Partly allowed

Krishna Kumar Alias Krishna Ram v. the State of Jharkhand

Jharkhand HC7 Apr 2022Cr.M.P./105/2019

Case brief

AI extract

What is this about?

The High Court set aside an order where a Magistrate took cognizance under Section 190(1)(b) Cr.P.C. after police chargesheet submission without accepting or differing from it and without assigning reasons, remanding the matter for a fresh order. The court relied on Mohammad Yusuf and Nupur Talwar precedents.

What did the court decide?

The order dated 05.10.2018 taking cognizance is set aside and the matter remitted to the concerned court to pass a fresh order.

Krishna Kumar Alias Krishna Ram Vs the State of… — Criminal Trial and Appeal | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 105 of 2019

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Krishna Kumar @ Krishna Ram

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Puna Kumar @ Puna Ram

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Pratima Kumari @ Pratima Devi

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Pooja Kumari @ Puja Kumari 5. Bachchan Dom @ Bachan Ram ..... … Petitioners Versus

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The State of Jharkhand. 2. Dipendra Kumar ..... … Opposite Parties --------

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CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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-----For the Petitioners : Mr. Sunil Singh, Advocate. : Mr. G.K. Jha, Advocate. For the State : Mr. Suraj Verma, Spl.P.P. For the O.P. No. 2 : Mr. Mukesh Kumar, Advocate. ------

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07/ 07.04.2022 Heard Mr. Sunil Singh, learned counsel appearing for the petitioners, Mr. Suraj Verma, learned Spl.P.P. for the State and Mr. Mukesh Kumar, learned counsel appearing for the O.P. No. 2.

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This criminal miscellaneous petition has been filed for quashing of the order dated 05.10.2018, passed by the learned Judicial Magistrate, 1^st Class, Rajmahal, in connection with Barharwa P.S. Case No. 107 of 2016 corresponding to G.R. No. 539 of 2016, whereby cognizance has been taken against the petitioner under Sections 147, 323, 380, 387, 452 and 506 of the Indian Penal Code, pending in the court of learned Judicial Magistrate, 1^st Class, Rajmahal.

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Complaint Case No- 957/2016 was filed before learned A.C.J.M. Rajmahal on 05.10.2016 by informant / complainant namely Dipendra Kumar against the petitioners stating therein that, marriage between the complainant and accused no-5 (Petitioner No-3 herein) was solemnized on 26.04.2014 under Hindu rituals. It is alleged that, after living some time in her Sasural, the accused no-5 used to making pressure on the complainant to bring her to Barharwa, the working place of the complainant and then came to quarter of the complainant at Barharwa, at that time complainant was posted at State Bank of India, Barharwa Branch. It is further alleged that, on 14.06.2015 accused no-5 (Petitioner No-3 herein) compelled the complainant to bring her at her Mayka at Bokaro and during this traveling she abused him and from that time she is living in her Mayka and often used to threaten him. After that the complainant made applications to Human Right, New Delhi, Woman Commission, DIG and SP Bokaro.

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It is further alleged that, on 20.01.2016 the accused no-5

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(Petitioner No-3 herein) has filed a Complaint Case No- 61/ 2016 before CJM, Bokaro, u/s 498(A), 307,406,323/34 IPC and u/s- 3/4 Dowry Prohibition Act. On 18.06.2016 all accused persons has called for mediation at Woman P.S. Bokaro, but the accused no-5 (Petitioner No-3 herein) had refused to withdraw her complaint case. Then the complainant has filed a Matrimonial Suit No-98 / 16 on 13.07.2016 u/s 9 of the Hindu Marriage Act at Sahibganj Court. After that, the complainant has received one Notice of the Complaint Case No-542 / 16 under Domestic Violence Act.

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It is further alleged that, on 28.09.2016 accused no- 5 (Petitioner No-3 herein), 1 & 2 (Petitioner No-6 herein), along with three more persons, have appeared before Principal Judge, Family Court, Sahibganj and prayed for transfer the Matrimonial case but after refusal by the court they returned.

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It is further alleged that, on 02.10.2016 at 6 PM they arrived at quarter of the complainant and made quarrel, unknown person has taken complainant's signature on four plane papers on the point of revolver and demanded five lakh rupees as Rangdari, and other named accused slapped the complainant and taken Rs. 15,000/- from his briefcase. At that time complainant’s brother came there, the accused persons slapped him also. It is further said that when other witness arrived there, the accused persons fled away by an unnumbered Scorpio. In the complaint the complainant has prayed for taking cognizance u/s 147, 149, 387, 323, 452, 504 and 506 IPC.

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Learned counsel appearing for the petitioners submits that the complaint was sent under Section 156(3) Cr.P.C. to the police for investigation. He submits that after investigation, police has submitted the chargesheet, whereby, the accused persons have not sent up for trial. He further submits that the learned Magistrate without differing with the chargesheet, straightway has taken the cognizance on the protest petition, which is not in accordance with law. He relied in the case of Mohammad Yusuf Vrs. State of Uttar Pradesh & Anr., reported in (2008) Cril.L.J 493 , wherein the Hon’ble Allahabad High Court in para-11 held as follows:-

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“11. Where the Magistrate decides to take cognizance under Section 190(1)(b) ignoring the conclusions reached at by the Investigating Officer and applying his mind independently, he can act only upon the statements of the witnesses recorded by the police in

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the case-diary and material collected during investigation. It is not permissible at that stage to consider any material other than that collected by the investigation Officer. In the instant case the cognizance was taken on the basis of the protest petition and accompanying affidavits. The Magistrate should have adopted the procedure of complaint case under Chapter XV of the Code of Criminal Procedure and recorded the statements of the complainant and the witnesses who had filed affidavits under Sections 200 and 202 Cr.P.C. The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated.”

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Per contra, Mr. Mukesh Kumar, learned counsel appearing for the O.P. No. 2 submits that there is no illegality in the impugned order and all the procedure has been followed by the learned Magistrate in passing the order, as such this Court may not interfere in the matter.

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On perusal of the impugned order dated 05.10.2018, it transpires that the learned Magistrate has not applied its mind so far as the chargesheet submitted by the police is concerned. It is incumbent upon the learned Magistrate either to accept the chargesheet or to differ with the same and thereafter only cognizance has to be taken, however, the same is lacking in the case in hand.

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On the aforesaid ground, reference may be made to the case of Nupur Talwar Vrs. Central Bureau of Investigation & Anr., reported in (2012) 11 SCC 465 , wherein the Hon’ble Supreme Court in para-19 has held as follows:-

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“ 19. Since the CBI wanted the matter to be closed, it was appropriate though not imperative for the Magistrate to record reasons, for differing with the prayer made in the closure report. After all, the CBI would have surely wished to know, how it went wrong. But then, there are two other important factors in this case, which further necessitated the recording of reasons. Firstly, the complainant himself (Dr. Rajesh Talwar, who authored the first information report dated 16.5.2008) was being summoned as an accused. Such an action suggests, that the complainant was really the accused. The action taken by the Magistrate, actually reversed the position of the adversaries. The party which was

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originally pointing the finger, is now sought to be pointed at. Certainly, the complainant would want to know why.”

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In the case in hand the learned Court has not differed with the chargesheet and taken the cognizance. In the cognizance order, no reason has been assigned as to why the cognizance has been taken against the petitioner, moreover this has been done without giving any opinion on the chargesheet and only after submission of the chargesheet, upon the protest petition, cognizance has been taken.

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In view of the above fact, the order dated 05.10.2018, passed by the learned Judicial Magistrate, 1^st Class, Rajmahal, in connection with Barharwa P.S. Case No. 107 of 2016 corresponding to G.R. No. 539 of 2016, whereby cognizance has been taken against the petitioner under Sections 147, 323, 380, 387, 452 and 506 of the Indian Penal Code, pending in the court of learned Judicial Magistrate, 1^st Class, Rajmahal, is hereby, set aside. The matter is remitted back to the concerned court to pass a fresh order in accordance with law.

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Accordingly, this criminal miscellaneous petition is disposed of.

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(Sanjay Kumar Dwivedi, J.)

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Amitesh/-

Krishna Kumar Alias Krishna Ram v. the State of Jharkhand

Case brief

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Krishna Kumar Alias Krishna Ram v. the State of Jharkhand

Case brief

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What did the court decide?

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