Amanullah & Anr vs State Of Bihar & Ors

Brief facts of the case are stated hereunder to appreciate the rival legal contentions urged on behalf of the parties:

His uncle disclosed him that his wife-Tamanna Khatoon (since deceased) had gone to maize field wherein she was found lying with her mouth and nose tied with her dupatta. She was spotted by one Hira Sada (PW-2), who was returning with her daughter. Upon hearing the noise made by the deceased she raised alarm and upon hearing the same informant’s uncle-Md. Hasim along with others reached the spot and took Tamanna Khatoon to Singhia for treatment. She died on the way to Singhia. On 30.03.2008 FIR was lodged by Mukhtar, husband of the deceased against Md. Raju and Md. Halim @ Mangnu- appellant no.2 herein for the offences punishable under Sections 302 and 120B read with Section 34 of the Indian Penal Code (for short “IPC”).

During investigation, many witnesses deposed before the Judicial Magistrate, Rosera under Section 164 of the CrPC wherein it has been alleged that Mukhtar, husband of the deceased has killed his wife.

On 30.09.2008 charge sheet no.111/2008 in respect of FIR No. 37/2008 was filed in the Court of Chief Judicial Magistrate (CJM), Rosera by the police against Md. Hasim, Md. Noor Hasan, Md. Safique and Jhothi Sada.

After filing of the charge sheet, Mukhtar started threatening the witnesses. With a view to threaten the appellant no.1 on 17.10.2008, he reached his house with pistol and dagger. The appellant no.1 raised hue and cry and upon hearing the same, co-villagers caught Mukhtar with arms, after a chase. FIR No. 104/08 was registered against him for the offence punishable under Sections 25 and 26 of the Arms Act, 1959 at Singhia Police Station.

The learned CJM after considering the material placed before him vide order dated 10.11.2008.took cognizance under Sections 302 and 120B read with Section 34 of the IPC against Mukhtar and other accused-persons.

The High Court by its order dated 08.12.2010 allowed the said petition by setting aside the cognizance order passed by the learned CJM and also quashed the criminal prosecution. Aggrieved by the said order, the appellants herein, who are interested private parties, have filed this appeal urging various grounds.

Per contra, Mr. Shivam Singh, the learned counsel appearing on behalf of the respondents contended that the answering respondents have not been named in the FIR. The FIR in this case is based on the statement of Mukhtar against two persons, namely Md. Raju and Md. Halim for the murder of his wife and it was registered under Sections 302 and 120B read with Section 34 of the IPC. He further submitted that on 11.04.2008, the informant-Mukhtar filed a protest petition before the learned CJM, Rosera. In the said protest petition it was brought to the notice of the court that originally he had given a written complaint to the police about the murder of his wife against five persons, namely Md. Raju, Md. Halim @ Mangnu, Khalid Gulab, Abu Quaiyum and Md. Amid Hussain for offences under Sections 376, 302 read with Section 34 of the IPC. However, the local police in collusion with the accused-persons dropped the names of three accused persons and also dropped charge under Section 376 of the IPC against them knowingly and intentionally. The course of investigation was diverted in wrong direction to falsely implicate the respondent nos. 2-9.

It was further submitted by the learned counsel that the father and mother of the deceased have given their statement on a stamp paper before the Notary Public that their daughter was having a cordial matrimonial life with her husband and she was not being tortured by her husband or his family members in connection with any dowry demand.

Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898, the State was entitled to appeal to the High Court, and the complainant could do so only if granted special leave to appeal by the High Court. The right of appeal was not given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the States has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the prerequisite condition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The Law Commission of India gave anxious thought to this matter, and while noting that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the common law jurisprudence obtaining in England and other countries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law. But simultaneously the Law Commission also noted that if the right to appeal against acquittal was retained and extended to a complainant the law should logically cover also cases not instituted on complaint. It observed:

Further, the High Court has failed to take into consideration another important aspect that the case at hand relates to the grave offence of murder and that the criminal proceedings related thereto should not lightly be interfered with, which is a well settled proposition of law.

The impugned judgment and order of the High Court is set aside and the matter is remitted to the learned CJM for proceeding further in accordance with law. The appeal is allowed.