Dismissed

Bhadur Dubey v. the State of Jharkhand

Jharkhand HC16 Mar 2023Cr.M.P./61/2022

Case brief

AI extract

What is this about?

High Court of Jharkhand dismissed a criminal miscellaneous petition challenging an order committing a case to the Sessions Court. The Court held that the Magistrate did not take illegal cognizance but committed the case based on available material following a prior Supreme Court observation.

What did the court decide?

The Criminal Miscellaneous Petition was dismissed and the interim order stood vacated.

Bhadur Dubey Vs the State of Jharkhand — Constitutional and Fundamental Rights | Jharkhand HC (2023)

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1 Cr.M.P. No. 61 of 2022

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr.M.P. No. 61 of 2022

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Bhadur Dubey, S/o Uttam Kumar Dubey, aged about 37 years, R/o village- Bagdaha, P.O. and P.S.- Palajori, District- Deoghar

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…... Petitioner

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Versus

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State of Jharkhand

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Sarita Devi, w/o Rajendra Tiwari, R/o Bilotand, P.S. and P.O.- Deori, District- Giridih ….. Opposite Parties

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For the Petitioner : Ms. Smita Sinha, Adv. For the State : Mr. Ravi Prakash, Spl.PP For the Opposite Party no. 2 : Mr. Bhola Nath Ojha, Adv.

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P R E S E N T

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HON’BLE MR. JUSTICE ANIL KUMAR CHOUDHARY

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By the Court:- Heard the parties.

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This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this court under Section 482 of Code of Criminal Procedure, 1973 with a prayer for quashing the order taking cognizance dated 16.09.2021 passed by Judicial Magistrate, First Class, Madhupur in Palajori P.S. case no. 60 of 2013 corresponding to G.R. no. 406 of 2013 registered under Section 304B, 201, 34 of the Indian Penal Code.

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The allegation against the petitioner is that the petitioner has committed offence punishable under Section 304B of Indian Penal Code.

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It is submitted by learned counsel for the petitioner that the police after investigation of the case, has submitted final report on 15.12.2013 by not sending up the petitioner for trial, who was named in the FIR, as they were found not guilty after the investigation. It is further submitted that the learned Magistrate,

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Cr.M.P. No. 61 of 2022

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differing with the final report, submitted by the police under Section 173 Cr.P.C, took cognizance for the offence punishable under Section 304B IPC, interalia , against the petitioner vide order dated 31.07.2014 in Palajori P.S. case no. 60 of 2013 corresponding to G.R. no. 406 of 2013 and the said order was challenged before this court in Cr.M.P. No. 2565 of 2014 and vide order dated 30.06.2016, a co-ordinate Bench of this court by relying upon the judgment of another co-ordinate Bench of this court, in the case of Bhola Rana and Others vs. State of Jharkhand in Cr.M.P. No. 457 of 2009, the relevant portion of which, reads as under “

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“Thus the position which has emerged out is that if a case is registered for the offence/offences triable by the court of session against two or more accused persons and the charge sheet is submitted against some of them and rest are not sent up for trial, then the Magistrate does have power to take cognizance of the offence only against the person charge sheeted. However, the court is further required to find out whether materials are there or not against the persons not sent up for trial to be taken by the sessions court. If the court does find prima facie material to proceed with the trial, he needs to commit the case to the court of sessions. Similarly, if the charge sheet is submitted against some of the accused persons and the matter is kept open for further investigation against some of the accused persons and the matter is kept open for further investigation against some of the accused persons and the court take cognizance of the offence against the persons charge sheeted, he needs to commit the case to the court of sessions in terms of the provision as contained in Section 209 of the Code of Criminal Procedure.

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Subsequently, if the charge sheet is submitted against other accused who had not been charge sheeted earlier, some recourse is to be adopted by the court i.e., to find out as to whether there has been material against that person to proceed with the trial and if the Magistrate is satisfied that the materials are there, he simply needs to commit the case to the court of sessions and thereby it is for the sessions court to take cognizance of the offence in terms of the provision as contained in Section 193 of the Code of Criminal Procedure.”

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Cr.M.P. No. 61 of 2022

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set aside the order dated 31.07.2014 by which cognizance was taken for the offence punishable under Section 304B of Indian Penal Code in Palajori P.S. case no. 60 of 2013 corresponding to G.R. no. 406 of 2013 and the matter was remanded back to learned Magistrate to proceed further in accordance with law.

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After the remand, learned Magistrate passed the impugned order in which, learned Magistrate after mentioning the said order passed by the co-ordinate Bench of this court, in Cr.M.P. No. 2565 of 2014 dated 30.06.2016 and after going through the case diary, was satisfied that there is sufficient material to proceed interalia against the petitioner, for having committed the offence punishable under Section 304B IPC and passed the order for committing the record to the court of Sessions. It is next submitted by learned counsel for the petitioner that the informant, before submission of final report, has filed a pre-mature protest-cumcomplaint petition dated 05.10.2013. It is next submitted by learned counsel for the petitioner that the order taking cognizance dated 16.09.2021 passed by the learned Magistrate is illegal, hence, the same be quashed.

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Mr. Ravi Prakash, learned Special PP and learned counsel for the opposite party no. 2, on the other hand, vehemently opposes the prayer of the petitioner. Learned counsel for the opposite party no. 2 submits that the petitioner has made false averment in this criminal miscellaneous petition that learned Magistrate treated the complaint dated 05.10.2013 as a protest petition and acted upon that, though in fact, learned Magistrate, in his earlier order, which has been quashed dated 31.07.2014, took cognizance differing with the report submitted by the police basing upon the materials available in the record. Learned Special P.P. also submits that the petitioner is misleading the Court as in the order dated 16.09.2021, nowhere the word ‘cognizance’ has been mentioned nor the learned Magistrate has taken cognizance for any of the offence in the said impugned order dated 16.09.2021 and learned Magistrate, after remand of the matter by this court in terms of the order dated 30.06.2016 passed in Cr.M.P. No. 2565 of

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Cr.M.P. No. 61 of 2022

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2014, has committed the record to the court of Sessions , in terms of Section 209 of the Cr.P.C., hence, it is submitted that there being no illegality in the impugned order dated 16.09.2021, this petition being without any merit be dismissed.

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Having heard the submissions made at the Bar and after going through the materials available in the record, it is apparent that the entire order of Bhola Rana and Others vs. State of Jharkhand passed by the Co-ordinate Bench in Cr.M.P. No. 457 of 2009, has not been placed before this court but it is apparent that the observation has been made in the said order on the principle that the cognizance of the offence is taken and not of the offender.

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After carefully going through the impugned order dated 16.09.2021, this court finds that nowhere in the said order, the learned Magistrate has mentioned the word ‘cognizance’ rather the learned Magistrate, has acted in terms of the observations made by the co-ordinate Bench of this Court in the case of Bhola Rana and Others vs. State of Jharkhand (supra) after being satisfied that the materials are there to proceed interalia , against the petitioner for the offence punishable under Section 304B of I.P.C. and had committed the case to the court of Sessions.

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Under such circumstances, this court finds that since no order of cognizance has been passed by the learned Magistrate in the impugned order dated 16.09.2021, hence, there is no merit in this appeal and the order passed by learned Magistrate is in accordance with law and the observation made by this court in the case of Bhola Rana and Others vs. State of Jharkhand (supra), accordingly, this Court finds that there is absolutely no merit in this case and the same is dismissed.

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This Criminal Miscellaneous Petition is disposed of accordingly and consequently, the interim order passed earlier, stands vacated.

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(Anil Kumar Choudhary, J.)

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High Court of Jharkhand, Ranchi Dated, the 16^th March, 2023 Smita /AFR

Bhadur Dubey v. the State of Jharkhand

Case brief

What is this about?

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Bhadur Dubey v. the State of Jharkhand

Case brief

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