STATE OF GUJARAT Vs. SHANTABEN KHIMSHANKER

JUDGEMENT

(1.) From the record, it also appears that Executive Magistrate recorded dying declaration of Meena on the same day. From Exh. 97, it is clear that Dy. S. P., G. K. Parmar took over the investigation from P.S.I. Choudhari on 3-9-1984. From the evidence, it is also clear that after taking over the investigation, this officer has also recorded statement of deceased Meena. Meena succumbed to her injuries on 5-9-1984 and inquest panchnama was prepared which has been verified by this officer. Thus, it goes without saying that it is well within the knowledge of this officer that Meena succumbed to burn injuries and also the circumstances under which she suffered the burn injuries. However, on completion of investigation, this officer, G. K. Parmar PW. 15, who was Dy. S. P. at the relevant time, filed a charge-sheet for offences punishable under Sec. 498-A and 114 of the Penal Code and Sec. 4 of the Dowry Prohibition Act. It is surprising that a senior police officer in the rank of Dy. S. P. who was investigating the case has not filed chargesheet for an offence punishable under Sec. 306 of the Penal Code, though within a period of five months from the date of her marriage, Meena committed suicide. Sec. 306 of the Penal Code reads as under :

(2.) Charge is framed by the Chief Judicial Magistrate, vide Exh. 5, where there is a specific reference that deceased poured kerosene on her person and set her on fire and on 5-9-1984 at about 13-10 hours, she died in the hospital during the treatment. Thereby, the accused abetted each other and committed an offence punishable under Sec. 498A of the Penal Code read with Sec. 114 of the Penal Code and also under Sec. 4 of the Dowry Prohibition Act. Sec. 173 of the Code casts duty on the police officer to submit report on completion investigation. The Magistrate has taken cognizance upon the police report while exercising powers under Sec. 190 of the Criminal Procedure Code. Sec. 209 of the Code contemplates that when in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Sessions, he shall commit after complying with the provisions of Sec. 207. The Magistrate has to come to the conclusion on perusal of the police papers whether the case is exclusively triable by the Court of Sessions or not. In the instant case the Chief Judicial Magistrate has failed in discharging this burden. It is apparent from the record of the case that complainant poured kerosene on her person, set herself on fire and she died as a result of burn injuries on 5-9-1984. The incident took place on 2-9-1984 while the marriage took place on 9-5-1984. Sec. 498A is brought on statute with effect from 25-12-1983 and Sec. 113-A of the Evidence Act with regard to presumption as to abutment of suicide by a married woman is also brought on statute by an Act No. 46 of 1983, i. e., with effect from 25-12-1983. Thus, when the papers were before the Magistrate, it was the duty of the Magistrate to peruse the papers, to frame proper charge and if not competent to try the accused if the case is triable exclusively by Court of Sessions, it was his duty to commit the accused to the Court of Sessions for trial. If the learned Magistrate had applied his mind to the case, he would have seen easily that prima facie case under Sec. 306 is made out. It was his duty to consider the record and prima facie come to the conclusion whether the case is triable by Court of Sessions or not. It was not proper for him to choose for trial only such offences over which he had jurisdiction and to ignore other offences over which he had no jurisdiction.

(3.) In this regard, in the case of Matukdhari Singh and Ors. v. Janardhan Prasad, reported in AIR 1966 SC 356, the Hon'ble Supreme Court has held that it was improper for the Magistrate to ignore the offences over which he had no jurisdiction and to choose for trial only such offences over which he had jurisdiction. In that case, in para 4 of the judgment, Hon'ble Supreme Court has observed as under :