Judgment:
Rekha Kumari, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 for quashing the order dated. 27.5.2004 passed by the Chief Judicial Magistrate, Supaul by which he has taken cognizance under 498-A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act and ordered to issue summons against the four petitioners and accused Kamleshwari Yadav (not the petitioner here) for facing trial for both the offences.
2. Heard both sides.
3. It appears that Opposite Party No. 2 Ranjana Devi had filed a petition before the Superintendent of Police Supaul against her husband, petitioner Rajendra Yadav and other petitioners for talking action against them for torture and dowry and on the basis of that Tribeniganj P.S. Case No. 11/2001 dated 11.1.2001 was registered under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. The impugned order shows that the police after investigation submitted chargesheet against the petitioners except petitioner Deo Narayan Yadav and the non-petitioner Kamleshwari Yadav. The impugned order further shows that the case diary of the case was not available on record and so, the informant (Opposite Party No. 2) had filed, a copy of the entire case diary along with his affidavit; certifying the same to be true copy and the learned Chief Judicial Magistrate after perusing the chargesheet and the above case diary found, prima facie, case against the four F.I.R. named accused persons and the non F.I.R. accused Kamleshwari Yadav for offences under Section 498A of the. Indian Penal Code and Section 3/4 of the Dowry Prohibition Act and passed the impugned order.
4. Learned Counsel for the petitioner submitted that the last act of cruelty according to the F.I.R. took place on 8.1.2001 and the cognizance has been taken after more than three years on 27.5.2004 and hence the cognizance is barred under Section 468(1)(c) Cr.P.C.
5. He further submitted that in this case, the Sub-divisional Officer, Tribeniganj had sanctioned prosecution for offence under Section 3/4 of the Dowry Prohibition Act when the State Government has not authorised a Sub-divisional Officer to grant such sanction and hence, on this ground also the cognizance is bad in law being without jurisdiction. He also submitted that the learned Chief Judicial Magistrate did not peruse the original or the carbon copy of the case diary and has passed the impugned order on the basis of photo copy of the case diary which cannot be said to be either primary or secondary evidence of the contents of the case diary and as such the impugned order passed on the basis of the above case diary is illegal.
6. Learned Counsel for the Opposite Party No. 2 submitted that maximum sentence prescribed under Section 3 of the Dowry Prohibition Act is five years and therefore, there was no limitation for taking cognizance in the case. He further submitted that sanction for prosecution was not enquired in this case and so it is immaterial whether the sanction order was passed by a competent authority or not.
7. The impugned order clearly shows that cognizance was taken under Section 498A of the Indian Penal Code and Section 3/4 of the Dowry Prohibition Act. Section 3 of the Dowry Prohibition Act prescribes maximum punishment of five years. Therefore, as submitted by the learned Counsel for Opposite Party No. 2 the cognizance would not be barred in view of Section 468(3) Cr.P.C.
8. As regards the Sanction for prosecution though prior to the Dowry Prohibition Act 1961, there was provision under Section 4 of the Act for sanction for prosecution, but there is no such provision in the Dowry Prohibition Act, 1961 for sanction of prosecution either for the offence under Section 3 or for the offence under Section 4 of the Act. Hence, it is also evident that it is immaterial as to who had granted the sanction for prosecution.
9. So far using of the photo copy of the case diary in taking cognizance, the impugned order shows that the I.O. had submitted chargesheet against the petitioners Rajendra Yadav Raj Kumar Yadav, Chandrika Devi and non-petitioner Kamleshwari Yadav and the learned Magistrate has also perused the chargesheet. Therefore, the impugned order so far these three petitioners cannot be said to be bad. However, as against petitioner Deo Narain Yadav, it appears that he was summoned on the basis of the material found in the C.D. But, I agree with the learned Counsel for the petitioners that though the photo copy is certified to be true copy by an affidavit filed by the informant the same cannot be taken as authentic. So, the impugned order so far petitioner Deo Narayan Yadav is concerned is not legal.
10. In the result, the application so far petitioner Deo Narayan Yadav is concerned, is allowed and as regards the other petitioners the same is dismissed.