Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Cal) 577

IN THE HIGH COURT OF CALCUTTA
Ajoy Kumar Mukherjee, J.
Dali Das @ Doli Das - Appellant
Versus
Anandamoy Das @ Anandamay Das And Others - Respondent
C.R.R. 2531 of 2019
Decided On : 08-07-2022

Advocates appeared:
Mr. Prabir Kumar Mitra, Mr. Pinak Kumar Mitra, Ms. Subhannita Ghosh Ms. Ariba Shahab, for the Appellant; Mr. Madhusudan Sur, Ld. APP, Mr. Dipankar Paramanick, Mr. Avik Ghatak, Mr. Amit Ranjan Pati, for the Respondent

The main legal point established is the requirement for the court to consider the materials before framing charges, especially in cases involving serious allegations.

Headnote:
Indian Penal Code - Cognizance - Section 313 - 498A/34 IPC - 506 - The court discussed the application of section 313 of the Indian Penal Code (IPC) and the framing of charges under sections 498A/34 IPC and 506. The judgment highlighted the failure of the Magistrate to apply judicial mind in excluding section 313 from the charge-sheet and framing of charges, emphasizing the need for the court to consider the materials before framing charges.
Fact of the Case:

The petitioner alleged illegal demand of dowry, mental and physical torture, and forced abortion by the accused. The Magistrate failed to consider the materials and excluded section 313 from the charge-sheet and framing of charges.
Finding of the Court:

The court found that the Magistrate did not apply judicial mind in excluding section 313 from the charge-sheet and framing of charges.
Issues: Failure of the Magistrate to consider materials before excluding section 313 from the charge-sheet and framing of charges.
Ratio Decidendi: The court emphasized the need for the Magistrate to consider the materials before framing charges, especially in cases involving serious allegations.
Final Decision: The court set aside the orders and directed the Magistrate to re-evaluate the materials and hear all parties before taking further action.

JUDGMENT

Ajoy Kumar Mukherjee, J. - Present revisional application has been directed against order dated 24.10.2018 for not taking cognizance of offence under section 313 of Indian Penal code (IPC) by the Magistrate and also against order dated 04.03.2019 for framing of charge by the Magistrate against accused persons/opposite party no.1 to 6 herein only under section 498A/34 IPC excluding section 313 in connection with the Barabani Police Station Case No. 50/18 dated 28.05.2018, where accused persons were initially booked under sections 498A/313/34/506 of the Indian Penal code (IPC) corresponding to G.R. No. 1053/18 pending before the Learned Chief Judicial Magistrate, Asansol.

2. Petitioners contention is that police started investigation on the basis of a direction given by learned Magistrate under section 156 (3) of the Code of Criminal Procedure (code) at the behest of petitioner herein.

3. In the said written complain petitioner inter alia alleged about illegal demand of dowry and also about inflicting mental and physical torture by the accused/opposite parties and furthermore she also specifically alleged that after two- three months of her marriage when all the accused persons came to know that the complainant became pregnant, they forcibly compelled the complainant/petitioner to take some medicine which led to her abortion.

4. On the basis of allegation, said Baraboni police Station case No. 50/118 dated 28.05.2018 was initiated under section 498A /313/34/506 of the IPC. But unfortunately after completion of investigation the Investigating Officer submitted charge-sheet being charge-sheet 91/2018 dated 08.10.2018 under section 498A/506/34 of Indian Penal Code and the investigating officer inappropriately did not add section 313 of IPC in the charge sheet though sufficient materials collected during investigation to incorporate section 313 in the charge-sheet.

5. It is further alleged that learned Magistrate mechanically has taken cognizance upon the charge-sheet mentioned offences submitted by the investigating officer without applying his judicial mind and ignored the fact that the allegation and the materials specifically establish prima facie charge under section 313 of the code. Ultimately charge has been framed under section 498A/34 I.P.C., excluding section 313 of the I.P.C., against accused persons.

6. Mr. Prabir Kumar Mitra learned counsel on behalf of the petitioner submits that learned Magistrate has failed to appreciate that the investigating officer intentionally with malafide motive did not add section 313 of the I.P.C. in the charge-sheet though allegation under section 313 has been well reflected in the First Information Report (F.I.R.) as well as in the medical papers which has been collected during investigation as well as the statements of the doctor recorded during investigation . Learned Magistrate also failed to appreciate that the advice about taking abortion pills, tactfully written on the back side of the prescription of Dr. A.K. Ghosh, despite of having ample space on the front side of the prescription.

7. Mr. Mitra further contended that investigating officer intentionally suppressed the materials available in the charge-sheet and he also did not mention the same in the seizure list and going beyond his jurisdiction, investigating officer commented on the ability of understanding of the petitioner /complainant. Investigating officer was pro-active to exonerate the accused persons from charging under section 313 of the IPC and surprisingly investigation officer has put the prescription in the case diary to the extent of front page only whereas in the backside of the prescription, medicine has been prescribed on the same day for termination of pregnancy which nowhere finds place in the case diary, though such original prescription was handed over to the police by the petitioner containing both the side of the prescription. Moreover recording of statement of witness Sima Pal under section 161 of the co