Allahabad High Court
Vinay Kumar And 5 Others vs State Of U.P. And Anr. on 8 August, 2014
Bench: Ranjana Pandya
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 14
Case :- CRIMINAL REVISION No. - 2084 of 2014
Revisionist :- Vinay Kumar And 5 Others
Opposite Party :- State Of U.P. And Anr.
Counsel for Revisionist :- S.Q. Khan
Counsel for Opposite Party :- Govt. Advocate
Hon'ble Mrs. Ranjana Pandya,J.
Supplementary affidavit filed today is taken on record.
Heard learned counsel for the revisionists, learned counsel for the opposite party No. 2 and learned AGA for the State.
This revision has been preferred against the judgment and order dated 16.07.2014 passed by the learned Additional Chief Judicial Magistrate, Court No. 6, Moradabad in Complaint Case No. 617 of 2013, under sections 498-A, 323 IPC and 3/4 Dowry Prohibition Act, PS Mahila Thana, district Moradabad, whereby the application for discharge was dismissed.
Brief facts of the case are that the revisionists moved a discharge application on 18.12.2013 alleging that they have been falsely implicated in the case. Ranjeeta was married on 27.11.2010 and on 26.02.2012 when she was in the advance term of pregnancy, she was admitted in the hospital at Dehradun. She did not feel better hence she was got discharged on 28.02.2012 and she was anaemic then she was got admitted to the hospital at Dehradun, where she was operated on 28.02.2012 and still child was born. She was admitted in the hospital from 28.02.2012 to 05.03.2012. The opposite party No. 2 moved an application, in which it has been said that the occurrence took place after seven months meaning somewhere near 02.08.2012 whereas her delivery took place somewhere near 29.02.2012.
The opposite party No. 2 opposed the application before the Magistrate and said that the grounds taken in the discharge application cannot be stayed at this stage by the Court. The accused have not got themselves bailed out from the court and not even evidence under section 244 Cr.P.C. has been produced. Hence, the defence if any of the accused cannot be looked into and is liable to be dismissed.
Perusal of the record shows that the opposite party No. 2 had moved an application under section 156(3) Cr.P.C., which was treated as a complaint case. The statement of the complainant was recorded under section 200 Cr.P.C. and in inquiry under section 202 Cr.P.C., the statements of the witnesses were recorded and thereafter, the accused persons were summoned. After which, the accused persons moved an application for discharge, which was rejected.
In 2011 (72) ACC 770 Santosh Kumar Yadav and others vs. State of U.P. and another, it has been laid down that if there is ingredients of offence against the accused, charge should be framed. The Hon'ble Apex Court in 2010 (1) ACR (SC) P. Vijayan vs State of Kerala and another, has laid down that whether the materials at the hands of the prosecution are sufficient or not are matters for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground for proceeding against the accused and discharge is the only remedy. Whether the trial will end in conviction or acquittal is absolutely immaterial.
In the application for discharge, the revisionists have tried to persuade the Court to look into the defence. The defence of the accused persons cannot be looked into at the time of framing of charge as it would be conducting a mini trial of the whole trial. In the application under section 156(3) Cr.P.C., the opposite party No.2 has specifically stated that the occurrence took place seven months ago. Thus, the approximate time of occurrence has specifically been given by the opposite party No. 2.
Learned counsel for the revisionists has referred to many papers of treatment, but I do not think the defence of the accused can be looked into at this stage.
It is well settled law that the Court has to proceed with assumption that the materials brought on record by the prosecution are true.
It is true that at the time of consideration of application for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may weigh evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. At this stage, consideration of application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true, and, evaluate the said materials and documents with a view to find out whether the facts emerging therein taken on their face value disclose the existence of all the ingredients constituting the alleged offence. At the stage the probative value of the materials has to be gone into and the Court is not expected to go deep in the matter and hold that the materials would or not warrant the conviction. What needs to be considered is whether there is ground for presumption that the offence has been committed and not whether a ground for convicting the accused has been made out.
To put it definitely, if the Court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge, though for conviction, the Court has to come to the conclusion that the accused has committed the offence.
In AIR 1996 Supreme Court, 1744, State of Maharashtra vs. Som Nath Thapa, it has been held that at the stage of framing charge the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the accused. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasised. It has also to be seen that while considering the question of framing the charge, is whether the material brought on record would reasonably connect the accused with the crime.
In the present case, reasonable material on record is available to connect the accused with the crime. The defence of the accused has not to be looked into.
I find no illegality, irregularity or impropriety in the order under revision and the revision is liable to be dismissed.
The revision is dismissed.
Order Date :- 8.8.2014
Sazia
