IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.39241 of 2007 DR.JAGGARNATH PRASAD, SON OF LATE RASHIK LAL YADAV, PRESENTLY POSTED AND RESIDING AT IN CHARGE MEDICAL OFFICER, P.H.C. BANMANKHI, DISTRICT-PURNEA. PERMANENT RESIDENT OF VILLAGE/MOHALLA-BHATSARA, P.S. BARHARA KOTHI & DISTRICT-PURNEA. ……………………………………………………………………………………..PETITIONER. Versus 1. THE STATE OF BIHAR. 2. SHIVJEE PRASAD, SON OF LATE DHARKHAN SAH, RESIDENT OF VILLAGE/MOHALLA-HOUSE NO.1389 SHIVPURI, P.O. HEMAR BHILLA, P.S. SADAR CANTT, DISTRICT-JABALPUR(M.P.) ………………………………………………………………….OPPOSITE PARTIES. ----------- For the petitioner : Mr. Bhola Prasad, Advocate. For the State : Mr. Jharkhandi Upadhyay, A.P.P. For O.P. No.2 : M/s. N.K. Agrawal, Sr. Advocate and D.N. Tiwari, Advocate. ----------------- O R D E R The petitioner, an ailing doctor, who though not named in the FIR of Banmankhi P.S. Case No.121 fo 2006 registered initially under section 304B IPC , now faces prosecution in connection therewith by reason of his name cropping up in course of the investigation and a charge sheet being submitted under Sections 304B and 201/34 IPC as against him and the 3 FIR named accused and cognizance being taken thereupon. Through this application the petitioner has prayed for the quashing of the order dated 19.5.2007 passed therein by the learned Chief Judicial Magistrate, Purnea, whereby cognizance has been taken. The informant, one Shivjee Prasad, impleaded herein as O.P.No.2, gave his fardbeyan before the police on 4.6.2006 in respect of 2 an occurrence which allegedly took place on 20.5.2006. It is said that the marriage of his daughter Poonam Gupta was solemnized with Rajesh Gupta on 11.12.2000 whereat ornaments, clothes, utensils, kitchenware, furnitures, television, refrigerator, sewing machine, motorcycle apart from cash to the tune of Rs.1 ½ lakhs was given. After marriage Poonam went to the matrimonial home and six months thereafter her duragaman was performed. However, when after one year she did not conceive, her husband and parents-in-law started harassing and tormenting her in various ways, the information whereof she communicated to her father over telephone. Two years later the accused started demanding another motorcycle as the one given at the time of marriage had become old even as her torture continued. The demand was duly fulfilled and peace was restored in the matrimonial home but only for a short period whereafter she was again tortured and also assaulted by the accused. The informant would come oft and on to pacify and reason with the accused whereafter a temporary lull would follow in the torture and would resume shortly thereafter. The allegation is that when the informant along with others came to Banmankhi to meet his daughter on 26.5.2006 he was given to understand by his Samdhi that Poonam had expired due to diarrohea. It is further alleged that when the informant sought information as to why he had not been informed of the death, the Samdhi along with 4-5 unknown others forcibly made them leave. The assertion of the informant is that the husband and parents-in-law had conjointly killed Poonam for non fulfillment of dowry demand and her body had been surreptitiously been 3 cremated. The alleged killing is said to have taken place on 20.5.2006. Assailing the impugned order the contention of the learned counsel for the petitioner is that he had been falsely implicated in this case presumably because he had issued the death certificate of Poonam showing that she had died of cardiac arrest as a result of suffering from diarrhea and a presumptive apprehension arose that the doctor in collusion with accused had turned a case of unnatural death into one under normal condition. It was also submitted that it would be clear from the reading of the statement of the informant before the police that no allegation of any demand for dowry, torture and assault of the deceased is directed towards the petitioner and in the whole of the case diary there was no iota of materials to show the complicity of the accused in the said crime and as such the prosecution for offences under sections 304-B and 201/34 IPC was not only unwarranted but also, in the facts and circumstances not tenable. The informant in pursuance of the notice sent to him has appeared to contest the application but no show cause has been filed on his behalf. However, oral submissions were advanced on his behalf none of which appears to be tenable. Admittedly, for an offence under Section 304B IPC the requirement is that the death of the married lady is due to burn or bodily injury or is an unnatural death within 7 years of the marriage and soon before her death she was subjected to cruelty or harassment by her husband or any of his relatives which was in connection with any demand for dowry. 4 The admitted position is that the petitioner doctor was neither the husband nor a relative of the husband nor is there any allegation attributed to him of demanding dowry or of subjecting the deceased, prior to her death, with cruelty or harassment. He is also not accused of participating in the alleged murder of Poonam or of burning her dead body. In that view of the matter the cognizance against the petitioner does not appear to be warranted and being an abuse of the process of Court is required to be quashed. In the result the cognizance order, so far as the petitioner is concerned, is quashed and the application is allowed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 15th day of May, 2009. Pradeep Srivastava/A.F.R.