Allahabad High Court
Smt Shahnaz Alias Buggi And Another vs State Of U.P. And Another on 8 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:61543 Court No. - 77 Case :- CRIMINAL REVISION No. - 756 of 2024 Revisionist :- Smt Shahnaz Alias Buggi And Another Opposite Party :- State of U.P. and Another Counsel for Revisionist :- Alok Singh Chandel,Sujan Singh Counsel for Opposite Party :- Brijesh Kumar Srivastava,G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Sujan Singh, the learned counsel for revisionists and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. Present criminal revision has been filed challenging the order dated 13.12.2023 passed by Additional Sessions Judge/FTC NO.-1, Agra in Sessions Trial No. 2311 of 2023 (State Vs. Smt. Shahnaz @ Buggi and Another) arising out of Case Crime No. 72 of 2021, under Sections 498-A, 304-B, 323, 504 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Lohamandi, District-Agra, whereby the discharge application filed by the revisionists in terms of Section 227 Cr.P.C. has been rejected by Court below.
4. Record shows that in respect of an incident, which is alleged to have occurred on 16.05.2021, a prompt FIR dated 16.05.2021 was lodged by first informant-Irfan Khan (brother of deceased) and was registered as Case Crime No. 72 of 2021, under Sections 498-A, 304-B, 323, 504 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Lohamandi, District-Agra. In the aforesaid FIR, 6 persons namely (1) Mohd Fahjan (Husband), (2) Shahnaz @ Buggi (Mother-in-law), (3) Mohd. Shahid (Father-in-law), (4) Arshad (Uncle-in-law), (5) Rashid (Uncle-in-law) and (6) Vikki (Son of Uncle-in-law) have been nominated as named accused.
5. The prosecution story as unfolded i the FIR is to the effect that the marriage of Kahkasha (sister of first informant) was solemnized with Mohd. Fahjan on 04.02.2020. At the time of marriage, sufficient amount of goods and jewellery were given. However, the in-laws of the sister of first informant were dissatisfied with the same. Consequently, demand of additional dowry to the tune of Rs. 50,000/- was made, out of which, a sum of Rs. 10,000/- is alleged to have been paid through bank on 06.05.2021. The FIR further records that on 16.05.2021, a phone call was made by the sister of first informant that physical assault is being committed upon her on account of non-fulfillment of demand of additional dowry. Ultimately, the sister of first informant was put to death on 16.05.2021 by the named accused, which information was given to the first informant on telephone by a third person. The FIR, ultimately, concludes with the recital that all the named accused are responsible for causing the death of sister of first informant.
6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. He first visited the place of occurrence and recovered the dead body of deceased. Thereafter, the inquest of the body of deceased was conducted and ultimately, the body of deceased was dispatched for post mortem. The post mortem of the body of deceased was also conducted. It is apposite to metnioned here that as per the opinion of Autopsy Surgeon, who conducted the postmortem of the body of deceased, the cause of death of deceased was Asphyxia as a result of ante-mortem hanging.
7. Thereafter, the Investigating Officer examined the first informant and various witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only two of the named accused namely (1) Smt. Shahnaz @ Buggi (Mother-in-law) and (2) Shahid Ali (Father-in-law) of the deceased is established in the crime in question. He, accordingly, submitted the police report dated 05.11.2021 in terms of Section 173(2) Cr.P.C. against aforementioned accused, whereby they have been charge sheeted under Sections 498-A, 304-B, 323, 504 IPC and Sections 3/4 Dowry Prohibition Act.
8. Upon submission of aforementioned police report, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is exclusively triable by the Court of Sessions, concerned Magistrate, consequently, committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 2311 of 2023 (State Vs. Smt. Shahnaz @ Buggi and Another) arising out of Case Crime No. 72 of 2021, under Sections 498-A, 304-B, 323, 504 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Lohamandi, District-Agra came to be registered and is now pending in the Court of Additional Sessions Judge/FTC NO.-1, Agra.
9. Revisionists filed discharge application dated 09.11.2023 before Court below in terms of Section 227 Cr.P.C. seeking their discharge in aforementioned Sessions Trial. The discharge application filed by revisionist was contested by the State. Ultimately, Court below upon evaluation of the averments made in discharge application and the material on record, came to the conclusion that no good ground has been made out to allow the discharge application filed by revisionists. On the above premise, Court below rejected the discharge application filed by revisionists by means of impugned order dated 13.12.2023.
10. Thus feeling aggrieved by the order dated 13.12.2023, revisionists, who have already been summoned by court below to face trial, have now approached this Court by means of present criminal revision.
11. Mr. Sujan Singh, the learned counsel for revisionists submits that as per the statements of witnesses recorded under Section 161 Cr.P.C., no offence under Section 498-A or Sections 3/4 Dowry Prohibition Act is made out against revisionists. Consequently, no offence under Section 304-B IPC can be said to have been committed by the revisionists. There is nothing in the statement of witnesses examined up to this stage, on the basis of which, it can be definitely concluded that the observations made by the Apex Court in the case of Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, are satisfied. It is then submitted that as per the post mortem report of deceased, the death of deceased is a suicidal death and not homicidal. However, there is nothing on record to show that revisionists have even abetted, instigated or conspired in the commission of crime. As such, the discharge application filed by revisionists has been wrongly rejected by Court below. He, therefore, concludes that the order impugned passed by Court below cannot be sustained and is, therefore, liable to be set aside by this Court. The revisionists are, accordingly, liable to be discharged in aforementioned Sessions Trial.
12. Per contra, the learned A.G.A. has opposed the present criminal revision. He submits that on the basis of material collected by the Investigating Officer during course of investigation, he formed a prima-facie opinion that complicity of revisionists is established in the crime in question. He, accordingly, charge sheeted the revisionists under Sections 498-A, 304-B, 323, 504 IPC and Sections 3/4 Dowry Prohibition Act. Upon submission of the police report, cognizance was taken upon same and the matter was committed to the Court of Sessions. However, neither the police report submitted under Section 173(2) Cr.P.C. nor the cognizance taking order nor summoning order passed by the Court concerned have been challenged by revisionists. Subsequently, the revisionists filed discharge application before Court below seeking discharge. It is thus evident that on the same evidence, on the basis of which, the revisionists have been charge sheeted and summoned by Court below, the revisionists are seeking discharge, which is not permissible. As such, the present criminal revision is liable to be dismissed.
13. Having heard learned counsel for revisionist, learned A.G.A. for State and upon perusal of material brought on record, Court finds that discharge has been claimed by revisionist in terms of Section 227 Cr.P.C. For ready reference Section 227 Cr.P.C. is reproduced herein under:-
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
14. Section 227 Cr.P.C. contemplates that court shall discharge an accused provided there is no sufficient grounds for proceeding against the accused. The term sufficient ground has been explained by Supreme Court and therefore, no longer a subject matter of debate. Apex Court in Yogesh Joshi Vs. State of Maharastra, AIR 2008 Supreme Court 2971, considered the aforesaid term and ultimately delineated its dues in paragraphs- 13, 14 and 15, which are reproduced herein-under:-
"13. Before adverting to the rival submissions, we may briefly notice the scope and ambit of powers of the Trial Judge under Section 227 of the Code.
14. Chapter XVIII of the Code lays down the procedure for trial before the Court of Sessions, pursuant to an order of commitment under Section 209 of the Code. Section 227 contemplates the circumstances whereunder there could be a discharge of an accused at a stage anterior in point of time to framing of charge under Section 228. It provides that upon consideration of the record of the case, the documents submitted with the police report and after hearing the accused and the prosecution, the Court is expected, nay bound to decide whether there is "sufficient ground" to proceed against the accused and as a consequence thereof either discharge the accused or proceed to frame charge against him.
15. It is trite that the words "not sufficient ground for proceeding against the accused" appearing in the Section postulate exercise of judicial mind on the part of the Judge to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. However, in assessing this fact, the Judge has the power to sift and weigh the material for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine a prima facie case depends upon the facts of each case and in this regard it is neither feasible nor desirable to lay down a rule of universal application. By and large, however, if two views are equally possible and the Judge is satisfied that the evidence produced before him gives rise to suspicion only as distinguished from grave suspicion, he will be fully within his right to discharge the accused. At this stage, he is not to see as to whether the trial will end in conviction or not. The broad test to be applied is whether the materials on record, if unrebutted, makes a conviction reasonably possible. [See: State of Bihar Vs. Ramesh Singh and Prafulla Kumar Samal (supra)]"
15. Subsequently, the ambit and scope of Section 227 Cr.P.C. as well as parameters regarding exercise of jurisdiction of courts under Section 227 Cr.P.C. and other analogous provisions contained in Cr.P.C. came to be considered by a three Judges Bench of Supreme Court in Tarun Jit Tejpal Vs. State of Goa and Another, 2019 SCC Online Sc 1053, wherein following has been observed by Court in paragraphs 27, 28, 29, 30, 31, 32:
" 27. Now, so far as the prayer of the appellant to discharge him and the submissions made by Shri Vikas Singh, learned Senior Advocate on merits are concerned, the law on the scope at the stage of Section 227/228 CrPC is required to be considered.
28. In the case of N. Suresh Rajan (Supra) this Court had an occasion to consider in detail the scope of the proceedings at the stage of framing of the charge under Section 227/228 CrPC. After considering earlier decisions of this Court on the point thereafter in paragraph 29 to 31 this Court has observed and held as under:
"29. We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
30. Reference in this connection can be made to a recent decision of this Court in Sheoraj Singh Ahlawat v. State of U.P. [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , in which, after analysing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] : (Sheoraj Singh Ahlawat case [(2013) 11 SCC 476 : (2012) 4 SCC (Cri) 21 : AIR 2013 SC 52] , SCC p. 482, para 15) "15. '11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.' (Onkar Nath case [(2008) 2 SCC 561 : (2008) 1 SCC (Cri) 507] , SCC p. 565, para 11)" (emphasis in original)
31. Now reverting to the decisions of this Court in Sajjan Kumar [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] and Dilawar Balu Kurane [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , relied on by the respondents, we are of the opinion that they do not advance their case. The aforesaid decisions consider the provision of Section 227 of the Code and make it clear that at the stage of discharge the court cannot make a roving enquiry into the pros and cons of the matter and weigh the evidence as if it was conducting a trial. It is worth mentioning that the Code contemplates discharge of the accused by the Court of Session under Section 227 in a case triable by it; cases instituted upon a police report are covered by Section 239 and cases instituted otherwise than on a police report are dealt with in Section 245. From a reading of the aforesaid sections it is evident that they contain somewhat different provisions with regard to discharge of an accused:
31.1. Under Section 227 of the Code, the trial court is required to discharge the accused if it "considers that there is not sufficient ground for proceeding against the accused". However, discharge under Section 239 can be ordered when "the Magistrate considers the charge against the accused to be groundless". The power to discharge is exercisable under Section 245(1) when, "the Magistrate considers, for reasons to be recorded that no case against the accused has been made out which, if unrebutted, would warrant his conviction".
31.2. Section 227 and 239 provide for discharge before the recording of evidence on the basis of the police report, the documents sent along with it and examination of the accused after giving an opportunity to the parties to be heard. However, the stage of discharge under Section 245, on the other hand, is reached only after the evidence referred in Section 244 has been taken.
31.3. Thus, there is difference in the language employed in these provisions. But, in our opinion, notwithstanding these differences, and whichever provision may be applicable, the court is required at this stage to see that there is a prima facie case for proceeding against the accused. Reference in this connection can be made to a judgment of this Court in R.S. Nayak v. A.R. Antulay [(1986) 2 SCC 716 : 1986 SCC (Cri) 256] . The same reads as follows: (SCC pp. 755 56, para 43) "43. ... Notwithstanding this difference in the position there is no scope for doubt that the stage at which the Magistrate is required to consider the question of framing of charge under Section 245(1) is a preliminary one and the test of 'prima facie' case has to be applied. In spite of the difference in the language of the three sections, the legal position is that if the trial court is satisfied that a prima facie case is made out, charge has to be framed."
29. In the subsequent decision in the case of S. Selvi (Supra) this Court has summarised the principles while framing of the charge at the stage of Section 227/228 of the CrPC. This Court has observed and held in paragraph 6 and 7 as under:
"6. It is well settled by this Court in a catena of judgments including Union of India v. Prafulla Kumar Samal [Union of India v. Prafulla Kumar Samal, (1979) 3 SCC 4 : 1979 SCC (Cri) 609] , Dilawar Balu Kurane v. State of Maharashtra [Dilawar Balu Kurane v. State of Maharashtra, (2002) 2 SCC 135 : 2002 SCC (Cri) 310] , Sajjan Kumar v. CBI[Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , State v. A. Arun Kumar [State v. A. Arun Kumar, (2015) 2 SCC 417 : (2015) 2 SCC (Cri) 96 : (2015) 1 SCC (L&S) 505] , Sonu Gupta v. Deepak Gupta [Sonu Gupta v. Deepak Gupta, (2015) 3 SCC 424 : (2015) 2 SCC (Cri) 265] , State of Orissa v. Debendra Nath Padhi [State of Orissa v. Debendra Nath Padhi, (2003) 2 SCC 711 : 2003 SCC (Cri) 688] , Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya [Niranjan Singh Karam Singh Punjabi v. Jitendra Bhimraj Bijjaya, (1990) 4 SCC 76 : 1991 SCC (Cri) 47] and Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja [Supt. & Remembrancer of Legal Affairs v. Anil Kumar Bhunja, (1979) 4 SCC 274 : 1979 SCC (Cri) 1038] that the Judge while considering the question of framing charge under Section 227 of the Code in sessions cases (which is akin to Section 239 CrPC pertaining to warrant cases) has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out; where the material placed before the court discloses grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing the charge; by and large if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his rights to discharge the accused. The Judge cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the statements and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the materials as if he was conducting a trial.
7. In Sajjan Kumar v. CBI [Sajjan Kumar v. CBI, (2010) 9 SCC 368 : (2010) 3 SCC (Cri) 1371] , this Court on consideration of the various decisions about the scope of Sections 227 and 228 of the Code, laid down the following principles: (SCC pp. 376, 77, para 21) "(i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case.
(ii) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained, the court will be fully justified in framing a charge and proceeding with the trial.
(iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities, etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
(iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence.
(v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible.
(vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that initial stage to accept all that the prosecution states as gospel truth even if it is opposed to common sense or the broad probabilities of the case.
(vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal."
30. In the case of Mauvin Godinho (Supra) this Court had an occasion to consider how to determine prima facie case while framing the charge under Section 227/228 of the CrPC. In the same decision this Court observed and held that while considering the prima facie case at the stage of framing of the charge under Section 227 of the CrPC there cannot be a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
31. At this stage the decision of this Court in the case of Stree Atyachar Virodhi Parishad (Supra) is also required to be referred to. In that aforesaid decision this Court had an occasion to consider the scope of enquiry at the stage of deciding the matter under Section 227/228 of the CrPC. In paragraphs 11 to 14 observations of this Court in the aforesaid decision are as under :
"11. Section 227 of the Code of Criminal Procedure having bearing on the contentions urged for the parties, provides:
"227. Discharge.--If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
12. Section 228 requires the Judge to frame charge if he considers that there is ground for presuming that the accused has committed the offence. The interaction of these two sections has already been the subject matter of consideration by this Court. In State of Biharv. Ramesh Singh [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] , Untwalia, J., while explaining the scope of the said sections observed: [SCR p. 259 : SCC pp. 41 42 : SCC (Cri) pp. 535 36, para 4] Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously Judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused.
13. In Union of India v. Prafulla Kumar Samal [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] , Fazal Ali, J., summarised some of the principles: [SCR pp. 23435 : SCC p. 9 : SCC (Cri) pp. 61314, para 10] "
(1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused had been made out.
(2) Where the materials placed before the court disclose grave suspicion against the accused which has not been properly explained the court will be fully justified in framing a charge and proceeding with the trial.
(3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused.
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. These two decisions do not lay down different principles. Prafulla Kumar case [(1979) 3 SCC 4 : 1979 SCC (Cri) 609 : (1979) 2 SCR 229] has only reiterated what has been stated in Ramesh Singh case [(1977) 4 SCC 39 : 1977 SCC (Cri) 533 : (1978) 1 SCR 257] . In fact, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the Judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The "ground" in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. No more need be enquired into."
32. Applying the law laid down by this Court in the aforesaid decisions and considering the scope of enquiry at the stage of framing of the charge under Section 227/228 if the CrPC, we are of the opinion that the submissions made by the learned Counsel appearing on behalf of the appellant on merits, at this stage, are not required to be considered. Whatever submissions are made by the learned Counsel appearing on behalf of the appellant are on merits are required to be dealt with and considered at an appropriate stage during the course of the trial. Some of the submissions may be considered to be the defence of the accused. Some of the submissions made by the learned Counsel appearing on behalf of the appellant on the conduct of the victim/prosecutrix are required to be dealt with and considered at an appropriate stage during the trial. The same are not required to be considered at this stage of framing of the charge. On considering the material on record, we are of the opinion that there is more than a prima facie case against the accused for which he is required to be tried. There is sufficient ample material against the accused and therefore the learned Trial Court has rightly framed the charge against the accused and the same is rightly confirmed by the High Court. No interference of this Court is called for."
16. When the case in hand is examined in the light of law laid down by Apex Court as noted herein above, this Court is of considered opinion that at this stage, it cannot be said that there is no sufficient ground for proceeding against revisionist. Admittedly, the revisionist are facing trial under Section 304-B IPC, meaning thereby that the death of deceased has occurred within a period of 7 years from the date of her marriage. Revisionists are the father-in-law and the mother-in-law of deceased and charge sheeted accused. It is apposite to mention here that the husband of deceased has not been charge sheeted. They are also the inmates of the house, in which, the incident giving rise to present criminal proceedings has occurred. Consequently, the burden in upon the revisionists themselves to not only explain the manner of occurrence but also their innocence in terms of Sections 106 and 113-B of the Evidence Act. The said burden can be discharged by the revisionists only during the course of trial and not otherwise. Therefore, in view of above, the grounds raised on behalf of the revisionist for seeking their discharge in aforementioned Sessions Trial as is evident from the recital occurring at page 1, 2 and 3 of the certified copy of the impugned order cannot be said to be so sufficient so as to discharge the accused/revisionist in aforementioned Sessions Trial. None of the parameters laid down by the Apex Court in the case of Tarunjit Tejpal (Supra) are satisfied in the present case. It has also been held by the Supreme Court that prosecution can be maintained even in case of grave suspicion. At the time of considering discharge, the primary issue, which is required to be considered is whether on the evidence on record, there exist sufficient material to prosecute the accused and not whether on the basis of material on record, the judgment of conviction can be recorded against accused. Findings recorded by Court below are definite and cogent findings, which could not be dislodged by the learned counsel for revisionists as illegal, perverse or erroneous. Thus once the findings recorded by court below could not be dislodged, the conclusion also cannot be altered. Apart from above, it is an undisputed fact that neither the police report submitted in terms of Section 173(2) Cr.P.C. (charge sheet) by the Investigating Officer against the revisionists, the cognizance taking order as well as the summoning order passed by Court below were challenged by the revisionist. In short, it is on the same evidence, discharge being claimed by the revisionists, which was relied upon by the Investigating Officer for submitting the charge sheet and held to be sufficient by Court below to take cognizance upon the police report. In the absence of any challenge to the same at appropriate point of time, in fact, estopps the revisionists from claiming discharge in terms of Section 227 Cr.P.C. No application under Section 482 Cr.P.C. was filed by the revisionists challenging the very veracity of the proceedings on the basis of the statements of the witnesses examined under Section 161 Cr.P.C. on the basis of which, Investigating Officer has formed an opinion to submit the police report (charge sheet) against revisionists. Though, much emphasis was laid upon paragraph 18 of the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others (Supra) but once the aforesaid exercise were not undertaken by the revisionists themselves, the observations made in paragraph 18 of the report now cannot come to the aid of the revisionists. Court below in passing the impugned order has neither committed a jurisdictional error nor has the court below exercised it's jurisdiction with material irregularity so as to warrant interference by this Court.
17. In view of the discussion made above, the present criminal revision fails and is liable to be dismissed.
18. It is, accordingly, dismissed.
Order Date :- 8.4.2024 Vinay