Smritee Ojha Alias Smriti Ojha Alias Smritee Alias Smrite Vs the State of Jharkhand through the Director General of Police

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P. (Cr.) No.623 of 2024

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Smritee Ojha @ Smriti Ojha @ Smritee @ Smrite, aged about 34 years, D/o Shivanand Ojha, R/o 2-B, Hashimpur Road, Balson (Walson), Choraha, P.O. & P.S. Allahabad, District Allahabad (now Prayagraj), Uttar Pradesh, 211002.

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Sudha Ojha, aged about 59 years, W/o Shivanand Ojha, 2-B, Hashimpur Road, Balson (Walson), Choraha, P.O. & P.S. Allahabad, District Allahabad (now Prayagraj), Uttar Pradesh, 211002.

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Shruti Ojha, aged about 36 years, W/o Atul Kumar Pandey, 2-B, Hashimpur Road, Balson (Walson), Choraha, P.O. & P.S. Allahabad, District Allahabad (now Prayagraj), Uttar Pradesh, 211002.

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Shiva Nand Ojha, aged about 71 years, S/o Late Ram Awadh Ojha, 2-B, Hashimpur Road, Balson (Walson), Choraha, P.O. & P.S. Allahabad, District Allahabad (now Prayagraj), Uttar Pradesh, 211002.

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… Petitioners

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Versus

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The State of Jharkhand through The Director General of Police, officiating from his office at Project Bhawan, P.O and P.S Dhurva, District-Ranchi.

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The Station Incharge, Argora officiating from his office at Argora Police Station, P.O and P.S Argora, District-Ranchi.

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Kumar Avinash, son of Arun Kumar Jha, resident of JF- 8/9, Harmu Housing Colony, P.O. & P.S. Argora, District Ranchi

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… Respondents

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For the Petitioners : Mr. Prashant Pallav, Advocate Mr. Parth Jalan, Advocate For the State : Mr. Ashutosh Anand, AAG III Mr. Binit Chandra, AC to AAG III For the Resp. No.3 : Mr. Anil Kumar Sinha, Advocate ------ P R E S E N T

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W.P. (Cr.) No.623 of 2024

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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 Writ Petition (Cr.) under Article 226 of the Constitution of India has been filed with a prayer for issuance of an appropriate writ (s)/order (s)/direction (s) for quashing the order taking cognizance in Complaint Case No.3614 of 2018 arising out of Argora P.S. Case No.52 of 2017 along with the entire criminal proceeding of the said case which is now pending before the learned Sub-Divisional Judicial Magistrate, Ranchi.

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The brief facts of the case is that the complainant/respondent No.3 of this Writ Petition (Cr.) filed Complaint Case No.3614 of 2018 arrayed five persons as accused in the said case. The learned S.D.J.M., Ranchi found sufficient grounds only for the offence punishable under Sections 506 of the Indian Penal Code against only one accused being the petitioner No.1 of this Writ Petition (Cr.). Being dissatisfied with the said order, the complainant filed Criminal Revision No.625 of 2019 in the court of Judicial Commissioner, Ranchi and the same was ultimately heard by the Additional Judicial CommissionerXV-cum-F.T.C (C.A.W), Ranchi. The learned Additional Judicial Commissioner-XV-cum-F.T.C (C.A.W), Ranchi set aside the order dated 11.09.2019 passed by the learned S.D.J.M., Ranchi and directed the learned S.D.J.M., Ranchi to pass a fresh order in accordance with law after giving full opportunity to both the parties for placing their submission and remanded the case back to the court concerned. The petitioner Nos.1 to 4 along with the coaccused persons challenged the said order of the learned Additional Judicial Commissioner-XV-cum-F.T.C (C.A.W), Ranchi in Cr.M.P. No.1397 of 2022.

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W.P. (Cr.) No.623 of 2024

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Vide order dated 20.07.2023, this Court finding no merit in the said Cr.M.P. No.1397 of 2022, dismissed the same.

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It is pertinent to mention here that on the basis of the written-report submitted by the complainant/respondent No.3, police registered Argora P.S. Case No.52 of 2017 but after investigation of the case, submitted Final Report for lack of evidence. After the Final Report was received by the learned S.D.J.M, Ranchi, the learned S.D.J.M, Ranchi issued notice to the informant/complainant/respondent No.3 and the complainant/respondent No.3 filed Protest-cum-Complaint Case No.3614 of 2018 and after dismissal of the said Cr.M.P. No.1397 of 2022, the learned S.D.J.M, Ranchi has passed the order dated 18.06.2024 by which it found prima facie case for the offences punishable under Sections 323, 385, 504, 506, 34 of the Indian Penal Code against all four accused persons.

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Learned counsel for the petitioners relies upon two judgments of a coordinate Bench of this Court in the case of Ganga Sagar Pathak & Others vs. The State of Jharkhand & Others reported in MANU/JH/0927/2021 and in the case of Syed Sadru Zama & Others vs. State of Jharkhand & Others reported in MANU/JH/0978/2021 wherein in the facts of those cases, where the learned Magistrate differed with the Final Report submitted by the police and took cognizance of the offence, the co-ordinate Bench has observed that as has been observed by the Hon’ble Supreme Court of India in the case of Nupur Talwar vs. Central Bureau of Investigation & Another reported in (2012) 11 SCC 465 wherein the Hon’ble Supreme Court of India appreciated the acts of the Magistrate in assigning the reasons for differing with the police report and submits that in this case the learned S.D.J.M., Ranchi has differed from the

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W.P. (Cr.) No.623 of 2024

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police report and has not assigned any reason for the same. Hence, it is submitted that the said order dated 18.06.2024 is not sustainable in law.

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It is next submitted that the allegations against the petitioners are all false and the case of the prosecution is highly improbable. It is next submitted that the petitioner No.1 has instituted Georgetown P.S. Case No.87 of 2017 in which consequent upon submission of the charge-sheet, the learned court concerned has taken cognizance of the offence punishable under Sections 498A, 406, 323, 504, 313, 506 of the Indian Penal Code and Section 3 and 4 of the Dowry Prohibition Act though inadvertently in paragraph-8 of the instant Writ Petition (Cr.), the offence punishable under Section 498-A of the Indian Penal Code has wrongly been mentioned as 489-A of the Indian Penal Code. Therefore, it is submitted that the prayer, as prayed for by the petitioners, in the instant Writ Petition (Cr.), be allowed.

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Learned counsel for the respondent- State and the learned counsel for the respondent No.3 on the other hand vehemently oppose the prayer of the petitioners made in the instant Writ Petition (Cr.) and submit that no illegality has been committed by the learned S.D.J.M, Ranchi in taking cognizance of the offence punishable under Sections 323, 385, 504, 506, 34 of the Indian Penal Code. It is next submitted that the complainant/respondent No.3 and all the enquiry witnesses have categorically stated about the occurrence of 20.01.2017 which took place in the residential house of the complainant situated at Harmu in Ranchi wherein they have categorically stated about the petitioners having caused simple hurt, criminally intimidated the complainant and his family members, intentionally insulted the complainant and his family members to provoke breach of peace and committed extortion of Rs.10,00,000/- by putting

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the complainant in fear of injury by putting a pistol on his temple. It is next

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submitted that the facts of Ganga Sagar Pathak & Others vs. The State of Jharkhand & Others (supra) and Syed Sadru Zama & Others vs. State of Jharkhand & Others (supra) are entirely different from the facts of this case as in those cases the learned Magistrate concerned differed with the Final Report submitted by the police out of his conscience but here the learned Magistrate has passed a reasoned order finding prima facie case for the offence punishable under Sections 323, 385, 504, 506, 34 of the Indian Penal Code basing upon the materials available in the record which has come through the protest-cumcomplaint petition, statement of the witnesses examined as well as the statement on solemn affirmation of the complainant. Therefore, it is submitted that this Writ Petition (Cr.), being without any merit, be dismissed.

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Having heard the rival submissions made at the Bar and after carefully going through the materials available in the record, it is pertinent to mention here that it is a settled principle of law that the power of the Court under Article 226 of the Constitution of India ought not be exercised to stifle with a legitimate prosecution at the nascent stage nor a mini trial can be conducted by the court at such stage for arriving at a conclusion as whether the allegations made in a complaint are true or false.

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Now, coming to the facts of the case, the undisputed fact remains that, statement on solemn affirmation of the complainant and the statement of the enquiry witnesses go to show that there is direct and specific allegation against the petitioners of having caused hurt to the complainant and his family members and demanding extortion at the point of pistol besides criminally intimidating the complainant and his family members and intentionally insulting him and his family members to provoke breach of peace.

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W.P. (Cr.) No.623 of 2024

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So far as the judgments of the co-ordinate Bench in the cases of Ganga Sagar Pathak & Others vs. The State of Jharkhand & Others (supra) and Syed Sadru Zama & Others vs. State of Jharkhand & Others (supra) are concerned, the facts of those two cases are entirely different from the facts of this case as unlike in those two cases this is not the case where the Magistrate has taken cognizance differing from the Final Report rather the learned S.D.J.M., Ranchi has found prima facie case with a well-reasoned order basing upon the materials available in the record including the protest-cum-complaint petition, statement on solemn affirmation of the complainant and the statement of the enquiry witnesses. Hence, this Court is of the considered view that the ratio of judgments of the co-ordinate Bench in the cases of Ganga Sagar Pathak & Others vs. The State of Jharkhand & Others (supra) and Syed Sadru Zama & Others vs. State of Jharkhand & Others (supra) are not applicable to the facts of this case.

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Under such circumstances, this Court is of the considered view that there is no justifiable reason to allow the prayer of the petitioners made in the instant Writ Petition (Cr.).

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