IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.3180 of 2007 AWADHESH CHOUDHARY & ORS Versus STATE OF BIHAR AND ANOTHER ----------- For the petitioners : Dr. Amrendra Kumar and Mr. Ravi Shankar, Advocates. For the State : Mr. Jharkhandi Upadhayay, A.P.P. For O.P. No.2 : Mr. Akash Deep, Advocate. ------------- O R D E R Five of the six F.I.R. named accused of Sessions Trial No.75 of 2006 arising out of Bhagwan Bazar P.S. Case No.239 of 2004 have prayed for the quashing of the order dated 18.11.2006 passed therein by the learned Presiding Judge, Fast Track Court No.IV, Saran at Chapra, whereby the application of the petitioners under Section 227 Cr.P.C. for their discharge has been rejected. An additional prayer for quashing of the order dated 23.11.2005, whereby the learned Chief Judicial Magistrate, Saran at Chapra, has taken cognizance has also been made. The cognizance was taken for offences under Sections 498-A, 364/34 I.P.C. and 3/4 Dowry Prohibition Act. It may be stated at the very outset that the petitioners have made two prayers in one petition by praying for the quashing of order dated 18.11.2006 passed by the learned Presiding Judge rejecting their prayer for discharge and order dated 23.11.2005 passed by the learned Chief Judicial Magistrate taking cognizance which were passed at two distinct stages of the proceedings and making of such prayers in one - 2 - petition is neither permissible nor warranted. Moreover, it is too late in the day after the case has been committed to the court of sessions to pray for quashing of the order taking cognizance and after the petitioners had already availed of their remedy under Section 227 Cr.P.C. Accordingly, the prayer for quashing in this application is being restricted to the order dated 18.11.2006 whereby the prayer for discharge was rejected. The informant, Lal Babu Prasad, impleaded herein as O.P. No.2, filed a complaint case bearing No.C2480 of 2004 alleging commission of offences under Sections 364/498-A/304-B/201 I.P.C. and 3/4 Dowry Prohibition Act at the hands of the six persons arrayed therein as accused. The same was transmitted to the concerned police station under Section 156(3) Cr.P.C. on the basis whereof the aforesaid Bhagwan Bazar P.S. Case No.239 of 2004 came to be registered under Sections 304-B and 201/34 I.P.C. According to the informant the marriage of his sister, Deep Mala, was solemnized with Raju Choudhary, in the month of February, 2002 and at the time of bidai the accused persons, namely, Raju Choudhary, Radheshyam Choudhary, Munna Choudhary and Manoj Choudhary, began to demand a motorcycle as dowry and after great persuasion the bidai took place. However, the demand for the motorcycle continued and due to the non fulfillment thereof Deep Mala was subjected to torture and cruelty. It is said that in the mean time Deep Mala gave birth to a son who was now aged 2 years. It is further stated that since the accused did not change their behaviour , - 3 - the informant brought back his sister to the maika in the month of March, 2004. It is also alleged that a month prior to the filing of the complaint accused nos.2 to 5 had come to the informant and requested for bidai of Deep Mala with an assurance that she would be kept with all respect and cordiality and none in the matrimonial house would ill treat or misbehave with her. On such assurance being given Deep Mala went back to her matrimonial home on 7.10.2004 and in the afternoon of the same day Raju Choudhary telephonically informed the informant that Deep Mala had become traceless. The informant on receipt of the information is said to have gone to Kolkata to meet his brother-in-law (bahnoi) who instead of sympathizing with him allegedly told him to return back to his house otherwise he would be killed and sent to his sister. Thereafter the informant is said to have visited the accused nos.2 to 6 at village Daulatpur and inquired from them about his sister but they gave evasive reply and having abused the informant drove him away. The informant suspected that his sister had either been killed by the accused persons or had been sold some where due to the non fulfillment of dowry demands. It has been submitted on behalf of the petitioners that they are innocent and as it would appear from perusal of the complaint petition, it was clear that she was leading a happy married conjugal life. It has further been submitted that during investigation the police had found the prosecution case doubtful and as such the supervising authority had recommended for submitting chargesheet under Section 498-A I.P.C. but notwithstanding the same the Superintendent of - 4 - Police had directed for submission of chargesheet under Section 498- A and 364/34 I.P.C. as also 3/4 of the Dowry Prohibition Act. The learned counsel has referred to some of the paragraphs of the case diary to indicate that the Investigating Officer in course of the investigation had visited Kolkata where he found a different story which was to the effect that on 7.10.2004 this petitioner alongwith Deep Mala had come to Howrah Railway Station to board the Jan Shatabdi Express Train but from the station itself Deep Mala eloped with some persons of which the petitioner had given information to the Howrah Government Rail Police for which Sanha No.888 dated 14.,10.2004 was entered. The learned counsel has also referred to certain paragraphs of the case diary to state that the witnesses had stated that Deep Mala had lived with her husband and the husband had never misbehaved with her and to the contrary it was she who used to remain absent from her house regularly and even after the occurrence some of the witnesses had seen her in some other locality in the company of other persons but when those witnesses wanted to know about her whereabouts she preferred to avoid them and again became traceless in the market. Be that as it may, I find no material irregularity in the impugned order of the learned Presiding Judge, Fast Track Court No.IV, Saran at Chapra. It is by now well settled by a catena of decisions both of the Supreme Court as also this Court that at the stage of 227/228 Cr.P.C. the court is not required to weigh evidence in a substantive balance - 5 - and has to consider broad probabilities of the case, the total effect of the evidence and the documents produced and from them to judge and see whether there is sufficient ground for proceedings against the accused or not. For the purpose Sections 227 and 228 Cr.P.C. have to be read together in juxtaposition. The standard test, proof and judgment which is needed for finding of a guilt or otherwise is not necessary for framing of charge at this stage and even a strong suspicion founded upon materials before the court may justify framing of charge and dismissal of a discharge petition. In this connection, reference may be made to the case of State of Bihar Vs. Ramesh Singh (AIR 1977 SC 2018) and Superintendent and Reimbrancer of Legal Affairs Versus Anil Kumar (AIR 1980 SC 52). The fact that the petitioners had filed a sanha before the Government Rail Police at Howrah is his defence and will have to be proved by cogent evidence in course of the trial. For the reasons stated above, I find no merit in this application there being no illegality or irregularity in the impugned order and as such this application is dismissed. (Abhijit Sinha,J) Patna High Court, Patna. Dated: The 3rd day of September, 2008. Pradeep Srivastava/A.F.R.