Delhi District Court
Shikha Saini vs State on 31 March, 2012
177/2/11
Shikha Saini Vs State
31.03.2012
Pre: Father of revisionist in person.
Vide separate order placed along side in the file, I found an
error apparent on the face of record in the impugned order dated
15.09.2011 for discharging the accused persons / respondents 2 and 3
for the offence u/s 406 IPC. In the pursuits of objects of justice to ensure
the propriety and correctness I direct the court of ld. MM to frame a
charge for the offence u/s 406 IPC as well apart from the charge already
framed u/s 498A IPC. Accordingly, revision petition stands disposed of.
Parties are directed to appear before the ld. trial court on 16.04.2012.
Trial Court record, if any, be sent back with a copy of the order. Revision
petition/ proceedings be consigned to record room.
(RAJ KAPOOR)
ADDITIONAL SESSIONS JUDGE
(WEST02):THC DELHI
1 /
IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS
JUDGE (WEST02) , THC DELHI.
Criminal Rev. No.177/2/11
IN THE MATTER OF :
Ms. Shikha Saini
d/o Surinder Singh Saini
H. No.O21, Gali no.21,
New Mahavir Nagar,
New Delhi 18
..............Revisionist
Versus
State
FIR no.795/06
PS Tilak Nagar,
2. Gurinder Singh Saini
s/o Radha Singh Saini
3. Smt. Satya Devi Saini
w/o Radha Singh Saini
Both r/o 1271, Sec15 B,
Chandigarh, UT.
................Respondents
31.03.2012
ORDER
1. This revision petition is directed against the order dated 15.09.2011 passed by ld. MM (hereafter referred as impugned order) whereby ld.
2 / trial court discharged the respondents no.2 and 3 for the offence punishable u/s 406 IPC.
2. Briefly the factual matrix of the case is that respondent nos. 2 and 3 are facing trial before ld. Trial court in a case registered with police station Tilak Nagar in FIR no.795/06 for the offences punishable u/s 498A, 406, 34 IPC, in which at the time of framing of charge, they have been discharged for the offence u/s 406 IPC by ld. Trial court vide impugned order dated 15.09.2011 on the ground that there is no specific allegations of entrustment of Dowry Articles or refusal for their return on demand. Now, case is pending for formal framing of charge and recording of prosecution evidence. Feeling aggrieved with the impugned order dt. 15.09.2011 ld. counsel for the revisionist filed this revision petition on the grounds that impugned order is bad in law and against the facts and circumstances of the case. Ld. counsel for the revisionist also argued and submitted that impugned order is based on presumption, conjectures and surmises and as such the same is not sustainable in the eyes of law. During the course of arguments, Ld. 3 / Counsel for revisionist submitted that there are specific allegations of entrustment of property vide first complaint dt. 26.09.2006, copy of which has been filed by Ld. Counsel for the revisionist. He further submitted that in spite of prima facie case under section 406 IPC, no charge has been framed by Ld. Trial Court. In view of this, he prayed that let the Ld. Trial Court be directed to frame charge under section 406 IPC as well. In support of his contentions of Ld. Counsel for the revisionist relied upon following citations:
'R.S. Nayak Vs A.R. Antulay AIR 1986', wherein it has been observed that : "the truth, veracity and the effect of the evidence which the prosecution proposes to adduce are not to be metieulously judged. 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 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.. " The language of subs. (1) of s. 245 also places the matter beyond dispute by using the same test as suggested by Untwalia, J., in the case of Ramesh Singh, (supra). The use of the words "if, upon taking of the evidence referred to in s. 244" in subs. (1) of s. 245 is suggestive of the statutory intention that until "all such evidence as may be produced in support of the prosecution" is taken, the stage for judicial consideration as to whether charge is to be framed is not reached. Now it is a fact that several witnesses named by the prosecution still remain to be examined in the instant case but no grievance was made before us by the appellant's counsel that the trial Judge had acted wrongly in taking up the question of framing of charges prematurely. Obviously this complaint could not be made since after 57 witnesses had been examined it was the prosecution itself which invited the learned Trial Judge to take up the matter of framing of charges."
4 / 'B.N. Rao Vs State reported in 1997 JCC 359', wherein it has also been observed that: "the evidence which the prosecution is seeking to place on record against the petitioner is not such which could result in framing of charges against him. In my view, the material before the Court is not such which would give rise to a grave suspicion against him and in my view, learned Special Judge was not justified in framing charges against the petitioner.
(15) I, therefore, allow this petition and while setting aside the impugned order, I discharge the petitioner."
'Mathura Dass & Ors. Vs State reported in DCLR 2003 (1) Delhi 694', it has been held that : "at the time of framing of charge, is not to act merely as a postoffice or mouthpiece of the prosecution, but has powers to sift and weigh the evidence but for a limited purpose only. This exercise has to be undertaken by him only with a view to find out as to whether a prima facie case is made out or not. The existence of a prima facie case may be found even on the basis of strong suspicion against an accused. The assessment, evaluation and weighing of the prosecution evidence in a criminal case at the final stage is on entirely different footing than it is at the stage of framing a charge. At the final stage if two views are possible, one of which suggests that the accused may be innocent, then the view favorable to the accused has to be accepted whereas at the stage of framing of the charge, the view which is favorable to the prosecution, has to be accepted for the purpose of framing charge so that in the course of the trial, the prosecution may come out with its explanations in regard to the drawbacks and weaknesses, if any, being pointed but by an accused,
8. In the present case, contention of learned counsel for the petitioners that the statements of the brother and the sister of the deceased, which were belated and were running contrary to the statements made by the deceased in her MLC and in her dying declaration, are liable to be rejected on the ground that an explanation has come in the statements of Padam Sharma as well as Bimla Sharma that they had not made the allegations against the petitioners earlier as they were under a hope that their sister Ritu Sharma may survive and in case they made allegations 5 / against her inlaws, they would harass the deceased more and it would become difficult for her to live with them. The statement made by the deceased before the doctors in her MLC as well as her dying declaration made on 21.5.2000, could also be for the same reason as no woman having young children would like to invite a breakdown of her marriage. In many cases even after suffiering such injuiles of a woman entertains some hope of survival, she likes to avoid the implication of her husband and inlaws in a criminal case because such implication would wreck her marriage and family life. Therefore, neither the statements made by the deceased in MLC nor her dying declaration nor the delay in making of the statements by her brother and sister are sufficient to hold that the death of the deceased was only accidental and not suicidal. The absence of any smell of kerosene oil or petrol on the body of the deceased does not support the case of the petitioners in any manner for the reason that there was considerable gap between the date of the incident and the date of postmortem and as such, the smell could not have remained on the body. Moreover, a suicide may be committed with the help of LPG also and as such, it would be a matter of trial only to find out as to whether it was a case of suicide or accidental death.
9. In view of the statements of the P.Ws. Padam Sharma and Smt. Bimla Sharma, the brother and sister of the deceased, in which categorical allegations have been made against the petitioners in regard to harassment and torture of the deceased in connection with dowry demands, the charges, as framed against the petitioners, under Sections 498A as well as 306 read with Section 34 IPC were fully justified. The delay in making of the statements is well explained. Where a woman has suffered injuries and the family hopes for her survival, the allegations are avoided with a view to protect her matrimonial home. Even after her death the family of such a woman is in a dilemma to make or not to make allegations against the inlaws with whom the children of the deceased have to live. Thus, this Court has no grounds to hold that the charges, as framed against the petitioners, are absolutely groundless and no prima facie case exists against the petitioners for framing the charges against them and putting them to trial. At this stage, benefit of doubt cannot be given to the accused.
State of Maharashtra & Ors. Vs Som Nath Thapa & Ors reported in 1996 (4) SCC 659, it has been held that: "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 Court 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 stage of 6 / framing of 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."
Kanti Bhandara Vs State of West Bengal - 2001 SC, wherein it has been held that: "8. We wish to point out that if the trial Court decides to frame a charge there is no legal requirement that he should pass an order specifying the reasons as to why he opts to do so. Framing of charge itself is prima facie order that the trial Judge has formed the opinion, upon considering the police report and other documents and after hearing both sides, that there is ground for presuming that the accused has committed the offence concerned. Chapter XIX deals with provisions for trial of warrant cases instituted on police report. Section 239 reads thus:
239. When accused shall be discharged. (1) If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
9. The said Section shows that the Magistrate is obliged to record his reasons if he decides to discharge the, accused. The next section (Section 240) reads thus:
240. Framing of charge. (1) If, upon such consideration, examination, if any, and 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, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
10. It is pertinent to note that this section required a Magistrate to record his reasons for discharging the accused but there is no such requirement if he forms the opinion that there is ground for presuming that the accused had committed the offence which he is competent to try. in such a situation he is only required to frame a charge in writing against the accused.
11. Even in cases instituted otherwise than on police report the Magistrate is required to write an order showing the reasons only if he is to discharge the accused. This is clear from Section 245. As per first sub section of Section 245, if a Magistrate, after taking all the evidence 7 / considers that no case against the accused has been made out which If unrebutted would warrant his conviction, he shall discharge the accused. As per Subsection (2) the Magistrate is empowered to discharge the accused at any previous stage of the case if he considers the charge to be groundless. Under both subsections he is obliged to record his reasons for doing so. in this context it is pertinent to point out that even in a trial before a Court of Session, the Judge is required to record reasons only if he decides to discharge the accused, (vide Section 227 of the Code), But if he is to frame the charge he may do so without recording his reasons for showing why he framed the charge.
12. If there is no legal requirement that the trial Court should write an order showing the reasons for framing a charge, why should the already burdened trial Courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the Court procedures and to chalk out measure to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail paced progress of proceedings in trial Courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order had been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial. It is a salutary guideline that when orders rejecting or granting bail are passed, the Court should avoid expressing one way or other on contentions raised except in cases such as those falling within Section 37 of the Narcotic Drugs and Psychotropic Substances Act, 1985."
Subhadra Vs State reported in 1996 JCC 665, wherein it has also been observed that: "(5) At the time of framing of charge, the Court has not to apply the same standard of test and judgment which it finally applies before recording a finding of guilt or otherwise. At this stage, what the Court has to see is whether there is ground enough for presuming that the accused have committed the offence for which they have been charged. The Court is not to judge the truth, veracity and effect of evidence before it at that time meticulously with a view to examine as to whether it provides sufficient ground for conviction of the accused or whether the trial was sure to culminate in conviction. Relying upon Jasbir Kaur Vs. State 1991(1) Chandigarh Law Reporter 202 and Dr.V.N.Sharma Vs. State 1995 Jcc 558, it is contended by the petitioners that on the basis of the material before the Court the chances of conviction of the petitioners were highly remote and, therefore, it will be an abuse of the process of the Court to permit their prosecution. It is submitted by learned counsel for the 8 / petitioners that the allegations made did not appeal to common sense and it is a fit case where the charges framed against the petitioners are liable to be quashed."
Ms. Soma Chakravarty Vs State (Through CBI) reported in 2006 (1) JCC 152 (DHC), it has been held that:
8. It is settled law that at the time of framing of charge the court is not required to make a roving enquiry into the pros and cons of the matter and weigh evidence as if it is conducting a trial.........."
Paramjit Singh Vs Commissioner of Customs & Ors reported in 2002 (2) JCC 916, it has been held that: ".......prima facie, case for framing of the charge. At the stage of framing of charge, evidence is not required to be appreciated, even grave suspicion is enough........"
On the strength of the above citations, ld. counsel for the revisionist again submitted that ld. trial court has failed to appreciate that at the time of framing of the charge merely the contents of the complaint, alleged by the revisionist against the said accused persons, is not the only material to be looked into, since during the course of investigation lot of other material is also brought into the record in the form of statements of various persons recorded in the matter etc. However, ld.
trial court gravely erred while not looking into that material as well, which misdirected her to form only wrong opinion vide impugned order 9 / dated 15.09.2011 vide which framing of charge against said respondents for the offence u/s 406 IPC has been dropped. On these grounds ld. counsel for the revisionist submitted that impugned order be set aside qua non framing of charge u/s 406 IPC as well against the respondents no.2 and 3.
3. Contrary to it, Ld. Counsel for the respondent opposed the contentions of Ld. Counsel for the revisionist and submitted that there are no specific allegations of entrustment of the property i.e. dowry articles. He further submitted that in support of his contentions he relied upon the following citations:
'S.K. Alagh Vs State of U.P., 2008(2) Crl. Court cases 268', wherein it has been held that: "19. Ingredients of the offence under Section 406 are : "(1) a person should have been entrusted with property, or entrusted with dominion over property; (2) that person should dishonestly misappropriate or convert to his own use that property, or dishonestly use or dispose of that property or willfully suffer any other person to do so; (3) that such misappropriation, conversion, use or disposal should be in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract which the person has made, touching the discharge of such trust."
10 / 'Onkar Nath Mishra & Ors. Vs State (NCT of Delhi) & Ors., 2008 (1) RCR (Criminal)', wherein it has been held that: "18. In the present case, from a plain reading of the complaint filed by the complainant on 8.11.1994, extracted above, it is clear that the facts mentioned in the complaint, taken on their face value, do not make out a prima facie case against the appellants for having dishonestly misappropriated the Stridhan of the complainant, allegedly handed over to them, thereby committing criminal breach of trust punishable under Section 406 I.P.C. It is manifestly clear from the afore extracted complaint as also the relevant portion of the charge sheet that there is neither any allegation of entrustment of any kind of property by the complainant to the appellants nor its misappropriation by them.
Furthermore, it is also noted in the chargesheet itself that the complainant had refused to take articles back when this offer was made to her by the Investigating Officer. Therefore, in our opinion, the very pre requisite of entrustment of the property and its misappropriation by the appellants are lacking in the instant case. We have no hesitation in holding that the learned Additional Sessions Judge and the High Court erred in law in coming to the conclusion that a case for framing of charge under Section 406 I.P.C. was made out."
On the strength of these citations and his contentions ld. counsel for the respondents submitted that revision petition is liable to be dismissed.
4. I have perused the case file and gone through the submissions of ld.
counsel for the revisionist and ld. counsel for the respondents as well. I have perused the impugned order dated 15.09.2011 whereby ld. trial court discharged the respondents no.2 and 3 for the offence punishable u/s 406 IPC and found a prima facie case for the offence u/s 498 A IPC 11 / only. The citations relied upon by the ld. counsel for the revisionist and ld. counsel for the respondents perused. The contentions of ld.
counsel for the revisionist that ld. trial court has failed to appreciate the material which has been brought on record during the course of investigation in the form of statements of various persons recorded in the matter etc., is considerable point. I have gone through the case file, I found that there is seizure memo of dowry articles prepared by the IO in the present case wherein articles such as One TV, Usha Juicer Mixture, Six Steel Plates, Six Steel Saucers and One Pressure Cooker have been found mentioned. Besides, it is also admitted by the respondents in their reply to the Inquiry officer that one gold ring to the husband, one gold ring to the husband's father and earring to the husband's mother were given in the marriage. There is also a list of articles which were given by the parents of revisionist Shikha Saini to her in laws. Although this court has no jurisdiction to enter into the domain of determination of facts of the court of ld. MM as the discretion is vested in the ld. trial court yet this court has limited jurisdiction on the basis of propriety and correctness to enter into the domain of discretion 12 / of the trial court for the purpose of determination of facts. Exfacie it is on record that the dowry articles namely One TV, Usha Juicer Mixture, Six Steel Plates, Six Steel Saucers and One Pressure Cooker, one gold ring to the husband, one gold ring to the husband's father and earring to the husband's mother and other item of articles were also given in the form of dowry to the accused persons/ respondents 2 & 3 as per inquiry report too and seizure memo prepared by the IO. It goes to indicate that there was specific entrustment of the property in question in the form of dowry articles to the accused persons. So long as the question of intention of use and non returning of articles is concerned, it is a mixed question of law and facts which can only be looked into during the course of trial.
Therefore, facts of the citations relied upon by the ld. counsel and the facts of the case of the respondents are entirely different. Hence, these are not applicable in the instant case. I have also gone through the citations relied upon by the revisionist. Having given careful consideration to the citations discussed supra and also having found on record specific entrusment of property, I found an error apparent on 13 / the face of record in the impugned order dated 15.09.2011 for discharging the accused persons / respondents 2 and 3 for the offence u/s 406 IPC. In light of these observations and in the pursuits of objects of justice to ensure the propriety and correctness I direct the court of ld. MM to frame a charge for the offence u/s 406 IPC as well apart from the charge already framed u/s 498A IPC. Accordingly, revision petition stands disposed of. Parties are directed to appear before the ld. trial court. Trial Court record, if any, be sent back with a copy of the order. Revision petition/ proceedings be consigned to record room.
ANNOUNCED IN THE OPEN COURT ON THIS 31.03.2012 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE (WEST02):THC DELHI 14 /