Allahabad High Court
Satendra Kumar Mishra & 4 Others vs State Of U.P. & Another on 31 May, 2017
Author: Amar Singh Chauhan
Bench: Amar Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED/AFR Court No. - 22 Case :- CRIMINAL REVISION No. - 4117 of 2016 Revisionist :- Satendra Kumar Mishra & 4 Others Opposite Party :- State Of U.P. & Another Counsel for Revisionist :- Ravindra Prakash Srivastav Counsel for Opposite Party :- G.A.,Anoop,Anoop Kumar Pandey Hon'ble Amar Singh Chauhan,J.
Heard Shri Ravindra Prakash Srivastav, learned counsel for the revisionists, learned Additional Government Advocate for the State, Shri Anoop Kumar Pandey, learned counsel for opposite party no. 2 and perused the records of the case.
This criminal revision has been preferred against the judgement and order dated 8.11.2016 passed by Additional Sessions Judge/Special Judge (P.C. Act) Court no. 4, District- Gorakhpur in Sessions Trial No. 248 of 2016 (State Vs. Satendra Kumar Mishra and others) arising out of Case Crime No. 483 of 2014, under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act, Police Station- Shahpur, District- Gorakhpur whereby the application moved by the revisionists for discharge under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act has been rejected and charge fixed for framing charges in the above mentioned sections.
The facts which are requisite to be stated for adjudication of this revision are that opposite party no. 2 has lodged a first information report against the revisionists on 21.10.2014 at about 23:30 o'clock which is registered as case crime no. 483 of 2014, under Sections 498-A, 328, 323, 504 I.P.C., and Section 3/4 D.P. Act, Police Station- Shahpur, District- Gorakhpur alleging therein that her marriage was solemnized with the revisionist no. 1 Satendra Kumar Mishra on 15.2.2006 as per Hindu rites and rituals, and sufficient dowry was given in the marriage. But the revisionists were not satisfied with the dowry and used to torture her by raising demand of one car and Rs. 5 lakhs as additional dowry. On 1.6.2014, revisionists beaten her and also ousted her from their house, therefore, she made a complaint before the police, but on intervention of some respected persons matter has been settled. But after sometime they again beaten her. On 7.10.2014 information has been received by the informant that revisionists have administered poison to his daughter, thereafter, he came at the house of revisionists and found got admitted her to Medical College and she discharged on 8.10.2014. Pursuant to an F.I.R., Investigating Officer after concluding investigation submitted the charge-sheet under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act against the revisionists. During trial, revisionists moved the discharge application on 30.8.2016 which was rejected by the court concerned. Being aggrieved, the revisionists came up in this revision.
Learned counsel for the revisionists submits that revisionist no. 4 namely Sheo Murti Mishra has also lodged a first information report against the opposite party no. 2 and three named persons and unknown on 12.4.2015 which is registered as case crime no. 152 of 2015, under sections 147, 452, 427, 379, 386, 323, 504, 506, 457, 120-B I.P.C.. He also filed a case under Section 340 Cr.P.C. before the court below on 24.3.2015. It is further submitted that revisionist no. 1 is the husband of informant's daughter, revisionist no. 2 is jeth who is handicapped person, revisionist nos. 4 and 5 are father-in-law and mother-in-law respectively, who are old persons and revisionist no. 3 is devar who is unemployed. Revisionists have no concern with the present case but opposite party no. 2 falsely implicated to them only for harassment in this case. Earlier, revisionists have filed a Criminal Misc. Application (under Section 482 Cr.P.C.) No. 37202 of 2016 (Satendra Kumar Mishra and others Vs. State of U.P. and another) before this Hon'ble Court which has been dismissed as withdrawn with liberty to file criminal revision on 17.12.2016. It is further submitted that revisionists have moved the discharge application which was rejected on 8.11.2016 by learned Additional Sessions' Judge/ Special Judge (P.C. Act), Court no. 4, District- Gorakhpur, which is illegal, unjust and unsustainable in the eye of law and the same is liable to be quashed by the Hon'ble Court. It is also submitted that victim is short tempered lady and after some time of the marriage, she started quarelling with the revisionists and she made pressure upon her husband for living separately but the revisionist no. 1 refused the same due to which she became annoyed and herself taken some tablet. Revisionists took her to hospital for saving her life but informant illegally lodged the present FIR against the revisionists only for harassment. Revisionists neither tortured the victim for demand of dowry nor they have committed any such type of offence as alleged in the FIR, hence the offence under Section 498-A, 328, 323, 504 I.P.C., and Section 3/4 Dowry Prohibition Act is not made out against the revisionists.
Per Contra, learned Additonal Government Advocate and learned counsel for opposite party no. 2 contend that there is sufficient material to proceed in this case against the revisionists. The Trial Court after considering the entire material found that there is sufficient material to proceed further, therefore, the discharge application was rejected by a speaking order. It is also contended that the purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial.
Before adverting to the claim of the parties, it is useful to refer to sections 227 and 228 of the Code of Criminal Procedure, which are reproduced below:
Discharge.
"227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
Framing of charge.
228. (1) If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which-
(a) is not exclusively triable by the court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases in accordance with the procedure for the trial of warrant cases instituted on a police report;
(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused.Where the Judge frame any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."
Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460. The Hon'ble Supreme Court held as under:
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingrediants of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgement of the court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code."
"19. 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 the 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."
In the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex Court in paragraph 11 of the judgement held as under:
"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 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."
A three Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:
"32 ............. 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 courts 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 staage 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."
In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme court held in paragraph 7 as under:
" 7.The crystallised 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."
In the case of State of Orissa Vs. Debendra Nath Padhi, (2005)1 SCC 568, Hon'ble Supreme court while considering the question whether the trial court can at the time of framing of charges consider the material filed by the accused, answered in negative in 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 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 is 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 stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police."
In Union of India Vs. Prafulla Kumar Samal, (1979)3 SCC 4, the scope of section 227 Cr.P.C. was considered and after adverting to various decisions, the Hon'ble Supreme court has enumerated the following principles:
"(1) That the Judges 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 discloses 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 depends 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 discharage the accused.
(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code a senior and experienced 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 basic infirmitites 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."
Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of the judgement as under:
"At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyze all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."
In Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court after citing the catena of judgements has summorised the principles in respect of framing of charges or discharge of the accused and held as under:
"While framing charges, court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the court is not required to go deep into probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if, there is a grave suspicion against the accused and it is not properly explained or court feels that accused might have committed offence, then framing of charge against the accused is justified. It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon fact and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged. The court has to consider broad probabilities of case, total effect of evidence and documents produced before it.The court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charges."
In the case in hand, the allegation is that marriage of the victim was solemnized with the revisionist no. 1 Satendra Kumar Mishra on 15.2.2006 and from the very inception of the marriage, the husband and in-laws used to torture her by raising of demand of dowry of one car and Rs. 5 lakhs. The matter was settled but after sometime, they againt started to beat her with cruelty and also ousted her from their house. There was also allegation that some poision was administered to the victim and she got admitted in the hospital. The allegation are substantiated by the evidence making prima facie case to proceed against the revisionists. Whether or not those allegation are true is a matter which cannot be determined at the stage of framing of charges. Any such determination can take place only at the conclusion of the trial. This may at times put an innocent party, falsely accused of commission of an offence to avoidable harassment but so long as the legal requirement and the settled principles do not permit a discharge, the Court would find it difficult to do much, conceding that legal process at times is abused by unscrupulous litigants especially in matrimonial cases where the tendency has been to involve as many members of the family of the opposite party as possible.
Having considered the legality, propriety and correctness of the order, impugned order does not suffer from any illegality or infirmity.
The revision is accordingly dismissed.
Order Date :- 31.5.2017 Prakhar