Chattisgarh High Court
Abhinandan vs State Of Chhattisgarh on 10 June, 2024
2024:CGHC:18420
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRR No. 421 of 2024
1. Abhinandan S/o Ramdayal Gupta Aged About 35 Years R/o Village- Shilagate,
Ankola, Maharastra.
... Applicant
versus
1. State Of Chhattisgarh Through The Station House Officer, Police Station Kota,
District- Bilaspur, Chhattisgarh.
... Respondent
(Cause title is taken from the CIS)
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For Applicant : Ms Sameeksha Gupta, Advocate For Respondent/State : Shri UKS Chandel, Dy Advocate General
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Hon'ble Shri Justice Ravindra Kumar Agrawal Order on Board 10.06.2024
1. This criminal revision under Section 397/401 of CRPC has been filed by the applicant / accused against the order dated 01.02.2024 passed by the learned first additional sessions judge, Bilaspur in Sessions Case No.103 of 2020, whereby the learned Additional Sessions Judge has framed charges against the applicant for the offence under section 498-A and 313 of the IPC. By the impugned order learned Additional Sessions Judge has framed charges under section 498A/34 IPC against the other co-accused persons also. However, there is no challenge by the other co-accused persons against framing of charge against them and the present revision is confined only with respect to the charge framed against the present applicant.
Crr 421 of 2024 2
2. Brief facts of the case are that the applicant is husband of complainant whose marriage has been solemnized 8/9 years back. After sometime of the marriage, the complainant was being harassed by her husband and in-laws which continued up to lodging a report and ultimately she made a written complaint to the Police alleging harassment to her, by her husband and in-laws and also causing miscarriage of her second foetus without her consent. The Police registered FIR against the applicant and other co-accused persons under Sections 498-A, 313 and 34 of the IPC and after investigation, the charge-sheet is filed against the applicant and other co-accused persons for commission of offence under Sections 498-A, 313 and 34 of the IPC in the court of Judicial Magistrate First Class, Kota, Bilaspur. As the offence under Section 313 of the IPC is triable by the court of sessions, and therefore, the case was committed to the learned Sessions Judge for its trial, from where the same has been transferred to the court of First Additional Sessions Judge, Bilaspur.
3. Learned trial court after considering the material available in the charge- sheet, framed the charge under section 498-A and 313 of the IPC against the Applicant- Abhinandan (Husband of the complainant) and offence under Section 498-A/34 of the IPC against the other co-accused persons and the co- accused persons have been discharged from the offence of 313 of the IPC. Order of framing the charge dated 01.02.2024 against the present applicant is under challenge in the present revision.
4. Learned Counsel for the applicant would submit that the learned trial court has failed to appreciate the entire prosecution case and has framed charge under 313 of the IPC against the applicant, which is erroneous. She Crr 421 of 2024 3 would submit that while considering the case at the time of framing charge, the trial court should apply its judicial mind to decide whether there is any prima- facie material to proceed with the trial of the case or not. In the present case learned trial court ought to have considered that with respect to offence under Section 313 of IPC, there is no prima-facie material produced by the complainant or by the witnesses to say that the complainant was suffered by miscarriage of her second foetus without her consent, by her husband / present applicant. There is no exact date given by the complainant about her conceiving pregnancy, or even she actually conceived second time or not. She would also submit that the date is very relevant in the case because, if she was not there at the time of the alleged conceiving the pregnancy, then the whole case of the complainant can be dis-believed and it does not sufficient to say that in between 16.01.2015 to 16.01.2019, the three months fetus of the complainant got aborted by the applicant by administering pills, without her consent. The necessary ingredients of the offence under Section 313 of the IPC are missing. She would further submit that as per the MODI's Medical Jurisprudence, three months old foetus cannot be terminated only by administering pills unless they administered in very large doses. Allegation made by the complainant in her complaint is very vague, which does not constitute any offence of Section 313 of the IPC against the applicant, and therefore, the impugned order with respect to framing of charge under section 313 of the IPC against the applicant is liable to be quashed, and the applicant is entitled to discharge from the said offence.
5. So far as offence under Section 498-A of the IPC is concerned, in view of the allegations made by the complainant, the applicant is ready to face the trial along with other co-accused persons.
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6. On the other hand, learned counsel for the State opposes the submissions made by the learned counsel for the applicant and submitted that from the complaint as well as from the material produced by the witnesses, there is prima-facie evidence available against the applicant for the alleged offence and the learned trial court has rightly considered the case and has framed the charge for the offence under section 313 of the IPC along with 498- A of the IPC. He would further submit that so far as the allegation of causing miscarriage without consent of the complainant is concerned, the same needs to be decided in trial for which the proceeding is going on, and therefore, the revision filed by the applicant is liable to be dismissed.
7. I have heard learned counsel for the parties and perused the case diary including documents annexed with the revision.
8. From perusal of entire material produced in the case, it appears that the complainant had made complaint about miscarriage of her three months pregnancy by a pill on the ground that it was a female foetus. No specific date of abortion is mentioned, nor duration of her pregnancy has been disclosed. It also appears that despite giving notice under Section 91 of the CrPC on 15.04.2019 to the complainant, she has not submitted any document of her treatment or even any test report which confirms her pregnancy.
9. Legal principles applicable in regard to an application seeking discharge has been considered by the Hon'ble Supreme Court in the matter of ME Shivalingamurthy Vs Central Bureau of Investigation, Bengaluru reported in (2020) 2 SCC 768, Hon'ble Supreme Court at Para-17 of its judgment, held as under:
Crr 421 of 2024 5 Legal principles applicable in regard to an application seeking discharge:
17. This is an area covered by a large body of case law. We refer to a recent judgment which has referred to the earlier decisions, viz., P. Vijayan v. State of Kerala and another 2 and discern the following principles:
17.1 If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.
17.2 The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.
17.3 The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.
17.4 If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".
17.5 It is open to the accused to explain away the materials giving rise to the grave suspicion.
17.6 The court has to consider the broad probabilities, the total effect of the evidence and the documents produced before the court, any basic infirmities appearing in the case and so on. This, however, would not entitle the court to make a roving inquiry into the pros and cons.
17.7 At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true. viii. There Crr 421 of 2024 6 must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.
10. The scope of Section 227 of the CrPC has been considered by the Hon'ble Supreme court in the matter of Ajay Singh and another Vs State of Chhattisgarh and another, reported in (2017) 3 SCC 330 in para-9 of its judgment, which reads as under:
"9. Chapter XVIII of CrPC provides for trial before a court of session. Section 227 empowers the trial judge to discharge the accused after hearing the submissions of the accused and the prosecution and on being satisfied that there is no sufficient ground for proceeding against the accused. The key words of the Section are "not sufficient ground for proceeding against the accused". Interpreting the said provision, the Court in P. Vijayan v. State of Kerala and another[4] has held that the Judge is not a mere post office to frame the charge at the behest of the prosecution, but has to exercise his judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution. In assessing this fact, it is not necessary for the court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the court, after the trial starts. At the stage of Section 227, the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its fold the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him."
11. Yet in another case of Sajjan Kumar Vs. Central Bureau of Investigation, 2010 (9) SCC 368, the Hon'ble Supreme Court has considered the scope of Section 227 and 228 of the CrPC., in Paragraph-21 of its judgment, which reads as under:
Crr 421 of 2024 7 "21. On consideration of the authorities about the scope of Section 227 and 228 of the Code, the following principles emerge:-
(i) The Judge while considering the question of framing the charges under Section 227 of the Cr.P.C. 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 facie 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 basic 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 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 discloses 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.
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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."
12. It is relevant here to take assistance of the MODI's Medical Jurisprudence "A Textbook of Medical Jurisprudence and Toxicology", 24th Edition 2011 (for short, 'Modi's Textbook'). In Chapter 34 of this book, "Abortion, Medical Termination of Pregnancy and Female Foeticide" has been defined, and while dealing with means to induce criminal abortion, it is stated that for internal use of drugs, there is no drug when administered through mouth can result it abortion, unless administered in very large doses. Relevant portion is being reproduced for ready reference (Page-729):
"Means to induce Criminal Abortion-- The means adopted to induce criminal abortion, either self-induced or through second party, are: (i) the internal use of drugs; and (ii) mechanical violence.
(i) The Internal use of Drug-- There are practically no drugs which, when administered by the mouth, act on the healthy uterus, and expel its contents, unless they are given in very large doses that may have deleterious effect on the woman herself."
13. Further at Page 734 of the aforesaid book, the status of foetus and development in the 3rd month is given, which reads as under:
"Third Month (Twelfth Week)-- At the end of the third lunar month, the foetus is about 10 cm long, and weights about 30 g. the placenta is developed and chronic villi have atrophied. The cord is Crr 421 of 2024 9 much longer, and has a spiral twist, the head is more rounded and separated from the body by the formation of the neck. The eyes and mouth are closed. The ;nails in the form of thin membranes appear on the fingers and toes. The sex is still indistinguishable. Centres of ossification are found in most of the bones. The heart is divided into two chambers and alimentary canal is situated within the abdominal cavity."
14. From perusal of entire material and statement of the complainant, it is clear that no date has been mentioned with regard to her conceiving pregnancy, or its miscarriage, or abortion. Considering the position/status of three months foetus given in the MODI's Textbook, the sex of foetus cannot be determined at that early stage, as alleged by the complainant. Even otherwise, there is no other document with respect to test report, or any sonography report as to whether she conceived pregnancy or not.
15. Even her parents had not made any statement in their reply for consideration of prima-facie material to proceed and to frame charge against the accused applicant for any offence. Even in reply to notice under section 91 of the CrPC she has not produced any document of her treatment or any test report and it is only general and omnibus allegation made by her in the complaint that she was subjected to miscarriage without her consent which does not fulfill the requirement to frame charge for the offence under Section 313 of the IPC against the present applicant. However, prima facie, there is sufficient evidence to frame charge against the applicant for commission of offence under Section 498-A of the IPC, and to proceed for trial.
Crr 421 of 2024 10
16. Consequently, the revision petition is partly allowed. The charge framed under Section 313 of the IPC against the applicant by the learned trial court is quashed, and the applicant is discharged from that offence. However, the charge under Section 498-A of the IPC would remain intact and the trial of the case for that offence against the applicant shall continue.
Sd/-
(Ravindra Kumar Agrawal) JUDGE padma