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Yogendra Singh vs The State Of Bihar And Ors on 16 July, 2019

IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL REVISION No.407 of 2016
Arising Out of PS. Case No.-4104 Year-2014 Thana- VAISALI COMPLAINT CASE
District- Vaishali

Yogendra Singh, Son of late Rajdeo Singh, Resident of Village- Husana
Raghav, PS and District Vaishali.

… … Petitioner
Versus

1. The State Of Bihar

2. Ajay Kumar Singh,

3. Abhay Kumar Singh, both sons of Late Kedar Singh

4. Manju Devi, w/o Late Kedar Singh, all resident of village Sri Rampur, P.S.
Hajipur Sadar, Dist. Vaishali

… … Respondents

Appearance :

For the Petitioner/s : Mr.Lakshmi Kant Tiwary, Advocate
For the opposite parties : None
For the State : Mr. Parmeshwar Mehta, APP

CORAM: HONOURABLE MR. JUSTICE VINOD KUMAR SINHA
CAV JUDGMENT
Date : 16-07-2019
This revision application is directed against the order dated

3.2.2016 passed by Sri Akhilesh Kumar, Judicial Magistrate, 1 st Class,

Vaishali at Hajipur in Case No. 4104 of 2014/Trial No. 1528 of 2016 whereby

the protest-cum-complaint of the complainant-petitioner has been rejected and

also for direction to the learned Magistrate to take cognizance or to make

further inquiry.

2. The case of the complainant-petitioner is that he filed a

complaint petition on 8.1.2013 being Complaint Case No. 97 of 2013 for the

offences under Sections 304B, Section498A and Section120B of the Indian Penal Code

against respondent Nos. 2 to 4. The above complaint was sent to the police for

registration of police case under Section 156(3) of the Criminal Procedure

Code and Hajipur Sadar P.S.Case No. 08 of 2014 was registered under

Sections 304B and Section498A IPC. It is also his case that since the police neglected
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in conducting investigation and arresting the accused persons, petitioner filed

a protest-cum-complaint petition on 6.3.2014 itself before the Magistrate. It is

also his case that during investigation neither police traced out the dead body

of the deceased nor arrested the accused persons nor taken statement of the

witnesses and in connivance final form has been submitted on 21.9.2014

stating that aforesaid case appears to be a mistake of fact against the accused

and in spite of protest petition filed by the complainant the final form was

accepted by the Magistrate vide order dated 10.12.2014. However, he has

proceeded with protest-cum-complaint petition which was numbered as 4104

of 2014 and sent for inquiry before Sri Akhilesh Kumar, Judicial Magistrate,

1st Class, Vaishali at Hajipur. Learned Magistrate after inquiry dismissed the

protest-cum-complaint petition filed by the petitioner vide impugned order.

3. Being aggrieved by the dismissal of the complaint case on

inquiry the present revision application has been filed on the ground that it is

settled principle of law that during inquiry under Section 202 Cr.P.C. while

deciding whether to proceed with the matter, Magistrate has only to see that

sufficient ground for proceeding in the matter is available and allegation itself

makes out the offence, nothing more he has to look into but in the present

case in spite of the material collected during inquiry, i.e., statement of

witnesses that the daughter of the complainant was subjected to cruelty with

respect to demand of land and she was made traceless, the protest-cum-

complaint petition filed by the petitioner has been rejected. Further ground is

that there are also errors on record as while passing the impugned order, the

learned Magistrate has observed that the witnesses examined during inquiry

are not the cited witnesses of the complaint petition, but all the witnesses

examined during inquiry are named in the protest-cum-complaint petition.
3/4

Further learned Magistrate has observed that there is no eye-witness to the

occurrence and there is no scientific or direct proof of the death of daughter of

complainant and though there is material to show that there was demand of

money and she was tortured for that in her sasural but no complaint was made

anywhere but all the above findings are absurd in view of the fact that in a

case under Section 304B or 498A SectionIPC ordinarily direct evidences are not

available and complainant has come with a case that she is traceless from the

house leading to the fact that she has been killed but the Magistrate in spite of

the above facts dismissed the complaint-cum-protest petition filed by the

petitioner.

4. Heard learned APP.

5. In this case, notice was issued to opposite party Nos. 2 to 4, the

accused persons. It further appears that they have filed Vakalatnama but in

spite of giving opportunity to appear they have not appeared.

6. On perusal of the impugned order it appears that there is error

apparent on the record as learned Magistrate has wrongly come to the finding

that the witnesses are not cited witnesses in the complaint petition, whereas

from the protest-cum-complaint petition it appears that they are cited

witnesses. It further appears that learned Magistrate has dismissed the

complaint petition on the ground that there is no direct evidence nor there is

direct proof of death and no complaint was lodged about demand or torture

but learned Magistrate failed to consider that ordinarily in a case under

Section 304B and Section498A IPC direct evidence is generally not available, except

the evidence of persons from the Maike side, who are natural witnesses with

regard to demand and torture. No doubt, there is nothing available on the

record to show that dead body has been found but that itself is not a ground
4/4

for rejecting the complaint petition as they had come with a definite case that

she is traceless from her sasural with respect to demand.

7. Learned counsel for the petitioner has also relied upon various

decisions of Hon’ble Apex Court as well as of this Court, 2010(3) PLJR 717,

2010(3) PLJR 133 SC, 2010(1) PLJR 706 and AIR 1963 SC 1430.

8. Considering the above facts and settled principle of law laid

down by Hon’ble Apex Court as well as by this Court, the order dismissing

the complaint petition does not appear to be sustainable as it suffers from

inherent illegality and impropriety, accordingly, the impugned order dated

3.2.2016 is set aside.

9. This revision application is allowed and the matter is remitted

back to the court of Judicial Magistrate for further inquiry.

(Vinod Kumar Sinha, J)
spal/-

AFR/NAFR
CAV DATE 05.07.2019
Uploading Date 17.07.2019
Transmission Date 17.07.2019

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