Ramesh Burnwal & Ors vs The State Of Bihar & Anr on 9 October, 2017

IN THE HIGH COURT OF JUDICATURE AT PATNA

Criminal Miscellaneous No.42845 of 2011
Arising Out of PS.Case No. -0 Year- null Thana -null District- JAMUI

1. Ramesh Burnwal S/O Late Shashi Bhushan Burnwal

2. Kaushlya Devi W/O Late Shashi Bhushan Burnwal

3. Rohit Burnwal S/O Late Shashi Bhushan Burnwal

4. Ganesh Burnwal S/O Late Shashi Bhushan Burnwal
All are resident of Village – Hussainbad, Police Station – Devipur, District –
Deoghar ( Jharkhand ).

…. …. Petitioner/s
Versus
1. The State Of Bihar

2. Lal Mohan Burnwal S/O Late Bharat Lal R/O Village – Saraon, Police Station –
Chakai, District – Jamui.

…. …. Opposite Party/s

Appearance :

For the Petitioner/s : Mr. Pankaj Kumar Sinha
For the State : Dr. Rabindra Kumar,A.P.P.

CORAM: HONOURABLE MR. JUSTICE SANJAY PRIYA
ORAL JUDGMENT
Date: 09-10-2017

Heard learned counsel for the petitioners and the State.

This application under Section 482 of the Code of Criminal

Procedure has been filed for quashing the order dated 18.09.2010 passed in

Complaint Case No. 379C/2010 by which the learned Judicial Magistrate, 1st

Class, Jamui after holding enquiry has found prima facie case against the

petitioners for the offences under Section 498(A) of the Indian Penal Code and

Section ¾ of the Dowry Prohibition Act.

Opposite party has appeared through lawyer by filing

Vakalatnama but none appeared during the course of hearing of this petition.

Learned counsel for the petitioners has submitted that the death of

the deceased took place due to failure of Kidney on 16.04.2009 in Deoghar
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Hospital. Thereafter cremation took place on 17.04.2009. The complainant did

not participate in the cremation as the marriage of son of the complainant was

fixed on 17.04.2009. The police after investigation has submitted final form on

06.07.2007 finding the case untrue against the petitioners, which was accepted by

the learned Chief Judicial Magistrate, Jamui. Thereafter the complainant filed a

protest petition on 15.09.2009 (Annexure 1).The learned court below on the basis

of the aforesaid protest petition, after holding enquiry, found, prima facie case

against the petitioners for the offences under Section 498A IPC and ¾ of Dowry

Prohibition Act by the impugned order.

Learned counsel for the petitioners has submitted that no

occurrence has taken place at Jamui but the case has been filed in Jamui. As per

case of the complainant the deceased died in Deoghar Hospital. Learned counsel

for the petitioners also submitted that the protest petition, which was treated as

complaint, was not filed in proper format. There is no mention of specific

allegation or date of occurrence against the accused persons. The protest petition

filed by the complainant is totally vague and on such vague protest petition the

learned court below has found, prima facie, case against the petitioners. In this

connection learned counsel for the petitioners has relied upon decisions in the

case of Neelu Chopra -v- Bharti, reported in (2009) 10 SCC 184 and Preeti

Gupta -v- State of Jharkhand, reported in 2010(4)PLJR (SC) 36.

Learned A.P.P. has submitted that there is no illegality in the

impugned order. Counsel for opposite party no.2 has not appeared although his

name is appearing in the Cause List.

In the original complaint petition filed by the Complainant which

was sent to police station under Section 156(3) Cr.P.C it was alleged that the

daughter of the complainant was married with Ramesh Burnwal. She was tortured
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in her Sasural. She developed Kidney problem. She was not provided proper

treatment. The complainant brought his daughter to his house and got her

treatment in Delhi and in Ranchi. The husband, Ramesh Burnwal came to the

house of the informant on 16.04.2009 and took his daughter. She died on

16.04.2009 in the house of accused no1 ( husband of the deceased) but no

information was given to the complainant.

Case diary has been received. It has been mentioned in the case

diary that the daughter of the complainant died on account of kidney failure. The

police after investigation submitted final form on 06.07.2009. Thereafter after

lapse of two months the protest petition was filed by the complainant (Annexure

1) levelling vague allegation. From perusal of Annexure 1, it appears that it has

not been filed in proper format and mere vague and omnibus allegation has been

made. There is no mention of any specific overt act against any of the accused

persons. The learned court below treated the protest petition as complaint and

proceeded for enquiry under Section 202 Cr.P.C. The learned court below

recorded S.A. of the complainant and the statement of three witnesses. Copies of

all those statements are enclosed with the petition as Annexure 6 series. From

perusal of those statements it appears that all the witnesses have stated that the

deceased died on account of Kidney failure. The complainant has enclosed

various prescriptions to show that proper step was taken by the husband and

other family members. Prescriptions are enclosed as Annexure 2 series. Hon’ble

Supreme Court in the case of Neelu Chopra -v- Bharti reported in (2009) 10

SCC 184 has held that particulars of offence committed by each accused and role

played by them in committing that offence need to be stated.

In the instant case it appears that the complainant has no where

stated particulars of the offence committed by each of the accused. The said
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complaint was totally vague. It did not show which accused has committed what

offence and what role has been played by them in commission of the offence.

The court below has not found prima facie case under Section 304B IPC and has

found , prima facie, case for the offence under Section 498A IPC and ¾ of Dowry

Prohibition Act.

From the averment made in the complaint petition(Annexure 1)

and statement of the witnesses recorded during enquiry (Annexure 6 series) this

Court finds that there was no sufficient material against the petitioners for the

offence under Section 498A IPC and ¾ of Dowry Prohibition Act. The witnesses

have stated that the deceased died due to failure of Kidney.

Therefore, the impugned order dated 18.09.2010 passed in

Complaint Case No. 379C/10 by Sri Abhishek Mishra, Judicial Magistrate, 1st

Class, Jamui, along with entire criminal proceeding against the petitioners is

hereby quashed.

This Criminal Miscellaneous application is, therefore, allowed.

(Sanjay Priya, J)

singh/-

AFR/NAFR AFR
CAV DATE
Uploading Date 13-10-2017
Transmission 13-10-2017
Date

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