The main legal point established in the judgment is that once a trial court has discharged an accused after due application of mind, the dismissal of a protest petition seeking to put the accused back to trial is justified, and the remedy is to seek the accused's summoning if sufficient evidence is brought during the trial.

V.K. Shali, J.

Crl. M. A. No. 8646/2011

1. This is a petition filed under Section 482 Cr.P.C. assailing the order dated 06.05.2011 passed by the learned Metropolitan Magistrate, Tis Hazari Courts, Delhi in respect of FIR No. 84/2009, under Section 498A/406/34 IPC registered by P.S. Subzi Mandi, Delhi. By the impugned order, the so called protest petition of the petitioner, filed under Section 200 Cr.P.C., for taking the cognizance of the offence against the accused Tanveer Alam (brother-in-law of the husband of the present petitioner) was dismissed.

2. Briefly stated the facts of the case are that the petitioner got married to the respondent no.2/Tabrez Alam, according to Muslim rituals, on 28.04.2008. On account of demand of dowry, the complainant was subjected to cruelty. She lodged a complaint on 25.02.2009, to the ACP, Crime Branch, Women Cell, Subzi Mandi, Delhi. The aforesaid FIR was registered against the accused persons, namely, Tabrez Alam (Husband), Saira Khatoon (Mother-in-law) and Tanveer Alam (brother-in-law of the husband of the present petitioner). After investigation in the matter, the charges were framed against Tabrez Alam (Husband), Saira Khatoon (mother-in-law) and Tanveer Alam (Nandoi) leaving four other persons in column no. 12 of the charge sheet on the ground that there was no sufficient evidence to send them for trial. The learned Magistrate took the cognizance of the offence and procured the attendance of all the three accused persons, namely, Tabrez Alam (Husband), Saira Khatoon (Mother-in-law) and Tanveer Alam (brother-in-law). On 25.01.2011, the learned Magistrate passed an order of discharge so far as Tanveer Alam (brother-in-law) is concerned, on the ground that there was no sufficient evidence to proceed against him for an offence under Section 498A/406 IPC.

3. The prosecution feeling aggrieved by the aforesaid order had filed a revision petition as shown in the status report filed before this Court. The revision petition was also dismissed, though, the date of dismissal is not given. Curiously, the photocopies of neither the order of discharge, dated 25.01.2011, nor the order of dismissal passed by the Court were placed on record. In the meantime, it seems that the petitioner filed a protest petition, under Section 200 Cr.P.C., before the learned Magistrate, for taking cognizance against the brother-in-law (nandoi) of the present petitioner, Tanveer Alam also. The said petition was dismissed by the learned Magistrate vide impugned order on 06.05.2011 on the ground that the said accused person had already been discharged and the learned Magistrate did not have any power to review its own order as it would amount to double jeopardy.

4. I have heard the learned counsel for the petitioner and the learned APP.

5. The contention of the learned counsel for the petitioner is that the impugned order dated 06.05.2011, dismissing the protest petition, is totally unsustainable in the eyes of law in as much as definite allegations were made against Tanveer Alam in the complaint. The learned counsel has taken the Court through the complaint wherein she has stated that after the marriage the family members and her husband had demanded the money for purchase of a Maruti Wagon R car. It has also been alleged by her that she had handed over a sum of Rs.2,00,000/- to her brother-in-law(nandoi), and therefore, it is contended that a case under Section 498A/406IPC was made out against him. The learned counsel for the petitioner has also relied upon a case titled Reeta Nag Vs. State of West Bengal, 2010 Cri. L.J. 2245.

6. The submissions made by the learned counsel for the petitioner are totally without any merit. In the instant case, the prosecution had filed a final report sending three accused persons including the accused in question namely, Tanveer Alam, for trial. The learned trial Court after hearing the arguments discharged Tanveer Alam as it had found no prima facie evidence against him constituting the