Jharkhand High Court
Dr.Dhirendra Narayan @ Dhirendra ... vs State Of Jharkhand on 3 August, 2012
Author: D.N.Upadhyay
Bench: D.N.Upadhyay
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr.M.P.No. 734 of 2009
Dr. Dhirendra Narayan @ Dhirendra Narain @ Dhirendra
Prasad. ... ... ... ...Petitioner
Versus
1. The State of Jharkhand.
2. Yugeshwar Prasad. ... ... ...Opp. Parties
CORAM: THE HON'BLE MR. JUSTICE D.N.UPADHYAY.
For the Petitioner: Mr. Sumeet Gadodia, Advocate.
For the State: A.P.P.
For the O.P.No.2: Mr. Ashok Kumar Sinha, Advocate.
07/ 03.08.2012This Cr. Misc. Petition has been filed for quashing of the order dated 19.03.2009 passed by Shri Shambhu Law Saw, Judicial Magistrate, 1st Class at Dhanbad in connection with Complaint Case No.1285 of 2008 whereby the learned Magistrate has directed the petitioner to face trial for the offences punishable under Sections 498(A)/304 (B)/34 of the Indian Penal Code and also under Section ¾ of the Dowry Prohibition Act.
2. The fact emerging behind the filing of this Cr.M.P. is that the respondent No.2 lodged a written report at Sadar Police Station, Dhanbad on 04.07.2006 alleging therein that his daughter Anjani Kumari Sinha was married with Suryadhar on 21.05.2005. The daughter of the informant was not happy with her conjugal life and she was subjected to torture and treated with cruelty for want of dowry and lastly she died in her parent's house on 30.06.2006. The informant and his family members have levelled allegation that the death of Anjani Kumari Sinha was not natural rather she died otherwise than under normal circumstances due to some medicines and maltreatment provided to her at her matrimonial home. After registration of the case, the investigation proceeded ahead and after completion, chargesheet against accused persons, namely, Jairani Devi, Dhirendra Narayan @ Dhirendra Kumar and Suryadhar was filed on 04.07.2006. The name of the present petitioner was mentioned in the not sent up column and therefore, the learned C.J.M. took cognizance and directed the chargesheeted accused persons to appear and face trial. At the same time, a protest petition was also filed by the complainant stating therein that the present petitioner, who is a Doctor, was suggested some medicines, as a result some disease developed and that was the reason Anjani Kumari Sinha died.
3. After hearing the parties, learned C.J.M. passed an order on 17.06.2008 observing therein that cognizance has been taken against the chargesheeted accused and therefore, a separate complaint may be filed, if the informant so chooses and with this observation, the protest petition was rejected. Thereafter, the respondent No.2 filed separate complaint vide C.P. Case No. 1285/2008 in the court of learned C.J.M., which was transferred to the Court of Judicial Magistrate for holding enquiry, as required under Section 202 of the Cr.P.C. Accordingly, the learned Judicial Magistrate held enquiry and after considering the materials available before him, passed order on 24.9.2008 mentioning therein that the complainant shall be at liberty to file a petition under Section 319 of the Cr.P.C. before the court where the original case of other accused is pending and accordingly, 2. the complaint case was dismissed.
4. Thereafter, the complainant preferred Criminal Revision No.302/2008 before the learned Sessions Judge against the order dated 24.9.2008 passed in C.P. Case No. 1285/2008. After hearing the parties, learned Additional Sessions Judge, F.T.C.VI, Dhanbad has passed an order on 7.2.2009 by which the revision was allowed and the learned Magistrate was directed to consider the material available before him afresh and pass order in accordance with law. In receipt of the said order passed in said Criminal Revision, the learned Judicial Magistrate took cognizance on 19.03.2009 and directed the petitioner to face trial and hence this petition.
5. It is submitted that the impugned order dated 19.03.2009 has been passed without applying judicial mind only following the direction given to him by the learned Additional Sessions Judge, F.T.C.VI in Criminal Revision No.302/2008 which is also reflected in the order. It is further contended that filing of separate complaint on the same facts on which Dhanbad (Sadar) P.S. Case No.443/2006 was registered was unwarranted and illegal. The learned Judicial Magistrate has rightly dismissed C.P. Case No. 1285/2008 observing therein that no separate complaint on the same fact is maintainable and the complainant can avail remedy under Section 319 of the Cr.P.C. to array the present petitioner as an accused in the original case.
6. Learned Counsel for the petitioner relied upon the judgment reported in (2010) 12 Supreme Court Cases 254, 'Babubhai Vrs. State of Gujarat and Others' and reported in (2001) 6 Supreme Court Cases 181, T.T. Antony Vrs. State of Kerala and Others.
7. On the other hand, learned Counsel for the respondents has vehemently opposed the prayer and submitted that the petitioner is the main person behind the death of Anjani Kumari Sinha. The petitioner is a Doctor and under his instruction some drugs were administered to the deceased while she was at her matrimonial home and due to that she developed some diseases, as a result she died. He is the person, who took advantage of his status of a Doctor and made the complainant convinced not to get the postmortem done on the dead body.
8. It is further contended that the complainant was misled by the order dated 17.06.2008 passed by the learned C.J.M. by which the protest petition filed by the petitioner was rejected. As a matter of fact, as soon as the protest petition was filed, the learned C.J.M. ought to have postponed the issue of taking cognizance on the chargesheet rather he was supposed to hear the complainant and other side on the point of protest petition along with the case diary and then appropriate order should have been passed. Since the respondent was practically instructed by the learned C.J.M. to file separate complaint, he had left no option but to file complaint, which he did. Whatever legal complications might be there but justice is to be imparted and that the petitioner is liable to be prosecuted on the allegation levelled by the complainant either in the protest petition or in the complaint petition or in the F.I.R.
9. Having heard both sides and after perusing the record and documents specially
3.` pointed out, I do agree with the submissions made by the learned Counsel for the respondents that as soon as chargesheet was filed against three accused and name of 4th accused was mentioned in the not sent up column and protest petition was filed by the informant, the learned C.J.M. should not have taken cognizance on the basis of the material available in the case diary rather he should have passed order after hearing both sides considering the materials made available with the protest petition as well as collected in the case diary by the I.O. The order dated 17.06.2008 passed by the learned C.J.M. has certainly misled the procedure, as a result this Cr.M.P. has come before this Court. Be that as it may, the order dated 24.9.2008 passed by the learned Judicial Magistrate by which C.P. Case No. 1285/2008 was dismissed is correct and he has rightly held that only original case was liable to be continued. If the complainant has any grievance against the accused, who was not set up for trial, the evidence is required to be produced before the court concerned and if the evidence so adduced shall be found sufficient to array the accused, who was not sent up for trial, he may be added as an accused under Section 319 of the Cr.P.C. It also transpires that the learned Additional Sessions Judge, F.T.C.VI, Dhanbad has also wrongly considered the requirement of law and the facts and circumstances placed before him and the order passed in Criminal Revision No.302/2008 was not proper. At this juncture, I feel it desirable to reproduce the order dated 19.03.2009 passed by the learned Judicial Magistrate, Dhanbad in C.P. Case No.1285/2008, which is as follows: " Complainant files hazri through lawyer.
Having heard, perused, considered.
In view of material available on the record and order passed by the Revisional Court in Cr. Rev. No.302/2008, I find sufficient material to proceed against the sole accused u/s 498A/304B/34 I.P.C. and ¾ D.P. Act.
Issue summon accordingly.
Complainant to file requisite by next date.
Put up on 05.05.09 for filing requisite.
Sd/ Illegible"
10. On bare perusal of the order, it is evident that no material on record was considered rather he had followed the direction given to him in Criminal Revision No.302/2008. In view of the discussions made above, the impugned order dated 19.03.2009 passed in Complaint Case No.1285/ of 2008 and further proceeding in that very case stands quashed. However, the complainant/respondent can avail remedy available to him under Section 319 Cr.P.C. in the original case in which other three accused have been chargesheeted and are facing trial.
[D.N.Upadhyay,J.] P.K.S.