* HIGH COURT OF DELHI AT NEW DELHI
+ CRL.M.C. 2369/2011
Date of Decision : 06.02.2012
NASARA ..... Petitioner
Through: Mr. Prabhat Kiran, Adv.
versus
STATE & ORS. ..... Respondents
Through: Mr. Sunil Sharma, APP
CORAM:
HON'BLE MR. JUSTICE V.K. SHALI
V.K. SHALI, J. (Oral)
Crl. M. A. No. 8646/2011
1. This is a petition filed under Section 482 Cr.P.C. assailing the order dated 06.05.2011 passed by the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi in respect of FIR No. 84/2009, under Section 498A/406/34 IPC registered by P.S. Subzi Mandi, Delhi. By the impugned order, the so called protest petition of the Crl.M.C. No.2369/2011 Page 1 of 8 petitioner, filed under Section 200 Cr.P.C., for taking the cognizance of the offence against the accused Tanveer Alam (brother-in-law of the husband of the present petitioner) was dismissed.
2. Briefly stated the facts of the case are that the petitioner got married to the respondent no.2/Tabrez Alam, according to Muslim rituals, on 28.04.2008. On account of demand of dowry, the complainant was subjected to cruelty. She lodged a complaint on 25.02.2009, to the ACP, Crime Branch, Women Cell, Subzi Mandi, Delhi. The aforesaid FIR was registered against the accused persons, namely, Tabrez Alam (Husband), Saira Khatoon (Mother-in-law) and Tanveer Alam (brother-in-law of the husband of the present petitioner). After investigation in the matter, the charges were framed against Tabrez Alam (Husband), Saira Khatoon (mother-in-law) and Tanveer Alam (Nandoi) leaving four other persons in column no. 12 of the charge sheet on the ground that Crl.M.C. No.2369/2011 Page 2 of 8 there was no sufficient evidence to send them for trial. The learned Magistrate took the cognizance of the offence and procured the attendance of all the three accused persons, namely, Tabrez Alam (Husband), Saira Khatoon (Mother-in-law) and Tanveer Alam (brother-in- law). On 25.01.2011, the learned Magistrate passed an order of discharge so far as Tanveer Alam (brother-in- law) is concerned, on the ground that there was no sufficient evidence to proceed against him for an offence under Section 498A/406 IPC.
3. The prosecution feeling aggrieved by the aforesaid order had filed a revision petition as shown in the status report filed before this Court. The revision petition was also dismissed, though, the date of dismissal is not given. Curiously, the photocopies of neither the order of discharge, dated 25.01.2011, nor the order of dismissal passed by the Court were placed on record. In the meantime, it seems that the petitioner filed a protest Crl.M.C. No.2369/2011 Page 3 of 8 petition, under Section 200 Cr.P.C., before the learned Magistrate, for taking cognizance against the brother-in- law (nandoi) of the present petitioner, Tanveer Alam also. The said petition was dismissed by the learned Magistrate vide impugned order on 06.05.2011 on the ground that the said accused person had already been discharged and the learned Magistrate did not have any power to review its own order as it would amount to double jeopardy.
4. I have heard the learned counsel for the petitioner and the learned APP.
5. The contention of the learned counsel for the petitioner is that the impugned order dated 06.05.2011, dismissing the protest petition, is totally unsustainable in the eyes of law in as much as definite allegations were made against Tanveer Alam in the complaint. The learned counsel has taken the Court through the complaint wherein she has stated that after the marriage the family members and Crl.M.C. No.2369/2011 Page 4 of 8 her husband had demanded the money for purchase of a Maruti Wagon R car. It has also been alleged by her that she had handed over a sum of `2,00,000/- to her brother-in-law(nandoi), and therefore, it is contended that a case under Section 498A/406IPC was made out against him. The learned counsel for the petitioner has also relied upon a case titled Reeta Nag Vs. State of West Bengal, 2010 Cri. L.J. 2245.
6. The submissions made by the learned counsel for the petitioner are totally without any merit. In the instant case, the prosecution had filed a final report sending three accused persons including the accused in question namely, Tanveer Alam, for trial. The learned trial Court after hearing the arguments discharged Tanveer Alam as it had found no prima facie evidence against him constituting the offences of Section 498A or 406 IPC. This order of discharge obviously must have been passed by the learned trial Court after due application of mind. Crl.M.C. No.2369/2011 Page 5 of 8 This order was assailed before the learned Additional Sessions Judge, Tis Hazari Court, Delhi which was also dismissed by the Court. Thus, these two Courts have applied their mind and found no substance in the contention of the petitioner so far as the allegation of demand of dowry and the offence of breach of trust against Tanveer Alam is concerned. There is no dispute about the fact that offences under Section 498A/406 IPC are State cases where the complainant comes into the picture only either at the time of recording of evidence or when the police have filed a final report seeking cancellation of the FIR. Only in the latter, contingency the petitioner can file the protest petition under Section 200 Cr.PC. In the instant case, there is absolutely no occasion for the petitioner to file the protest petition as the Court has already applied its mind and discharged accused Tanveer Alam who had been sent for trial. It is not a case where the prosecution had placed the name of Crl.M.C. No.2369/2011 Page 6 of 8 the said accused in column no. 12 that there was no evidence against him which warranted the filing of the protest petition. Therefore, I am of the considered view that the protest petition filed by the petitioner was misconceived. So far as the impugned order which has been passed by the learned Magistrate is concerned, it cannot be said to be wrong. The learned Magistrate has rightly observed that once the mind has already been applied by her, while discharging the accused, Tanveer Alam, she has absolutely no power to review the same order of discharge and put Tanveer Alam back to Trial. Thus, under such a contingency the only available remedy to the petitioner is to get the said accused summoned, only if sufficient evidence is brought during the course of the trial by her or by the prosecution. It is obvious that the petitioner can ask the Trial Court to invoke the provision of Section 319 Cr.P.C. at an appropriate stage in case the evidence is brought on Crl.M.C. No.2369/2011 Page 7 of 8 record. So far as the impugned order is concerned, I do not find any infirmity, illegality or impropriety or any abuse of processes of law which will warrant the interference by this Court. So far as the judgment relied upon by the learned counsel for the petitioner in Retta Nag's case (supra) is concerned, the facts of the said case are totally different. In that case, the protest petition was filed in respect of those accused persons who were sought to be discharged by the prosecution itself while as in the instant case, admittedly, Tanveer Alam was sent for trial and later discharged by the Court. Therefore, the observations passed by the Apex Court are not applicable to the present petition.
7. For the reasons mentioned above, the petition is totally misconceived and accordingly, the same is dismissed.
V.K. SHALI, J FEBRUARY 06, 2012 KP Crl.M.C. No.2369/2011 Page 8 of 8