Jayanti Prasad & Another vs State Of U.P. & Others
2017 Latest Caselaw 2748 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

								AFR											Reserved on 14.7.2017								Delivered on 28.7.2017
 
Case :- CRIMINAL REVISION No. - 1544 of 1997
 

 
Revisionist :- Jayanti Prasad & Another
 
Opposite Party :- State Of U.P. & Others
 
Counsel for Revisionist :- Anil Srivastava
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Aniruddha Singh,J.

(1) Heard Sri Anil Srivastava, learned counsel for the revisionists and the learned AGA for the State.

(2) This revision has been filed by revisionists namely Jayanti Prasad, Rajesh Kumar  @ Rakesh Kumar Gupta, Smt. Mando Devi, Virendra Kumar Gupta and Smt. Bhama @ Manjoo against order dated 1.9.1997 passed by Sri Anil Kumar, Judicial Magistrate III, Bareilly in Criminal Case No. 414 of 1997(State vs. Anil Kumar Gupta & others), Crime No. 297/93 under Section 498-A IPC and 3/4 Dowry Prohibition Act, Police  Station Fatehganj East, District Bareilly whereby charges have been framed against revisionists and Anil Kumar  Gupta, husband of opposite party No.2/informant.

(3) Opposite party No.2/informant lodged an FIR dated 10.12.1993 stating therein that marriage of opposite party no.2/informant  was solemnized with accused Anil Kumar Gupta, son of revisionist No.1 Jayanti Prasad on 4.5.1992. Revisionists demanded Rs.40,000/-, scooter and Maruti as dowry in second Bidai. Her husband had gone back to Fatehganj on 3.12.1993. On 5.12.1993 her father-in-law took her from Bareilly to Fatehganj. On the next day, above revisionists and her husband  beat her with slippers in the field situated across the railway line and took her to the police station. The revisionists again demanded Rs.40,000/- and share in the house of her father. They snatched her ornaments from her. The revisionists also poured kerosene oil on her body and attempted to kill her. On this FIR, charge-sheet was submitted by the  police after investigation. Court below has taken cognizance and framed charges against above revisionists and husband Anil Kumar Gupta.

(4) Learned counsel for the revisionists contended that opposite party No.2/informant filed an affidavit on 13.11.1997 before the Court below stating that she is residing with her husband and she has no complaint against him. Opposite party no.2  has also appeared before the Court below and filed her Parcha Pairvi in favour of husband Anil Kumar Gupta for bail. Learned counsel further contended that the FIR lodged by opposite party no.2 is absolutely false and concocted and the Court below has not applied its judicial mind.

(5) Learned counsel for revisionists has further submitted that revisionist no.1/father-in-law and opposite party no.2/informant have died, hence no fruitful purpose would be served to initiate trial of accused revisionists No.2,3,4 and 5 who are 'brothers-in-law and sisters-in-law.

(6) Learned AGA has admitted the fact of death of revisionist no.1/father-in-law and opposite party no.2/informant.

(7) It is admitted fact by the parties that neither any written compromise was filed before the trial Court nor accepted or verified by it.

(8) The offences under  Section 498-A IPC and 3/4 Dowry Prohibition Act are not compoundable under Section 320 Cr.P.C. Specific allegations have been made in the FIR against revisionists. Poonam Gupta, informant was examined before the trial Court as PW-1 who has supported the prosecution case in her statement recorded on 11.9.1997.

(9) Under Section 397 and 401 Cr.P.C., the Revisional Court has power to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed by the Court below.

(10) It is pertinent to mention Section 239 Cr.P.C. and Section 240 Cr.P.C. which are as follows:-

Section 239 Cr.P.C. 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.

Section 240 Cr.P.C.(1) If, upon such consideration, examination, if any, 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.

(11) According to Section 239 Cr.P.C., if the Magistrate is of the opinion that accused is liable to be discharged from the charge levelled against him, then he is duty bound to record reasons for discharging the accused. According to Section 240 Cr.P.C., if the Magistrate is competent to try and is of the opinion that accused could be punished by him, he shall frame charge against the accused.

(12) In the case of State of Maharashtra v. Som Nath Thapa (1996) 4 SCC 659, where a three-Judge Bench of the Apex Court, after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned; (ii) Sections 239 and 240 relatable to trial of warrant cases; and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus:

"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 framing of a 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."

(13) It has been held by Division Bench of Delhi High Court in the case of Bhiku Ram vs. Delhi Municipality, 1977 CRLJ, 1955 that framing of charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. In framing a charge Magistrate only specifies the accusation against an accused person and communicates the same to him. Therefore they are interlocutory being a procedural step and does not determine the principal matter in dispute. Thus, in the present case, the Magistrate has committed no error in framing charges.

(14) Learned counsel for revisionists has relied upon judgment of Hon'ble Supreme Court in the case of Geeta  Mehrotra vs. Another vs. State of U.P. and another reported in 2012 LawSuit(SC) 716 which does not apply in this case, as the facts of this case are different from the case referred to. In that case no active participation of in-laws  was alleged in the FIR and there was also question of territorial jurisdiction, whereas in this case specific allegation of demand of dowry has been made in the FIR and offences under Section 498-A and 3/4 Dowry Prohibition Act are duly supported by the statement of PW-1 Poonam Gupta, informant. Prima facie, there is material on record showing involvement of accused revisionists. The trial Court has territorial jurisdiction to decide the instant case.

(15) In the case of Central Bureau of Investigation vs. Sadhu Ram Singla and others, 2017(1) ACR 1020(SC), Hon'ble Supreme Court has held that compromise having been arrived between complainant and accused, continuance of criminal proceedings are held to be amounting to abuse of process of court and exercise in futility.

(16) In that case there had been a written compromise, hence criminal proceedings could have been quashed, but in the instant case neither written compromise was filed before the trial Court nor accepted or verified by it. Hence, revisionists are not entitled to be discharged from the charges levelled against them.

(17) In the case of Munna Devi vs. State of Rajasthan & another Appeal(Crl.) No. 1138 of 2001 decided on 6.11.2001, Hon'ble Supreme Court has held that the revisional power under the Code of Criminal Procedure cannot be exercised in a routine and casual manner. While exercising such powers the High Court has no authority to appreciate the evidence in the manner as the trial and the appellate courts are required to do. Revisional powers could be exercised only when it is shown that there is a legal bar against the continuance of the criminal proceedings or the framing of charge or the facts as stated in the First Information Report even if they are taken at the face value and accepted in their entirety do not constitute the offence for which the accused has been charged.

(18) In the case of Nemichand Jain vs. Roshanlal and others reported in (2004) 13 SCC 461 Hon'ble Supreme Court has held that at the Stage of framing charges, the High Court should not have considered the whole evidence and then concluded that there were no materials to frame charges under Section 304-B and 498-A IPC. The Supreme Court set aside the order passed by the High Court and directed the Sessions Judge to proceed with the case on the basis of the charges framed by Sessions Court under Sections 304-B and 498-A IPC.

(19) It is also pertinent to mention here that revisionists will have opportunity to produce their evidence before the Court below at the defence stage.

(20) A perusal of record shows that charges against the revisionists have already been framed and statement of the informant has also been recorded before the trial Court. On this ground also, the revision is liable to be dismissed. This Court finds no illegality, impropriety, material irregularity or jurisdictional error in the impugned order. The present revision lacks merit and is liable to be dismissed. Hence dismissed.

(21) The record of lower Court be returned to the Court concerned immediately with copy of this order.

Order Date :- 28.7.2017

P.P.