Delhi District Court
Ms. Anjali Verma vs State on 27 January, 2017
IN THE COURT OF SH. SANJAY BANSAL:
ADDITIONAL SESSIONS JUDGE-03 (EAST):
KARKARDOOMA COURTS: DELHI.
Criminal Revision No. 312/2016
(Case ID No. Crl.Rev. 5094/2016)
Ms. Anjali Verma
W/o Sh. Ashwani Verma
R/o I-1, New Govindpura,
Chandan Nagar, Delhi - 110 051.
... Petitioner
Vs.
1. State
2. Sh. Ashwani Verma
S/o Late Sh. Ashok Verma,
R/o I-1, New Govindpura,
Chandan Nagar, Delhi - 110 051.
3. Smt. Sudesh Rani Verma
W/o Late Sh. Ashok Verma,
R/o I-1, New Govindpura,
Chandan Nagar, Delhi - 110 051.
(Proforma Party)
... Respondents
Date of Institution : 21.09.2016.
Order Reserved on : 27.01.2017
Date of Order : 27.01.2017
ORDER:
1. This criminal revision petition challenges order dated 01.08.2016 passed by Ms. Geetanjali, learned MM (East). Vide this order, learned MM had dismissed the application moved under Sec. 216 CrPC by the petitioner on the ground that the same was not forwarded by ld. APP concerned.
2. The facts leading to filing of this petition may be noted briefly as Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 1 of 6 under:
3. The petitioner filed a complaint before CAW Cell alleging therein that on 20.09.1999 marriage between her and Respondent No. 2 (herein) was solemnised according to Hindu rites and customs but since the day of marriage, her in-laws including husband (Respondent No. 2) and mother-in-law (Respondent No. 3) were not happy and they were demanding Maruti Car and she was ill-treated at their hands on account of dowry demands. She also stated therein that on 14.09.2001 a baby boy was born out of this wedlock. She also alleged in the said complaint therein that after converting his religion, Respondent No. 2 performed nikahnama with one Arti @ Sofia during existence of this marriage. She also alleged later on, both her husband and Arti @ Sofia had reconverted themselves to Hinduism and performed their marriage according to Hindu rites and customs.
4. On the basis of said complaint, FIR No. 378/2006 under Sec. 498- A/406/494/34 IPC was registered against accused persons. After investigation, chargesheet was filed before the court of learned MM concerned under Sec. 498-A/406/494/34 IPC. After considering the material on record, vide order dated 02.08.2013 learned MM framed charge only under Sec. 498-A/34 IPC only against Respondents No. 2 & 3. No charge was framed under Sec. 406 IPC. The remaining accused persons were discsharged from the case.
5. On 01.08.2016, an application under Sec. 216 CrPC was moved by the petitioner seeking framing of additional charge under Sec. 494 IPC but same stood dismissed as same was not forwarded by ld. APP. Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 2 of 6
6. Aggrieved of this order, petitioner has filed this revision petition seeking framing of additional charge under Sec. 494 IPC against accused/Respondent No. 2 only.
7. Notice of the petition was issued to the respondents.
8. I have heard Sh. Rajinder Singh, ld. counsel for petitioner and Sh. D.K. Singh, ld. Addl. PP for the Respondent No. 1 and Ms. Priyanka Kathuria, ld. counsel for Respondent No. 2. Respondent No. 3 is only proforma party. I have also perused the records.
9. Ld. counsel for the petitioner argued that impugned order is bad in law so far as learned MM dismissed the application only on the ground that same was not forwarded by ld. APP. He also argued that learned MM did not notice that there is substance in the application as there was sufficient material on record to frame additional charge under Sec. 494 IPC against accused/Respondent No. 2 for marrying with another girl during the subsistence of his first marriage. He also argued that learned MM ignored the law that no application in fact was required for framing additional charge. He submitted that in the order on charge, the learned predecessor of learned MM had not discussed the offence under Sec. 494 IPC at all. For this reason also, the application was maintainable. He prayed for framing the additional charge under Sec. 494 IPC. He has relied upon the case reported as Anant Prakash Sinha @ Anant Sinha Vs. State of Haryana & Anr., 2016 [2] JCC 1154; Ushaben Vs. Kishorbhai Chunilal Talpada & Ors., (2012) 6 SCC 353 and State of Orissa Vs. Sharat Chandra Sahu & Anr. (1996) 6 SCC 435, in support of his Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 3 of 6 contentions.
10. Learned counsel for the Respondents No. 2 argued to the contrary. She submitted that petitioner should have challenge the order on charge dated 02.08.2013 itself. She argued that now petitioner only wants to delay the case. Ld. counsel submitted that if complainant still felt aggrieved of non framing of charge under Sec. 494 IPC, petitioner should file a separate complaint case. Ld. counsel also contended that the photographs and video recording annexed by the petitioner with her application are forged and fabricated material. She prayed for dismissal of the petition.
11. Sh. D.K. Singh, ld. Addl. PP for the State/Respondent No. 1 submits that present matter may be decided, as per law.
12. I have considered the submissions.
13. Sec. 216 CrPC is as follows:
216. Court may alter charge- (1) Any Court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to the accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court to prejudice the accused in his defence or the prosecutor in the conduct of the case the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the Court to prejudice the accused or the prosecutor as aforesaid, the Court may either direct a new trial or adjourn the trial for such period as may be necessary.
(5) If the offence stated in the altered or added charge is one for the prosecution of which previous sanction is necessary, the case shall not be proceeded with until such sanction is obtained, unless sanction had been already obtained for a prosecution on the same facts as those on which the altered or added charge is founded.
Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 4 of 6
14. It is noticed from the trial court record that after framing charge on 02.08.2013 under Sec. 498-A/34 IPC, petitioner has been examined-in-chief as PW-1, that too only partly, on 06.11.2015. No other witness has been examined by the prosecution. Thus, there will be no prejudice if charge is altered/amended.
15. The record also reveals that despite filing of chargesheet under Sec. 498-A/406/34 and 494 IPC, learned MM did not discuss about the offence under Sec. 494 IPC at all in the order on charge dated 02.08.2013. It might be due to oversight or inadvertence.
16. The evidence regarding second marriage had been collected during investigation, as is mentioned in the chargesheet itself. Along with her application under Sec. 216 CrPC also, the petitioner has annexed some photographs and video recording of the second marriage. At this stage, it cannot be said with certainty that these photographs and video recording are forged and fabricated. It can only be established after evidence.
17. Offence under Sec. 494 IPC is clearly made out from the material on record.
18. Learned MM erred in dismissing the application merely on the ground that it was not forwarded by the ld. APP. No doubt, ld. APP was Incharge of the case as the case was a State Case. However, the complainant also has a say in these types of matters. The application was maintainable.
19. In view of the law laid down in Ushaben Vs. Kishorbhai Chunilal Talpada & Ors's case (supra) and State of Orissa Vs. Sharat Chandra Sahu Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 5 of 6 & Anr.'s case (supra), there was no requirement of a separate complaint case for the offence under Sec. 494 IPC.
20. As a consequence of the above, the present revision petition is allowed. Charge under Sec. 494 IPC is made out against Respondent No. 2. Learned MM shall frame additional charge against Respondent No. 2 accordingly and thereafter proceed with the trial, as per law.
21. A copy of this order be placed in TCR and same be sent to the court concerned immediately.
22. File of revision petition be consigned to Record Room. Announced in open court on 27th day of January, 2017 (Sanjay Bansal) ASJ-03 (East):
KKD Courts: Delhi.Crl. Rev. 312/2016 Anjali Verma Vs. State & Ors. Page 6 of 6