Rajasthan High Court - Jaipur
Satnam Moga And Anr. vs State Of Rajasthan on 3 July, 1995
Equivalent citations: 1996CRILJ2591, I(1996)DMC359, 1996(1)WLC274
Author: R.R. Yadav
Bench: R.R. Yadav
JUDGMENT R.R. Yadav, J.
1. The present petition under Section 482 Cr.P.C. has been filed by Satnam Moga and Kishore Singh against the order of learned ACJM, Sriganganagar dated 31.3.1995 whereby the petitioners alongwith two others were charged for offences under Sections 406 and 498A I.P.C. in respect of FIR No. 432/92 registered at P.S. Kotwali, Sriganganagar.
2. The present petitioners have come up before this Court against framing of charges by the learned ACJM, Sriganganagar on the ground inter-alia that framing of charge against the petitioners amounts abuse of the process of the Court within the meaning of Section 482 Cr.P.C.
3. The main thrust of the argument of the learned Counsel for the petitioners before me is that the learned Magistrate has no authority in law to frame charge against the petitioners under Section 240 Cr.P.C. as according to him there is no material on record regarding performance of 'Saptapadi'.
4. In support of his aforesaid contention the learned Counsel for the petitioners placed reliance before me on a decision rendered by the Apex Court in the case of Shanti Deb Berma v. Smt. Kanchan Prava Devi reported in AIR 1991 SC 816.
5. In case of Shanti Deb Berma (supra), it was a case under Section 494 IPC in which it was held by their Lordships that for proving second marriage where both the parties are Hindus, performance of 'Saptapadi' is required to be proved. Unless the 'Saptapadi' is proved the accused cannot be convicted under Section 494 IPC. The facts of the aforesaid case are clearly distinguishable inasmuch as in the present case it is not an offence of Bigamy under Section 494 IPC but the learned Magistrate has framed the charges under Sections 406 and 498A IPC. Secondly the standard of proof for conviction and for framing of charge are not the same.
6. In my considered opinion if at the time of framing of charge there is a strong suspicion which leads to the learned Magistrate to believe that there is ground for presuming that the accused have committed an offence charge must be framed against such accused. At the stage of framing of charge the learned Magistrate is neither required nor obliged to weigh the evidence on record. Charge is to be framed under Section 240 Cr.P.C. if a prima facie case is made out against the accused.
7. As a matter of fact according to the phraseology used under Section 240 Cr.P.C. for framing of charge if the Magistrate is of the opinion that there is a ground for presumption that the accused has committed an offence triable under Chapter XIX of Cr.P.C. as warrant case 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.
8. The expression "ground for presuming" used under Section 240 Cr.P.C. must be taken to mean that there are valid reasons or basis before the learned Magistrate to raise presumption that the accused has committed an offence triable under Chapter XIX of Cr.P.C. which such Magistrate is competent to try and he can adequately punish.
9. In-nut shell, the framing of charge required the following conditions to be fulfilled namely:
(a) the existence of a prima facie case on the basis of material on record.
(b) the offence is triable under Chapter XIX as a warrant case.
(c) the competency of the Magistrate to try the offence against the accused.
(d) the power of the Magistrate to punish the accused adequately.
Once the aforesaid ingredients of Section 240 Cr.P.C. are satisfied, the learned Magistrate has no option except to frame the charge against accused.
10. Nothing is brought to my notice by the learned Counsel for the petitioner that any one of the ingredients mentioned above is either missing or lacking in the present case.
11. With the aforesaid circumspection I would like to examine the facts of this case as to whether there was any valid reason before the learned Magistrate to raise presumption that the petitioners have committed any offence.
12. According to the facts borne out from the record on 24.9.1992 one Mrs. Reeta @ Vanita D/o Shri Om Prakash Arora, r/o Sriganganagar submitted a written report addressed to the Superintendent of Police, Sriganganagar of the facts that she was married with Satnam, petitioner No. 1, on 21.6.1990 at her parent's residence according to Hindu rites and customs. Her parents and other relatives gave many items in gift to her at the time of her marriage, the list of which was attached with the report. It is also alleged in the FIR that her father-in-law, Shri Kishore Singh and two sister-in-laws and their husbands were not satisfied by the articles given in dowry by her parents and used to blame her for bringing lesser dowry.
13. It is pertinent to note that according to the allegations made in FIR after one year of her marriage, a female child was also born with the union of Mrs. Reeta @ Vanita and Shri Satnam Moga, petitioner No. 1. During investigation the Investigating Agency recorded statements of several prosecution witnesses and submitted a charge sheet against the petitioners and others.
14. It is urged before me by the learned Counsel for the petitioner Shri B.M. Bhojak that no marriage took place between the complainant and petitioner No. 1. According to him, Shri Satnam Moga petitioner No. 1 was hospitalised on the date of marriage and he was not able to move as according to him several operations were performed upon him on the date of marriage.
15. Denial of factum of marriage by the accused can be gone into at me time of trial. The accused-petitioners will have an opportunity at the trial to cross examine the prosecution witnesses and as such can successfully demonstrate that prosecution version is incorrect and they are innocent. At the time of framing of charge weighing of evidence meticulously in detail is not required. The only requirement at the time of framing charge is that the Magistrate must be satisfied prima facie to presume that accused have committed an offence triable as a warrant case under Chapter XIX of Cr.P.C. Hospitalisation of petitioner No. 1 on the date of marriage and his incapacity to move from hospital can be established by producing defence witnesses at the trial and also by cross-examination of the prosecution witnesses.
16. It is a matter of common knowledge which this Court takes judicial notice that in Indian society a Hindu lady of a respectful family will not become so desperate which may lead to presume that she has falsely alleged marriage with petitioner No. 1 together with an allegation that after one year of the marriage a female child was born with union of complainant and petitioner No. 1 in order to earn social stigma for her life.
17. There is yet another ground to presume about the offence for which charges have been framed by the learned Magistrate. Birth of a female child to the complainant is not denied by the accused-petitioners before me. For making a presumption of legitimacy of the female child born to the complainant it must be proved that there was a valid marriage substituting between the parents i.e. complainant and petitioner No. 1 at the time of birth of the female child.
18. It is well to remember that Section 112 of Indian Evidence Act has application where paternity of a child is in dispute. Here in the present case, the accused-petitioners are indirectly disputing the paternity of the female child on the ground that there was no valid marriage substituting between the complainant and petitioner No. 1 on the date of birth of the female child. This intricate question of fact cannot be allowed to be gone into at the time of framing of charge but such question can be decided only after conclusion of a full fledged trial.
19. In the instant case, I am fully satisfied that the learned Magistrate has framed charges on the basis of material collected by the Investigating Agency during investigation accompanied with charge sheet together with material brought to his notice after hearing both the parties and as such framing of charge by learned Magistrate cannot be said to be an abuse of the process of the Court.
As a result of the aforementioned discussion, no ground is made out for interference against the impugned order dated 31.3.1995 framing charges against accused-petitioners. Hence the present petition filed under Section 482 Cr.P.C. is hereby dismissed in limine.