR, W/O BHAGWAT THAKUR.
5. SANJIV THAKUR, S/O BHAGWAT THAKUR.
6. BACHCHA THAKUR, S/O LATE AMAR THAKUR.
ALL RESIDENT OF VILLAGE-MAHANAWA, POLICE STATION-
MANJHAULIA, DISTRICT-WEST CHAMPARAN, OPPOSITE PARTY
NOS.2 TO 5 HOUSE NO.357-358, „J‟ BLOCK, NEW GENERATION
APARTMENT, DAKOLI, JIRAKPUR, MOHALI, POLICE STATION-
MOHALI, DISTRICT-MOHALI (PUNJAB).
.... .... OPPOSITE PARTIES.
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Appearance:
For the Petitioner/s : Mr. Rama Kant Prasad Singh, Adv.
For the Opp. Party Nos. 2 to 5 : Mr. Binod Kumar Singh, Adv.
Mr. Sumeet Kumar Singh, Adv.
Mr. Satyendra Prasad Singh, Adv.
For the State : Mr. Pronoti Singh, A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
C.A.V. ORDER
8. 30-08-2013Petitioner / complainant has a grievance against the order dated 04.03.2011 passed by Sri B. Shukla, Judicial Magistrate, 1st Class, East Champaran at Motihari whereby and whereunder though he had summoned the Opposite Party Nos.2 to 6 to face trial for an offence punishable under Section 498(A), 406, 504 of the Indian Penal Code but failed to acknowledge Section 3-4 of the Dowry Prohibition Act.
2.Petitioner /complainant had filed Complaint Case No.1441 of 2010 before the learned Chief Judicial Magistrate, East Champaran at Motihari which was sent to local police for registration and investigation of the case, on the basis of which Kotwa P.S. Case No. 106 of 2010 was registered. After completing investigation the police had submitted final form which was accepted by the learned Chief Judicial Magistrate simultaneously directed the protest petition, pending since before to be treated as complaint petition and on account thereof, Complaint Case No.374 of 2011 was registered and the same was transferred to the court of Sri B. Shukla, Judicial Magistrate, 1 st Class in terms of Section 192 of the Cr.P.C. wherein the complainant was examined on S.A., witnesses were examined and taking into account the materials collected during course of an inquiry under Section 202 of the Cr.P.C., the learned Magistrate took cognizance for an offence punishable under Section 498, 406, 504 of the Indian Penal Code and summoned the accused to face trial therefor in terms of Section 204 of the Cr.P.C.
The only grievance whatever petitioner has that from the evidence so adduced during course of inquiry under Section 202 of the Cr.P.C. coupled with S.A. as well as 3. averments of the complaint petition, it is apparent that Section 3, 4 of the Dowry Prohibition Act is also made out and to that extent the order of the learned lower court is bad and requires interference under revisional jurisdiction for directing further inquiry in terms of Section 398 of the Cr.P.C.
On the other hand, the learned lawyer for the Opposite Party Nos. 2 to 6 has submitted that the material in its entirety is to be adjudged. It cannot be segmentized and adjudicated upon during course of revisional jurisdiction. So the prayer made on behalf of petitioner happens to be non-tenable in the eye of law.
The learned Additional Public Prosecutor also carries same view.
A complaint petition is entertainable by the court in accordance with Section 200 of the Cr.P.C. whereupon the court has got many options. The first one happens to be taking of cognizance in terms of Section 190(a) of the Cr.P.C., or to direct the complaint petition to register an investigation in terms of Section 156(3) of the Cr.P.C. and the last one to conduct an inquiry in terms of Section 202 of the Cr.P.C. and for that either the learned Chief Judicial Magistrate may on his own or in terms of Section 192 of the Cr.P.C. transfer it to the court of Magistrate. 4. During course of proceeding with the complaint in terms of Section 202 of the Cr.P.C. a preliminary enquiry is conducted with a view to see whether there is sufficient ground to proceed with the matter. The purpose for holding an inquiry under Section 202 Cr.P.C. is to find out a prima facie case for proceeding in the matter and nothing more. In case, there happens to be finding of the learned Magistrate that an offence is made out to be punishable under particular provision of law, he will endorse the same and then will see who are the real culprit for commission of that offence who could be summoned in terms of Section 204 of the Cr.P.C. since Raghubansh Dubey case, the exclusive power of the Magistrate to find out prima facie case has been acknowledged.
In Jagdish Ram v. State of Rajasthan, reported in (2004) 4 SCC 432 the Hon‟ble Court held as under:
"10. The contention urged is that though the trial court was directed to consider the entire material on record including the final report before deciding whether the process should be issued against the appellant or not, yet the entire material was not considered. From perusal of order passed by the Magistrate it cannot be said that the entire material was not taken into consideration. The order passed by the Magistrate taking cognizance is a well-written order. The order not only refers to the statements recorded by the police during investigation which led to the filing of final report by the police and the statements of witnesses recorded by the Magistrate under Sections 200 and 202 of the Code but also sets out with clarity the principles required to be kept in mind at the stage of taking cognizance and reaching a prima facie view. At this stage, the Magistrate had only to decide whether sufficient ground exists or not for further proceeding in the matter. It is well settled that notwithstanding the opinion of 5. the police, a Magistrate is empowered to take cognizance if the material on record makes out a case for the said purpose. The investigation is the exclusive domain of the police. The taking of cognizance of the offence is an area exclusively within the domain of a Magistrate. At this stage, the Magistrate has to be satisfied whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. (Dy. Chief Controller of Imports & Exports v. Roshanlal Agarwal (2003) 4 SCC 139)"
As stated above, while exercise of power under Section 202 of the Cr.P.C. it is upon the Magistrate to see within its realm whether a prima facie case is made out or not and if so, whether it happens to be punishable under what provisions of law and only to that extent. That means to say the consideration of the material by the learned Magistrate at the stage of 202 of the Cr.P.C. lies within exclusive domain and any defect, if so persisting, comes within the score of irregular proceeding falling under category prescribed under Section 465 of the Cr.P.C. Apart from this, if the order impugned is gone through it is apparent that non-summoning of the opposite party for an offence punishable under Section 3,4 of the Dowry Prohibition Act is not going to prejudice the interest of the complainant because of the fact that same is found curable at the stage of 245, 246 of the Cr.P.C. which the learned lower court will exercise in the background of the evidence going to be adduced before charge in 6. accordance with Section 244 of the Cr.P.C. Therefore, the petitioner has got an opportunity to raise the plea by having such kind of evidence adduced on her side and if so made, the learned lower court happens to be under obligation to consider to the same at the time of framing of charge in terms of Section 246 of the Cr.P.C.
Now coming to the scope of revisional jurisdiction, in Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi & Ors reported in (1976) 3 SCC 736, it has been held:
".....that whether the reasons given by the Magistrate issuing process under Section 202 or 204 Cr.P.C. were good or bad, sufficient or insufficient, cannot be examined by the High Court in the revision. All that the High Court, however, could do while exercising its power of revision under Section 397 Cr.P.c. when the order issuing process under Section 204 Cr.P.C. was under challenge was to examine whether there were materials before the Magistrate to take a view that there was sufficient ground for proceeding against the persons to whom the processes have been issued under Section 204 Cr.P.C. ....."
With the aforesaid observation as stated above, instant petition is disposed of.
(Aditya Kumar Trivedi, J.) PATNA HIGH COURT DATED, THE 30th day of August, 2013 PRAKASH NARAYAN/ A.F.R.