Jagdish Nautiyal vs State
2013 Latest Caselaw 3220 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                             CRL.REV.P. 413/2013


                                                     Decided on 26.07.2013
IN THE MATTER OF :
JAGDISH NAUTIYAL                                           ..... Petitioner
                          Through: Mr. Prem Kumar, Advocate with
                          Mr. Rakesh Kumar, Advocate


                     versus


STATE                                                    ..... Respondent
                          Through: Mr. Naveen Sharma, Addl. PP


CORAM
HON'BLE MS.JUSTICE HIMA KOHLI


HIMA KOHLI, J. (Oral)

1. The present petition has been filed by the petitioner under Section

397 read with Section 401 Cr.PC praying inter alia for setting aside the

order on charge dated 02.07.2013 passed by the learned ASJ in respect

of case FIR No.67/2011, lodged under Sections 376/420 IPC.

2. Before dealing with the submissions of the counsel for the

petitioner, a brief reference to the relevant facts of the case leading to the

registering of the FIR is considered necessary.

3. In a nutshell, the facts of the case are that the complainant/

prosecutrix had alleged commission of offences of cheating, rape and

bigamy against the petitioner. She had stated that in the year 1994, she

was married to one Shri Sushil Kumar and from out of the said wedlock,

she had a daughter. However, Shri Sushil Kumar had expired in the year

2010. Soon thereafter, the accused, who had a friendly relationship with

the deceased husband of the prosecutrix, had approached her and

proposed to marry her on the representation that he was unmarried. The

prosecutrix claimed that relying on the statement made by the

petitioner/accused, she had accepted the proposal and both the parties

had got married on 11.05.2010 in a Buddhist Temple situated on Mandir

Marg, Near Birla Mandir at New Delhi as per Hindu customs. The

prosecutrix has stated that the petitioner/accused had also filled up the

marriage form in his own handwriting and the said marriage had been

registered on 17.05.2010 in the office of the Registrar of Marriages,

Dehradun, Uttrakhand. Thereafter, both the parties had cohabited as

husband and wife. However, on 04.06.2010, the complainant came to

know that the accused was already married to one Smt. Sunita and when

she had confronted him with the said marriage, he had maintained that

he was not married to the said lady. It is stated in the complaint that the

petitioner had concealed the factum of his previous marriage and later on,

he had threatened her, thus compelling her to file the complaint.

4. On the basis of the aforesaid complaint received from the

prosecutrix, the subject FIR was registered and investigation was

undertaken by the IO. While passing the impugned order on charge, the

learned ASJ took notice of the fact that after the investigation was

conducted, a zero FIR was registered and sent to Dehradun for further

investigation and thereafter the matter was received back from Dehradun

and finally, it had culminated in filing of the charge-sheet. After

considering the submissions of counsels for the parties and the material

accumulated during the investigation, including the statements of the

parties and other witnesses, the trial court was of the opinion that the

petitioner herein is liable to be charged for the offence under Sections

420/376/495 IPC.

5. Aggrieved by framing of the aforesaid order on charge, the

petitioner has filed the present revision petition stating inter alia that the

trial court had failed to appreciate the fact that there was no evidence on

record to establish that the petitioner had married the prosecutrix and

therefore, the provisions of Section 495 IPC were inapplicable. Learned

counsel states that the learned ASJ had overlooked the fact that the

petitioner and the complainant had known each other for several years

even prior to the demise of the husband of the prosecutrix. He further

states that the trial court did not take into consideration the statement of

SI Narender Singh, Police Station Dalanwala, Dehradun or of Ms. Sunita,

the petitioner's wife.

6. Mr. Prem Kumar, Advocate urges that there is no evidence of the

petitioner having committed the offence of bigamy for the reason that

there was no legal or valid marriage that had been solemnized between

the petitioner and the prosecutrix and the evidence that was gathered by

the police in the course of the investigation, do not substantiate the

allegations levelled by the prosecutrix to the said effect. He contends

that for a Hindu marriage to be valid and legal, invocation before the

sacred fire and a Saptapadi ceremony are a prerequisite and in the

present case, neither of the aforesaid ceremonies had taken place and

therefore, the marriage, if any, was incomplete. Consequently, the

registration of the marriage by the petitioner and the prosecutrix at the

office of the Registrar of Marriages at Dehradun loses significance. It is

thus contended by the counsel for the petitioner that there was hardly

any evidence before the trial court to have framed charges against his

client.

7. Learned Addl. PP opposes the present petition and submits that the

impugned order on charge is a legal, valid and cogent order and does not

deserve interference. He submits that at the time of framing of charges,

the Judge is required to examine the evidence only to arrive at a prima

facie conclusion as to whether charges are required to be framed in the

case. He states that in view of the statement given by the complainant as

has been recorded by the police, and the documents gathered during the

investigation, including the marriage certificate of the parties produced by

the complainant, the marriage form, the joint affidavit signed by the

petitioner and the complainant and submitted in the office of the Registrar

of Marriages, Dehradun and the photographs of the marriage, there was

sufficient material placed before the trial court for purposes of framing of

charges against the petitioner.

8. The Court has examined the impugned order and considered the

submissions made by the counsel for the petitioner and the learned Addl.

PP in the light of the facts of the case. It is settled law that at the time of

framing of charges, the trial court is required to examine the evidence

brought before it only for the limited purpose of deciding as to whether a

prima facie case has been made out against the accused or not. Based on

the said evidence, if the Judge is satisfied that a sufficient case is made

out, then it ought to proceed to direct framing of charges and conduct the

trial based thereon. However, at that stage, the Judge is not required to

sift the entire evidence and discuss the relative merits and demerits

thereof to arrive at a conclusive decision. The only requirement is that if

the Judge is satisfied that the evidence produced before him gives rise to

suspicion, enough for him to discharge the accused, then he ought to

be discharged but if that is not the case and the material on

record is sufficient to make a conviction reasonably possible, then the

Court should proceed to frame the charges.

9. In the present case, a perusal of the impugned order reveals that

the trial court has examined the evidence produced before it as would be

apparent from the observations made in paras 10, 11, 12 and 13 and only

thereafter had it concluded that if the material on record is taken on the

face value and it remains unrebutted, then the conviction of the petitioner

is reasonably possible for offences punishable under Sections

420/376/495 IPC. The trial court has also taken note of the objection

raised on behalf of the petitioner that there was delay on the part of the

complainant in making her complaint, but has turned down the same on

the ground that delay alone cannot be a ground for not framing charges

against the accused.

10. In para 10 of the order on charge, the trial court has discussed the

undisputed evidence in respect of the case, which is that the

petitioner/accused is married to one Smt. Sunita and has children from

the said marriage and that he was in a relationship with the prosecutrix

after her husband's demise. The petitioner has not denied the factum of

submitting a marriage form, wherein he had declared his status as

"unmarried" as also filing of a joint affidavit for purposes of registration

of his marriage with the prosecutrix in the office of the Registrar of

Marriages, Dehradun. Further, the investigation had revealed that the

marriage of the petitioner and the prosecutrix was duly registered at

Dehradun on 11.05.2010. After evaluating the material and documents

brought on record during the investigation; and on being satisfied that

there existed sufficient grounds, charges were framed against the

petitioner.

11. In view of the aforesaid facts and circumstances and upon perusing

the impugned order, this Court is of the opinion that no such illegality,

arbitrariness or perversity has been pointed out in the conclusion arrived

at by the learned ASJ while framing the charges against the petitioner, for

this Court to interfere therein. As a result, the present petition is

dismissed.

                                                          (HIMA KOHLI)
JULY 26, 2013                                                 JUDGE
rkb/sk