RAMDEOROY Vs. RAM DHYAN ROY

JUDGEMENT

(1.) Initially this application was filed under Section 439 (2) of the Code of Criminal procedure (hereinafter referred to as the Code/ However subsequently the learned counsel appearing for the petitioner by order dated 30-10-90 was permitted to convert this application into an application under Section 397, read with Section 401, of the Code and to make necessary amendment wherever required in the petition since earlier a prayer was made to cancel the bail granted to opposite party No. 1 Ram Dhayan Rov by the impugned order dated 30-7-1990 passed by the learned Sessions Judge, Sitamarhi, in Sessions Trial No. 197 of 1990 and direct him to be committed to prison or iurrender before the Judical Magistrate 1st Class Sitamarhi. Accordingly, amendments have been made and now the prayer of the petitioner has been confined only to the part of the impugned order bv which the learned Sessions Judge has considered the case of the opposite party No 1 as an accused on the trial before him, being Sessions Trial NO 197 of 1990, and in that capacity on appearance of the opposite party No 1 has released him on bail and further has fixed 6-8-1990 for farming of the charge against all the accused persons, including opposite partyNo. 1 and his transferred the case to the court of 4th Additional Sessions Judge Sitamarhi. It has also been contended on behalf of the petitioner that the trial of the opposite party No. 1 by the court of session without being properly committed under Section 209 of the Code if held shall be illegal and without jurisdiction.

(2.) The facts relevant for the decision of this application are that the opposite party No. 1 Ram-Dhyan Roy is the son-in-law of the petitioner Ram Deo Roy. Daughter of the petitioner, namely, Gita Devi (deceased) was married to opposite party No. 1 on 23-2-1987. Due to non-fulfillment of the demand of dowry in the shape of motor cycle the petitioner's daughter was subjected to torture by opposite party No. 1 and ultimately she is alleced to have been poisoned to death by in-laws and opposite party No. 1. The petitioner having come to know about the murder of his daughter lodged a written report before the Officer in-charge of Nanpur Police Station on 27-5-1989, on the basis of which Nanpur P. S. Case No 62 of 1989 under Sections 302/201/34 of the Indian Penal Code and under Sections 3/4 of the Dowry Prohibition Act was instituted. After completing the investigation, the Investigating Officer submitted final report "mistake ot fact" but the learned sub-divisional Judicial Magistrate did not agree with the conclusion of the police and ultimately he took cognizance of the offence under Sections 302/201/34 of the Indian Penal Code and 3/4 of the Dowry Prohibition Act against the opposite party No. 1 and others and accordingly issued summons to them.

(3.) Henceforth, I will deal with the case of the opposite party No. 1 only since the question to be decided relates to him only.