Vishnu Kumar Tiwari vs The State Of Uttar Pradesh

1. The second respondent, in this appeal generated by special leave, got registered a First Information Report which invoked Sections 201, 304B and 498A of the Indian Penal Code, 1860 (hereinafter referred to as ‘the IPC’ for short) and Sections 3 and 4 of the Dowry Prohibition Act, 1961. Briefly, the contents of the complaint are as follows The appellant married the second respondent’s daughter on 22.04.2004. The father of the appellant made a 1 demand for an Alto car and Rs. 2 lakhs for admission of Vishnu in B.Ed. He did not accept the demand for dowry, and even at the time of marriage, he made a demand of Rs. 4 lakhs. There is reference to his daughter informing her mother that her mother-in-law, father-in-law, husband, brother-in-law and sister-in-law used to beat her and torture her to bring dowry. There is reference to telephone call that his daughter was critical. It was made on 08.09.2010 and when they reached there, the daughter was not there. Upon insisting, the mother-in-law of second respondent’s daughter told them that they had taken her somewhere to some hospital. Search was made at many hospitals but the daughter could not be found. Thereafter, they found that the daughter had died. Reference was made to the demand for dowry by appellant and father-in-law, mother-in-law, brother-in-law and sister-in-law of the second respondent’s daughter and that they have killed his daughter. It would appear that on the basis of the same, Crime No. 721 of 2007 was registered. The Investigating Officer, however, on 2 the basis of the investigation, after taking the statements, filed a final report under Section 178 of The Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Cr.PC.’ for short).

2. The second respondent thereupon filed a protest petition. The Chief Judicial Magistrate passed an order concluding that the daughter of the second respondent/complainant, wife of the appellant, died due to her illness. It was further found that the accused persons had not caused any harassment or torture to her nor has committed dowry death. There was no prima facie case made out against the accused persons under Section 498A, 304B and 201 of the IPC and Sections 3 and 4 of the Dowry Prohibition Act,1961. It was found that there is no sufficient ground made out for action and the protest petition was dismissed and final report accepted.

10. He would point out that on the one hand, there is reference to the case of the daughter of the complainant being one of septicaemia c respiratory distress but it is also stated that the daughter of the second respondent/complainant died due to cardio pulmonary arrest. This raised questions which are not dealt with by the orders impugned before the High Court.

12. The court put a question to the appellant as to why the Additional Sessions Judge has found that there is prima facie no case made under Section 304B and 201 of the IPC against the accused persons by the Chief Judicial Magistrate but why there is no reference to Section 498A of IPC. The learned counsel drew our attention to the order passed by the Additional Sessions Judge and contended that the second respondent/complainant did not press the case 8 under Section 498A of the IPC. The contention was confined to Section 304B and 201 of the IPC.

15. In H.S. Bains, Director, Small Saving-cum-Deputy Secretary Finance, Punjab, Chandigarh v. State (Union Territory of Chandigarh) 2 , the Police submitted a final report. However, the Magistrate disagreed with the conclusion of the Police and directed issue of process upon taking cognizance of the case. A contention was taken that the Magistrate acted illegally in not recording statements on oath of the complainant and the witnesses under Section 200 of the Code and the Magistrate must, therefore, be 10 treated as having taken cognizance upon the Police report for which he was not competent as it was not a report under Section 173, but a final report within the meaning of Section 169. It was contended that the Magistrate had only two options before him – (i) he could either order further investigation. (ii) He could also take cognizance as upon a complaint but for the same the statements of the complainant and witnesses had to be recorded.

18. In Mahesh Chand v. B. Janardhan Reddy 3 , the appellant/complainant had lodged report alleging commission of offences by the respondent. Subsequently, being dissatisfied with the investigation, he filed a criminal complaint in the court of the Magistrate. In the meantime, the Investigating Officer filed a final report finding that the controversy was of a civil nature. The appellant filed a protest petition. The final report was accepted by the Magistrate. The complaint case filed by the appellant was also closed. It became final. The appellant filed a third complaint, as it were, under Section 200 of the Code. On summons being issued, it was successfully questioned before the High Court. We may notice the following discussion by this Court profitably.

33. On the basis of the materials which include the statements of the Doctors and after adverting to the contentions of the protest petition, the Magistrate has come to the conclusion that it is not a fit case for being continued and the matter should end as the daughter of the second respondent/complainant died due to illness. It is a finding which is arrived at by the court with reference to the statements of the medical practitioners. Equally, 29 in the circumstances which led to the unfortunate death of the daughter of the second respondent/complainant, it is found no case was made out under Section 201 of the IPC. It would appear that before the Sessions Judge, the aspect relating to Section 498A or in fact the provisions relating to Sections 3 and 4 of the Dowry Prohibition Act, 1961, was not pressed by the second respondent. That apart, we also notice that Magistrate has referred to the statement of the complainant that there was no complaint made about the torture apparently based on dowry demand as alleged.

30. We may notice that against the order of the Chief Judicial Magistrate and Additional Sessions Judge, the second respondent has invoked jurisdiction under Article 226 of the Constitution of India. The relief sought in the writ petition is one of certiorari to quash the orders. We may indicate that in Radhey Shyam & another v. Chhabi Nath & others7 , this Court, after overruling the judgment of this Court in Surya Dev Rai v. Ram Chander Rai & others8 in this regard, it has been laid down that a Writ of Certiorari will not lie to quash an order of a civil court. The High Court while exercising powers under Article 226 of the Constitution of India, at any rate, must bear in mind the limited nature of its jurisdiction when it deals with orders of subordinate courts.

32. We would think that, as noticed by us, the High Court was in clear error in concluding that the protest petition was not considered. That the High Court may take one of the two views of the matter may be an unsafe premise for its interference with the orders passed by the Magistrate, as affirmed by the Additional Sessions Judge.

The Magistrate could not take cognizance under Section 190(1)(b) Cr.P.C. on the basis of protest petition and affidavits filed in support thereof. The Magistrate having taken into account extraneous material i.e. protest petition and affidavits while taking cognizance under Section 190(1)(b) Cr.P.C. the impugned order is vitiated.” (Emphasis supplied)

12 2002 CriLJ 2150 (Karnataka) 38 view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non- cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;”

45. If a protest petition fulfills the requirements of a complaint, the Magistrate may treat the protest petition as a complaint and deal with the same as required under Section 200 read with Section 202 of the Code. In this case, in fact, there is no list of witnesses as such in the protest petition. The prayer in the protest petition is to set aside the final report and to allow the application against the final report. While we are not suggesting that the form must entirely be decisive of the question whether it amounts to a complaint or liable to be treated as a complaint, we would think that essentially, the protest petition in this case, is summing up of the objections the second respondent against the final report.

46. This brings us to one aspect of the matter which in fact was not argued at the Bar. The appeal is filed by the husband of the deceased, by special leave and permission. The allegations in the First Information Report are raised against the other relatives of the appellants, viz., his parents and in-laws and his siblings also. They have not challenged the order of the High Court. Allegations are made in respect of offences as committed by them also.

47. In this regard, we may notice, one facet. The Chief Judicial Magistrate accepted the final report and decided not to proceed against any of the accused including the appellant. This stood confirmed by the Additional Sessions Judge. Before the High court, neither the appellant nor any of his relatives were made parties. When the order was passed by the High Court accepting the report and directing reconsideration, was it necessary for the second respondent/complainant to implead the appellant and other relatives? Can we set aside the judgment of the High Court qua only the appellant, or can we in the facts in this case, 40 also interfere with the order of the High Court against all the accused?

48. It may be true that till process is issued, the accused may not have the right to be heard (See the judgment of this court in Iris Computers Limited v. Askari Infotech Private Limited and others13).

49. The High Court, in fact, at paragraph 11 of the impugned order, which we have extracted at paragraph 6 of our judgment, contemplated consideration of the protest petition so that cognizance may be taken under Section 190(1)(b) of the Code. This premise being without any basis even qua the other accused who are the relatives of the appellant, we would think that the impugned order must be set aside. Having regard to the nature of the allegations and in exercise of our powers also under Article 142 of the Constitution of India, we must set aside the Order of the High Court.

51. Resultantly, the appeal will stand allowed, the impugned order of the High Court will stand set aside. We, however, make it clear that this would be without prejudice to the rights of the second respondent to file a complaint as already noticed in the order of the Additional Sessions Judge.