Hon'ble Pramod Kumar Srivastava, J.

1. FIR was lodged by informant Vinay Agrawal, on the basis of which case crime no. 10 of 1997 under section 304-B, 201 IPC and 3/4 DP Act was registered in police station Bolawathi, District Bulandshahr. After investigation, the charge sheet was filed by police for offences under section 498-A IPC and 3/4 DP Act against Pradeep Kumar Agarwal, husband of the victim.

2. But when trial of this case began, then after framing of charge, two witnesses were examined by prosecution side. PW-1 Ram Nath Agrawal was father of the victim who had stated nothing about the demand of dowry or cruelty due to that reason and had stated that he had attended the funeral of deceased and did not know the cause of her death. He stated that victim Dr. Poonam was not harassed by her in-laws for demand of dowry.

3. The other witness examined by prosecution side was PW-2 Dr. Vinay Agarwal, the informant, who had stated that after marriage, her sister Poonam was ill treated by her in-laws, and on 30.1.1997 her husband Pradeep Kumar Agarwal, father-in-law Munna Lal Agrawal and Mother-in-law Smt. Krishna, brother (Dever) Lalit, Sister-in-law (Nanad) Rashmni had murdered Poonam Agarwal for their greed of dowry. Her sister was murdered because she could not fulfill demand of additional dowry. When he came to know about this fact, he lodged FIR. He further stated that at the time of incident he was not present on the spot and was on official duty in Jesna.

4. After examination of these two witnesses prosecution side had moved application under section 45-A for committing the case before the court of Session for the trial of offence of dowry death. After receiving objection and affording opportunity of hearing to the parties, the Judicial Magistrate. Court No.-4, Bulandshahr had passed order dated 8.5.2008 by which direction was issued for committal of the case to the court of Sessions for trial. Then case was committed to the court of Sessions. These proceedings including impugned order dated 8.5.2008 has been challenged through present writ petition.

5. Heard the arguments of counsel for the petitioner, AGA for respondent no. 1 and counsel for respondent no. 2 informant, and perused the records.

6. It is admitted case that death of victim Poonam Agarwal had occurred within 7 years of her marriage. It is also not disputed at this stage that PW-2 Dr. Vinay Agarwal, informant (who is brother of the victim) had given statement about demand of dowry and maltreatment by accused-petitioner with her sister after her marriage. But in this matter cause of death could not be ascertained so far. These points are necessary to be proved for offence of dowry death. In addition to it there must be factum of unnatural death.

7. Punishment for dowry death is mentioned in Section 304-B IPC, which provides as under:-

"304-B. Dowry death.-(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be deemed to have caused her death.

Explanation.-For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life."

8. Thus for prosecution of offence relating to dowry death, there must be death of woman caused by burns or bodily injury or such death would have occurred otherwise than in normal circumstances. In this matter post-mortem of the deceased Poonam Agarwal was not performed. This fact had come during investigation. PW-1 had attended the last ri