Rabindranath Dubey v. State of Jharkhand

Rabindranath Dubey v. State of Jharkhand

Facts of the case

The petitioner is an accused u/s 498-A, 304-B and 34 of the Indian Penal Code, Jamtara P.S. Case No.338 of 2013 corresponding to G.R. No.972 of 2013 by the parents of his deceased wife, and they have subjected the petitioner to the allegations of torture, dowry and dowry death after his wife was found hanging. The case has been instituted against him, his parents, and his aunt and a charge sheet has been submitted. Therein, the case has only been finalized against the husband and the related police officers have pleaded lack of evidence while submitting the final form in the petitioner’s favour. Soon after, the Hon’ble Court took cognizance of everything and issued summon(s) against the petitioner which is the challenge of this application.

Issue(s)

Whether the summon issued by the Hon’ble Court legal in nature? 

Arguments

Petitioner

The counsel for the Petitioner humbly pleaded against the legality of the summons issued and challenged the same through many precedential judgments. Stress was laid upon the Constitutional bench judgment of the Apex Court, titled Dharam Pal & Ors., Vs. State of Haryana & Anr., reported in (2014) 3 SCC 306 wherein, according to the counsel it was held that in cases where the police has successfully submitted a charge sheet against some and in favour of others, the Court of Session shall hold the power of trial in reference to Section 209 CrPC and Magistrate should transfer such cases without taking cognizance u/s 190 CrPC. The original Jurisdiction in such cases shall stand with the Court of Session only u/s 193 CrPC. Therefore, the counsel believes that the order passed is not in consonance with the established law. 

Respondent

The counsel for State claimed the order to be legal in nature due to Magistrate Court’s inherent power u/s 173 CrPC and even u/s 190 CrPC which shall allow the Magistrate to take cognizance and action before transferring the case to the Court of Session. The counsel pleaded that this power has not been taken away by Dharam Pal case (Supra) and he relied on many other judgments to affirm the same. 

Judgment

For convenience, Dharam Pal’s case was analyzed wherein, a three-judge bench was appointed to resolve the conflicting view of the two previous judgments named, Kishun Singh Vs. State of Bihar, reported in (1993) 2 SCC 16 and the other was in Ranjit Singh Vs. State of Punjab, reported in (1998) 7 SCC 149. Both the judgments gave conflicting views, regarding the power of Court of Session u/s 193 of CrPC to take cognizance of cases and issue summons whose complicity in the commission of the trial could prima facie be gathered from the materials available on record. To resolve the same, the bench in Dharam pal analyzed the situation by dividing it into six important questions. For our relevance, Question 2 challenged the Power of Magistrate to issue Summons in cases like ours. Wherein, Magistrate’s role was accounted for u/s 173(2) CrPC and it was held that either he can issue orders or summons or transfer it to the Court of Session. It was also held in this case that Session judge is entitled to issue summons in cases u/s 190 once, the Magistrate commits the case to him and that, once the case is transferred the Court of Session shall adjudge it under Original Jurisdiction. Hence, the law laid under Kishun Singh’s case, reported in (1993) 2 SCC 16 was held correct. It was noticed by this court, that the Dharam Pal case in no sense debars the Magistrate from taking cognizance of the case or compels him to exclusively transfer it to the Court of Session only. And, it is not the offender but the ‘offence’ whose cognizance is taken. Within their duty, the Magistrate rightfully is empowered to issue summons and orders against the case and find real offenders if they do not agree with any of the findings of the Police report. The Magistrate holds the power to issue summons even before the case is committed to the Court of Session. Any Magistrate can either directly commit the case to the Court of Session due to its exclusive jurisdiction or can issue summons against the accused if he finds anything problematic in the police reports and can then, commit the case to the Court of Session and the Court of Session shall proceed thereafter and in accordance with section 211 CrPC. In cases where the charge sheet is against some accused and final form in favour of other accused, the power to take cognizance and issue summons rests with both, the Magistrate and the Court of Session. Emphasis was also laid on Section 460 IPC, whose sub section (e) talks about cases wherein erroneous cognizance has been taken up by the Magistrate and that it would not impact or set-aside the proceedings on this ground.

Accordingly, it was held that this petition doesn’t hold merit and it was subsequently dismissed.

written by Disha Bhalla, Dr. RML National Law University, Lucknow, (An Intern under Legal Vidhiya).

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