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