Delhi District Court
Arun Pathak & Anr. vs . State on 16 May, 2023
Arun Pathak & Anr. Vs. State
IN THE COURT OF ARUN SUKHIJA, ADDL. SESSIONS
JUDGE-03 (EAST), KARKARDOOMA COURTS, DELHI.
CRIMINAL REVISION NO. - 236/2022
IN THE MATTER OF:
1. Arun Pathak
S/o Lt. Sh. Rajinder Pathak
R/o EG-957A, Govindgarh Mohalla,
Jalandhar, Punjab.
Also at - Unit 12, 10-14, Hardie Street,
Neutral Bay Australia.
2. Mahesh Kumari
W/o Lt. Sh. Rajinder Pathak
R/o EG-957A, Govindgarh Mohalla,
Jalandhar, Punjab. ...Revisionists
Versus
State (GNCT of Delhi) ...Respondent
Arising out of FIR No.846/2014 PS New Ashok Nagar Date of Institution : 29.11.2022 Order Reserved on : 12.05.2023 Date of Order : 16.05.2023 ::- O R D E R -::
1. Assailing the impugned order dated 10.11.2022, revisionists/accused persons, preferred the present Criminal Revision Petition, vide which, order of framing of charges was passed against them.
2. Notice of the present Criminal Revision Petition was issued to respondent and TCR was also summoned.
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3. It is pertinent to mention here that though, complainant was not arrayed as a respondent and vide order dated 03.12.2022, the first date, on which, present Revision Petition has been allocated to this Court, it was ordered that complainant be also heard being necessary party but despite issuance of notice to complainant, complainant failed to appear before this Court and as such, present Criminal Revision Petition is to be decided in her absence.
4. Revisionists assailed the impugned order with submissions that impugned order is harsh and is liable to be set aside. It was also submitted that even complainant and revisionist no. 2 never resided under same roof as being admittedly revisionist no.2, who is resident of Jalandhar, Punjab. One of the contentions of ld. counsel was that even there is no proof for marriage between complainant and revisionist no. 1. It was also submitted that order for framing of charge has been passed in routine manner without application of judicial mind and there is prayer for discharge of the accused persons, for which, they have been charged with.
5. Ld. Addl. PP for the State submitted that at the stage of charge, prima facie case is to be seen and defence of the accused is to be considered only at the final stage and thus, submitted that impugned order is well reasoned one and prayed for upholding of the same.
6. Submissions considered and TCR with other material also perused.
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7. Necessary facts for disposal of the present matter are that complainant filed a complaint before CAW Cell alleging therein that she came in contact with Arun Pathak and then, fell in love with each other. It is also mentioned in the complaint that when accused proposed to her, sexual relations were developed between them with their own free will and without any pressure and then, on 23.12.2011, couple solemnized marriage between them in a temple and couple started living together as husband and wife at 1644, East of Pocket, Sector 23, Gate No. 1, Gurugram, Haryana. It is also mentioned in the said complaint that meanwhile, on account of some financial crunches, Arun sold some jewellery of complainant and on 21.05.2012, during evening hours, when the complainant went to her matrimonial home, she noticed that her friend namely Pallavi was present in their bed room in the clothes of her (complainant) husband and on seeing all this, she (complainant) became infuriated and started to beat herself but she was consoled by her husband and even they enjoyed dinner outside. Complainant also mentioned in the said complaint that in the month of August, 2012 when she and Arun were going in a car, Arun physically assaulted her and even her friend Pallavi revealed her that she had sexual relations with her (complainant) husband and they are going to marry each other. On 04.01.2013, Arun/revisionist no.1 asked the complainant to go and reside with her younger sister at Lajpat Nagar and on her Criminal Revision No.236/2022 Page - 3 of 10 Arun Pathak & Anr. Vs. State refusal, she was mercilessly beaten and even Arun informed her that he is intending to marry to Pallavi further stating that even his (Arun) mother is not known about their marriage. Later on, matter was discussed with mother of Arun by visiting to Jalandhar, Punjab, where, she used to reside but all in vain and prayed for separation of Arun from Pallavi and restrained Arun to beat her.
8. Later on, when nothing was materialized between the accused and complainant, present FIR bearing No. 846/2014 under Sections 498-A/406/494/34 IPC, P.S. New Ashok Nagar was registered and Charge-sheet was submitted before the Court of ld. MM concerned against the petitioners/accused persons.
9. On hearing the arguments on the point of charge, vide order dated 10.11.2022, accused Arun Pathak was ordered to be charged for the offences punishable under Sections 498A/406/494/34 IPC, while accused Mahesh Kumari was ordered to be charged for the offence punishable under Sections 498A/34 IPC.
10. Aggrieved of the said order, both accused persons preferred the present Criminal Revision Petition.
11. Law regarding framing of charge is well settled. At this stage, the defence of the accused is not to be gone into in detail. The material collected by the investigating agency is to be considered on its face value. It is well settled that at the stage of framing of charge, broad probability of the case and total effect of the evidence and documents Criminal Revision No.236/2022 Page - 4 of 10 Arun Pathak & Anr. Vs. State produced before it and any basic infirmity, appearing in the case, can be considered. However, appreciation of evidence, which is required to be done at the final stage, is not permissible at the time of framing of charge. Reference may be made to the cases reported as Bharat Parikh Vs. CBI & Anr.) [2009 (I) AD (Crl.) SC 190]; Bhagwanti Vs. State [2002 (1) JCC 127] and Kanti Bhadra Shah & Anr. Vs. State of West Bengal [AIR 2000 SC 522].
12. In the judgment reported as 2012 (3) Apex Courts Judgments 512 (SC) titled as Amit Kapoor Vs. Ramesh Chander & Anr., Hon'ble Apex Court observed as -...at the initial stage of framing of a charge, the Court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty - all that Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not - the final test of guilt is not to be applied at that stage.
13. In case reported as UOI Vs. Prafulla Kumar Samal & Anr. AIR 1979 SC 366, Hon'ble Apex Court observed as under:-
"10. Thus on consideration of 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;
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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 proceedings with the trial;
3. The test of determine a prima facie 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 basis infirmities appearing in the case and so on. This however, does not mean that the judge would make a roving inquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial."
14. Firstly, Court will deal with the matter qua revisionist no.2 Smt. Mahesh Kumari, who was ordered to be charged for the offence punishable under Sections 498A/34 IPC.
15. Even as per the complaint of complainant, Smt. Mahesh Kumari, mother of Arun Pathak, was neither present at the time of marriage between her and Arun nor she knew about it till dispute was brought to her knowledge. It is also mentioned in the complaint that she was resident of Jalandhar, Punjab and even complainant went there to get the matter resolved. Nothing is there on record to mention Criminal Revision No.236/2022 Page - 6 of 10 Arun Pathak & Anr. Vs. State here that whether at any point of time, Smt. Mahesh Kumari ever maltreated the complainant on account of dowry demands or else. Only allegations are there that when she (complainant) met her (Mahesh Kumari), she consoled her stating that she would be on her side but, later on, she stated that she would not help her and asked her to make a phone call to her and then, never picked her phone. Lastly, it is alleged that revisionist no.2 did not help the complainant and instead closed the door of her house in Jalandhar, Punjab in front of the complainant.
16. All these averments, especially, in view of the circumstances of this case, do not come within the purview of Section 498-A IPC and as such, this Court is of the view that order qua said accused needs interference and accordingly, same is hereby set aside. In view of the same, accused Mahesh Kumari is hereby discharged for the offence punishable under Sections 498-A/34 IPC.
17. Now, Court will deal with the matter qua revisionist no.1/Arun Pathak, who was ordered to be charged for the offences punishable under Sections 498-A/406/494/34 IPC.
18. The first contention of ld. counsel for the revisionists was that no marriage has been proved between the parties and as such, no offence punishable under Section 498-A IPC is attracted. Qua this contention that there is statement of Shyam Narain dated 05.04.2016, wherein, he mentioned Criminal Revision No.236/2022 Page - 7 of 10 Arun Pathak & Anr. Vs. State that marriage between them was got solemnized. Even copy of Rent Agreement for the said address, on which, complainant claimed that she and Arun Pathak resided there after their marriage, is on record. It is also to be kept in mind that this is only stage of charge and accused has every ample opportunity to lead his defence at appropriate stage of trial. It is mentioned in the complaint that she (complainant) was beaten at the hands of Arun Pathak. These beatings were never in connection with dowry demands or less dowry. However, beatings to wife, at the stage of charge, comes within the purview of Sections 498-A IPC. As such, this Court is of the view that present revisionist/accused is to be charged for the offence punishable under Section 498-A IPC.
19. For the offence punishable under Section 406 IPC, it is mentioned that her clothes and articles are lying with Arun. Complainant, in her statement recorded on 25.07.2015, mentioned that she demanded for the same and accused refused to return the same. At the stage of charge, this Court is of the view that charge under Section 406 IPC is also made out against accused Arun Pathak.
20. In view of the observations of Hon'ble Apex Court, as mentioned above, also including the observations made by ld. Trial Court, this Court does not find any substance in the aforesaid arguments regarding Sections 498A and 406 IPC and the same sans merits and are hereby rejected.
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21. Coming to the issue of Section 494 IPC, it is very strange that nothing is there that accused Arun Pathak ever solemnized the marriage with any Pallavi or any other girl, after solemnization of marriage with the complainant. Only allegations are that Pallavi informed the complainant that she had sexual relations with Arun and intending to marry her. Even Arun Pathak also informed that he is going to marry with Pallavi but there is nothing on record to prove or even to show that both i.e. Arun and Pallavi married with each other or Arun ever married to any other girl after marriage of complainant, till their marriage in existence.
22. Hon'ble Apex Court in the case titled as Juwarsingh V. State of Madhya Pradesh 1980 (supp) SCC 417 in para 5 held that cross-examination is not the only way to discrediting witness. As such, this Court is of the view that there is nothing on record to attract the provisions of Section 494 IPC qua accused Arun Pathak. Though, ld. Trial Court has ordered for framing of charge under Sections 406/494/34 IPC with other offence, it has to be kept in mind and seen that Section 34 IPC cannot be attracted in view of the facts and circumstances of present case. However, not commenting much on this issue, this court is of the view that order dated 10.11.2022 qua revisionist no.1/Arun Pathak also needs interference and as such, same is set aside for the offence punishable under Sections 494 & 34 IPC and now, it is ordered that accused Criminal Revision No.236/2022 Page - 9 of 10 Arun Pathak & Anr. Vs. State Arun Pathak is liable to be charged for the offence punishable under Sections 498-A and 406 IPC only.
23. With the above observations, gist of the same is that revisionist no. 2 Mahesh Kumari is discharged for the offence punishable under Sections 498-A/34 IPC, while accused/revisionist no.1 Arun Kumar Pathak is also discharged for the offence punishable under Sections 494 IPC & 34 IPC and is only liable to the charged for the offence punishable under Sections 498-A and 406 IPC.
24. Parties concerned are directed to appear before court of ld.
MM concerned on the date fixed there.
25. A copy of this order be placed in TCR and be sent forthwith to the ld. Trial Court for information and compliance.
File of revision petition be consigned to record room after due compliance.
The order is pronounced in the open Court on this 16 th May, 2023 under my hand and seal.
(ARUN SUKHIJA) Addl. Sessions Judge-03 (East District) Karkardooma Courts, Delhi Criminal Revision No.236/2022 Page - 10 of 10