Allahabad High Court
Shiv Shanker Ojha vs State Of U.P.Through Secy. Home ... on 21 September, 2017
Bench: Satya Narain Agnihotri
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
AFR
Reserved on 04.08.2017
Delivered on 21.09.2017
Case :- MISC. SINGLE No. - 5202 of 2008
Petitioner :- Shiv Shanker Ojha
Respondent :- State Of U.P. Through Secy. Home Civil Secretariat Lucknow
Counsel for Petitioner :- Sampuranand Shukla, Atul Kumar Dubey, R.B. Tiwari, Shree Prakash Singh
Counsel for Respondent :- G.A.
Hon'ble Satya Narain Agnihotri,J.
1. Shiv Shanker Ojha filed this petition under Article 226 of Constitution of India with prayer that the orders passed by learned CJM, Pratapgarh dated 05.05.2008 in Criminal Miscellaneous Case No. 5 of 2008 and by Additional Session Judge-2, Pratapgarh in Criminal Revision No.140 of 2008 on 06.10.2008 be quashed and the police of Pratapgarh be issued a direction to re-investigate/further investigate the matter.
2. According to the petitioner, he has married his daughter Jaya with Vishnu Kumar Tiwari in the year 2004. After the marriage the in-laws of deceased Jaya were demanding additional dowry and due to non fulfillment of dowry, they were subjecting to cruelty to Jaya. On 08.10.2007 the family members of the petitioner received a call from in-laws of Jaya that she was seriously ill, that is why the family members of the petitioner reached the house of in-laws, where they came to know that in-laws of Jaya carried away to Jaya to the hospital of Dr. Renu Verma. When the family members of the petitioner were reached at the nursing home of Dr. Renu Verma, they further came to know that Jaya has been referred to S.R.N. hospital, Allahabad, where they did not find Jaya and her in-laws. Thereafter, the family members of the petitioner searched in the nursing homes of Allahabad where they found that in-laws of Jaya admitted her in Preeti Nursing Home of Allahabad which is a lower category hospital.
3. It is further alleged by the petitioner that on 10.07.2007 Jaya was died. The members of family of her in-laws cremated the body of Jaya at the bank of Ganga without informing to the members of the family of petitioner.
4. Further alleged by the petitioner that an application was submitted to Superintendent of Police, Pratapgarh for lodging an FIR in pursuance of which an FIR Crime No. 271 of 2007 under Section 498-A, 304-B, 201 IPC and ¾ Dowry Prohibition Act, Police Station Aasapur Dewasara, District Pratapgarh was registered. After the investigation, the investigating officer submitted a final report against which petitioner filed protest petition in the Court of learned CJM with affidavit of witnesses but the learned CJM did not consider the evidence submitted by the petitioner and his family members and accept the final report and dropped the proceedings of the case.
5. It is further alleged by the petitioner that aggrieved with the order of learned CJM dated 05.05.2008, petitioner preferred a Criminal Revision bearing No.140 of 2008 in the Court of Sessions Judge, Pratapgarh which was decided by Additional Sessions Judge, Court No.2, Pratapgrah on 06.10.2008 and the revision was dismissed by learned Additional Sessions Judge.
6. Heard learned counsel for the petitioner and learned AGA and gone through the entire record.
7. Learned counsel for the petitioner submitted that there was abundant evidence on record in spite of this learned CJM did not consider the evidence which was available on record in the form of affidavit of the witnesses that is why learned CJM committed a manifest error apparent on the face of the record against which the revision was also dismissed by learned Additional Sessions Judge, II without considering the evidence which was available on record. In the circumstances, the order of both Court below are liable to be set aside and the police be issued a direction to further investigate the matter.
8. Per contra, learned AGA refuted the submission of learned counsel for the petitioner and submitted that in Case Crime No.271 of 2007 under Section 498-A, 304-B and 201 IPC and ¾ Dowry Prohibition Act investigation was carried out by Deputy S.P. who after the investigation opined that the evidence which was submitted by the petitioner and his witnesses was not of such nature to indict the accused persons that is why there was no option except to accept the report of police under Section 173 Cr.P.C. for closure of the case.
9. In the light of above submissions, I have gone through the entire record and finds that learned CJM and learned Additional Sessions Judge passed their orders and judgments after due consideration of the facts and circumstances of the case and law prevalent at that very time and opined that the evidence collected by the investigating officer is not of such nature to take cognizance against the alleged accused persons. In the circumstances, the final report for closure of the case was accepted by learned CJM.
10. In the case 2001 (43) ACC 1096 Pakhando & others Vs State of UP & another, it is opined by the Court that in the case of final report the Magistrate has four options:-
(1) He may agree with the conclusion of the police and accept the final report and drop the proceeding.
(2) He may take cognizance under Section 190(1)(b) Cr.P.C. and issue process straightaway to the accused without being bound by the conclusion of the investigating agency where he is satisfied that upon the facts discovered by the police, there is sufficient ground to proceed.
(3) He may order for further investigation if he is satisfied that the investigation was made in a perfunctory manner.
(4) He may without issuing process and dropping the proceedings under Section 190(1)(a) Cr.P.C. upon the original complaint or protest petition treating the same as complaint and proceed to act under Sections 200 and 202 Cr.P.C. and thereafter whether complaint should be dismissed or process should be issued.
11. In the light of above law, I am of the opinion that, if the protest petition was submitted by the petitioner against the final report submitted by the police, then it was the duty of the learned Magistrate to go through the protest petition and if there was any substance in the protest petition then he may took cognizance under Section 190(1)(b) of Cr.P.C.
12. The perusal of the record of learned Magistrate disclose that he has not taken into consideration the protest petition of the petitioner. Since there was a protest petition that is why it was the pious duty of the learned CJM to consider the facts mentioned in the protest petition and to decide it according to law.
13. In the circumstances, I am of the opinion that the order of learned Courts below are liable to be set aside. Consequently, order passed by learned CJM in Criminal Miscellaneous case No.5 of 2008 dated 05.05.2008 and order passed by learned Additional Sessions Judge, Court No.2 in Criminal Revision No.140 of 2008 dated 06.10.2008 are hereby set aside.
14. Learned CJM is directed to consider the protest petition of the petitioner afresh in the light of observations made herein above.
15. The petition under Section 226 Constitution of India is allowed accordingly.
Order Date :- 21.09.2017
Sarika
(S.N. Agnihotri, J.)
