Anand Chaurasiya And 6 Others vs State Of U.P. And Another
2022 Latest Caselaw 22442 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Judgment Reserved on 29.11.2022.
 
Delivered on 22.12.2022
 
Court No. - 84 
 

 
Case :- APPLICATION U/S 482 No. - 24649 of 2022 
 

 
Applicant :- Anand Chaurasiya And 6 Others 
 
Opposite Party :- State Of U.P. And Another 
 
Counsel for Applicant :- Manu Sharma,Dinesh Kumar Pandey 
 
Counsel for Opposite Party :- G.A. 
 

 
Hon'ble Saurabh Shyam Shamshery,J. 

1. Heard Sri Manu Sharma, learned counsel for applicants, Sri Chandan Agrawal, learned A.G.A.-I for the State and Sri U.K. Dubey, learned counsel for opposite party No.2. Perused the record.

2. By means of this application, applicants have approached this Court for quashing the impugned order dated 16.7.2022 passed by learned Court of Additional Sessions Judge Court No.16 in Criminal Revision No.168/2019 and order dated 16.5.2019 passed by learned Court of Additional Chief Judicial Magistrate in Case No.645/12 arising out of Case Crime No.C-13/05 under Section 498A I.P.C. and Section ¾ of Dowry Prohibition Act, Police Station-Luxa, district Varanasi.

3. Applicants before this Court are accused in Case No.645/12 arising out of Case Crime No.C-13/05 under Section 498A I.P.C. and Section ¾ of Dowry Prohibition Act, Police Station-Luxa, district Varanasi which is presently pending before the Court of Additional Chief Judicial Magistrate, Varanasi.

4. First informant/O.P. No.2 filed an application under Section 323 Cr.P.C. to commit the case before the court of Sessions as on basis of testimony recorded during trial a case under Section 304-B I.P.C. was also prima-facie made out against the applicants. However, the said application was rejected by an order dated 14.11.2011. This order was challenged by the complainant by way of a Criminal Revision Petition No.78/2012 which was allowed by an order dated 8.5.2012 and matter was remanded to the Court of learned Magistrate to decide afresh.

5. Court of learned Magistrate by impugned order dated 16.5.2019 allowed the application and held that prima-facie a case was made out under Section 304-B I.P.C. also and remanded case to court of sessions.

6. Accused persons/applicants preferred a criminal revision bearing No.168/2019, but the same was rejected by impugned order dated 16.7.2022.

7. Applicants have challenged both the above orders by way of present application under Section 482 Cr.P.C.

8. Learned counsel for applicants (accused persons) submitted that the post mortem report of the deceased opined that cause of death was ''Acute Paranoitis'.

9. Viscera was also preserved and the report thereof indicates no chemical found, therefore, no corrosive agent was present and only on ground that death of women was caused within seven years of marriage, both the courts below have erred in law as well as on fact to hold that an offence under Section 304-B I.P.C. was made out despite no evidence that it was a death under other than normal circumstances.

10. Learned counsel for applicants referred the evidence of doctor recorded by learned Magistrate that death was caused was due to surgical intervention and nothing abnormal was found and woman did not die under other than normal circumstances.

11. Per contra, learned A.G.A. and learned counsel for O.P. No.2 have vehemently opposed above submissions that in cross-examination the doctor who conducted post mortem has stated that body was infected due to a use of corrosive agent, therefore, it was clearly evident that corrosive agent was administered to deceased as well as there was no pregnancy.

12. In order to consider the rival submission for purpose of applicability of Section 323 Cr.P.C. wherein procedure has been prescribed that during any inquiry in which an offence or a trial before the Magistrate, it appears to him at any stage of the proceedings before signing the judgment that the accused is one who is ought to be tried by the court of sessions, he shall commit to that court under the provisions of the Code.

13. The words used in Section 323 Cr.P.C. is ''appears' and ''ought to be tried by the court of Sessions' have relevance.

14. In this regard, it would be apposite to refer some paragraphs of a Full Bench judgement of this Court in Rex Vs. Matoley and Ors, 1948 SCC OnLine All 50, wherein it has been held as under:

"The provisions of Sections 346, 347 and 349 clearly indicate that a Magistrate who takes cognizance of a case may try it himself, if he has jurisdiction. But if he is of opinion that he cannot inflict an adequate sentence, he may act under Section 346, or Section 349, and send the case to a higher Magistrate. Lastly he may, if he thinks that it is a fit case for trial by a Court of Session, commit the accused for trial, or if he has no power to commit himself, he may send it by reason of the provisions of Section 346 to another Magistrate for proceedings for commitment. The words "the case is one which should be tried or committed for trial" show that there is a clear reference to the discretion or "opinion" of the Magistrate concerned. Similarly, the expression "it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court" clearly indicates that the Magistrate has full discretion, at any stage of the proceedings in any case before him to decide whether or not, the case is a fit one for commitment to the Court of Session. The next point which requires serious consideration is whether there is any provision in the Code of Criminal Procedure which in any way restricts the discretion of the Magistrate vested in him by Section 317. There is, undoubtedly, a serious conflict of judicial opinion on this question, as would appear from a long line of cases briefly noticed in an earlier part of this judgment. Section 254 has been interpreted in such a way as to make it obligatory for the Magistrate to frame a charge and proceed with the trial when once he has found that the offence is one which he is competent to try and which he can adequately punish. With great respect to the learned Judges who have interpreted Section 254, it seems to me that in this connection the provisions of Section 347 have not received the attention which they deserve. It seems to me that when a Magistrate holding the trial of a warrant case, has framed a charge, the next step for him is to ask the accused whether he pleads guilty or would like to make a defence. If the Magistrate feels at this stage, if not at an earlier stage, that there are weighty reasons for stopping further proceedings in the trial and committing the case to the Court of Session, I fail to see why the provisions of Section 347 do not come into play and enable the Magistrate to stop the trial and commit the accused under the provisions relating to inquiries for commitment. The power to commit rather than continue the trial is available to the Magistrate, whenever, in the language of Section 347, "it appears to him at any stage of the proceedings that the case is one which ought to be tried by the Court of Session or High Court ..."

"After giving my anxious consideration to the relevant provisions of the Code, and the case law, I have arrived at the conclusion that the view which has so far been generally accepted by this Court and, in particular, the view taken by the learned Judges in the case of King Emperor Vs. Subedar Singh and Ors., 1946 Cr. L. J. B. at p. 137 : A.I.R. (33) 1946 ALL. 366: 47 Cr. L. J. 804) is not correct. On the contrary, I find myself in full agreement with the view taken by the Madras, Bombay, Lahore and Rangoon High Courts and the Sind Chief Court in the cases discussed by me in an earlier part of my judgment. To sum up, in my judgment, a Magistrate, otherwise competent, may commit any person for trial to the Court of Session or the High Court for any offence; but he must give adequate reasons for committing a person for an offence which is not exclusively triable by the Court of Sessions or the High Court."

15. In the present case, learned trial court has considered the evidence on record including the evidence of a doctor who conducted post mortem as well as who assisted the operation of deceased and took note of cross-examination of the doctor that deceased was administered some corrosive substance though it cannot be detected in the viscera report. However, condition of intestine was such that it has suffered multiple perporation. These findings are sufficient to use the discretion that the accused ought to have been tried by the court of sessions.

16. The revisional court has also considered the material and upheld the findings of learned trial Court. As held in Rex (supra), if there are adequate reasons for committing a person for an offence, that he ought to have been tried by the Court of Sessions, such order may not be interfered.

17. In present case, there are sufficient material on record that cause of death may be due to administration of corrosive substance and therefore, it would be a death under other other normal circumstances, within her seven years of marriage due to demand of dowry.

18. In view of the above discussion, I do not find any merit in the argument of learned counsel for the applicant as well as there is no error in the impugned orders, as such the present application is rejected.

Order Date:22.12.2022

SB/AK