Chattisgarh High Court

Shrimati Shashi Prabha Yadav vs Alok Tripathi on 23 September, 2022

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                                                                NAFR
        HIGH COURT OF CHHATTISGARH, BILASPUR
                        CRR No. 589 of 2021

                   Order Reserved on 25.08.2022

                   Order Delivered on 23.09.2022

 Shrimati Shashi Prabha Yadav W/o Shri Krishna Mohan Yadav,
  Aged About 47 Years, R/o 72/3 Nehru Nagar, Bhilai (East) Police
  Station Supela, Tahsil And District Durg Chhattisgarh


                                                        ---- Applicant
                             Versus

1.

Alok Tripathi S/o Shree Madan Mohan Tripathi, Aged About 42 Years, R/o Supela, Police Station Supela, Tahsil And District Durg Chhattisgarh

2. Anand Tripathi S/o (Late) Pauhari Sharan Tirpathi, Aged About 60 Years, R/o 77/14 Nehru Nagar, East Bhilai, Tehsil And District Durg Chhattisgarh

3. Yogendra Tripathi S/o (Late) Pauhari Sharan Tripathi, Aged About 58 Years, R/o 77/9 Nehru Nagar, East Bhilai, Tehsil And District Durg Chhattisgarh

4. Rajeev Tripathi S/o Nagendra Tripathi, Aged About 40 Years, R/o Gurukul Boys Hostel, Nehru Nagar-East, Bhilai, Tehsil And District Durg Chhattisgarh

5. Hariram Tripathi S/o Shri Kapil Dev Tripathi, Aged About 40 Years, R/o Krishna Public School Campus, Nehru Nagar, Bhilai, Tehsil And District Durg Chhattisgarh

6. Santosh Tripathi S/o Shree Krishan Mohan Tripathi, Aged About 38 Years, R/o Krishna Public School Campus, Nehru Nagar, Bhilai, Tehsil And District Durg Chhattisgarh

7. Rakesh Tripathi S/o B. P. Tripathi, Aged About 36 Years, R/o Model Town, Bhilai Tehsil And District Durg Chhattisgarh

8. Ravi Tripathi S/o Ramdayal Tripathi, Aged About 46 Years, R/o Krishna Public School Campus, Nehru Nagar, Bhilai Tehsil And District Durg Chhattisgarh

9. Prashant Tripathi S/o Shree Yogendra Tripathi, Aged About 36 Years, R/o 77/9, Nehru Nagar-East, Bhilai Tehsil And District Durg Chhattisgarh

10.Aditya Pandey S/o (Late) Kamleshwar Pandey, Aged About 36 Years, R/o 74/5, Nehru Nagar, Bhilai Tehsil And District Durg Chhattisgarh

11.Kuldip Singh @ Bhangi S/o Ajeet Singh, Aged About 30 Years, R/o Vaishali Nagar, Bhilai Tehsil And District Durg Chhattisgarh

12.Santosh Sahu S/o Shatrughan Sahu, Aged About 25 Years, R/o Junwani Basti, Bhilai Tehsil And District Durg Chhattisgarh

13.Nandu Soni S/o Chhotelal Soni, Aged About 38 Years, R/o Through-Krishna Public School Campus, Nehru Nagar, Bhilai Tehsil And District Durg Chhattisgarh

14. Nandi (Nandi Fabrication Welding Dukan) S/o Dhruvtaran Nandi, Aged About 40 Years, R/o Model Town, Bhilai Tehsil And District Durg Chhattisgarh

15.Ashutosh Tripathi S/o Madan Mohan Tripathi, Aged About 40 Years, R/o 72/4, Nehru Nagar-East, Bhilai Tehsil And District Durg Chhattisgarh

16.Shrimati Savita Tripathi W/o Alok Tripathi, Aged About 38 Years, R/o 74/5, Nehru Nagar-East, Bhilai Tehsil And District Durg Chhattisgarh

17. Shrimati Anju Tripathi W/o Rajeev Tripathi Aged About 34 Years R/ o Gurukul Boys Hostel, Nehru Nagar, Bhilai Tehsil And District Durg Chhattisgarh

18.Kalyani Tripathi W/o Hari Ram Tripathi, Aged About 34 Years, R/o Through Krishna Public School Campus, Nehru Nagar, Bhilai Tehsil And District Durg Chhattisgarh

19. State Of Chhattisgarh Through District Magistrate Durg, District Durg, Chhattisgarh

---- Non-applicants

For Applicant : Shri Mahendra Dubey, Advocate.

For Non-applicants No.1 to 18 : Shri P.R. Patankar, Advocate. For Non-applicant No.19/ State: Shri Shrikant Kaushik, P.L.

Hon'ble Shri Justice Rakesh Mohan Pandey

CAV Order

Heard.

1. This criminal revision has been preferred by the applicant against the

order passed by the Learned Sessions Judge, Durg, District Durg,

Chhattisgarh in Criminal Revision Case No. 192 of 2019 dated 9.2.2021

whereby the order passed by the Learned Judicial Magistrate First

Class, Durg, District Durg, Chhattisgarh in Complaint Case No. 7569 of

2014 (Smt. Shashi Prabha Yadav vs. Alok Tripathi and Ors.) dated

10.5.2019 has been set aside and the case has been remitted back to

scrutinize the material available on record and to enquire whether any

foundation to frame charges for the offences punishable under Sections

323, 452 and 427 of the IPC is available or not.

2. The dispute between the parties revolves around the property in respect

of plot Nos. 72/2 and 72/3 situated at Nehru Nagar, Bhilai. The sale-

deed in relation to plot No. 72/3 was executed in favour of the husband

of the applicant whereas, the sale-deed in respect of plot No.72/2 has

not been executed as the documents of title were mortgaged with Dena

Bank but the possession was handed-over to the applicant and her

husband. The sellers, namely, Smt. Kulwant Kaur and Surjeet Singh

after handing over the physical possession of both the plots in the year

2009, shifted to Raipur from Durg and promised to execute sale-deed in

favour of the husband of the applicant after obtaining documents from

Bank. Thereafter, non-applicant No.1 - Alok Tripathi influenced

Smt. Kulwant Kaur and Surjeet Singh, upon which plot No.72/2 was

recorded in the name of non-applicant No.1 and an agreement to sale to

that effect was also executed. Therefore, the husband of the applicant

lodged a written complaint before the police but the case was registered

under Section 155 of the Cr.P.C. Civil suit is also pending in connection

with the same plot before the Civil Judge, Class-I, Durg. Non-applicants

No.1 to 18 are close relatives and they reside in same locality where

house of the applicant is situated. After filing of the complaint before

the police and institution of the civil suit, they got annoyed and forcibly

entered into the house of the present applicant when she was alone,

assaulted her and tried to outrage her modesty on 4.4.2013 at about

5:30 pm.

3. The applicant lodged a complaint in the police station Supela, District

Durg but no action was taken. Thereafter, a written complaint was made

before the Superintendent of police, Durg on 6.4.2013 narrating the

incident. When no action was taken by the police, a complaint case

under Section 200 of the Cr.P.C. was filed. The statement of the

complainant under Section 200 of the Cr.P.C. was recorded and

thereafter, a case was registered as Complaint Case No.7569 of 2014

for offences punishable under Sections 148, 506-B, 294, 323, 427, 452

and 352 of the IPC against the non-applicants vide order dated

29.10.2014 passed by the Judicial Magistrate First Class, Durg,

consequently, process was issued to the non-applicants.

4. The non-applicants challenged the order passed by the Magistrate

dated 29.10.2014 by filing a Criminal Revision No.254 of 2014 and

same was partly allowed vide order dated 14.10.2015 by the learned

Seventh Additional Sessions Judge, Durg wherein the registration of a

complaint case for offences punishable under Sections 148 and 354 of

the IPC was set aside and for rest of the offences, it was affirmed.

5. Non-applicants No.1 to 18 being aggrieved by the order passed by the

Revisional Court dated 14.10.2015 preferred Cr.M.P. No. 1079 of 2015

before this Court and the same was dismissed vide order dated

12.7.2016.

6. Learned trial Court proceeded in the complaint case granting

opportunity to non-applicants No.1 to 18 to cross-examine the witnesses

and thereafter, found that there is no sufficient material to frame charges

for offence punishable under Sections 294 & 506 II of the IPC and

therefore, framed charges for offences punishable under Sections 323,

452 and 427 of the IPC against non-applicants No. 1 to 18 and issued

summons for appearance of non-applicants No. 1 to 18 for the purpose

of reading over the charges vide order dated 10.5.2019.

7. Non-applicants No.1 to 18 challenged the order dated 10.5.2019 by

filing a Criminal Revision No.192 of 2019 before the Learned Sessions

Judge, Durg and vide order dated 9.2.2021, the order passed by the

learned trial Court dated 10.5.2019 has been set aside and the case has

been remitted back to the Magistrate with a direction to further examine

the complainant and the witnesses and to scrutinize the material

available on record in order to ascertain whether any prima facie ground

to frame charges against non-applicants No.1 to 18 is available or not.

8. The applicant herein has challenged the order passed by the learned

Sessions Court in Criminal Revision No. 192 of 2019 dated 9.2.2021 on

the ground that learned Sessions Court has committed illegality in

setting aside the order passed by the learned Judicial Magistrate First

Class and the findings recorded by the learned Sessions Court are

contrary to the judgment cited in the impugned order itself. He further

submits that the learned trial Court after prima facie considering the

evidence has decided to frame the charges against the non-applicants

and the same cannot be interfered with by the learned Sessions Court.

His next contention is that when this Court has already dismissed the

Cr.M.P. No.1079 of 2015 preferred by non-applicants No. 1 to 18

thereafter, nothing remains for the Sessions Court to upset the order of

trial Court.

9. On the other hand, Shri P.R. Patankar, learned counsel for non-

applicants No.1 to 18 and Shri Shrikant Kaushik, appearing on behalf of

the State/ non-applicant No.19 would support the order passed by the

learned Sessions Court and submit that the Sessions Court has

exercised its power vested under revisional jurisdiction.

10. I have heard learned counsel for the parties and perused the material

available on record and also the impugned order.

11. From the record, it appears that the dispute revolves around the

property in respect of plot No.72 which was earlier purchased by the

applicant herein and the possession was also handed-over to her by the

original owner Smt. Kulwant Kaur but later on, the same was purchased

by non-applicant No.1. A suit was also filed by the husband of the

applicant seeking declaration of title and possession over the suit

property and it is still pending. The complaint case was filed against

non-applicants No. 1 to 18 for the offences punishable under Sections

147, 148, 506 II, 323, 427, 452, 354, 294/34 of the IPC and the

concerned police station was directed to enquire into the matter and

submit the report. Learned Judicial Magistrate First Class after

recording the statement of the complainant on 13.3.2014, vide order

dated 29.10.2014, ordered for registration of the complaint for the

above-mentioned offences. The order was challenged before the

learned Seventh Additional Sessions Judge, Durg, which was partly

allowed and registration of complaint case for offences punishable under

Sections 354 and 148 of the IPC was quashed whereas, registration of

the complaint for rest of the offences was maintained. Cr.M.P. No. 1079

of 2015 filed by non-applicants No. 1 to 18 was dismissed vide order

dated 12.7.2016 by this Court wherein it was held in paragraph 12 that

the entire episode was recorded by the applicant/ complainant in her

mobile which was placed before the Magistrate in the form of a CD and

it was also referred to in the statement of the complainant and thus,

sufficient material was available before the trial Court for registration of

the complaint.

12. Thereafter, the learned trial Court proceeded with the complaint case

and vide order dated 10.5.2019 summoned the non-applicants for

reading over the charges. Non-applicants No. 1 to 18 had challenged

the order dated 10.5.2019 before the learned Sessions Court and the

learned Sessions Court set aside the order passed by the learned trial

Court only on the ground that the order of framing of charges has been

passed without holding any enquiry and remitted back the matter to

scrutinize the record afresh.

13. Learned Sessions Court has cited the judgment of Hon'ble Supreme

Court in the matter of State of Tamil Nadu vs. N. Suresh Rajan and

Ors., reported in (2014) 11 SCC 709 paragraph 29, which is reproduced

below:

'29. 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.

14. Further, learned Sessions Court had relied upon the judgment passed

by the High Court of Chhattisgarh in the matter of Jai Prakash Pathak

vs. Surendra Gendley, reported in 2009 (1) C.G.L.J. 391 paragraph 5

and the same is also reproduced as under:

'(5) Provisions of Section 398 of the Code are clear and unambiguous. The revisional court is only empowered under Section 398 of the Code to direct the subordinate Magistrate to make further inquiry into any complaint which has been dismissed under section 203 of the Code. In the instant case while exercising the revisional court has directed the Chief Judicial

Magistrate, for registration of the criminal complaint for the offence punishable under Sections 406 and 506-B of the Indian Penal code and Section 3(i)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against the applicants/complainants for which the revisional court was not competent. The revisional court has exceeded the jurisdiction vested in it.

15. From the judgments relied upon by the learned Sessions Court it is quite

vivid that if the Court is of opinion that the accused might have

committed the offence on the basis of the material present on record

and on its appreciation, it can frame the charge, though for conviction,

the Court has to come to the conclusion that the accused has committed

the offence and full dressed trial is not permitted at this stage. From the

judgment cited by the learned Sessions Court, it is crystal clear that the

Magistrate can frame charge if there is mere suspicion or if the Court is

of opinion that the accused might have committed the offence and the

full fledged trial is not permitted at the stage of framing of charge.

Further, in the case of Jai Prakash Pathak (supra), it is held by this

High Court that the Revisional Court is not competent to direct the Chief