Poonam Devi 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 528 of the B.N.S.S., 2023 with the prayer to quash and set aside the order taking cognizance dated 12.07.2024 passed by the learned Judicial Magistrate-1st Class, Giridih and the entire criminal prosecution in connection with Madhuban P.S. Case No.15 of 2021 corresponding to G.R. Case No.1757 of 2024 whereby and where under the learned Judicial Magistrate-1st Class, Giridih has taken cognizance of the offences punishable under Sections 354A, 498A/34 of the Indian Penal Code and the Sections 3/4 of the Dowry Prohibition Act consequent upon submission of the charge sheet against the petitioners.

Learned counsel for the petitioners submits that charge has not yet been framed against the petitioners in this case and trial is yet to begin.

The allegation against the petitioners is that the petitioners in furtherance of common intention with the co-accused persons treated the informant with cruelty by taking all her jewelleries presented to her at the time of her marriage, assaulted and abused her to coerce her to meet the unlawful demand of dowry of Rs.5,00,000/- to be brought by the informant from her father. The harassment of assault and abuse continued regularly. Her child was mis-carried; after which, her health condition deteriorated but proper health care was not provided to her. The informant was treated by the Doctor and the relevant paper in respect of the treatment has been furnished by the informant. It is further alleged that the petitioners assaulted and mis-behaved with the father and mother of the informant also and the co-accused outraged her modesty.

On the basis of the written report submitted by the informant, police registered Madhuban P.S. Case No.15 of 2021 and after investigation of the case finding the allegation against the petitioners to be true, submitted charge sheet against them; basing upon which, the learned Judicial Magistrate-1st Class, Giridih has taken cognizance as already indicated above.

Learned counsel for the petitioners submits that the petitioner No.1 is Nanad (married Sister-in-law), the petitioner No.2 is the husband of the petitioner No.1, the petitioner No.3 is Chachi Saas (Aunt-in-law) and the petitioner No.4 is Chacha Sasur (Brother of father-in-law of the informant). It is next submitted that the allegation against the petitioners is false and is general and omnibus in nature. It is next submitted that they have been living separately.

Relying upon the judgment of the Hon’ble Supreme Court of India in the case of Payal Sharma Vs. State of Punjab & Another and allied case reported in 2024 INSC 896, learned counsel for the petitioners submits that in that case, the Hon’ble Supreme Court of India reiterated its own judgment in the case of Geeta Mehrotra & Another vs. State of U.P. & Another reported in (2012) 10 SCC 741 and held that mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the tendency of over implication.

Learned counsel for the petitioners next submits that in the case of Payal Sharma Vs. State of Punjab & Another and allied case (supra), the Hon’ble Supreme Court of India also reiterated its own judgment in the case of Kahkashan Kausar @ Sonam & Others vs. State of Bihar & Others reported in (2022) 6 SCC 599 wherein the Hon’ble Supreme Court of India quashed the proceeding in respect of family members of the husband on the ground that the allegations against them are general and omnibus in nature and went on to observe that in the matters like the one before the Hon’ble Supreme Court of India, relatives not residing in the same house where the alleged victim resides, the courts shall not stop consideration by merely looking into the question where the accused is a person falling within the ambit of the expression ‘relative’ for the purpose of Section 498A of the Indian Penal Code but should also consider whether it is a case of over implication or exaggerated version solely to implicate such person(s) to pressurize the main accused.

Learned counsel for the petitioners further submits that during the pendency of this Criminal Miscellaneous Petition, the informant settled this case with her husband by way of mediation. It is then submitted that the learned Judicial Magistrate-1st Class, Giridih in the cognizance order, has not discussed in details the prosecution case. Hence, it is submitted that the prayer as prayed for in this Criminal Miscellaneous Petition be allowed.

Learned Public Prosecutor appearing for the State and the learned counsel for the opposite party No.2 on the other hand vehemently oppose the prayer of the petitioners and submit that it is a settled principle of law that the order of Magistrate cannot be validated only on the ground that the order was not a reasoned order. It is next submitted that there is direct and specific allegation against the petitioners of being in furtherance of common intention with the co-accused person, treated the informant with cruelty causing demand of dowry and outraging her modesty which was found to be true during the investigation of the case. Learned counsel for the opposite party No.2 further submits that it is out and out false to say that there has been any compromise between the informant and her husband and the petitioners want to mislead this Court by taking mediator for a ride. Hence, it is submitted that this Criminal Miscellaneous Petition, being without any merit, be dismissed.

Having heard the rival submissions made at the Bar and after carefully going through the materials available in the records, it is pertinent to mention here that it is a settled principle of law that the order of the Magistrate cannot be invalidated only on the ground that the order was not a reasoned order; as has been held by the Hon’ble Supreme Court of India in the case of Bhushan Kumar & Another v. State (NCT of Delhi) & Another reported in (2012) 5 SCC 424, para-19 of which reads as under:-

“19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order.”

It is also a settled principle of law as has been held by the Hon’ble Supreme Court of India in the case of State of Gujarat vs. Afroz Mohammed Hasanfatta reported in (2019) 20 SCC 539, paragraph-23 of which reads as under:-

“23. Insofar as taking cognizance based on the police report is concerned, the Magistrate has the advantage of the charge-sheet, statement of witnesses and other evidence collected by the police during the investigation. Investigating officer/SHO collects the necessary evidence during the investigation conducted in compliance with the provisions of the Criminal Procedure Code and in accordance with the rules of investigation. Evidence and materials so collected are sifted at the level of the investigating officer and thereafter, charge-sheet was filed. In appropriate cases, opinion of the Public Prosecutor is also obtained before filing the charge-sheet. The court thus has the advantage of the police report along with the materials placed before it by the police. Under Section 190(1)(b) CrPC, where the Magistrate has taken cognizance of an offence upon a police report and the Magistrate is satisfied that there is sufficient ground for proceeding, the Magistrate directs issuance of process. In case of taking cognizance of an offence based upon the police report, the Magistrate is not required to record reasons for issuing the process. In cases instituted on a police report, the Magistrate is only required to pass an order issuing summons to the accused. Such an order of issuing summons to the accused is based upon subject to satisfaction of the Magistrate considering the police report and other documents and satisfying himself that there is sufficient ground for proceeding against the accused. In a case based upon the police report, at the stage of issuing the summons to the accused, the Magistrate is not required to record any reason. In case, if the charge-sheet is barred by law or where there is lack of jurisdiction or when the charge-sheet is rejected or not taken on file, then the Magistrate is required to record his reasons for rejection of the charge-sheet and for not taking it on file.” (Emphasis supplied)

wherein it has been observed by the Hon’ble Supreme Court of India that at the stage of issuing summons to the accused based on police report, the Magistrate is not required to record any reason.

Now coming to the facts of the case, there is direct and specific allegation against the petitioners of being in furtherance of common intention with the co-accused person, playing an active role in treating the informant with cruelty by taking away all her jewelleries presented to her at the time of her marriage, by continuously and regularly treating her with cruelty both mentally and physically by assaulting her to fulfil the unlawful dowry demand of Rs.5,00,000/- to be brought by the informant from her parents. The allegation against the petitioners found to be true during the investigation of the case and basing upon the same, the learned Judicial Magistrate-1st Class, Giridih has taken cognizance against the petitioners of the offences as stated in the foregoing paragraph of this judgment and the case is at its nascent stage.

In view of the discussions made above, this Court is of the considered view that this is not a fit case where the prayer of the petitioners as prayed for in this Criminal Miscellaneous Petition is to be acceded by this Court in exercise of the power under Section 528 of the B.N.S.S., 2023.

Accordingly, this Criminal Miscellaneous Petition, being without any merit, is dismissed.