Smt. Manju And 3 Others vs State Of U.P. And Another
2021 Latest Caselaw 2103 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R.
 
Court No. - 81
 

 
Case :- APPLICATION U/S 482 No. - 2695 of 2021
 

 
Applicant :- Smt. Manju And 3 Others
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Amit Daga
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.

Heard Sri Amit Daga, learned counsel for the applicants and learned A.G.A. for the State.

This application u/s 482 Cr.P.C. has been filed against the orders dated 20.01.2020 and 06.02.2020 passed by learned Additional District & Sessions Judge (F.T.C.), constituted under the 14th Financial Commission, Jhansi in Sessions Trial No. 281 of 2019, (State of U.P. Vs. Arvind Kushwaha and others), under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station Kotwali, District Jhansi, (arising out of Case Crime No. 281 of 2019).

Brief facts of the case are that the marriage of daughter of informant was solemnized with Arvind (brother of applicant no. 1) on 27.06.2018 according to Hindu Rites and Rituals. The informant had given dowry as per his capacity, but the applicants along with other family members were harassing the deceased Poonam for non-fulfillment of additional dowry demand. On 17.05.2019, at about 06:00 p.m., informant's daughter Neha received a phone call from Arvind (husband of the deceased) on which information was given that her sister Poonam had committed suicide by hanging herself and she was admitted in the hospital. On receiving such an information, when the family members of the deceased reached the hospital, they found that Poonam had already expired. Therefore, an F.I.R. was lodged on 17.05.2019 against 8 persons who are husband as well as other family members alleging therein that the accused persons namely, Arvind, Ramesh Chandra, Savitri Devi, Smt. Manju, Smt. Vinita, Kumari Arti, Govind and Ravi has done to death informant's daughter. After lodging of the F.I.R., inquest proceedings were conducted and post-mortem was also conducted.

When the matter was investigated, statements of the informant and his son Rahul were recorded under Section 161 Cr.P.C. The statements of other persons like Smt. Geeta Devi, Kumari Neha, Jitendra Kumar Dwivedi, Neeraj Kushwaha and Ravi Kushwaha was also recorded. After recording the statements of other witnesses of Panchayatnama, charge sheet had been submitted against accused persons on 01.07.2019.

It has been submitted by learned counsel for applicants that applicant no. 1 and applicant no. 3 who are sister-in-law of the deceased was married way back in the year 1998 and 2011 respectively and are living separately. Therefore, there was no occasion of roping them with vague and general allegations in the F.I.R. which has been lodged by the informant. Since, the investigating agency without collecting any credible and convincing material had submitted a charge sheet against the applicants, therefore, a discharge application dated 02.01.2020 was moved and the same has been rejected vide order dated 20.01.2020, without marshelling and evaluating the material collected by the investigating agency. Learned counsel for the applicants submits that discharge application has been rejected in a casual manner without seeing that the material collected by the Investigating Officer does not show the involvement of the applicants in the incident which led to death of the deceased.

Learned counsel for the applicants has placed reliance upon the judgments of the Apex Court passed in the case of K. Subba Rao and others Vs. State of Telangana reported in (2018) 14 SCC 452, wherein, it has been stated that court should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out.

He has also placed reliance on the judgement of the Apex Court passed in the case of Kans Raj Vs. State of Punjab reported in (2000) 5 SCC 207, wherein, it has been stated that 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 are attributed to persons other than the husband are required to be proved beyond reasonable doubt.

All the contentions raised by the learned counsel for the applicants relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.

Per contra, learned A.G.A. for the State has opposed the contention raised by the learned counsel for the applicants and states that there is no illegality or infirmity in the orders dated 20.01.2020 and 06.02.2020. It has been next submitted that the orders dated 20.01.2020 and 06.02.2020 has been rightly rejected by the concerned court below.

Before proceeding to adjudge the validity of the impugned orders it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh 1977 (4) SCC 39 which are as follows :-

"4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either u/s. 227 or u/s. 228 of the Code. If "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", so enjoined by s. 227. If, on the other hand, "the Judge is of opinion that there is ground for presuming that the accused has committed an offence which .....................

(b) in exclusively triable by the court, he shall frame in writing a charge against the accused," as provided in S. 228.

Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under s. 227 and 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227."

Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal Versus Anil Kumar Bhunja AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows:

"18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar v. Ramesh Singh, AIR 1977 SC 2018, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously 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 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."

In yet another case of Palwinder Singh Vs. Balvinder Singh AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation :

"12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was 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's 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."

The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. v. Sanjay Choudhary AIR 2009 SC 9 also reiterated the same position of law :-

"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 the learned counsel for the appellants, 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. 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.

In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Article 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur Vs. State of Punjab AIR 1960 SC 866 and State of Haryana Vs. Bhajan Lal 1992 SCC(Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge sheet.

In fact the scope to discharge the accused u/s 245(2) Cr.P.C. is extremely limited. There are only exceptional circumstances which may justify such discharge after passing of the summoning order without any further evidence of such a nature being produced which may completely absolve or exonerate the accused and the charge against them may appear to be groundless. There may also be such circumstances which may be brought to the notice of the court like the absence of legally required sanction or any such legal embargo which prohibits the continuation of proceedings against accused. Ordinarily it is indeed very hard to succeed in obtaining a discharge successfully on the basis of same set of evidence which was found sufficient by the court for the purpose of summoning the accused to face the trial but because the possibility, however limited it be, does exist to get a discharge even without recording any evidence after summoning that the applications u/s 245(2) Cr.P.C. are moved and are, as they should be, entertained by the courts.

The legal principles applicable in regard to an application seeking discharge has been referred in the decision of P. Vijayan Vs. State of Kerala and another, (2010) 2 SCC 398 and are as follows:

i. If two views are possible and one of them gives rise to suspicion only as distinguished from grave suspicion, the Trial Judge would be empowered to discharge the accused.

ii. The Trial Judge is not a mere Post Office to frame the charge at the instance of the prosecution.

iii. The Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding. Evidence would consist of the statements recorded by the Police or the documents produced before the Court.

iv. If the evidence, which the Prosecutor proposes to adduce to prove the guilt of the accused, even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, "cannot show that the accused committed offence, then, there will be no sufficient ground for proceeding with the trial".

v. It is open to the accused to explain away the materials giving rise to the grave suspicion.

vi. The court has to consider the broad probabilities, 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, would not entitle the court to make a roving inquiry into the pros and cons.

vii. At the time of framing of the charges, the probative value of the material on record cannot be gone into, and the material brought on record by the prosecution, has to be accepted as true.

viii. There must exist some materials for entertaining the strong suspicion which can form the basis for drawing up a charge and refusing to discharge the accused.

The defence of the accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.P.C. The expression, "the record of the case", used in Section 227 of the Cr.P.C., is to be understood as the documents and the articles, if any, produced by the prosecution. The Code does not give any right to the accused to produce any document at the stage of framing of the charge. At the stage of framing of the charge, the submission of the accused is to be confined to the material produced by the Police.

In the latest judgment of M.E. Shivalingamurthy Vs. Central Bureau of Investigation, Bengaluru reported in 2020 1 Supreme 169, it has been held that defence of accused is not to be looked into at the stage when the accused seeks to be discharged under Section 227 of the Cr.P.C.

In the present case, though the applicants are sister-in-law and brother-in-law of the deceased but evidence regarding the presence of the accused at the time of incident cannot be evaluated at the stage.

Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case.

The submissions made by the learned counsel for the applicants call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the complaint, the summoning order and also all other the material available on record makes out a prima facie case against the accused at this stage and this Court does not find any justifiable ground to set aside the impugned order refusing the discharge of the accused. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless.

The prayer for quashing or setting aside the impugned orders is refused as I do not see any illegality, impropriety and incorrectness in the impugned orders or the proceedings under challenge. There is absolutely no abuse of court's process perceptible in the same. The present matter also does not fall in any of the categories recognized by the Supreme Court which might justify interference by this Court in order to upset or quash them.

The present application lacks merit and is accordingly rejected.

Order Date :- 8.2.2021

Priya