MD NASSIM Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS writ petition by the petitioner has been filed for issuance of an appropriate writ in the nature of certiorari or an appropriate writ, order or direction for quashing order dated 15.10.1997 passed by Sri R.C. Jha, Chief Judicial Magistrate, Nawadah in Complaint Case No. 636 of 1996, by which he has been pleased to dismiss the protest petition contained in Annexure 8 and for quashing order dated 21.8.1998 passed by the learned Additional Sessions Judge 1, Nawadah, in Criminal Revision No. 8 of 1998/6 of 1998 contained in Annexure 9, by which he has been pleased to affirm the order dated 15.10.1997 passed by Shri R.C. Jha, Chief Judicial Magistrate, Nawadah and has dismissed the aforesaid criminal revision application.

(2.) THE brief facts giving rise to this petition are that the petitioner filed a complaint petition before the learned Chief Judicial Magistrate, Nawadah, alleging therein that his sister Rahia was married to Shyamuddin Mian (respondent No. 4) and after her marriage respondent Nos. 2 to 9 started assaulting and harassing Rahia on demand of a colour T.V. and a sum of Rs. 5,000/ -. On 5.5.1990 the petitioner came to know that his sister had been killed and on 6.5.1990 when he reached the village of respondent Nos. 2 to 9 and inquired from them about his sister, they left the house without disclosing anything and petitioner came to know from the villagers that his sister had been killed and she was stealthily burried. The complaint petition of petitioner was sent by the Chief Judicial Magistrate, Nawadah to police for lodging an FIR and accordingly Kauakol P.S. Case No. 41/90 under Section 304(B) of the Indian Penal Code (in short, IPC) and Sections 3/4 of the Dowry Prohibition Act was registered. The police after investigation submitted final form declaring the case of petitioner against accused persons false. Learned Chief Judicial Magistrate by his order dated 28.11.1990 contained in Annexure 2 accepted the report of police but at the same time he passed orders for examination of petitioner on S.A. under Section 200 of the Code of Criminal Procedure (in short, Cr PC) on his protest petition which he had already filed earlier. After examining the petitioner on S.A. and recording the statements of witnesses produced by petitioner under Section 202, Cr PC. Learned Chief Judicial Magistrate passed order dated 15.10.1997 dismissing the protest complaint petition (Annexure 8). The petitioner preferred Cr. Revision No. 8 of 1998 (6 of 1998) against the aforesaid order of learned Chief Judicial Magistrate before the learned Sessions Judge, Nawadah, which was heard by learned Additional Sessions Judge - 1, Nawadah, who by the impugned order (Annexure 9) affirmed the order passed by the learned Chief Judicial Magistrate, Nawadah, and dismissing the revision application.

(3.) IT is true that Section 397(3), Cr PC bars a second revision but then at the same time it is also true that in exercise of inherent powers under Section 482, Cr PC, this Court can interfere in the order passed by the Courts below if it finds that the order is not according to law and if such order is allowed to continue it will lead to miscarriage of justice. The Supreme Court in the case of Krishnan V/s. Krishnaveni, (1997) 4 SCC 241 : 1997 (1) East Cr C 643 (SC), has been pleased to hold that even in cases where a Sessions Judge has exercised his revisional power under Section 397(1), the High Court can interfere in the order "to correct the irregu4 la /1r /2 ity 01/i 3 n c Po ag rr ee 7c 2tness committed by the inferior criminal Court" if it finds that there has been "failure of justice or misuse of judicial mechanism or procedure". In the present case, I find that the final form submitted by police after investigation under Section 156 (3), Cr PC was accepted by the learned Chief Judicial Magistrate and he treated the protest petition filed by the petitioner as a complaint petition and thereafter he proceeded under Section 202, Cr PC and recorded the statements of witnesses produced by the petitioner but while passing order in the inquiry held by him under Section 202, Cr PC on the complaint petition he considered the finding of the police arrived at in the investigation of the case by it on the cause of death of sister of petitioner and in his order dated 15.10.1997 (Annexure 8), he has mentioned that cause of death according to the police investigation was premature abortion of the sister of Jahanabad Nagar Palika Kardatee Sangrah Samiti Versus State Of Bihar complainant. The same mistake has been committed by the learned 1st Additional Sessions Judge, Nawadah, in his order (Annexure 9) where although he has at one place stated that if the evidence led by the complainant and his witnesses is accepted in totality even then it is tainted with inherent absurdity and doubt but has also stated that police on investigation, as appears, found that the lady died due to premature abortion and on the basis of protest petition there can be no improvement and patching of the inherent absurdity of the prosecution case. Once the protest petition filed by the petitioner was treated as complaint petition and inquiry was held under Section 202, Cr PC, there was no justification by the Courts below to consider the findings of the police even during the investigation of the case under Section 156(3), Cr PC.