Court No. - 81
Case :- APPLICATION U/S 482 No. - 19472 of 2020 Applicant :- Adalat Yadav And 3 Others Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sudarshan Singh Counsel for Opposite Party :- G.A.
Hon'ble Mrs. Manju Rani Chauhan,J.
Heard Mr. Sudarshan Singh, learned counsel for the applicants and learned A.G.A. for the State.
The present application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 5th February, 2020 passed by the Additional Chief Judicial Magistrate, Court No. 5, Varanasi in Criminal Case No. 573 of 2019 (State Vs. Adalat Yadav), arising out of Case Crime No. 712 of 2018, under Sections 498-A, 323, 506, 308 I.P.C. as also under Sections 3/4 D.P. Act, Police Station- Badagaon, District-Varanasi, whereby the application made by opposite party no. 2 under Section 209 Cr.P.C. has been considered and allowed.
Relevant facts, as borne out from the record of the present applicant, are as follows:
A first information report has been lodged by Savita Devi on 23rd October, 2018 at 2011 hours against nine named accused persons including the present applicants alleging therein that on 10th June, 2011, the marriage of the informant was solemnised with the applicant, namely, Adalat Yadav in accordance with the Hindu Rites and Customs. Just after marriage, the husband of informant and her in-laws used to torture her for additional demand of dowry and they threatened the informant to kill her by pouring kerosene oil on her body. The husband and in-laws of the informant had also stripped her from their house in her wearing clothes only after snatching her jewellery, clothes and goods. The husband and in- laws of the informant had also beaten her and threatened to kill her her son. Elder brother-in-law (Jeth) of the informant, namely, Tej Bahadur had also raped the informant. For hiding their conduct, the husband and in-laws of the informant had also made an allegation upon her that she ran away from her matrimonial house three years ago. With the aforesaid allegations, the informant lodged the aforesaid first information report. The informant had also been medically examined at Shiv Prasad Gupta Hospital, Varanasi on 11th September, 2018.
After recording statements of witnesses under Sections 161 and 164 Cr.P.C. in accordance with Chapter-XII Cr.P.C., the concerned Investigating Officer submitted the charge-sheet on 1st April, 2019 before the court concerned against the husband of the informant, namely, Adalat Yadav i.e. the applicant, Tej Bahadur @ Teju Yadav, (Jeth of the informant), Natthu Yadav (father-in-law of the informant) and Smt. Chetana Yadav (mother-in-law of the informant) only under Sections 498-A, 323, 506, 325 I.P.C. as also under Sections 3/4 D.P. Act. During the investigation, the applicant and other co- accused have been enlarged on bail. At the time of committal of the case, the informant/opposite party no.2 filed an application before the court below on 23rd July, 2019, wherein she prayed for committal of the aforesaid case under Sections 376 and 308 I.P.C. also. Taking into account the medical examination report of the informant/opposite party no.2, the Additional Chief Judicial Magistrate, Court No.5, Varanasi vide order dated 4th February, 2020 has considered the application of the informant/opposite party no.2 and altered the charge under Section 308 I.P.C. in place of Section 325 I.P.C. and he has also committed the aforesaid case under Section 308 I.P.C. to the court of Sessions.
Learned counsel for the applicant submits that the concerned Magistrate has, without applying his judicial mind, passed the impugned order, which is per se illegal. No case under Section 308 I.P.C. is made out against the applicant because as per the medical examination report, the injuries found on the body of the informant/opposite party no.2 are simple in nature. During the investigation, the Investigating Officer has not found any sufficient evidence and material from which a case for the offence under Sections 376 and 308 I.P.C. is made out against the applicant and other co-accused. Therefore, he has not submitted the charge- sheet against the applicant and other co-accused under Sections 376 and 308 I.P.C. Learned counsel for the applicant further submits that the court below has no right to alter the charge at the stage of Section 209 Cr.P.C.. It is also submitted that the concerned Magistrate has no power and jurisdiction to entertain the application of opposite party no.2 for adding the charge under Sections 376 and 308 I.P.C.
Learned A.G.A. for the State has, vehementally opposed the submission made by the learned counsel for the applicant. He submits that concerned Magistrate has committed no illegality or infirmity in the order impugned by considering the application of opposite party no.2 and altered the Section 308 I.P.C. and committed the same for trial to the court of sessions. The said impugned order is based on true and correct findings and observations are also based on concrete evidence. The said order is in correct interpretation of Section 209 Cr.P.C. He, therefore, submits that there is no illegality or infirmity in the order impugned. Hence the present application is liable to be rejected.
I have considered the submissions made by the learned counsel for the parties and have examined the records of the present application specifically the order impugned.
It is worthwhile to reproduce Section 209 Cr.P.C., which is relevant for deciding the present application. The same is quoted herein below:
"209. Commitment of case to Court of Session when offence is triable exclusively by it. When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by the Court of Session, he shall-
(a) commit, after complying with the provisions of section 207 or section 208, as the case may be, the case to the Court of Session, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;]
(b) subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;
(c) send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;
(d) notify the Public Prosecutor of the commitment of the case to the Court of Session."
Considering the materials brought on record, perusing the impugned order and reading Section 209 Cr.P.C., this Court is of the opinion that the there is no illegality or infirmity in the order passed by the concerned Magistrate while considering the application of the applicant and altered the charge under Section 308 I.P.C. in place of Section 325 I.P.C. The concerned Magistrate, has considered the medical examination report and X-ray report of opposite party no.2, wherein it has been pointed out by the Doctor that there were serious injuries on the body of opposite party no.2 and her rib bone has also been fractured and on the basis of which the concerned Magistrate by exercising his powers under Section 209 Cr.P.C. has altered the charge under Section 308 I.P.C. in place of Section 325 I.P.C. The concerned Magistrate has not committed any illegality or infirmity while passing the impugned order which is based on concrete evidence and materials.
In view of the aforesaid, this Court finds no illegality or infirmity in the order impugned passed by the court below considering the application of opposite party no.2 and altering the charge under Section 308 I.P.C. in place of Section 325 Cr.P.C. as also committing the case for trial to the court of sessions. The present applicant is accordingly dismissed.
(Manju Rani Chauhan, J.) Order Date :- 5.1.2021 Sushil/-