Smt. Khushnuma And 4 Others vs State Of U.P. And Another
2014 Latest Caselaw 4486 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. - 14
 
Case :- CRIMINAL REVISION No. - 2273 of 2014
 
Revisionist :- Smt. Khushnuma And 4 Others
 
Opposite Party :- State Of U.P. And Another
 
Counsel for Revisionist :- Amit Daga
 
Counsel for Opposite Party :- Govt. Advocate
 
Hon'ble Mrs. Ranjana Pandya,J.

1. This revision has been preferred against the order dated 3.6.2014 passed by the C.J.M., Court No. 1, Muzaffar Nagar in Criminal Case No. 358/9 of 2013, State of U.P. Vs. Farid and others, under Sections 498-A, 377 read with Section 109 I.P.C. and 3/4 D.P. Act, Police Station Thana Bhawan, District Muzaffar Nagar whereby the learned Magistrate rejected the discharge application of the accused revisionist.

2. Facts in brief are that the accused moved an application under Section 239 Cr.P.C. for discharge stating therein that they are innocent, they have not committed any crime and they and their family members have falsely been implicated. Anwar is the maternal uncle of husband of the victim, namely Fareed. Israna is the maternal aunty of Fareeda. Noor Mohammad is 'mausa' of Fareed. Smt. Sarwari is 'mausi' of Fareed. Smt. Khushnuma is the married sister of Fareed and Kumari Rehnuma is the unmarried sister of the Fareed. No case against the accused except Fareed is made out under Section 377 I.P.C. and, according to the complaint, the court at Saharanpur has only jurisdiction,  hence, the accused persons are liable to be discharged.

3. The learned court after finding that there are sufficient grounds to frame charge, dismissed the discharge application. Feeling aggrieved the revisionists have come up in this revision.

4. I have heard learned counsel for the revisionist and the learned A.G.A.

5. Section 239 of the Cr.P.C. reads as under:-

"239. When accused shall be discharged.

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."

6. A plain reading of the above would show that the Court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. The ambit of Section 239 Cr.P.C. and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another, 2008 2 SCC 561. That too was a case in which a complaint under Sections 498-A and 406 read with Section 34 of the I.P.C. was filed against the husband and parents-in-law of the complainant-wife. The Magistrate had in that case discharged the accused under Section 239 of the Cr.P.C., holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the Court at the stage of framing of charges or directing discharge in the following words:

"11. It is trite that at the stage of framing of charge 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, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."

7. Counsel for the revisionists has argued that no case against the revisionists has been made out and the revisionists are liable to be discharged. In support thereof, he has placed reliance on 2013 (14) Supreme Court Cases page 374, Chandralekha and others Vs. State of Rajasthan and another in which it has been held that no specific role has been attributed to each of the appellants and part of cause of action had accrued within its jurisdiction and since the offence is continuous one, F.I.R. cannot be quashed on the ground of jurisdiction or delay. This ruling does not help the revisionists because this is a case where the applicants approached the Court under the provisions of Section 482 Cr.P.C.

8. Counsel for the revisionists has further relied upon 2013 (80) ACC 185, Geeta Mehrotra and another Vs. State of U.P. and another, in which it has been held that in maternal disputes, there is tendency to involve the entire family members of the accused. Thus, in a case where there are allegations of overt act indicating complicity of such family members named in the F.I.R,  taking cognizance would be justified. It has further been held that the question of territorial jurisdiction would be a ground for quashing the proceedings. This is also a case in which the appellants had approached the Court under the provision of Section 482 Cr.P.C.

9. Counsel for the revisionists has further relied upon 2004 (50) ACC 210, Y Abraham Ajith and others Vs. Inspector of Police, Chennai and another, in which it has been held that if no part of cause of action arose in a particular court that court will have no jurisdiction to deal which the matter.

10. Perusal of the record shows that the learned lower court found that on the basis of F.I.R., the case was registered against the accused revisionists, the complainant has corroborated the F.I.R. and on the basis of evidence collected by the Investigating Officer, there is sufficient cause to proceed against the accused.

11. In 2014 (84) ACC 656, State of Tamil Nadu Vs. N. Suresh Rajan and others, the Hon'ble apex Court has laid down in paragraph 20 as under:-

"20. We have bestowed our consideration to the rival submissions and the submissions made by Mr. Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post-office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an 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 therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, 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. The law does not permit a mini trial at this stage. Reference in this connection can be made to a recent decision of this Court in the case of Sheoraj Singh Ahlawat & Ors. vs. State of Uttar Pradesh & Anr., in which, after analyzing various decisions on the point, this Court endorsed the following view taken in Onkar Nath Mishra v. State (NCT of Delhi) (supra):

12. The grounds of discharge have been laid down by the Apex Court in 2001 AAR 394 (SC), Omwati Vs. State (Delhi Administration), in which it has been held that the court may discharge accused on following consideration:-

(i) If upon consideration that there is no sufficient ground for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons.

(ii) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by defence evidence cannot show that the accused committed the crime, then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. 

13. It is well settled law that defence of the accused has not to be looked into at the time of the discharge. As far as territorial jurisdiction is concerned, prima facie, according to the F.I.R. and investigation, the Muzaffar Nagar court has jurisdiction.

14. In Santosh Kumar Yadav Vs. State of U.p. and another, 2011 (72) ACC 7870, it has been laid down if there are ingredients of offence against the accused, charges should be framed. The Hon'ble Apex Court in 2010 (1) ACR (SC), P. Vijayan Vs. State of Kerala and another, has held 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 to proceeding against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal is absolutely immaterial.

15. Thus, the impugned order does not suffer from any illegality, irregularity or impropriety. and the revision is liable to be dismissed at the admission stage.

16. Accordingly, the revision has no force, which is dismissed.

Order Date :- 19.8.2014

Ram Murti