Dobair Ahmad Siddique @ Dobair Ahamad vs State Of Jharkhand

Anil Kumar Choudhary, J

Heard the parties.

This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with the prayer to quash the entire criminal proceeding including the order dated 12.10.2023  passed  by  the  learned  Judicial Magistrate  1st Class, Dhanbad in connection with Jogta P.S. Case No. 42 of 2022, corresponding to G.R. No.1793 of 2023 whereby and where under, the learned Judicial Magistrate 1st Class, Dhanbad has taken cognizance of the offences punishable under Sections 304B, 306 and 498A/34 of the Indian Penal Code against the petitioners also even though they were not sent up for trial, by deferring with the charge sheet.

It is submitted by the learned counsel for the petitioners that the case is still pending for appearance of the petitioners and trial is yet to begin.

The brief fact of the case is that the petitioners are the accused persons of the said Jogta P.S. Case No. 42 of 2022. The allegation against the petitioners is that the petitioner no. 1 and 2 are respectively the father-in-law and mother-in-law and in furtherance of common intention with their son who is the husband of the victim- Subi Khatoon committed the dowry death of Subi Khatoon. The undisputed fact remains that Subi Khatoon solemnized marriage with the son of the petitioner on 03.05.2017 and she died on 26.07.2022 otherwise than under normal circumstances within seven years of the marriage and there was allegation that soon before her death, she was subjected to cruelty and harassment by her husband and the petitioners in connection with demand of dowry.

In the charge sheet submitted in the case only against the husband of the victim lady and he only was sent up for trial whereas the petitioners and two others whose descriptions were shown in column 12 of the charge sheet, were not sent up for trial because of insufficiency of evidence against them. The learned Judicial Magistrate 1st Class, Dhanbad took note of the materials available in the record that after marriage Subi Khatoon was treated with cruelty in connection with unlawful demand of Rs.20,00,000/-. To coerce to her to meet the said unlawful demand she was abused and assaulted and her husband threatened her of solemnizing second marriage with another woman. The learned Judicial Magistrate 1st Class, Dhanbad considered the statement of the father of the deceased appearing in paragraph no. 4 of the case diary wherein he has categorically stated that inter alia the petitioners being the father-in-law and mother-in-law of the deceased were continuously harassing the deceased victim, for fulfilment of demand of dowry of Rs.20,00,000/- soon before her death. The postmortem report revealed that the deceased died because of hanging. The learned Judicial Magistrate 1st Class, Dhanbad also considered the statement of the informant and independent witnesses also to the effect that they have stated about the dowry demand made after the marriage and the deceased was repeatedly assaulted in connection with unlawful demand of dowry. The witnesses whose statement appearing in paragraph no. 6, 10, 11, 12 and 13 of the case diary have stated about the informant being subjected to cruelty in connection with demand of dowry and basing upon the same, the learned Judicial Magistrate 1st Class, Dhanbad came to the conclusion that there is prima facie case made out against the petitioners also besides their son i.e. Danish Mohammad Joyeb Siddiqui for having committed the offences punishable under Sections 304B, 306 and 498A/34 of the Indian Penal Code and took cognizance of the said offences.

Learned counsel for the petitioners relied upon the judgment of the Hon’ble Supreme Court of India in the case of Nupur Talwar vs. Central Bureau of Investigation Delhi & Anr. reported in (2012) 2 SCC 188 submits that in paragraph no.22 of the said judgment, the Hon’ble Supreme Court of India relied upon its own judgment in the case of India Carat (P) Ltd. vs. State of Karnataka reported in (1989) 2 SCC 132, paragraph no. 16 of which reads as under:-

“16. The position is, therefore, now well settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the investigating officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, in exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. The High Court was, therefore, wrong in taking the view that the Second Additional Chief Metropolitan Magistrate was not entitled to direct the registration of a case against the second respondent and order the issue of summons to him.”

and submits that learned Magistrate has power to ignore the conclusion arrived at by the investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case.

It is next submitted by the learned counsel for the petitioners that the learned Judicial Magistrate 1st Class, Dhanbad has not independently applied its mind to the facts of the case in arriving at the conclusion different from that of the opinion of the investigating officer. Hence, it is submitted that the prayer as prayed for in this criminal miscellaneous petition be allowed.

The learned Additional Public Prosecutor on the other hand vehemently opposes the prayer made by the petitioner in this criminal miscellaneous petition and submits that the learned Judicial Magistrate 1st Class, Dhanbad has exercised the power as per the principle of law settled in the case of India Carat (P) Ltd. vs. State of Karnataka (supra) and there is no illegality in the order of learned Judicial Magistrate 1st Class, Dhanbad. Hence, it is submitted that this criminal miscellaneous petition being without any merit be dismissed.

Having heard the submissions made at the Bar and after going through the materials in the record, it is pertinent to mention here that in view of the principle of law settled in the case India Carat (P) Ltd. vs. State of Karnataka (supra), the learned Judicial Magistrate 1st Class, Dhanbad is well within its right to ignore the conclusion arrived at by the investigating officer and independently apply the mind to the facts emerging from the investigation and took cognizance of the case if he thinks fit in exercise of the power under Section 190 (1) (b) of the Code of Criminal Procedure and direct issue of process to the accused.

Now coming to the facts of the case, this Court finds that the learned Judicial Magistrate 1st Class, Dhanbad has rightly discussed the materials available in the record mentioning the paragraph numbers of the case diary and other materials and by a reasoned order after application of mind arrived at the conclusion different from the investigating officer, in respect of the petitioners while agreeing with the conclusion of the investigating officer in respect of two other persons namely Adil Siddique and Khushi Khatoon.

Considering the aforesaid facts, this Court of the considered view that this is not a fit case to interfere with the impugned order in exercise of the power under Section 482 of the Code of Criminal Procedure.

Accordingly, this criminal miscellaneous petition being without any merit is dismissed.