Md. Nassim vs The State of Bihar and Others

M.L. Visa, J.—This writ petition by the petitioner has been filed for issuance of an appropriate writ in the nature of certiorari or an appropriate writ, order or direction for quashing order dated 15.10.97 passed by Sri R.C. Jha, Chief Judicial Magistrare, Nawadah, in Complaint Case No. 636 of 1996 by which he has been pleased to dismiss the protest petition contained in annexure-8 and for quashing order dated 21.8.98 passed by the learned Additional Sessions Judge-1, Nawadah, in Criminal Revision No. 8 of 1998/ 6 of 1998 contained in annexure-9 by which he has been pleased to affirm the order dated 15.10.97 passed by Shri R.C. Jha, Chief Judicial Magistrate. Nawadh, and has dismissed the aforesaid criminal revision application. The brief facts giving rise to this petition are that the petitioner filed a complaint petition before the learned Chief Judicial Magistrate, Nawadah, alleging therein that his sister Rahia was married to Shyamuddin Mian (respondent no. 4) and after her marriage respondent nos. 2 to 9 started assaulting and harassing Rahia on demand of a colour T.V. and a sum of Rs. 5,000/-. On 5.5.90 the petitioner came to know that his sister had been killed and on 6.5.90 when he reached the village of respondent nos. 2 to 9 and inquired from them about his sister, they left the house without disclosing anything and petitioner came to know from the villagers that his sister had been killed and she was stealthily buried. The complaint petition of petitioner was sent by the Chief Judicial Magistrate, Nawadah, to police for lodging an FIR and accordingly Kauakol P.S. Case No. 41/90 u/s 304(B) of the Indian Penal Code (in short, IPC) and section 3/ 4 of the Dowry Prohibition Act was registered. The police after investigation submitted final form declaring the case of petitioner against accused persons false. Learned Chief Judicial Magistrate by his order dated 28.11.90 contained in annexure-2 accepted the report of police but at the same time he passed orders for examination of petitioner on S.A. u/s 200 of the Code of Criminal Procedure (in short, Cr. P.C.) on his protest petition which he had already filed earlier. After examining the petitioner on S.A. and recording the statements of witnesses produced by petitioner u/s 202 Cr. P.C. learned Chief Judicial Magistrate passed order dated 10.10.97 dismissing the protest complaint petition (annexure-8). The petitioner preferred Cr. Revision No. 8 of 1998 (6 of 1998) against the aforesaid order of learned Chief Judicial Magistrate before the learned Sessions Judge, Nawadah, which was heard by learned Additional Sessions Judge-1, Nawadah, who by the impugned order (annexure-9) affirmed the order passed by the learned Chief Judicial Magistrate, Nawadah, and dismissed the revision application.

Learned counsel appearing on behalf of the respondents 2 to 9 has first of all challenged the maintainability of this writ petition. According to him, admittedly, the revision preferred by the petitioner against the order of learned Chief Judicial Magistrate, Nawadah, dismissing the complaint petition of petitioner has been dismissed by the learned Additional Sessions Judge-1, Nawadah, and section 397(3) Cr. P.C. bars a second revision.

It is true that section 397(3) Cr. P.C. bars a second revision but then at the same time it is also true that in exercise of inherent powers u/s 482 Cr. P.C. this Court can interfere in the order passed by the courts below if it finds that the order is not according to law and if such order is allowed to continue it will lead to miscarriage of justice. The Supreme Court in the case of Krishnan and another Vs. Krishnaveni and another, has been pleased to hold that even in cases where a Sessions Judge has exercised his provisional power u/s 397(1), the High Court can interfere in the order to correct the irregularity/incorrectness committed by the inferior criminal court" if it finds that there has been "failure of justice or misuse of judicial mechanism or procedure". In the present case, i find that the final form submitted by police after investigation u/s 156(3) Cr.P.C. was accepted by the learned CJM and he treated the protest petition filed by the petitioner as a complaint petition and thereafter he proceeded u/s 202 Cr.P.C. and recorded the statements of witnesses produced by the petitioner but while passing order in the inquiry held by him u/s 202 Cr.P.C on the complaint petition he considered the finding of the police arrived at in the investigation of the case by it on the cause of death of sister of petitioner and in his order dated 15.10.97 (annexure-8) he has mentioned that cause of death according to the police investigation was premature abortion of the sister of complainant. The same mistake has been committed by the learned 1st Additional Sessions Judge, Nawadah, in his order (annexure-9) where although he has at one place stated that if the evidence led by the complainant and his witnesses is accepted in totality even then it is tainted with inherent absurdity and doubt but has also stated that police on investigation, as appears, found hat the lady died due to premature abortion and on the basis of protest petition there can be no improvement and patching of the inherent absurdity of the prosecution case. Once the protest petition filed by the petitioner was treated as complaint petition and inquiry was held u/s 202 Cr.P.C, there was no justification by the courts below to consider the findings of the police even during the investigation of the case u/s 156(3) Cr.P.C.

Learned counsel appearing on behalf of the petitioner relying upon an authority reported in AIR 1963 SC 1430 has submitted that the consideration by the courts below of the materials collected by police during the investigation of the case u/s 156(3) Cr.P.C. while passing order on inquiry u/s 202 Cr.P.C. is not permissible. I also find that once an inquiry u/s 202 Cr.P.C. was held on the complaint petition of petitioner, the courts below should have confined their order passed in such inquiry on the basis of materials which were made available in this inquiry. Besides this, it appears that the courts below have given much stress on the point that the petitioner has not been able to bring on record any direct evidence on the point of murder of his sister. They overlooked the fact that the case of petitioner was not u/s 302 IPC but was u/s 304(B) IPC and admittedly the sister of petitioner died within a period of about 6-7 months after her marriage and in the protest cum complaint petition (annexure-1) the petitioner has alleged that information about the date of death of his sister was not given to him, besides the allegation of demand of dowry and harassment of his sister by her husband and others for such demand. It appears that the learned Chief Judicial Magistrate and learned 1st Additional Sessions Judge also failed to consider the presumption u/s 113B of the Indian Evidence Act raised in such type of cases. I further find that the learned CJM by his order (annexure-8) which has been affirmed by (earned Additional Sessions Judge (annexure-9) dismissed the protest cum complaint petition of petitioner by observing that the petitioner has not been able to prove the allegation by cogent evidence and there is no reliable and trustworthy witness to support the case of petitioner. It appears that the learned CJM was perhaps looking for evidence sufficient to warrant conviction of the persons complained against. This is against the provisions of section 202 Cr.P.C. under which a Magistrate after postponing the issue of process against the accused either enquiries into the case himself or directs investigation by police or any other person for the purpose of deciding whether or not there is sufficient ground for proceeding. Once materials collected during inquiry by Magistrate himself u/s 202 Cr.P.C. or in investigation ordered under this section by Magistrate make out a prima facie case the Magistrate has to issue process because the object of section 202 Cr.P.C. is limited to find out whether a prima facie case is made out by the materials collected in the inquiry or investigation for issue of process.

Considering all these facts I find that the impugned orders of courts below suffer from irregularity because they are not passed on the materials collected during the inquiry u/s 202 Cr.P.C. I therefore find that the petitioner is entitled to come before this Court with a prayer for correction of the irregularity committed by the courts below in the impugned orders.

About the argument advanced by the learned counsel of respondents no. 2 to 9 relying upon a decision in the case of Ramesh Kumari Ravi vs. State of Bihar, 1987 BBCJ 424, that judicial orders of criminal courts passed under Cr.P.C. are not amenable to quashing by a writ petition, I find that in the same decision it has been held that although writ petition is not maintainable in such type of cases but it will not preclude the petitioner from pursuing any remedy available to him under Cr.P.C. before this Court. It is true that petitioner has filed the present petition under Article 226 of the Constitution of India. The Supreme Court in the case of Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, has observed as follows:

Nomenclature under which petition is filed is not quite relevant and that does not debar the court from exercising its jurisdiction which otherwise it possesses unless there is special procedure prescribed which procedure is mandatory. If in a case like the present one the court finds that the appellants could not invoke its jurisdiction under Article 226, the court can certainly treat the petition as one under Article 227 or Section 482 of the Code. It may not however, be lost sight of that provisions exist in the code of revision and appeal but some time for immediate relief Section 482 of the Code or Article 27 may have to be resorted to for correcting some grave errors that might be committed by the subordinate courts. The present petition though filed in the High Court as one under Articles 226 and 227 could well be treated under Article 227 of the Constitution.

Considering the facts as stated above, the present application of petitioner is allowed treating the same as an application u/s 482 Cr.P.C. and order dated 15.10.97 passed by the learned Chief Judicial Magistrate, Nawadah, in Complaint Case No. 636 of 1996 and order dated 21.8.98 passed by the learned Additional Sessions Judge-1, Nawadah, passed in Cr. Revision No. 8/98 (6/98) are quashed. The case is remanded back to the court of Chief Judicial Magistrate, Nawadah, for holding further inquiry.