Uttarakhand High Court
Ms Jyoti Singh vs State Of Uttarakhand And Another on 27 March, 2017
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Misc. Application (C-482) No. 253 of 2017
Ms. Jyoti Singh ............. Applicant
versus
State of Uttarakhand & another ............. Respondents
Mr. Sudhir Kumar, Advocate for the applicant.
Mr. Raman Kumar Shah, Dy. Advocate General with Mr. V.S. Pal,
A.G.A. for the respondent State.
Mr. Lalit Sharma, Advocate for respondent no. 2.
U.C. Dhyani, J.(Oral)
By means of present application under Section 482 Cr.P.C., the applicant seeks to quash the judgment dated 23.12.2016, passed in criminal revision no. 92 of 2016, Jyoti Singh vs State of Uttarakhand, passed by Addl. Sessions Judge II, District Nainital and order dated 21.07.2016, passed by Addl. Chief Judicial Magistrate, Haldwani, District Nainital in criminal case no. 2607 of 2014, State vs Jyoti Singh, as also entire proceedings of criminal case no. 2607 of 2014, State vs Jyoti Singh, under Sections 389, 420, 504, 506 IPC, police station, Haldwani, pending before Addl. Chief Judicial Magistrate, Haldwani, District Nainital.
2) An application for discharge was moved on behalf of the accused-applicant. Learned Addl. Chief Judicial Magistrate, Haldwani by an elaborate order dated 21.07.2016, dismissed such an application and found that there was sufficient material on record to frame the charge against the accused-applicant. Aggrieved against the same, accused- applicant preferred criminal revision, which was dismissed by 2 learned II Addl. Sessions Judge, Nainital, vide order dated 23.12.2016, again, by an elaborate order. The Court need not repeat the grounds on the basis of which such application was dismissed. Still feeling aggrieved against the same, present application under Section 482 Cr.P.C. has been filed by the accused-applicant expecting that this Court will exercise its inherent jurisdiction to come to her rescue.
3) FIR against the accused-applicant and another was sent by the complainant (respondent no. 2 herein) from jail, alleging therein, that the complainant was appointed on the post of Finance Officer, in the Directorate of Training and Employment, Haldwani in June 2011. In February 2012, Jyoti Singh started working as Junior Assistant through UPNL. Divorce was granted to the complainant by Family Court, Allahabad in March 2010, an appeal against which was pending before Hon'ble Allahabad High Court. Firstly, in August 2012, Jyoti Singh sent an SMS and thereafter she started making contact with him on one pretext or another. Jyoti Singh told the complainant that she is not happy with her husband, who used to beat her and is a characterless person. In November 2012, Jyoti Singh put marriage proposal before the complainant, on which he told her that he will only marry her after finalization of the divorce case. Her sisters also gave their consent to this. Jyoti Singh and Pankaj Agarwal filed a divorce case, with mutual consent, in Decemebr 2012, which was decided in February 2013, but Jyoti Singh and Pankaj Agarwal, used to live as husband and wife even after getting divorce. In order to show trust on me, Jyoti Singh made the complainant as nominee in SBI General Policy and showed her relation as spouse. In the meantime, complainant and accused visited Kwaja Sharif Dargah, Ajmer; Shridi Mandir and at various temples in Haridwar for darshan and performed religious 3 service together. Jyoti continuously used to extort money from the complainant in the name of her children and husband. As the complainant had full belief that after finalization of his divorce case, Jyoti Singh will marry him, so he introduced her to his family members, close friends and colleagues of his office. Jyoti used to visit the complainant with her freewill and used to take money from him and usually stays at the house of Pankaj. Jyoti and Pankaj continuously used to demand money from the complainant and on being refused, Pankaj quarrels with the complainant by threatening him to implicate in a false case. Pankaj also used to threat the complainant on his father's mobile no. 9450619233. When the divorce case of the complainant got finally adjudicated, he asked for marriage, then Pankaj demanded a sum of Rs. 25 lakhs and Jyoti used to give him a slip on marriage on one pretext or other. On 31st December 2013, complainant straight away told Jyoti that if she will not marry him now and not restrain herself from going to Pankaj's house, then he will not pay any money to her, as a consequence, Jyoti lodged an FIR no. 26 / 14 against the complainant on 12.01.2014, in police station Kotwali. Complainant received a charge sheet from the court of ACJM, Haldwani on 10.06.2014 which makes it apparent that none of the neighbours of Jyoti and Pankaj was aware that they were divorcee and only for name sake only and with the intention of blackmailing the complainant got divorce by filing false affidavit in the court. Jyoti Singh could not produce any evidence before I.O. Punita Balodi that she had ever proposed the complainant and he had refused the same. Whereas, the complainant had produced the SMSs wherein Jyoti Singh had demanded money and the complainant had made proposal of marriage to her. Various photographs where the accused was seen with the family members of complainants were also filed. Jyoti Singh remained in constant touch even after lodging of 4 FIR and told that she will change her statement on receiving the money. Jyoti Singh, even in the FIR lodged by her, could not disclose anything regarding said MMS to the I.O. Therefore, it is requested that criminal case be registered against Jyoti Singh and Pankaj Agarwal under relevant Sections in respect of cheating, blackmailing, defamation and for hatching criminal conspiracy.
4) Learned counsel for the applicant vehemently submitted, among other things, that present FIR is nothing but a counterblast to the FIR lodged by the applicant against respondent no. 2 under Sections 328, 323, 354D, 376, 506 IPC, which is pending before the trial court and in which also application for discharge has been rejected. It is also informed to the Court that against rejection of such an application and against framing of charge, C-482 petition no. 437 of 2015 has been filed by the respondent no. 2, which is also listed in today's cause list. Learned counsel for the applicant is at pains to argue that there is nothing material on record to show that the ingredients of Section 389, 420, 504, 506 IPC are fulfilled, on a perusal of the material brought on record.
5) The scope of discharge has been highlighted by the Hon'ble Apex Court in a catena of decisions, including the one in Shoraj Singh Ahlawat & others vs State of U.P. & another, AIR 2013 SC 52.
6) First of all, the Court has to see what is the scope of interference in framing of charge? The Hon'ble Supreme Court in Shoraj Singh Ahlawat (supra) while relying upon various decisions rendered in Preeti Gupta & another vs. State of Jharkhand & another (2010) 7 SCC 667, Union of 5 India vs. Prafulla Kumar Samal & another, (1979) 3 SCC 4; Sajjan Kumar vs. Central Bureau of Investigation, (2010) 9 SCC 368; State of Orissa vs. Debendra Nath Pandhi, (2005) 1 SCC 568; Onkar Nath Mishra & others vs. State (NCT of Delhi) & another, (2008) 2 SCC 561; Shakson Belthissor vs. State of Kerala & another, (2009) 14 SCC 466 and Rumi Dhar (Smt.) vs. State of West Bengal & another, (2009) 6 SCC 364, has observed as follows:
"8. On behalf of the appellant it was argued on the authority of the decisions of this Court in Preeti Gupta and Anr. v. State of Jharkhand & Anr. (2010) 7 SCC 667, Union of India v. Prafulla Kumar Samal and Anr. (1979) 3 SCC 4, Sajjan Kumar v. Central ureau of Investigation (2010) 9 SCC 368, State of Orissa v.
Debendra Nath Pandhi (2005) 1 SCC 568, Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561, Shakson Belthissor v. State of Kerala and Anr. (2009) 14 SCC 466, and Rumi Dhar (Smt.) v. State of West Bengal and Anr. (2009) 6 SCC 364, that while considering an application for discharge the Court can examine the evidence on record and discharge the accused persons if there is no possibility of the accused being found guilty on the basis of such evidence specially in cases where the accused produces unimpeachable evidence in support of his defence. It was also contended that while examining whether the Court should or should not discharge the accused, it must be remembered, that Section 498-A of the IPC is a much abused provision and that exaggerated versions of small incidents are often resented to falsely implicate, harass and humiliate the husband and his relatives. Applying the principles set out in the above decisions the appellants were, according to Ms. Geeta Luthra, learned counsel appearing for them, entitled to a discharge not only because there was an inordinate 6 delay in the filing of the complaint by respondent No.1 but also because the statements made under Section 161 Cr.P.C. by the witnesses who were either planted or merely chance witnesses were contradictory in nature. It was argued that two Investigating Officers having investigated the matter and found the allegations to be false, there was no reason for the Court to believe the story set up by the wife who had suffered a decree for divorce in regard to which she had written to the Army Authorities a letter dated 2nd October, 2006 stating that she was not pursuing the matter in any Court. Appellant No.3-Naveen Ahlawat having got re- married on 30th October, 2006 the incident referred in the complaint was a fabrication which aspect the Courts below had failed to consider thus failing to protect the appellants against harassment and the ignominy of a criminal trial.
9. On behalf of respondent No.2, it was per contra argued that her husband had filed a divorce petition against her in the Family Court, Meerut showing respondent No.2 to be residing with her parents at 327, Prabhat Nagar, Meerut, whereas she was actually residing with the appellants along with her daughter at No. 9, Tigris Road, Delhi Cantt, Delhi. It was further argued that appellant No.3 had obtained an ex parte decree order of divorce by fraudulent means and by forging signatures of respondent No.2, acknowledging receipt of the notice which she had never received from the concerned Court. This was conclusively established by the fact that the ex parte decree dated 31st May, 2006 had been eventually set aside by the Court in terms of order dated 28th July, 2007. Allegations regarding physical torture of respondent No.2 and her being abandoned on the road on the date of incident in question as also the allegation about dowry 7 harassment were factually correct and made out a clear case for prosecuting the appellants. Appellant No.3 had, according to the counsel for the respondent, married one Aditi on 30th October, 2006. It was also argued that letter referred to by appellant No.3 as also letter dated 2nd November, 2006 allegedly written by respondent No.2 were forgeries committed by the appellants. The trial Court was, in the light of the available material, justified in refusing to discharge the accused persons and that the grounds for discharge set up by the appellants could be examined only after the case had gone through full-fledged trial. Reliance was placed upon a decision of this Court in Union of India v. Prafulla Kumar Samala and Anr. (1979) 3 SCC 5.
10. The case at hand being a warrant case is governed by Section 239 of the Cr.P.C. for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under:
"239. When accused shall be discharged.
If, upon considering the police report and the documents sent with it under section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing."
11. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such 8 examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and Ors. v. State (NCT of Delhi) and Anr. (2008) 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial Court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:
"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 9 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 ."
(emphasis supplied)
12. Support for the above view was drawn by this Court from earlier decisions rendered in State of Karnataka v. L. Muniswamy 1977 Cri.LJ 1125, State of Maharashtra & Ors. v. Som Nath Thapa and Ors. 1996 Cri.LJ 2448 and State of M.P. v. Mohanlal Soni 2000 Cri.LJ 3504. In Som Nath's case (supra) the legal position was summed up as under:
"if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage. "
(emphasis supplied)
13. So also in Mohanlal's case (supra) this Court referred to several previous decisions and held that the judicial opinion regarding the approach to be adopted for framing of charge is that such charges should be framed if the Court prima facie finds that there is sufficient ground for proceeding against the accused.
10The Court is not required to appreciate evidence as if to determine whether the material produced was sufficient to convict the accused. The following passage from the decision in Mohanlal's case (supra) is in this regard apposite:
"8. The crystallized judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."
14. In State of Orissa v. Debendra Nath Pandhi (2005) 1 SCC 568, this Court was considering whether the trial Court can at the time of framing of charges consider material filed by the accused. The question was answered in the negative by this Court in the following words:
"18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well-settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration, it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition 11 that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression 'hearing the submissions of the accused' cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the state of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.........
xx xx xx xx
23. As a result of aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material..."
(emphasis supplied)
15. Even in Smt. Rumi Dhar v. State of West Bengal & Anr. (2009) 6 SCC 364, reliance whereupon was placed by counsel for the appellants the tests to be applied at the stage of discharge of the accused person under Section 239 of the Cr.P.C., were found to be no different. Far from readily encouraging discharge, the Court held that even a strong suspicion in regard to the commission of the offence would be sufficient to justify framing of charges. The Court observed:
12"...While considering an application for discharge filed in terms of Section 239 of the Code, it was for the learned Judge to go into the details of the allegations made against each of the accused persons so as to form an opinion as to whether any case at all has been made out or not as a strong suspicion in regard thereto shall subserve the requirements of law...
16. To the same effect is the decision of this Court in Union of India v. Prafulla Kumar Samal and Anr. v. (1979) 3 SCC 4, where this Court was examining a similar question in the context of Section 227 of the Code of Criminal Procedure. The legal position was summed up as under:
"10. Thus, on a consideration of the authorities mentioned above, the following principles emerge :
(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 has 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.13
(4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post Office or a mouth-piece 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."
7) Judging by the same yardstick, the Court does not find any merit in the grounds which have been taken on behalf of the applicant in present application under Section 482 Cr.P.C. The Court need not reproduce those grounds which have been taken by the applicants, as the same are part of the record.
8) Hon'ble Apex Court in Amit Kapoor vs Ramesh Chander and another, (2013) 1 SCC (Cri) 986, has laid down certain principles in respect of exercise of jurisdiction under Section 482 of Cr.P.C. One of the principle is that the Court should apply the test as to whether the uncontroverted allegations as made from the record of the case and the documents submitted therewith prima facie establish the offence or not. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where the basic ingredients of a criminal offence are not satisfied then the court may interfere. Where the factual foundation for an offence has been laid down, the courts should be reluctant and should not hasten to quash the 14 proceedings even on the premise that one or two ingredients have not been stated or do not appear to be satisfied if there is substantial compliance with the requirements of the offence. The power is to be exercised ex debito justitiae, i.e., to do real and substantial justice for administration of which alone, the courts exists.
9) There appears to be no illegality in the orders under challenge. No interference is called for in the same at this stage, as would also be evident from the law laid down by Hon'ble Supreme Court in Rajiv Thapar and others vs. Madan Lal Kapoor (2013) 3 SCC 330. Para 28 of the said ruling is reproduced here-in-below for convenience:
"28. The High Court, in exercise of its jurisdiction under Section 482 of the Cr.P.C., must make a just and rightful choice. This is not a stage of evaluating the truthfulness or otherwise of allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused is. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so, because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed, by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position, that in a case where the prosecution/complainant has levelled allegations bringing out all ingredients of the charge(s) levelled, and have placed material before the Court, prima 15 facie evidencing the truthfulness of the allegations levelled, trial must be held."
10) The Court was taken through the contents of FIR. From a bare perusal of FIR, it is apparent that foundation of criminal offence is laid against the present applicant in the instant case. Criminal proceedings pending against her, therefore, should not be quashed. She should not be discharged either. The jurisdiction under Section 482 Cr.P.C. should not be exercised to stifle or scuttle the legitimate prosecution.
11) It is also the settled law that the factual controversy need not be gone into by this Court in exercise of its inherent jurisdiction. Inherent jurisdiction under Section 482 Cr.P.C. has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid in the Section itself. The applicant, in the instant case, is unable to pass those tests.
12) The application under Section 482 Cr.P.C. is dismissed. Liberty is, however, granted to the applicant to place all the factual pleas before the trial court for securing her acquittal, at an appropriate stage.
[Stay Vacation application no. 457 of 2017 also stands disposed of.] (U.C. Dhyani, J.) Dt. March 27, 2017.
Negi