Madhya Pradesh High Court
Dhanraj vs The State Of Madhya Pradesh on 19 March, 2020
Author: Rajendra Kumar Srivastava
Bench: Rajendra Kumar Srivastava
THE HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Hon'ble Shri Justice Rajendra Kumar Srivastava
Cr.R. No. 2248/2017
Dhanraj and others
Vs
State of M.P.
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Shri Shailendra Singh Thakur, learned counsel for the petitioners.
Shri Sharad Singh Baghel, learned Panel Lawyer for the
respondent/State.
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ORDER
(19.03.2020) Petitioners have filed this Criminal Revision under Section 397/401 Cr.P.C. for setting aside the order dated 28.06.2017 in S.T. No. 40/2017 passed by Additional Sessions Judge, Gadarwada, District Narsingpur whereby the learned ASJ has framed the charges under Sections 302, 304-B, 498A of IPC and Section 4 of Dowry Prohibition Act against the petitioners.
2. On perusal of tagged file bearing M.Cr.C. No.1080/2018 it is found that the petitioners along with three others persons have also filed the another petition for quashing the charge sheet in pertains to present case and vide order dated the Coordinate Bench of this Court has partly allowed the same by quashing the charge sheet in relation to petitioners Neelesh (herein petitioner No. 2). So far as petitioner No. 1 Dhanraj and petitioner No. 3 Yashpal are concerned, the Court has dismissed the same. Therefore, there is no need to pass any order in relation to petitioner No.2.
2Cr.R. No. 2248/2017
3. According to case, on the basis of Marg, the police has registered the FIR against the petitioners and other co-accused persons. It is mentioned in the FIR that deceased Savita Bai was married with Sunil on 17.02.2010. Soon after her marriage, the husband of deceased and his family members started torturing her mentally and physically. Due to their torture, on the intervening night of 05/06.10.2016, the deceased died under other than normal circumstances. During inquiry, the police has recorded the statements of deceased's family members and found that the petitioners and other persons are liable to be prosecuted for the offence of Sections 498-A, 304-B, 34 of IPC as well as Section 3/4 of Dowry Prohibition Act. Vide order dated 28.06.2017, the learned trial Court found that prima facie, the petitioners are liable to be prosecuted for the offence of Sections 302, 304-B, 498A of IPC and Section 4 of Dowry Prohibition Act, thus, he framed the charges against the petitioners accordingly.
4. Learned counsel for the petitioners submits that the learned trial Court erred in framing the aforesaid charges against all the in-laws of deceased. The trial Court did not appreciate the fact that the FIR was lodged after delay of 23 days which creates doubt over the credibility of prosecution as well as parental family members of deceased. In the FIR the omnibus allegations are made against the petitioners. The petitioner No.1 is father-in-law (Mausiya Sasur) of deceased residing separately at different place having distance 15-20 Km from the house of deceased. He had been played a role of mediator in the marriage of deceased, thus, he has falsely been 3 Cr.R. No. 2248/2017 implicated in the case. He further submits that petitioner No. 3 is brother-in-law (Devar) of the deceased, he had not played any role in the alleged offences. There is no specific allegation against him. The learned trial Court has also not considered the MLC report of deceased in which no injury is found on her body. Apart from that even if the allegations made in the FIR are taken at their face value and accepted in toto, do not constitute any offence against the petitioner. Therefore, the impugned order is not sustainable and deserves to be set aside. In support of his contention he has relied on the judgments of the Hon'ble Apex Court in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another reported in (2012) 10 SCC 741 and Preeti Gupta and another Vs. Stae of Jharkhand and another reported in (2010) 3 SCC (Cri)
473.
5. Learned counsel for the State submits that there is a prima facia material available on the record against the petitioner No. 1 and 3. At this stage, defence of the petitioners/accused may not be looked into and all the facts raised by the petitioner No.1 and 3 will be investigated at the trial. The deceased died of unnatural death within the period of 7 years, thus, the presumption goes against them. Apart from that the petitioners have already filed a petition under Section 482 of Cr.P.C. before the High Court for quashment of charge sheet wherein the Court has not considered the prayer of petitioner No. 1 and 3. The Court has quashed the charge sheet in relation to Neelesh only. Hence, on the same set of facts, this petition 4 Cr.R. No. 2248/2017 may not be allowed. With the aforesaid, he prays for dismissal of this revision petition.
6. Heard both the parties and perused the record.
7. Since, by filing this revision petition, the petitioners have challenged the charges framed by the learned trial Court, therefore, I deal with the relevant provision of Cr.P.C under Sections 227 and 228, same read as under:
"227. Discharge. 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 not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."
8. If Court finds that there is sufficient material is showing to connect the accused with the aforesaid offences then Section 228 of Code of Criminal Procedure, 1973 comes into role, provision is also quoted as under:
"228. Framing of charge.(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, and thereupon the Chief Judicial Magistrate shall try the offence 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. (2) Where the Judge frames 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."5 Cr.R. No. 2248/2017
9. The Hon'ble Supreme Court in the case of Niranjan Singh Karam Singh Punjabi, Advocate Vs. Jitendra Bhimraj Bijja and others reported in AIR 1990 SC 1962 has held as under:-
"7. Again in Supdt. & Remembrancer of Legal Affairs, West Bengal v. Anil Kumar Bhunja, (1979) 4 SCC 274: (AIR 1980 SC 52) this Court observed in paragraph 18 of the Judgment as under:
"The standard of test, proof and judgment which is to be applied finally before finding, the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged may justify the framing of charge against the accused in respect of the commission of that offence".
From the above discussion it seems well-settled that at the Sections 227-228 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."
10. Further, in the case of Union of India Vs. Prafulla Kumar Samal and another reported in AIR 1979 SC 366, the Hon'ble Supreme Court again has held as under:-
"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 has not been properly explained the Court will be, fully justified in framing a charge and proceeding with the trial.6 Cr.R. No. 2248/2017
(3) The test to 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 Judge 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 basic 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."
11. Further, the Hon'ble Apex Court in the case of State of Orissa Vs. Debendra Nath Padhi reported in (2005) 1 SCC 568 has held as under:-
"23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material, Satish Mehra case, holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided."
12. The Hon'ble Apex Court in the case of State of M.P. Vs. S.B. Johari and others reported in 2000(2) M.P.L.J (SC) 322, has also held as under:-
"4...........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 guilt of the accused, even if fully accepted before it is challenged by cross examination or rebutted by defence evidence, if any, cannot show 7 Cr.R. No. 2248/2017 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 v. Jitendra Bhimraj Bijjayya and Others etc. reported in (1990) 4 SCC 76, after considering the provisions of Sections 227 and 228, Cr.P.C., the Court posed a question, whether at the stage of framing the charge, the 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 peruse the records for that limited purpose, but it is not required to marshal it with a view to decide the reliability thereof. The Court referred to earlier decisions in State of Bihar v. Ramesh Singh (1977) 4 SCC 39, Union of India v. Prafulla Kumar Samal (1979) 3 SCC 4 and Supdt. & Remembrancer of Legal Affair, West Bengal vs. Anil Kumar Bhunja (1979) 4 SCC 274 and held thus:
"From the above discussion it seems well settled that at the Sections 227-228 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. (emphasis supplied)
13. In another judgment, the Hon'ble Apex Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. Vs. Sanjay Choudhary & others reported in 2010(1) M.P.J.R. (SC) 36 has held as under:-
"10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of a prima facie case to be applied.
11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the court to frame a charge.8 Cr.R. No. 2248/2017
At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed."
14. Hence, after careful reading of the above cited pronouncements, it is manifest that it is well-settled principle of law that at the stage of Section 227-228 of Cr.P.C., 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. At this stage, accused has no right to produce any material. The scope of revisional jurisdiction is very limited and same can be invoked where the decision under challenged is grossly erroneous.
15. In view of the above said principle, now I would proceed to decide the merits of the case. In the present case it is not in dispute the marriage of the deceased was solemnized with the Sunil and she died of unnatural death within a period of seven years. The police has registered the FIR against 6 family members of deceased's husband including him. It is also admitted fact that the petitioner No.1 is father-in-law (mausiya sasur) of deceased whereas the petitioner 3 is brother-in-law of the deceased. The petitioner No. 1 has taken the ground of separate living with the deceased and in support of his ground, the counsel has filed a copy of Rashan Card, Adhar Card of petitioner No. 1. On perusal of FIR, it appears that the address of petitioner No. 1 is mentioned as Gram Pachama, Gadarwada District Narsingpur whereas the incident was taken place at Village Amgaon. According to his counsel, the petitioner has been implicated in the 9 Cr.R. No. 2248/2017 case only on the basis of his relation with the deceased whereas he was not concerned with the alleged offence in any manner. The counsel relied the above mentioned pronouncements of the Hon'ble Supreme Court and it would be necessary to read the same.
16. The Apex Court in the case of Preeti Gupta & anothers Vs. State of Jharkhand & another reported in AIR 2010 SC 3363 has held as under:-
"19.............A court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In this case, the court observed that ends of justice are higher than the ends of mere law though justice must be administered according to laws made by the legislature. This case has been followed in a large number of subsequent cases of this court and other courts.
27. Admittedly, appellant no.1 is a permanent resident of Navasari, Surat, Gujarat and has been living with her husband for more than seven years. Similarly, appellant no.2 is a permanent resident of Goregaon, Maharasthra. They have never visited the place where the alleged incident had taken place. They had never lived with respondent no.2 and her husband. Their implication in the complaint is meant to harass and humiliate the husband's relatives. This seems to be the only basis to file this complaint against the appellants. Permitting the complainant to pursue this complaint would be an abuse of the process of law.
28. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society.
29. The courts are receiving a large number of cases emanating from Section 498-A of the Indian Penal Code which reads as under:-
"498-A. Husband or relative of husband of a woman subjecting her to cruelty.--Whoever, being the husband or the relative 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 purposes of this section,`cruelty' means:-10 Cr.R. No. 2248/2017
(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."
30. It is a matter of common experience that most of these complaints under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. We come across a large number of such complaints which are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment are also a matter of serious concern.
17. The Hon'ble Apex Court in the case of Geeta Mehrotra and another v. State of Uttar Pradesh and another reported in (2012) 10 SCC 741 has held as under:
"20. Coming to the facts of this case, when the contents of the FIR are perused, it is apparent that there are no allegations against Kumari Geeta Mehrotra and Ramji Mehrotra except casual reference of their names which have been included in the FIR but mere casual reference of the names of the family members in a matrimonial dispute without allegation of active involvement in the matter would not justify taking cognizance against them overlooking the fact borne out of experience that there is a tendency to involve the entire family members of the household in the domestic quarrel taking place in a matrimonial dispute specially if it happens soon after the wedding.
21. It would be relevant at this stage to take note of an apt observation of this Court recorded G.V. Rao vs. L.H.V. Prasad (2000) 3 SCC 693 wherein also in a matrimonial dispute, this Court had held that the High Court should have quashed the complaint arising out of a matrimonial dispute wherein all family members had been roped into the matrimonial litigation which was quashed and set aside. Their Lordships observed therein with which we entirely agree that:
"12.There has been an outburst of matrimonial dispute in recent times. Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes in which elders of the family are also 11 Cr.R. No. 2248/2017 involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their cases in different courts."
18. On careful reading of the same, the principle is gathered from that in matrimonial dispute merely on the basis of family members, persons cannot be harassed in Court proceeding. If no specific allegation against the accused in the FIR, the FIR deserves to be quashed. The facts of separate living is also played a specific role while considering the prayer of quashment and if it is found that the accused person never visited place where the alleged incident taken place, they cannot be harassed and humiliated being only family members of complainant's husband.
19. Further, Hon'ble the Apex Court in the case of Kans Raj Vs. State of Punjab and others reported in (2000) 5 SCC 207 has held as under:-
"In the light of the evidence in the case we find substance in the submission of the learned counsel for the defence that respondents 3 to 5 were roped in the case only on the ground of being close relations of respondent No.2, the husband of the deceased. For the fault of the husband, the in-laws or the other relations cannot, in all cases, be held to be involved in the demand of dowry. In cases where such accusations are made, the overt acts attributed to persons other than husband are required to be proved beyond reasonable doubt. By mere conjectures and implicationssuch relations cannot be held guilty for the offence relating to dowry deaths. A tendency has, however, developed for roping in all relations of the in-laws of the deceased wives in the matters of dowry deaths which, if not discouraged, is likely to affect the case of the 12 Cr.R. No. 2248/2017 prosecution even against the real culprits. In their over enthusiasm and anxiety to seek conviction for maximum people, the parents of the deceased have been found to be making efforts for involving other relations which ultimately weaken the case of the prosecution even against the real accused as appears to have happened in the instant case."
20. The view taken by the Court in this matter was that the Courts would not encourage such disputes."
21. The learned counsel for the State argued that in earlier round of litigation in M.Cr.C. No. 1080/2018, vide order dated 23.02.2018, the Coordinate Bench of this Court has partly allowed the petition in relation to Neelesh and dismissed against the petitioner No. 1 and 3. On perusal of said order, it appears that after considering the various pronouncement of Hon'ble Apex court the Coordinate Bench found that there was no specific averments was made against the petitioner Neelesh and his name was mentioned casually. Further, the Court has not accepted the plea of other petitioners including petitioner No. 1 and 3 of this case holding that the witnesses have distinctly mentioned the details of the incident.
22. On perusal of statements of witnesses, it appears that all the parental family members of the deceased have narrated almost same version and stated that on her second vida, all the accused persons except petitioner No.1 tortured the deceased for demand of dowry. The allegation against petitioner No. 1 is that he used to go deceased's matrimonial home and told her to bring rupees 1,00,000/- from her parental family members. The petitioner No. 1 has also told the same thing to the father of deceased. According to witnesses, on saying by the petitioner No. 1, the matrimonial family members of the 13 Cr.R. No. 2248/2017 deceased were torturing her due to which she died of unnatural death. On perusal of post mortem report of deceased, it appears that the death of deceased is homicidal in nature and cause of death is asphyxia due to combined effect or cloth in mouth and antimortem hanging. Although, it prima facie seems that the deceased was died by hanging herself but looking to the opinion of the medical officer regarding nature of death as homicidal, at this stage, it cannot be said that she had only committed suicide. This fact can only be ascertain in trial after examining the medical officer in trial Court. Although, the petitioner No.1. is living separately but merely on this ground his involvement in the case cannot be discarded when the family members of deceased specifically alleged against him. So far as petitioner No. 3 is concerned, he is brother in law of the deceased residing in the same village where the incident was taken place and at this initial stage of trial, his involvement can not be discarded. Looking to the seriousness of allegation as well as findings of the co- ordinate bench of this Court in M.Cr.C No. 1080/2018, I do not find any ground to quash the charges framed against the petitioner No. 1 and 3.
23. Therefore, this petition is hereby dismissed with regard to petitioner No. 1 and 3.
(Rajendra Kumar Srivastava) Judge L.R. Digitally signed by LALIT SINGH RANA Date: 2020.03.20 16:34:51 +05'30'