Hridayendra Kumar vs The State Of Jharkhand
2024 Latest Caselaw 507 Jhar

Jharkhand High Court

Hridayendra Kumar vs The State Of Jharkhand on 18 January, 2024

Author: Sanjay Kumar Dwivedi

Bench: Sanjay Kumar Dwivedi

       IN       THE HIGH COURT OF JHARKHAND AT RANCHI
                             Cr.M.P. No. 1136 of 2016
       Hridayendra Kumar                              .....   ...    Petitioner
                                   Versus
      1. The State of Jharkhand
      2. Kanchan Devi
      3. Wife of Shri Naresh Singh,
         name not known to the petitioner
      4. Navin Anand
      5. Naresh Singh
      6. Ashutosh Prasad Singh
      7. Kamal Nayan Kumar
      8. Bishwamohan Prasad Singh                     ..... ...       Opposite Parties
                                --------

CORAM : HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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For the Petitioner : Mr. A.K. Kashyap, Sr. Advocate.

      For the State             :        Mr. Achinto Sen, A.P.P.
      For the O.P. Nos.
                   2, 4, 5 & 6 :         Mr. P.P.N. Roy, Sr. Advocate.
                                ------
03/ 18.01.2024     Mr. P.P.N. Roy, learned senior counsel appearing for the

O.P. Nos. 2, 4 5 and 6 submits that the supplementary counter affidavit dated 17.01.2024 has already been served upon the learned senior counsel appearing for the petitioner and the learned A.P.P. appearing for the State. He submits that since the matter was already on Board, that's why the same has not been presented before the Registry.

2. In view of his such submission, let the said supplementary counter affidavit is taken on record.

3. Heard Mr. A.K. Kashyap, learned senior counsel appearing for the petitioner, Mr. Achinto Sen, learned A.P.P. for the State and Mr. P.P.N. Roy, learned senior counsel appearing for the O.P. Nos. 2, 4, 5 and 6.

4. This petition has been filed for quashing of the order dated 20.09.2010, passed by the learned Judicial Magistrate, 1st Class, Ranchi, in connection with Complaint Case No. 310 of 2007, whereby he has been pleased to dismiss the complaint case. Prayer is also made for quashing of the order dated 22.03.2016, passed by the learned AJC- XVIII, Ranchi, in Cr. Revision No. 147 of 2010, whereby he has pleased to affirm the order dated 20.09.2010, passed by the learned Magistrate.

5. The complaint case No. 310 of 2007 was filed alleging therein that the complainant (petitioner herein) is the elder brother of deceased, namely, Bijyendra Kumar Bhardwaj. Father of the

complainant had died in the year 1985 when the deceased was only 9 years old and the complainant was himself college going student at that time. The complainant and the deceased were looked after by their cousin uncle (Witness no.6). The petitioner (complainant) is the elder brother of deceased, namely, Bijyendra Kumar Bhardwaj, who was married to opposite party no. 2. The opposite party nos. 4 and 5 negotiated for the marriage of opposite party no.2 with the deceased. At the time of marriage, it was clearly told to the opposite party nos. 4 and 5 that the deceased was unemployed, he was only running a trekker taken on hire purchase from the Bank. It is further stated in the complaint that the marriage of the opposite party no. 2 with the deceased was solemnized at her ancestral place at Kathardih, P.S. Katarisarai, District Nalanda. The opposite party nos. 3,4 and 5 have their own house in Nalanda, P.S. Baiyatu, District Ranchi. From the very beginning the opposite party no.2 was not satisfied with the marriage with the deceased as he was unemployed and dependent on his elder brother and uncle. The accused nos. 3,4 and 5 insisted the deceased to leave the house of the brother and make separate establishment with their help or live with them but the deceased refused. The opposite party thereafter started harassing the deceased by using even abusing language and taunting him "as Nikkamma Damad of the family". Out of wedlock of deceased and the opposite party no.2 a daughter was born. Thereafter the opposite party nos.2 to 8 started abusing the deceased more filthy even on the road saying that he had given a birth of female child and how a Nikkamma could bring up his daughter. The humiliation, insult and abuse of filthy language by opposite party nos. 2 to 8 i.e. the accused persons became the routine life of deceased. The deceased was used to be insulted and humiliated in the house and even in the public place. On 10.07.2005 the accused/ opposite party no.2 humiliated the deceased by saying that she had been married to a Nikkamma and created a bad scene by shouting and abusing the deceased in the house as a result of which the deceased could not tolerate any more and took sulphase tablet on 11.07.2005 which is highly poisonous.

6. Mr. A.K. Kashyap, learned senior counsel appearing for the petitioner submits that the complainant was examined on solemn

affirmation, in which, he has supported the allegation made in the complaint and he has been able to make out the case under Section 306/34 of the Indian Penal Code. He further submits that six inquiry witnesses, who have also supported the prosecution case, however, the learned court even has not considered the prima facie case and has dismissed the complaint case. He submits that the said illegality has also been made by the learned revisional court, as he has also been pleased to dismiss the said criminal revision. He further submits that the suicide note is there of the deceased in view of that the case against the O.P. Nos. 2, 4, 5 and 6 are made out. He submits that the learned revisional court as well as the learned trial court has not taken the cognizance. He further submits that so far as the case filed by the O.P. Nos. 2, 4, 5 and 6 are concerned, the learned court has been pleased to take cognizance against the petitioner under Sections 302/34 of the IPC and the petitioner is facing the trial. He further submits that the said case was registered as Sadar P.S. Case No. 113 of 2005, in which, the petitioner has been exonerated, however, on the protest petition, the learned court has taken the cognizance against the petitioner. He submits that injustice has been done to the petitioner in view of that this court may set aside the said orders and direct the learned court to take the cognizance. To buttress his argument, he relied in the case of Padal Venkata Ram Reddy @ Ramu Versus Kovvuri Satyanarayan Reddy & Ors., reported in (2011) 12 SCC 437 and he refers to paras-32 and 33 of the said judgment, which reads as under:-

"32. It would not be proper for the High Court to analyse the case of the complainant in the light of all the probabilities in order to determine whether conviction would be sustainable and on such premise arriving at a conclusion that the proceedings are to be quashed. In a proceeding instituted on a complaint, exercise of inherent powers to quash the proceedings is called for only in a case in which the complaint does not disclose any offence or is frivolous, vexatious or oppressive. There is no need to analyse each and every aspect meticulously before the trial to find out whether the case would end in conviction or acquittal. The complaint has to

be read as a whole. The statement of witnesses made on oath to be verified in full and materials put forth in the charge-sheet ought to be taken note of as a whole before arriving at any conclusion. It is the material concluded during the investigation and evidence led in court which decides the fate of the accused persons.

33. On going through the entire complaint, materials collected and stated in the form of charge-sheet, statement of witnesses LW 1 and LW 2 and on conjoint reading of all the above materials, it cannot be presumed that there is no legal and acceptable evidence in support of the prosecution. In the light of the principles enunciated in various decisions which we have noted in the earlier paragraphs, we are satisfied that the High Court has exceeded its power in quashing the criminal proceedings on the erroneous assumption that the ingredients of the offence alleged by the prosecution have not been made out. The High Court has also committed an error in assuming that with the materials available, the prosecution cannot end in conviction."

7. Relying on this judgment, he submits that only prima facie case is required to be disclosed and in view of that learned courts have erred in not taking the cognizance and this court may interfere in the matter and direct the learned court to take cognizance against the accused persons.

8. The said argument of learned senior counsel appearing for the petitioner is being resisted by Mr. P.P.N. Roy, learned senior counsel appearing for the O.P. Nos. 2, 4, 5 and 6 and submits that the learned court has elaborately dealt with the solemn affirmation an inquiry witness and thereafter has been pleased to dismiss the petition and has not taken the cognizance. He submits that even the learned revisional court has dismissed the case of the petitioner. He further submits that the point with regard to suicidal note was taken by the petitioner in a petition filed by him for discharge, which was considered by the learned trial court. He submits that the said order of discharge was challenged before this court in Cr. Rev. No. 478 of 2019, which was rejected by the order dated 14.12.2021. By way of referring the

said judgment, he submits that the order of the co-ordinate bench of this court has also dealt with the said suicidal note and dismiss the said petition. He further submits that the said order of the co-ordinate Bench of this court has been challenged by the petitioner before the Hon'ble Supreme Court in SLP (Criminal) No. 2945 of 2022, which was also dismissed by order dated 24.11.2023, which has been brought on record by way of filing the supplementary affidavit, which has already been taken on record in course of argument.

9. In reply Mr. A.K. Kashyap, learned senior counsel appearing for the petitioner submits that the co-ordinate bench of this court has not considered the suicidal note in the order dated 14.12.2021 passed in Cr. Rev. No. 478 of 2019.

10. Mr. Sen, learned A.P.P. appearing for the State submits that the learned revisional court held further that after lapse of two years, the complaint case has been filed and it has been disclosed in the revisional order that the occurrence was taken place on 11.07.2005, however, the complaint case was filed in the year 2007. He submits that the learned courts have rightly passed the orders.

11. It is an admitted position that Kanchan Devi had lodged a case, being Sadar P.S. Case No. 113 of 2005 against the petitioner, in which, the final form was submitted, wherein the petitioner was not sent up for trial. On the protest petition, the learned court has been pleased to take cognizance and the petitioner has been called upon to face the trial under Section 302/34 of the Indian Penal Code.

12. The petitioner herein has not lodged any case with the police and straightway, he has filed the complaint before the learned court. The occurrence is said to be of the year 2005 and the complaint case was filed in the year 2007 and that finding is recorded in the order of the learned Additional Judicial Commissioner-XVIII, Ranchi, in the order dated 22.03.2016, passed in Cr. Rev. No. 147 of 2010. The argument of learned senior counsel appearing for the petitioner with regard to suicidal note is also taken care of and considering the delay, the learned Additional Judicial Commissioner has been pleased to dismiss the said criminal revision. The order of the said discharge petition was the subject matter before a co-ordinate bench of this court in Cr. Rev. No. 478 of 2019, which was decided on 14.12.2021 and the

Co-ordinate Bench has held in para-9 as under:-

"9. The learned court below considered the evidence of 11 enquiry witnesses who were examined from the side of the complainant and found that the handwriting expert was of the opinion that there was no characteristics difference beyond the range of natural variation and the suicide note was kept in the record. The learned court also recorded that one line such as, he was not found perfect as per desire of his elder brother, appeared to be added later on. The learned court also recorded that the expert only examined the signature of the deceased and the language has not been examined. The learned court below also perused the post-mortem report and found that the cause of death was not stated as viscera was kept reserved, but abdomen was found slightly distended and nails were deeply cynosed. The learned trial court also recorded that when it was not a case of asphyxia, then deeply cynosed nails indicated only death due to poison. The learned trial court also considered the inquest report."

13. Thus, the main argument of learned senior counsel appearing for the petitioner with regard to suicidal note has been dealt with in the another proceeding, in which, the petitioner is facing the trial and the said order of the co-ordinate bench of this court has been upheld by the Hon'ble Supreme Court in SLP (Criminal) No. 2945 of 2022 by order dated 24.11.2023.

14. Chapter-XVI of the Cr.P.C. lays down the procedure of commencement of proceedings before the learned Magistrate and the learned court is required to proceed under Section 203 of the Cr.P.C. and issue process under Section 204 Cr.P.C., if the case is made out.

15. Issue of process against a person to face trial in a criminal case is a serious matter and that precisely is the reason that the Hon'ble Supreme Court has time and again reminded that the Magistrate must exercise such discretion vested in him judiciously. Reference may be made to the case of Devarapalli Lakshminarayana Reddy Versus V. Narayana Reddy reported in (1976) 3 SCC 252, wherein Section 204 Cr.P.C. was considered in para-13, which reads as under:-

"13. It is well settled that when a Magistrate receives a complaint, he is not bound to take cognizance if the facts alleged in the complaint, disclose the commission of an offence. This is clear from the use of the words 'may take cognizance' which in the context in which they occur cannot be equated with 'must take cognizance'. The word 'may' gives a discretion to the Magistrate in the matter. If on a reading of the complaint he finds that the allegations therein disclose a cognizable offence and the forwarding of the complaint to the police for investigation under Section 156(3) will be conducive to justice and save the valuable time of the Magistrate from being wasted in enquiring into a matter which was primarily the duty of the police to investigate, he will be justified in adopting that course as an alternative to taking cognizance of the offence, himself."

16. Further reference may be made to the case of S.N. Palanitkar Versus State of Bihar reported in AIR 2001 SC 2960, where in para-15, the Hon'ble Supreme Court held as under:-

"15. In case of a complaint under section 200, Cr.P.C. or IPC a Magistrate can take cognizance of the offence made out and then has to examine the complainant and his witnesses. If any, to ascertain whether a prima facie case is made out against the accused to issue process so that the issue of process is prevented on a complaint which is either false or vexatious or intended only to harass. Such examination is provided in order to find out whether there is or not sufficient ground for proceeding. The words 'sufficient ground' used under Section 202 have to be construed to mean the satisfaction that a prima facie case is made out against the accused and not sufficient ground for the purpose of conviction."

17. In view of the above two judgments, it is crystal clear that the learned court is not required to take a decision on a complaint, pre- summoning evidence and / or enquiry report by the police, the Magistrate is not required to sift the evidence and all that is necessary is to find out whether a prima facie case has been made out or not. In the

case in hand, the learned trial court as well as the learned revisional court has come to the conclusion that no case is made out for taking the cognizance and the discharge petition filed by the petitioner in another case, in which, the petitioner is facing the trial on the basis of the protest petition filed by the O.P. Nos. 2, 4, 5 and 6, the suicidal note was already considered up to the Hon'ble Supreme Court and that is the crux of the argument of Mr. Kashyap, learned senior counsel on the ground of said suicidal note as well as the inquiry witnesses.

18. The judgment relied by the learned senior counsel appearing for the petitioner in the case of Padal Venkata Ram Reddy @ Ramu (Supra) is not in dispute and it is well settled proposition of law and it has been held that the complaint has to be read as a whole and the High Court has to consider this aspect of the matter and that is not in dispute. In the case in hand, the learned trial court and the learned revisional court have examined the entire complaint as well as the solemn affirmation and the inquiry witnesses and thereafter passed the said order and in view of that that judgment is not helping the petitioner.

19. In view of the above facts, reasons and analysis, no case of interference is made out. As such, this petition is dismissed.

20. The case is being faced by the petitioner, shall be decided in accordance with law without being prejudiced to this order, as this order has been passed only on the parameters of Sections 203 and 204 of the Cr.P.C.

21. Further the petitioner is already facing a trial pursuant to the protest petition of the O.P. Nos. 2, 4, 5 and 6 and it is well settled that in course of trial, any case is made out against any of the person, who is not facing the trial, the learned court is competent to call upon any person under Section 319 Cr.P.C. at any stage, subject to any cogent evidence.

(Sanjay Kumar Dwivedi, J.) Amitesh/-

[A.F.R.]