Punjab-Haryana High Court
Harinder Kaur And Ors. vs State Of Punjab on 7 December, 1988
Equivalent citations: 1989CRILJ1032
ORDER Ujagar Singh, J.
1. The petitioners, along with one Harbans Lal, whose name was deleted vide order dt. 15-1-3988 from the array of the petitioners, were accused in case First Information Report No. 15 dt. 26-2-1986, Under Sections 498A/506/379/34 of the Indian Penal Code (the Code in brief) and Under Sections 4 and 5 of the Dowry Prohibition Act, 1961 (shortly the Act), The case was investigated. Ultimately a report Under Section 173 of the Cri. P.C. was filed before the trial Court. After going through the papers submitted by the prosecution, the trial Court framed charges on 11-5-1987 which have been reproduced in para 9 of the petition read as under:
CHARGE-SHEET I, N. I. Singh, PCS, Judicial Magistrate I Class, Patiala, do hereby charge you all, namely Harinder Kaur, Keshav Dutt, Surinder Kaur, Suresh Kumar, Harbans Lal and Amrik Singh, accused, as under:
That on 5-2-86 at Nabha, you all along with Suresh Kumar Batra being the husband of Varsha Juneja d/o Sh. Balwant Singh Juneja, along with other accused being close relative, subjected Varsha Juneja to cruelty with a view to coerce her and her father to meet unlawful demand of one Fiat Car as an article of dowry on the pretext that sufficient dowry was not given at the time of marriage of Varsha Juneja and that you all thereby committed an offence punishable under Section 498A, I.P.C. and in furtherance of common object of such assembly, you all committed an offence punishable Under Section 498A read with Section 34, I.P.C. and within my cognizance.
Secondly, on the same date, time and place, you all committed criminal intimidation by threatening Varsha Juneja and her father Sri. Balwant Singh Juneja with the injury to their person with intent to cause alarm to said Varsha Juneja and Sh. Balwant Singh Juneja by saying that your life will not be spared and that you all thereby committed an offence punishable Under Section 506. I.P.C., and you all in furtherance of common object of such assembly committed offence punishable Under Section 506 read with Section 34, I.P.C and within my cognizance.
Thirdly, on the same date, time and place, you all demanded dowry in the shape of one Fiat Car on the pretext that sufficient dowry had not been given at the time of marriage of Varsha Juneja from her father Sh. Balwant Singh Juneja and Varsha Juneja and t hat you all thereby committed an offence punishable Under Section 4 of the Dowry Prohibition Act and in furtherance of common object of such assembly, you all committed an offence punishable Under Section 4 of the Dowry Prohibition Act, read with Section 34, IPC and within my cognizance.
Fourthly, you Suresh Kumar on the said date, time and place, committed theft of one gold chain weighing 2 Tolas belonging to Varsha Juneja, valuing Rs. 5,000/- by taking it out of the possession of Varsha Juneja intending to take the said thing dishonestly without her consent and that you thereby committed an offence punishable Under Section 379, IPC and within my cognizance.
And I hereby direct that you all be tried by this Court on the said charge.
2. This criminal miscellaneous application has been filed to challenge the said order on the grounds that:
i) Sanction of the District Magistrate was necessary to enable the trial Court to take cognizance for offence Under Sections 4 and 5 of the Dowry Prohibition Act and as the same was not taken the trial Court had no jurisdiction;
ii) From the facts stated in the FIR, no offence was made out;
iii) Harinder Kaur petitioner 1 is the sister of Suresh Kumar petitioner 4, petitioner No. 2 Keshav Dut is the husband of petitioner 1, petitioner 3 is the mother of petitioner 4, petitioner 6 is brother of Harbans Lal petitioner 4 (since deceased) and petitioners ] to 3 were not even present on 5-2-1986 at Nabha when the incident is alleged to have taken place; and
iv) Continuance of the proceedings in the trial Court is illegal and abuse of the process of the Court.
3. The learned Counsel for the petitioners has vehemently pressed into service the above grounds. J have also heard the learned Counsel for the Complainant. He has opposed all the grounds, saying that no sanction of the District Magistrate for prosecution Under Sections 4 and 5 of the Act is required after the Act was amended in 1984. He has further argued that merely because petitioners 1 to 3 are relatives of petitioner 4, it cannot be said that no offence is made out against them. Rather, he argued that in such like cases, petitioners 1 to 3 are more likely to help petitioner No. 4 and there are definite allegations against these petitioners for having committed the alleged offences. He has referred to the Dowry Prohibition Amendment Act I Act 63 of 1984) in which the provisions for obtaining the sanction for prosecution have been done away with.
4. A reference may be made to the reply filed by Sub-Inspector Gurbachan Singh, Station House Officer, Police Station Kotwali, Nabha, District Patiala by way of affidavit wherein it has been specifically mentioned that on the basis of the FIR and the statements of the prosecution witnesses, as also the documents attached with the challan, the trial Court framed the charges and order was passed on 11-5-1987, with detailed reasons, for framing the charges and that order has not been challenged in this petition.
5. From the above facts, it is clear that the challenge to the part of the charges framed with respect to offences Under Section 4 of the Act, sanction of the District Magistrate is not necessary to enable the trial Court to take cognizance, as the Act has been substantially amended by the Amending Act of 1984 by which no such sanction is required. This objection is, therefore, not tenable.
6. The other objection that no offence is made out on the basis of the FIR is also not supported by the f acts narrated in the FIR. It has been specifically mentioned in the FIR that on 5-2-1986 at about 11.30 a.m. Suresh Kumar, Harbans Lal and Amrik Singh petitioners came to the house of the complainant, accompanied by Chandi Ram, Commission Agent, Purani Anaj Mandi, Nabha to sort out the problems regarding the marriage and the articles of dowry which were pending for the last 1 1/2 years. On the said date, the said petitioners, i.e. petitioners 4 to 6, during talks, repeatedly demanded Fiat Car and threatened that in case the demand was not accepted, the daughter of the complainant might lose her life. On refusal of the complainant to accept this demand, petitioner 4 wanted to take forcibly Varsha Juneja, daughter of the complainant, along with him and when she refused to accompany, he caught hold of her from the neck and pressed it with a view to kill her. On alarm being raised, petitioner No. 4 abused the complainant and then petitioners 4 and 6 caught hold of Varsha Juneja from her hair and petitioner No. 4 tried to press her neck. During this struggle, the gold chain of Varsha Juneja weighing about 2 tollas fell on the ground and was picked up by petitioner 4 who ran away while abusing. In respect of this occurrence, petitioner 4 has been correctly charged Under Section 379 of the Code. All the petitioners have been correctly charged under Section 506 of the Code, as also under Si 506 read with Section 34 of the Code (in my view, Section 34 of the Code has been mentioned instead of Section 149 of the Code by in advertance and may be corrected at any time by the trial Court).
7. The F.I.R. also contains a specific allegation that orally and also through letters, petitioners 3 to 6 have been consistently demanding Fiat car from the complainant and harassing his daughter in that connection so much so that petitioners 3 to 5 did not give any medical or financial help at the time Varsha Juneja struggled for life while giving birth to a baby and she remained in bed for about 7 months. In that respect, the petitioners have been correctly charged under Section 498A and Section 498A read with Section 34 of the Code as also under Section 4 of the Act and Section 4 of the Act read with Section 34 of the Code, although Section 34 instead of Section 149 of the Code has been mentioned. ,
8. The allegations mentioned in the F.I.R. are not alleged to be uncorroborated by the statements of the witnesses under Section 161 of the Cri. P.C. In any case, the trial Court has gone into the facts in detail and framed the charges after passing a detailed order. The petitioners could challenge that order in revision before the Court of Session, but they preferred to come up with this criminal miscellaneous application to this Court for quashing the charges, As sufficient time has elapsed after this petition was filed, I did riot think it advisable to dismiss the same on the ground of revision being the available remedy to the petitioners as it would have caused further delay in disposing of the case by the trial Court. As a matter of fact, the challenge is mostly on the facts which the trial Court is expected to go into detail during trial arid then come to a conclusion.
9. The counsel for the complainant has also drawn my attention to the case of Supdt. and Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja , wherein it has been laid down as under (para 18):
It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise is not exactly to be applied at this stage of Section 227 or 228 of the Cr. P.C. 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence.
Another case of Khushal Singh v. Vinod Kumar (1986) 2 Chand LR (Cri) 52 has been cited and therein it has been laid down as under:
Held, that when the Magistrate is at the stage envisaged under Section 239, Criminal Procedure Code, he is required to determine whether there is prima facie case against the accused for his being charged for any offence. At that stage, he is not required to go into meticulous details of the prosecution or to enter into a complicated process of reasoning to doubt the prosecution story. In the given circumstances, to consider the photostat copy of the entry from the Petition-Writer's register, without confronting the same to the complainant was also not a sound exercise of judicial discretion. There was enough material to go on with the trial, as has been projected by the prosecution. The defence could have its turn at the appropriate stage.
These comments would suffice to upset the impugned order without elaborately discussing the merits of the case or meeting the intricate arguments of the learned Chief Judicial Magistrate.
Still another case Ram Nivas v. State of Haryana (1986) 2 Chand LR (Cri) 474 has been referred to and therein also it has been held as under:
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. The crucial consideration for purpose of determining whether there is sufficient ground for proceeding against an accused is whether the material on record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible. All this would naturally depend upon the f acts of each case and it is difficult to lay down a rule of universal application.
10. The above cases support my view that after framing of charges, the trial Court has to go into details by recording prosecution evidence and thereafter to examine the accused under Section 313 of the Cr. P.C. and record the defence evidence, if any. The trial Court will consider the evidence on record and appreciate all the circumstances to come to a definite finding. The whole thing cannot be pre-judged at this stage.
11. There seems to be an omission in Second head of charge, as typed in the petition, to mention only petitioners 4 to 6, as is the prosecution case, for substantial offence under Section 506 of Indian Penal Code and the petitioners 1 to 3 as liable under Section 506 read with Section 149 of the Code. This omission can be rectified by the trial Court in case it is really there.
12. In view of the above discussion, I do not find any infirmity in the charges framed, except as indicated above, and, therefore, this criminal miscellaneous is dismissed. The parties are directed to appear before the trial Court on Dec. 19, 1988.