Harijinder
Kaur Vs. State of Jharkhand & Anr [2001] Insc 429 (28 August 2001)
D.P.
Mohapatra & Shivaraj V. Patil Shivaraj V. Patil J.
The
order dated 31.10.2000 passed by the Patna High Court, Ranchi Bench, Ranchi, in Criminal Revision No. 101 of 2000(R) is assailed in this petition.
The
petitioner filed a written complaint before the Golmuri Police Station at Jamshedpur on 2.9.1994 against her husband
(the respondent no. 2) and his other relatives. On the said complaint, Golmuri
P.S. Case No. 172/94 was registered for offences under sections 498-A, 313 of
the Indian Penal Code (IPC) and sections 3 & 4 of the Dowry Prohibition
Act, 1971.
After
investigation, charge-sheet was filed. However, Dr. (Mrs.) Snehlata Mukherjee
was not sent for trial against whom it was alleged by the complainant that she
was aborted at the nursing home of the said doctor.
The
learned Chief Judicial Magistrate on 19.11.94 took cognizance under sections
498-A, 313 of the IPC and sections 3 & 4 of the Dowry Prohibition Act, 1971
and discharged the accused Dr. (Mrs.) Snehlata Mukherjee.
The
remaining accused filed an application on 15.5.1995 to delete section 313 of
the IPC from the charge-sheet as no case was made out for the said offence. The
learned Magistrate, by his order dated 1.9.1995, allowed the application and
the charge against the accused under section 313 of the IPC was deleted. The
petitioner did not challenge either the order dated 19.11.1994 discharging Dr.
(Mrs.) Snehlata Mukherjee or the order dated 1.9.1995 discharging the accused
for offence under section 313 of the IPC. On 12.2.1998, an application was
filed on behalf of the petitioner to proceed for the trial of the accused under
section 313 of the IPC. The said application was dismissed on 17.7.1998 against
which order a Criminal Revision Petition No. 303/98(R) was preferred by the
petitioner before the High Court. The High Court disposed the said Revision
Petition in the following terms:- In the result, I find no reason to interfere
with the impugned order except that the previous order of the Chief Judicial
Magistrate discharging the accused persons of the offence under section 313
I.P.C. would be no bar to the committal of the case in accordance with the
provisions of section 323 of the Code. With this observation, this application
is dismissed. However, it is made clear that if on examination of the remaining
witnesses and on looking to the relevant documents brought on the record in
course of the trial, the Subdivisional Judicial Magistrate finds that the
accused persons before him, or any of them is shown to have committed offence
under section 313 of the Indian Penal Code or for that matter, even of its
abetment, he may commit the case to the court of Sessions either on application
made for the purpose by the prosecution, or suo motu.
Thereafter,
the learned Magistrate, having already recorded evidence of two witnesses,
continued the trial and recorded the evidence of six more witnesses. In
compliance with the directions given by the High Court as extracted above, he
passed a detailed order on 16.3.2000 holding that it was not necessary to
commit the case to the court of Sessions and posted the case for recording the
statements of the accused. It is this order, which was challenged before the
High Court and the High Court, by the impugned order dismissed the Revision
Petition filed by the petitioner. Hence, this petition.
The
main thrust of the argument of the learned counsel for the petitioner was that
the learned Magistrate committed a manifest error in appreciating the evidence
produced by the prosecution as required for final disposal of the case either
to convict or acquit the accused instead of considering only as to whether
there was prima facie material to constitute a charge for offence under section
313 of the IPC. The learned counsel for the respondent, while bringing to our
notice the previous order passed by the learned Magistrate and the High Court,
urged that in the facts and circumstances of the case, the leaned Magistrate
was right in passing the order and as such the impugned order of the High Court
confirming the same is perfectly justified.
Looking
to the narration of the facts made above, it is clear that the order dated
19.11.1994 discharging Dr. (Mrs.) Snehlata Mukherjee for the offence under section
313 of the IPC and the order dated 1.9.1995 discharging the remaining accused
for the offence under section 313 of the IPC were not challenged by the
petitioner. The order made by the High Court on earlier occasion in Criminal
Revision No. 303/98(R) was also not challenged. The learned Magistrate complied
with the directions given by the High Court in the said Revision Petition. No
fault can be found with the order of the learned Magistrate when he proceeded
to record the evidence of six more witnesses and thereafter passed the order
holding that no case was made out to commit the accused for trial under section
313 of the IPC by the Sessions Court. The learned Magistrate was bound to
follow the directions given by the High Court in the aforementioned Revision
Petition.
When
the petitioner did not challenge the order of the High Court, she cannot now
say that the learned Magistrate should not have taken into account the evidence
of 8 witnesses examined in passing the order dated 16.3.2000.
Having
regard to the facts and circumstances of this case, declining to interfere with
the impugned order, we dismiss the petition. No costs.
.......................J.
[ D.P.
MOHAPATRA ] .......................J.
[
SHIVARAJ V. PATIL ] August
28, 2001.
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