Rajeev Kumar vs State Of Jharkhand

Heard the counsel for the parties.

By filing this application, petitioner has challenged the impugned order dated 14.6.2019 passed by the Judicial Magistrate, 1st Class, Jamshedpur in

G.R. No. 3367 of 2014 by which court has held that there are sufficient materials to frame charge against the petitioner under Sections 304A and 419

IPC.

This case arises out of an FIR and police report.

FIR was lodged as Sonari P.S. Case No. 229 of 2014 which was registered under Sections 304, 120B of the IPC. The petitioner is shown as one of

the accused along with one Suraj Kumar Mishra. It is stated in the FIR that daughter of the informant was residing near Sakchi. One Suraj Kumar,

who is the neighbour of the informant, has informed the informant that her daughter died and her body was lying in TMH, J.S.R. The informant

thereafter came to know that one friend of his daughter i.e this petitioner, brought the daughter to hospital and admitted her in TMH. It also came to

the knowledge of the informant, after inquiry, that there was love affair between the daughter and said Suraj Kumar Mishra. It is alleged that on the

advice of Suraj KumarMishra the daughter was taken to Kolkatta and was admitted in hospital for some surgery where this petitioner introduced

himself as her cousin brother, which he infact was not. It has also been mentioned that on the advice of Suraj Kumar Mishra, the daughter of the

informant was living in the house of this petitioner at Jamshedpur. It has been alleged that on 23.10.2014 all of a sudden the health condition of his

daughter deteriorated then this petitioner got her daughter admitted in the hospital TMH where she died. The informant in order to verify the facts

contacted the doctor at Kolkatta who disclosed that this petitioner by posing as the cousin brother of the daughter of the informant got her admitted in

the hospital where she was operated. This petitioner signed the documents as the guardian of his daughter. It is alleged that the entire incident

occurred at the instance of Suraj Kumar Mishra and this petitioner. The aforesaid fact is the sum and substance of the FIR.

The Police investigated and filed charge-sheet against this petitioner under section 419 and 420 IPC keeping investigation pending against other

accused persons i.e Suraj Kumar Mishra and the doctor. Ultimately final form exonerating Suraj Kumar Mishra and the doctor, was filed. The court

took cognizance of offence punishable under Sections 419 and 420 IPC. The petitioner filed an application for discharge. The said application was

rejected on 7.7.2018 holding that there is sufficient material to frame charge against the petitioner under Section 304A /88 IPC. The said order was

challenged by the petitioner before the Sessions Judge, Jamshedpur in Criminal Revision No. 330 of 2018. The learned Sessions Judge on 1st

February, 2019 remitted that matter to the court below for passing order afresh on the ground that the impugned order i.e order dated 7.7.2018, does

not reflect as to what are the materials before the court to arrive at a conclusion that there are sufficient material to proceed against the accused

under the aforesaid sections. On remand the impugned order was passed by the Magistrate holding that there are sufficient materials for framing

charge under Sections 419 and 304A IPC .

Learned counsel for the petitioner submits that court below has completely misdirected herself while passing the impugned order. He submits that

from the admitted facts no charge can be framed under Section 304A or 419 IPC. He submits that the only allegation against the petitioner, if at all

admitted, is that he has introduced himself as the brother of the deceased while getting her admitted in the hospital. He submits that this act cannot

attract offence under Section 304A nor 419 IPC.

Counsel for the State submits that petitioner has impersonated himself and introduced himself as cousin brother of the deceased, which infact he

was not. He submits that thus he has cheated the informant by impersonating himself as cousin brother of the deceased.

After hearing the parties and after going through the records, I find that court below while dismissing the discharge application, held that offence

under Sections 304A and 419 IPC are made out. Sections 304A of the IPC reads as follows:-

“Causing death by negligence.-_ Whoever causes the death of any person by doing any rash and negligent act not amounting to

culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with

both.â€​

From perusal of the aforesaid sections, it is clear that a person can be charged for committing an offence under Section 304 A IPC only if his act is

rash and negligent and because of such act a person dies. In this entire prosecution case there is nothing to suggest that petitioner had done any act

which can be said to be done rashly and negligently which caused death of the deceased. Be it noted that the only an allegation against the petitioner is

that he introduced himself as cousin brother of the deceased. Thus from the facts of the case Section 304A is not attracted so far as this petitioner is

concerned.

So far as section 419 IPC is concerned I find that the said section relates to punishments of cheating by impersonation. The cheating is defined

under Section 415 IPC which reads as follows;-

“Cheating â€" Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to

any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do

anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm

to that person in body, mind, reputation or property, is said to “cheatâ€​.

Explanation._ A dishonest concealment of facts is a deception within the meaning of this section.â€​

From perusal of the explanation of the said provision it can be said that a dishonest concealment of fact is a deception within the meaning of

cheating. In this case it has to be seen that who is the person who got cheated if the petitioner has impersonated himself. If at all this is a case of

impersonation it can be said that the petitioner has impersonated himself and got the deceased who was suffering admitted in a hospital stating that he

is the brother of the deceased. By this act by no stretch of imagination it can be said that informant has been cheated, nor it can be said that deceased

has been cheated as it was the deceased who needed immediate medical attention and had to be admitted in the hospital and someone had to take the

onerous duty to admit the deceased in the hospital. Thus petitioner got admitted daughter of the informant in the hospital who died later on. From the

aforesaid fact it can be said that the informant was not cheated nor the deceased thus Section 419 IPC and the said section is not attracted in this

case so far as this petitioner is concerned.

These facts and the corresponding legal provisions have not been taken note of by the Judicial Magistrate while passing the impugned order dated

14.6.2019. While passing the impugned order, the Magistrate holding that offence under section 304A is made out against the petitioner has not applied

the facts of the case, so far it relates to the petitioner, with the law. While framing charge or while considering the discharge petition the court has to

consider as to whether the penal provision of the law is applicable on the admitted facts of the case, against the person whom charge is sought to be

framed then only the court can proceed and framed, charge under the aforesaid sections. The court has to match the facts along with ingredients of

the penal section and then only it can proceed. The exercise which should have been done by the Magistrate has not been done in this case. As held

earlier from the facts of this case, there is no material to frame charge under Sections 304A/419 IPC against the petitioner. Thus, I am inclined to

allow this application

Accordingly the instant Criminal Miscellaneous Petition stands allowed by setting aside the order dated 4.6.2019 passed by the Judicial Magistrate,

1st Class, Jamshedpur in G.R. No. 3367 of 2014 arising out of Sonari P.S. Case No. 229 of 2014. Consequently the petitioner is discharged.