Delhi District Court
Rajwati & Anr. vs . The State on 19 November, 2018
Rajwati & Anr. Vs. The State
CR No : 81/2017
IN THE COURT OF SH. HARISH DUDANI, SPECIAL JUDGE,
(PC ACT) CBI-I DWARKA COURTS; NEW DELHI
1. Smt. Rajwati
W/o Late Subhash Chander
2. Nikhil
S/o Late Sh. Subhash Chander
Both R/o B-550, C- Block
Part-I, Gali No. 9,
Mukundpur, New Delhi.
...........revisionists
VERSUS
The State
(NCT of Delhi)
...........Respondent
CR No. 81/2017
Date of Institution 21.02.2017
Police Station Palam Village
Reserved for orders on 17.11.2018
Judgment announced on 19.11.2018
JUDGMENT
1. This revision petition under Section 397 Cr.P.C.
is directed against the impugned order dated 16.11.2016 passed by Ld. Trial Court whereby Ld. Trial Court has been pleased to order for framing of CR No: 81/2017 Page 1 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 charge under Sections 498/34 IPC against the revisionists.
Along with the revision petition, an application dated 20.02.2017 under Section 5 of the Limitation Act for condonation of delay in filing the revision petition has been filed on behalf of revisionists.
2. The revisionists have not appeared in order to make submissions despite several opportunities.
3. I heard Ld. Addl. PP for the State and perused the records.
4. It is stated in the application u/s 5 of the Limitation Act that Ld. Counsel for the revisionists had applied for certified copy of the impugned order dated 16.11.2016 on 10.02.2017 and the same was received on 20.02.2017 and on that account there has been delay of five days in filing the revision petition.
5. Along with the revision petition, certified copy of the impugned order dated 16.11.2016 has been filed, as per which certified copy was applied on 10.02.2017 and the same was prepared on 20.02.2017. In the circumstances, application dated CR No: 81/2017 Page 2 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 20.02.2017 under Section 5 of the Limitation Act for condonation of delay in filing the revision petition is allowed and delay in filing the revision petition is condoned.
6. In the revision petition it is stated that complainant Smt. Shalini had filed a complaint before the CAW Cell, ,Dwarka, New Delhi against her husband Sh. Ajit Singh and on the basis of said complaint, case vide FIR No. 308/2012 under Section 498A/406/34 IPC was registered at PS Palam Village and on completion of investigation, charge-sheet was filed against the accused persons including the present petitioners/revisionists namely Smt. Rajwati and Nikhil. It is stated that while passing the impugned order , Ld. Trial Court has misapplied the evidence on record and the IO has not brought any material against the revisionists to prove the charge for the offence under Section 498A IPC. It is stated that complainant had expired before passing of impugned order dated 16.11.2016 and there was none except the complainant herself who could prove the allegations of demand of dowry. It is stated that impugned order is bad in the eyes of law.
7. Ld. Addl. PP has contended that Ld. Trial Court CR No: 81/2017 Page 3 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 has specifically observed in the impugned order that there are clear allegations of demand of dowry by the accused persons on various occasions and on 12.05.2010 Rupees One Lac was handed over to mother in law and father in law of the complainant and there was also demand of Rs. 15 lacs to Rs. 20 lacs by the father in law and accused Nikhil.
8. Ld. Addl. PP for the State has contended that this revision petition has been filed only on the ground that the complainant has expired and the allegations cannot be proved but prosecution will be able to prove the allegations on the basis of testimony of other witnesses and the material collected by the IO during the course of investigation.
9. The ground which has been agitated in the revision petition is that the complainant has expired before passing of impugned order and this fact was available on the judicial file and there is none except the complainant herself who could prove the allegations of demand of dowry.
10. Section 240 Cr.P.C. reads as :
Framing of charge.- (1) if, upon such consideration, examination, if any, and CR No: 81/2017 Page 4 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable 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.
11. 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 CR No: 81/2017 Page 5 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 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 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 CR No: 81/2017 Page 6 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 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 should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.
12. 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:
-------------------------
-------------------------
-------------------------
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 CR No: 81/2017 Page 7 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 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 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 CR No: 81/2017 Page 8 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 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 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 CR No: 81/2017 Page 9 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 whether the trial will end in conviction or acquittal.
13. In the impugned order dated 16.11.2016 Ld. Trial Court has been pleased to observe:
There are clear allegations of demand of dowry by accused persons. On various occasions there was demand of cash although as a loan but the same was never returned. On 12.05.2010 Rs. 1 lac was handed over the mother in law and father in law. There was otherwise demand of rs. 5 lacs to Rs. 20 lacs by the father in law and accused Nikhil. Allegations against the husband are such that on one occasion he tried to push the complainant from terrace and with lot of difficulty she would escape. Thereafter, she called her parents for help. Hence, prima facie offence U/s 498A/34 IPC is made out against accused Ajit Singh, Rajwati and Nikhil.
14. The ground for setting aside the impugned order dated 16.11.2016 which has been raised on behalf of revisionists in the revision petition is that complainant has expired and on that account accused persons are liable to be discharged.
15. It is to be noted that it is for the prosecution to CR No: 81/2017 Page 10 of 11 D.O.J. 19.11.2018 Rajwati & Anr. Vs. The State CR No : 81/2017 prove the charges as made out against the accused persons on the basis of evidence in its possession. The allegations against the accused persons (revisionists herein) prima facie make out charge for the commission of offence under Section 498A/34 IPC and it is for the prosecution to prove the allegations on the basis of evidence in its possession.
16. In the circumstances, the contention of the revisionists that the complainant has expired and prosecution will not be able to prove the case is based on surmises and conjectures and has no force in the eyes of law.
17. In view of aforesaid discussions, I find no infirmity in the impugned order dated 16.11.2016. The revision petition is devoid of merits and the same is dismissed.
18. TCR be sent back to the court concerned along with copy of this judgment. Revision file be consigned to record room.
Announced in the open ( HARISH DUDANI) Court on 19.11.2018 Special Judge (PC Act) CBI-I Dwarka Courts, New Delhi.
Digitally signed
CR No: 81/2017 Page 11 of 11 by HARISH
D.O.J. 19.11.2018
HARISH DUDANI
DUDANI Date:
2018.11.19
15:23:49 +0530