Pappu Khan and another vs State and others

Hon''ble Servesh Kumar Gupta, J.—Having heard learned counsel for the parties, it appears that one lady Bushra died in her matrimonial house in January, 2007. A case was registered in concerned Police Station as crime No. 25 of 2007 for the offence u/s 302, 201 IPC. After investigation, charge sheet was submitted against husband Wazeer Khan for the offence u/s 302, 201 IPC, before the concerned court in Sessions Trial No. 158 of 2007. The trial ended in acquittal against husband. Further investigation was made in the matter and another chargesheet was submitted against the present petitioners - Pappu Khan and Bhuri for the offence u/s 304-B read with section 3/4 Dowry Prohibition Act, 1961. These petitioners are brother-in-law and sister-in-law of deceased.

Learned counsel for the petitioners has submitted that judgment of this Court was rendered on 03.01.2011 thereby disposing of the Criminal Misc. Application No. 748 of 2007 filed by these very petitioners. In that petition, petitioners invoked the jurisdiction of this Court u/s 482 Cr.P.C. seeking the stay of their arrest by police in the said crime No. 25 of 2007 and that petition was dismissed by the learned Single Judge of this Court for the analogy that merely on the basis of acquittal of husband against whom separate charge sheet was filed, in respect of offence punishable u/s 302 IPC, it cannot be said that the proceedings against the present petitioners on separate charge sheet, which relates to offence punishable u/s 304-B IPC read with Section 3/4 of Dowry Prohibition Act, 1961 are liable to be quashed because this Court in its jurisdiction cannot examine the factual aspect of the matter.

Learned counsel for the petitioners has again filed this petition u/s 482 Cr.P.C. with the same prayer for stay of arrest of petitioners in crime No. 25 of 2007 u/s 304-B IPC. He has made oral submissions that prayer of this petition is defective, virtually he wants stay of arrest for the offence u/s 302 IPC.

Be that as it may, the fact remains that charge sheet has been submitted for the offence u/s 304-B IPC in crime No. 25 of 2007 with the same facts of assassination (unnatural) of Bushra in her matrimonial house. Hon''ble Apex Court, of late, has laid down the law wherever the offence of section 304-B IPC is tried by the court, it is incumbent upon the trial Judge to level charge of section 302 IPC, in alternate, along with section 304-B IPC.

So in view of the above, if the petitioners are arrested in crime No. 25 of 2007, it is immaterial whether they have been arrested for the offence u/s 304-B IPC or u/s 302 IPC in alternate. Therewithal, the prayer as has been mentioned in this petition has already been dealt with by the learned Single Judge of this Court while disposing of the criminal misc. application No. 748 of 2007. So on both the scores this petition devoid of merit and is liable to be dismissed. The petition is accordingly dismissed.