Delhi District Court
Rajinder vs . The State on 22 July, 2017
Rajinder Vs. The State
CR No: 440153/2016
IN THE COURT OF SH. HARISH DUDANI, SPECIAL
JUDGE, (PC ACT) CBI-I DWARKA COURTS;New Delhi
Rajinder
S/o Late Sh. Kali Ram
R/o Village & Post: Gobhana
Tehsil: Bahadurgarh
Dist: Jhhajhar
Haryana .............Revisionist
VERSUS
1) The State
2) Smt. Krishna
W/o Sh. Jitender
D/o Sh. Jaibhagwan Shokeen
R/o Plot No. 51-52, Khasra No. 53/6/3
Pole No. 60, Block-N
Gopal Nagar, Najafgarh
New Delhi. .......Respondents
CR No. 440153/16
Date of Institution 10.12.2015
Police Station CWC Nanakpura
Reserved for orders on 22.07.2017
Judgment announced on 22.07.2017
JUDGMENT
1. This revision petition under Section 397 r/w Section 399 Cr.P.C. is directed against the impugned order dated 20.10.2015 passed by Ld. MM-01, Mahila Court, SW, Dwarka Courts, New Delhi by which Ld. MM was pleased to order for framing of charge under Section 498A/34 IPC against the accused (revisionist herein).
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2. Briefly stated facts relevant for the disposal of the revision petition are as under:
3. The complainant( Smt. Krishna, respondent no.
2 herein) had made a complaint dated 04.11.2010 to the police on the basis of which FIR no. 42/2011, under Sections 498A/406/34 IPC was registered at PS Crime (Women) Cell, Nanakpura, New Delhi. In her complaint dated 04.11.2010, the complainant has stated that she was married to Sh. Jitender S/o Sh. Rajender Singh (revisionist herein) on 08.12.2008 as per Hindu rites and ceremonies and after the marriage she stayed at her matrimonial home . At the time of marriage, the complainant was told that her husband is a public prosecutor but after about one year of marriage, she came to know that her husband is a LDC in the court and she has been deceived. In her complaint, the complainant has stated that right from the day of marriage, the behaviour of her mother in law towards her was not good and she was being taunted for bringing insufficient dowry. Her mother in law also used to take the pay which she was getting and her in-laws used to make various demands which she had to fulfill. In the complaint, the complainant has stated that on 17.10.2009 her ATM card was also snatched by her mother in-law and she was abused and her husband CR No:440153/2016 Page 2 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 withdrew the sum of Rs. 35,000/- from the ATM by using the card. The complainant further stated that her husband told her to bring Rs. 4-5 lacs from her father for raising constructions of the house and in January 2010 she brought Rs. 3 lacs from her father and gave it to her husband and from time to time she has been withdrawing money from the ATM and has been giving to her in-laws. Complainant has stated in the complaint that her mother law and sister in law Pinki ( Jyoti) took keys of trunk and took out the articles i.e. clothes, jewellery and money from the trunk without her consent. It is further stated that even after demand, her mother in law has not returned her jewellery which was kept by her mother in law. The complainant has further alleged that she was being ill-treated by her in-laws and was also not taken care of when she fell ill. The complainant has stated that her husband told her to take loan and she told her husband to return the amount of Rs. 3 lacs which was brought by her but her husband refused to return the same and started pressurizing the complainant to take loan for buying a flat and on refusal by the complainant, she was given beatings. It is further alleged that on 12.09.2010 her husband and her mother in law told the complainant to bring Rs. 10 lacs for raising CR No:440153/2016 Page 3 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 construction of the house and on her refusal, she was given beatings by her mother in law, sister in law and husband and at that time her father in law was also in the house and on hearing her cries, her father in law came and stated this is his house and the complainant need not cry here and told the complainant to leave and told her to come back with money only . It is stated that on 27.09.2010 when complainant went to her in-laws house in Ghaziabad, her father in law, mother in law, sister in law and brother in law met and her father in law and mother in law told her that her( complainant's) articles have been kept at Najafgarh and she was not informed about the whereabouts of her husband and on 19.09.2010 she received a message on mobile from her husband that he is in UK and thereafter she has not received any information about her husband. It is further stated that on 31.10.2000 the complainant went to her in-laws house at Ghaziabad but she was given beatings by her mother in-law and sister in law Jyoti and she was turned away from the house.
4. After conclusion of the investigation, charge sheet for offences under Sections 498A/406/34 IPC was filed against Jitender Kumar(husband) (PO), Smt. Phoolwati (mother in law) and Sh. Rajender Singh (father in law) of the CR No:440153/2016 Page 4 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 complainant. The name of Ms. Jyoti @ Pinki , sister in law was mentioned in Column no. 12 of the charge sheet as accused persons - not charge sheeted. The accused Phoolwati and Rajender Singh were summoned vide order dated 20.10.2015 and charge for the offence under Section 498/34 IPC was odered to be framed against accused Rajender ( revisionist herein).
5. Aggrieved by the impugned oder dated 20.10.2015 by which charge under Section 498A/34 IPC was framed against accused Rajender Singh (revisionist herein) , the revisionist has filed the present revision petition stating therein that the complainant was married with the eldest son of revisionist on 08.12.2008 as per Hindu rites and ceremonies and in the month of September, 2010 some disputes might have arisen between the complainant and the son of the revisionist and son of the revisionist left for U.K. with due consent and knowledge of the complainant. It is stated in the revision petition that the complaint on the basis of which present FIR has been registered has been made against the revisionist on frivolous and scandalous allegations. The revisionist has challenged the impugned order dated 20.10.2015 thereby framing charge for offence under Section CR No:440153/2016 Page 5 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 498A/34 IPC against him on the ground that same has been passed without application of mind and non-appreciation of the material on record. It is stated in the revision petition that in the entire complaint/FIR, there is no whisper of any demand of dowry and any allegations of demand of dowry against the revisionist. It is further stated that the revisionist remained posted out of the Delhi and was not having any interference in the day to day affairs of the matrimonial life of the complainant . It is stated that the impugned order dated 20.10.2015 is liable to be set aside.
6. I have heard Ld. Counsel for the parties and perused the records.
7. Ld. Counsel for the revisionist has contended that complainant has not made any allegations of demand of dowry and commission of cruelty on her by the revisionist. Ld. Counsel for the revisionist has contended that the perusal of the FIR would show that no such allegations have been made against the revisionist which will attract Section 498A IPC. Ld. Counsel for the revisionist has further contended that during the subsistence of marriage of complainant with son of the revisionist, the revisionist was mostly posted out of Delhi and had no interference in the affairs of the family of CR No:440153/2016 Page 6 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 respondent no. 2 and her husband. Ld. Counsel for the revisionist has further contended that the allegations as contained in the FIR do not constitute commission of offence under Section 498A IPC by the revisionist.
8. Ld. Counsel for the revisionist has relied upon the decision of Hon'ble Supreme Court in Manju Ram Kalita vs. State of Assam, Criminal Appeal No. 299 of 2003.
9. Ld. Addl. PP for the State has contended that in her complaint to the police on the basis of which present FIR has been registered and also her supplementary statement under Section 161 Cr.P.C. recorded on 20.08.2011, the complainant has made specific allegations of demand of dowry and on that account commission of cruelty upon her by the revisionist. Ld. Addl. PP has contended that in the supplementary statement under Section 161 Cr.P.C. recorded on 20.08.2011, the complainant has specifically stated that on 12.12.2008 her father in law and husband told the complainant to show her pay-slip and told her to give entire salary to them. Ld. Addl. PP has further contended that complainant has made specific allegations in her supplementary statement under Section 161 Cr.P.C. dated 20.08.2011 that on 12.09.2010 her mother in law and CR No:440153/2016 Page 7 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 husband told her to bring Rs. 10 lacs for constructing the house and on her refusal she was given beatings and her father in law also demanded 10 Lacs Rs. and on her refusal, he also gave beatings to her. Ld. Addl. PP for the State has further contended that in her supplementary statement under Section 161 Cr.P.C. complainant has made specific allegations against father in-law that her father in law told her to give her ATM card as they wanted money for construction and on her refusal she was given beatings. It is contended by Ld. Addl. PP that the complainant has made allegations that she was told to bring 4-5 lacs by her husband and complainant has made allegations that when she was crying , her father in law came and told her to leave the house and the complainant was turned away from the house for money.
10. The present case was registered on the basis of complaint dated 04.11.2010 of the complainant wherein she has made allegations of cruelty committed on her on account of demand of dowry. The supplementary statement of complainant under Section 161 Cr.P.C. was recorded on 20.08.2011 wherein she has made allegations that on 12.09.2010 her mother in law and husband demanded 10 lacs rupees from her and on her refusal she was given CR No:440153/2016 Page 8 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 beatings and her father in law Rajender Singh ( revisionist herein) also demanded Rs. 10 lacs and on her refusal, she was given beatings. In the supplementary statement under Section 161 Cr.P.C. , the complainant has stated that on 16.10.2009, the revisionist told the complainant that they have to raise some construction and demanded her ATM card and on her refusal she was given beatings by her husband. The complainant has made allegations that her husband had told her to bring Rs. 4-5 lacs. The complainant has further stated in her supplementary statement that her father in law ( revisionist herein) was in his room and on hearing cries, he came out and told her to leave the house and she was turned away from the house for the money. In the supplementary statement under Section 161 Cr.P.C., the complainant has made specific allegations that she was physically and mentally tortured by her husband, mother in law and father in law and they had demanded money from her and her parents.
11. Section 240 Cr.P.C. reads as :
Framing of charge.- (1) if, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable CR No:440153/2016 Page 9 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against the accused.
(2) The charge shall then be read and explained to the accused, an he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
12. In Union of India V. Prafula Kumar Samal AIR 1979 Supreme Court 366, Hon'ble Supreme Court was pleased to hold:
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
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Rajinder Vs. The State
CR No: 440153/2016
has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test of 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 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 basis infirmities appearing CR No:440153/2016 Page 11 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 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.
13. In State of M.P. V. S.B. Johari, AIR 2000 Supreme Court 665, Hon'ble Supreme Court was pleased to hold:
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It is settled law that at the stage of framing the 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 the evidence and arrive at the conclusion that the materials produced are sufficient or not for convicting the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilty of the accused, even if CR No:440153/2016 Page 12 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 fully accepted before it is challenged by cross-examination or rebutted by defence evidence, if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial. In Niranjan Singh Karam Singh Punjabi etc. v. Jitendra Bhimraj Bijjayya etc., reported in ( 1990) 4 SCC 76 :
( AIR 1990 SC 1962 : 1990 Cri LJ 1869), after considering the provisions of Ss 227 and 228, Cr. P.C. Court posed a question whether at the stage of framing the charge, trial Court should marshal the materials on the record of the case as he would do on the conclusion of the trial? The Court held that at the stage of framing the charge inquiry must necessarily be limited to deciding if the facts emerging from such materials constitute the offence with which the accused could be charged.
The Court may pursue the records for that limited purpose, but it is not required to marshal with a view to decide the reliability thereof. The Court CR No:440153/2016 Page 13 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 referred to earlier decisions in State of Bihar V. Ramesh Singh ( 1977) 4 SCC 39: ( AIR 1977 SC 2018 : 1977 Cri LJ 1606), Union of India V. Prafulla Kumar Samal ( 1979) 3 SCC 4: ( AIR 1979 SC 366: 1979 Cri LJ 154) and Supdt. of Remembencer of Legal Affairs, West Bengal v. Anil Kumar Bhunja (1979) 4 SCC 274 : ( AIR 1980 SC 52 : 1979 Cri LJ 1390), and held thus :-
"From the above discussion it seems well settled that at the Ss. 227 and 228 stage 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence as it cannot be expected even at the 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.'
14. In State of M.P. v. Mohan Lal Soni, AIR 2000 CR No:440153/2016 Page 14 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 Supreme Court 2583, Hon'ble Supreme Court was pleased to hold:
7. 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.
9. Yet in another decision of this Court in Niranjan Singh Karam Singh Punjabi v.
Jitendra Bhimraj Bijjaya, ( 1990) 4 SCC 76 :
( AIR 1990 SC 1962 : 1990 Cri LJ 1869) it is held that at the time of framing charges having regard to Sections 227and 228 of Cr.P.C. the Court is required to evaluate the material and documents on record with a view of finding out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose to sift the evidence, as it cannot be expected even at the initial stage to accept all that the prosecution states as CR No:440153/2016 Page 15 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 gospel truth even if it is opposed to common sense or broad probabilities of the case.
15. In State of Maharashtra v. Priya Sharan Maharaj, AIR 1997 Supreme Court 2041, Hon'ble Supreme Court was pleased to hold:
8. The law on the subject is now well-
settled, as pointed out in Niranjan Singh Punjabi v. Jitendra Bijjaya, ( 1990) 4 SCC 76 : (AIR 1990 SC 1962), that at Sections 227 and 228 stage 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 disclose the existence of all the ingredients constituting the alleged offence. The Court may, 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. Therefore , at the stage of framing of the charge the Court has to consider the material with a view to find out if there is ground for presuming that CR No:440153/2016 Page 16 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 the accused has committed the offence or that there is no sufficient ground for proceeding against him and not for the purpose of arriving at the conclusion that it is not likely to lead to a conviction.
16. In CBI Vs. K. Narayana Rao, CA No. 1460 of 2012 , Hon'ble Supreme Court was pleased to hold:
12. While considering the very same provisions i.e. framing of charge and discharge of accused, again in Sajjan Kumar ( supra), this Court held thus:
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21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge:
(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 face case would depend upon the facts of each case.
(ii) Where the materials placed before the CR No:440153/2016 Page 17 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 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 basis 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 CR No:440153/2016 Page 18 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 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.
17. Section 498A IPC reads as under:
Husband or relative of husband of a woman subjecting her to cruelty.- Whoever, being the husband or the relative CR No:440153/2016 Page 19 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation.- For the purpose of this section, "cruelty" means-
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical ) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.
18. In the impugned order dated 20.10.2015, Ld. Trial Court has been pleased to observe :
On 12.09.2010, Jitender and Phoolwati demanded Rs. 10 lacs for construction of a CR No:440153/2016 Page 20 of 21 D.O.J. 22.07.2017 Rajinder Vs. The State CR No: 440153/2016 house and on her refusal, she was beaten up by Jitender and Phoolwati and rebuked by Rajender, Rajender told her to leave and come back with the money.
In her statement u/s 161 Cr.P.C., she reiterated the allegation made in the complaint.
Heard. Perused.
Bank account statements of
complainant supports her allegation of
withdrawal on a number of occasions.
19. In view of aforesaid discussions, I do not find any infirmity in the impugned order dated 20.10.2015 passed by Ld. Trial Court. The revision petition is devoid of merits and the same is dismissed.
20. TCR be sent back to the court concerned along with copy of this order. Revision file be consigned to record room.
Announced in the open ( HARISH DUDANI) Court on 22.07.2017 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
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