Harish Chandra Mishra, J. - (1.) HEARD learned counsel for the petitioners and learned counsel for the State as also learned counsel for the Informant.
(2.) THE petitioners are aggrieved by the order dated 29.1.2014, passed by the learned Chief Judicial Magistrate, Jamtara, in G.R. Case No. 972 of 2013, whereby the cognizance has been taken against the petitioners for the offence under Sections 498A/304B/34 of the Indian Penal Code, even though the petitioners were not sent up for trial upon investigation in the case and the final form was submitted in their favour. The facts of this case lie in a short compass. The petitioners have been made accused in Jamtara P.S. Case No. 338 of 2013 corresponding to G.R. No. 972 of 2013, for the offences under Sections 498A/304B/34 of the IPC, on the allegation that the accused persons being the husband and the in -laws of the deceased lady used to subject her to cruelty and torture for demand of dowry and ultimately, they committed her dowry death. The dead body of the deceased was found hanging in the house. The case was instituted against the husband, and the petitioners, who are the father -in -law, mother -in -law and aunt -in -law of the deceased and the investigation was taken up. After the investigation, the police submitted the charge -sheet against the husband of the deceased only, and has submitted the final form in favour of the petitioners, stating lack of evidence against them. The Court below, from perusal of the case diary, finding materials against these petitioners also, took the cognizance against them as well, and issued summons by order dated 29.1.2014, which is challenged in this application.
(3.) LEARNED counsel for the petitioner has submitted that the impugned order passed by the Court below is absolutely illegal, in view of the law recently laid down by the Constitution Bench of Supreme Court of India in Dharam Pal & Ors., Vs. State of Haryana & Anr., reported in : (2014) 3 SCC 306. According to learned counsel for the petitioners, the Constitution Bench has laid down the law that in the cases triable by the Court of Session, if after the investigation police submits charge -sheet against some of the accused persons and final form in favour of the others, the only course available to the Magistrate is to commit the case to the Court of Session under Section 209 of the Cr.P.C., without taking cognizance under Section 190 of the Cr.P.C. It has been submitted that the law has been laid down by the Supreme Court that the Magistrate has to play only a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Thereafter, it is for the Court of Session to exercise its original jurisdiction under Section 193 of the Cr.P.C., and to take cognizance of the offence. It is further submitted that the Hon'ble Supreme Court has held that the cognizance cannot be taken twice and it could be taken either by the Magistrate or by the Court of Session. It has also been submitted that following the aforesaid decision, this Court in Pramod Kumar Das Vs. State of Jharkhand, reported in, 1914(2) JBCJ 11, has set aside the order taking cognizance, and has remanded back the case for proceeding in accordance with law. Placing reliance on these decisions, learned counsel for the petitioners has submitted that the impugned order cannot be sustained in the eyes of law.;