Madhya Pradesh High Court
Pawan @ Premchand Rathore vs The State Of Madhya Pradesh on 26 July, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL REVISION No. 1121 of 2022
BETWEEN:-
PAWAN @ PREMCHAND RATHORE
1.
S/O GOPAL RATHORE,
AGED ABOUT 21 YEARS,
OCCUPATION: LABOUR
R/O 86-D, NAGEEN NAGAR
INDORE (MADHYA PRADESH)
GOPAL RATHORE
2.
S/O PUANA JI RATHORE,
AGED ABOUT 52 YEARS,
OCCUPATION: LABOUR
R/O. 86-D, NAGEEN NAGAR,
INDORE (MADHYA PRADESH)
SMT. SUMAN RATHORE
3.
W/O GOPAL RATHORE,
AGED ABOUT 45 YEARS,
OCCUPATION: LABOUR
R/O. 86-D, NAGEEN NAGAR,
INDORE (MADHYA PRADESH)
.....PETITIONER
(SHRI ASHISH GUPTA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
STATION HOUSE OFFICER
THROUGH POLICE STATION AERODRUM
DIST.:INDORE (MADHYA PRADESH)
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Signed by: SUMATHI
Signing time: 26-07-
2023 10:24:45
2
.....RESPONDENTS
( SHRI VISHAL PANWAR - PANEL LAWYER)
......................................................................................................
Reserved on - 14.07.2023
Delivered on - 26.07.2023
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This revision coming on for hearing this day, the court passed the
following:
ORDER
Invoking the revisional jurisdiction under Section 397 read with
Section 401 of Cr.P.C., the petitioners have filed this revision against
the impugned order dated 21.01.2022 passed by learned Sessions
Judge, Indore, in S.T. No.216/2020 by which the learned trial Court
dismissing the petitioners application under Section 227 of Cr.P.C
found prima facie case for charges under Sections 306 and 498(A) of
IPC, 1860 against the petitioners.
2. Succinctly, the case of the prosecution is that Smt. Arti
succumbed on 10.07.2019 by hanging herself. Upon investigation, it
was revealed that petitioner no.1 got married to the deceased Arti on
07/05/2017. It is further alleged that the petitioners used to taunt that
her father had not given anything as dowry. It is also alleged that the
petitioners used to taunt her for not giving birth to child, that apart, they
had prevented her from getting further education. Being aggrieved by
these harassments, the deceased committed suicide.
3. After completing the investigation the prosecution has filed the
charge sheet under Sections 498(A) and 306 of IPC, 1860 before the
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Court of Judicial Magistrate First Class. In turn the case was committed
to the Court of Sessions Judge and thereafter the trial Court has framed
the charges against the petitioners under Sections 306 and 498-A of IPC,
1860.
4. Shri Ashish Gupta, learned counsel expostulated that the
prosecution could neither adduce any evidence regarding dowry demand
nor any evidence as to abetment to commit suicide. It is also demurred
that the deceased herself had not made any allegation in her suicide note
against her in-laws/petitioners. The ingredients of Section 107 of IPC
pertaining to abetment is also found missing, hence there is no prima
facie case against the petitioners, therefore, the impugned order
regarding dismissal of application under Section 227 of Cr.P.C and the
order for framing of charges is against the law; hence, deserves to be set
aside.
5. Learned Govt. Advocate has vehemently contended the
contentions of the petitioners and remonstrated that at the stage of
charge, only prima facie case has to be examined and charges can be
framed only on substratum of strong suspicion.
6. Having heard the rival submissions of the parties, the record of
the case has been perused in view of the contentions advanced by the
parties.
7. Certainly, the deceased had not alleged anything against the
petitioners in her suicide note. She has written that she is leaving the
world due to her own trouble and she herself is only liable for her death.
However, the question remains as to whether on the basis of suicide note
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the petitioners ought to have been discharged from the charges levelled
against them?
8. In this regard the materials available on record are also called for
consideration. The Police have also recorded the statement of witnesses
under Section 161 of Cr.P.C on this aspect. The statements of Durgabai,
the mother of the deceased, Ashok, the father of the deceased, Deepika
Parmar, sister of the deceased and Ramudibai, Madan Pawar, the
relatives of the deceased are also having their importance for showing
the ingredients of cruelty and abetment. According to these statements
the petitioners used to harass the deceased by taunting her with regard to
her wishes to continue with her studies by saying that if she did not
continue her studies, would she die. Further, it is clear that they always
used to provoke her to die.
9. In this regard a part of the statement of Durgabai, the mother of
the deceased recorded under Section 161 of Cr.P.C is reproduced
hereinbelow:
" vxj og i<+kbZ djus dgrh Fkh rks ;s cksyrs jgrs Fks rq>s ?kj dk gh dke
djuk gS i<+kbZ fdl fy;s dj jgh gS] vxj i<+kbZ ugha djsxh rks D;k ej tk;sxh]
vxj ejrh gS rks ej tkA bl izdkj ls esjh iq=h vkjrh dks mlds lkl lqeu] llqj
xksiky flag ,oa ifr iszepan mQZ iou mls ejus ds fy;s mdlkrs jgrs Fks ,oa
ijs'kku fd;k tkrk FkkA esjh iq=h vkjrh ls tokbZ iszepan }kjk mldh eka ds dgus
ij nks eghus ls ckrphr Hkh djuk can dj fn;k Fkk vkSj mldks [kkuk Hkh lcls ckn
esa [kkus dks nsrs Fks ,oa ;g Hkh cksyrs Fks fd 'kknh dks gq;s 14 eghus gks x;s vHkh rd
rsjs dks dksbZ larku Hkh ugh gks jgh gS rsjs tSlh cak> vkSjr dks j[kdj D;k djsx a s
rFkk 'kd ds dkj.k og esjs tsB ds yM+ds enu flag ds ?kj rd vkus tkus ugh nsrs
FksA"
10. Learned counsel for the petitioners also contended that as per the
definition under Section 498(A) of IPC, dowry demand has not been
revealed from the statement of the witnesses. In this regard it is
worthwhile to quote the provisions of Section 498(A) of IPC as under:
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"498A. Husband or relative of husband of a woman
subjecting her to cruelty.--Whoever, being the husband or
the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for
a term which may extend to three years and shall also be
liable to fine. Explanation.--For the purpose of this
section, "cruelty" means--
(a) any wilful conduct which is of such a nature as is likely
to drive the woman to commit suicide or to cause grave
injury or danger to life, limb or health (whether mental or
physical) of the woman; or
(b) harassment of the woman where such harassment is
with a view to coercing her or any person related to her to
meet any unlawful demand for any property or valuable
security or is on account of failure by her or any person
related to her to meet such demand."
It is crystal clear from the aforesaid provision that for constituting the
offence of cruelty any type of willful conduct which is of such nature as
is likely to drive a woman to commit suicide. Since the petitioners have
harassed and misbehaved with the deceased, due to which she has
committed suicide; the aforesaid definition of cruelty is satisfied.
Therefore, in the considered opinion of this Court, the statement of these
witnesses contains the definite allegations against the petitioners for
instigating the deceased to die.
11. Learned counsel for the petitioners, relying upon the judgment
rendered by this Court in the case of Onkarlal vs. State of M.P. reported
as 2017(1)MPWN 124, submitted that where there is no ample evidence
to show that petitioners/accused committed any act which amount to
abetment, only on the basis of above, charges cannot be framed under
Section 306 of IPC, 1860.
12. I have gone through the aforesaid case law and found that the
applicant in that case was having an affair with the deceased and the
evidence regarding abetment was not revealed, whereas, in this case the
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2023 10:24:45
petitioners are in-laws of the deceased and the suicide was committed in
their house, the ingredients of abetment is evident from the statement of
the prosecution witnesses. Therefore, the petitioners of this case cannot
be benefitted by the aforesaid judgment passed in the case of Onkarlal
vs. State (Supra)
13. Learned counsel also relied upon the order passed by this Court in
the case of Sabra Khan (Smt.) and ors. vs. State of M.P. and another
reported as 2016(1) MPWN 70. In this case, no specific allegation
against the husband and his family members were leveled. That apart
FIR was lodged after nine years of the alleged harassment, whereas in
the case in hand the deceased committed suicide within a period of two
and half years of her marriage and the specific allegations regarding
cruelty and harassment are evident from the statements of the witnesses
recorded under Section 161 of Cr.P.C.
14. Further with regard to the reliance placed by learned counsel for
the petitioners in the case of Vijendra Singh Rajput vs. State of M.P.
reported in 2021(1) MPWN 45 passed by this Court vide order dated
15.01.2021, wherein the allegation of theft was made against the
deceased, whereas in the instant case at hand, such type of allegations
have not been made against the deceased and there are other
overwhelming evidence regarding cruelty and abetment, hence the
petitioners could not be benefitted by the aforesaid case laws.
15. Virtually, the law regarding framing of charges under Section 227
of Cr.P.C is well considered by Hon'ble Apex Court in catena of cases.
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In the case of Union of India vs. Prafulla Kumar Samal reported as AIR
1979 SC 366, Hon'ble Apex Court considering the provisions of Section
227 of Cr.P.C, ordained as under:
"The scope of section 227 of the Code was considered by a
recent decision of this Court in the case of State of Bihar v.
Ramesh Singh(1) where Untwalia, J. speaking for the Court
observed as follows:-
"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
pro poses to adduce to prove the guilt of the accused
even if fully accepted before it is challenged in
cross-examination or rebut ted by the defence
evidence; if any, cannot show that the accused
committed the offence then there will be no
sufficient ground for proceeding with the trial".
This Court has thus held that whereas strong
suspicion may not take the place of the proof at the
trial stage, yet it may be sufficient for the
satisfaction of ths Sessions Judge in order to frame a
charge against the accused. Even under the Code of
1898 this Court has held that a committing
Magistrate had ample powers to weigh the evidence
for the limited purpose of finding out whether or not
a case of commitment to the Sessions Judge has
been made out."
16. Learned counsel for the petitioners also strenuously contended that
on the basis of statement of the witnesses recorded under Section 161 of
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Cr.P.C on 29.08.2019 i.e. after eight days of the alleged incident, the
ingredients to constitute offence under Section 306 and 107 of IPC, are
not made out. Virtually, such type of appreciation is not permissible at
the stage of framing of Charges. On this aspect, the law laid down by
Honb'le Apex Court in the case of State of Orissa vs. Debendranath
Padhi reported as 2004 lawsuit SC 1408 is worth referring here:
"Further, at the stage of framing of charge roving and
fishing inquiry is impermissible. If the contention of the
accused is accepted, there would be a mini trial at the stage
of framing of charge. That would defeat the object of the
Code. It is well-settled that at the stage of framing of charge
the defence of the accused cannot be put forth."
17. The aforesaid stand of the Full Bench of Hon'ble Apex Court has
also been endorsed by Hon'ble Apex Court in another case rendered in
VLS Finance Limited vs. S.P. Gupta and another reported as 2016 Law
suit SC 111. Further in this context, the land mark judgment of Hon'ble
Supreme Court rendered in the case of Maharashtra State vs. Priya
Sharan Maharaj & Ors. reported in AIR 1997 SC 2041 is propitious to
reproduce here:
"The law on the subject is now well settled, as pointed out in
Niranjan Singh Punjabi v. Jitendra Bijjaya [(1990) 4 SCC 76
: 1991 SCC (Cri) 47 : AIR 1990 SC 1962] that at Sections
227 and 228 stage 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
disclose the existence of all the ingredients constituting the
alleged offence. The Court may, for this limited purpose, sift
the evidence as it cannot be expected even at that initial
stage to accept all that the prosecution states as gospel truth
even if it is opposed to common sense or the broad
probabilities of the case. Therefore, at the stage of framing
of the charge the Court has to consider the material with a
view to find out if there is ground for presuming that the
accused has committed the offence or that there is not
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sufficient ground for proceeding against him and not for the
purpose of arriving at the conclusion that it is not likely to
lead to a conviction."
18. On this aspect the observations made by Hon'ble Apex Court in
the case of Rajeev Kaurav vs. Baishab and others reported in 2020 (3)
SCC 317 is relevant in context of this case. The Hon'ble Apex Court,
reversing the order of this Court as to the offence under Section 306 of
IPC, observed as under:-
" Moreover, the High Court was aware that one of the
witnesses mentioned that the deceased informed him about the
harassment meted out by Respondent Nos.1 to 3 which she was
not able to bear and hence wanted to commit suicide. The High
Court committed an error in quashing criminal proceedings by
assessing the statements under Section 161 Cr.P.C.
10. We have not expressed any opinion on the merits of the
matter. The High Court ought not to have quashed the
proceedings at this stage, scuttling a full-fledged trial in which
Respondent Nos.1 to 3 would have a fair opportunity to prove
their innocence."
19. Here it is also to be taken into consideration that the incident
happened within a period of two and half years of marriage hence
Section 113(A) of Evidence Act 1872 comes into the play. In this
regard the said provision is reproduced herein below:
" 113A. Presumption as to abetment of suicide by a married
woman.--When the question is whether the commission of
suicide by a woman had been abetted by her husband or any
relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her
marriage and that her husband or such relative of her husband
had subjected her to cruelty, the Court may presume, having
regard to all the other circumstances of the case, that such
suicide had been abetted by her husband or by such relative of
her husband. Explanation.--For the purposes of this section,
"cruelty" shall have the same meaning as in section 498A of the
Indian Penal Code (45 of 1860).]"
20. As per the aforesaid provisions, when wife commits suicide within
a period of seven years from the date of marriage, the Court may
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presume having regard to all other circumstances of the case, that such
suicide had been abated by her husband or by such relatives of her
husband. As such, the impugned order regarding framing charge cannot
be questioned in the case at hand, as the deceased has committed suicide
within two and half years from the date of her marriage.
21. In so far as the revisional jurisdiction in examining the orders as to
the framing of charges is concerned, it is condign to quote the following
extract of the judgment passed by Hon'ble Apex Court in the case of
State of Rajasthan v. Fatehkaran Mehdu, (2017) 3 SCC 198, herein
below:
"26. The scope of interference and exercise of jurisdiction
under Section 397 CrPC has been time and again explained by
this Court. Further, the scope of interference under Section 397
CrPC at a stage, when charge had been framed, is also well
settled. At the stage of framing of a charge, the court is
concerned not with the proof of the allegation rather it has to
focus on the material and form an opinion whether there is
strong suspicion that the accused has committed an offence,
which if put to trial, could prove his guilt. The framing of charge
is not a stage, at which stage final test of guilt is to be applied.
Thus, to hold that at the stage of framing the charge, the court
should form an opinion that the accused is certainly guilty of
committing an offence, is to hold something which is neither
permissible nor is in consonance with the scheme of the Code of
Criminal Procedure."
22. In terms of the revisional jurisdiction in examining the orders
passed by trial Court, the following excerpt of the judgment of Hon'ble
Apex Court in the recent case of Amit Kapoor vs. Ramesh Chandra
reported as (2022)9 SCC 460 is propitious to reproduce here under:-
"12. Section 397 of the Code vests the court with the
power to call for and examine the records of an inferior court for
the purposes of satisfying itself as to the legality and regularity
of any proceedings or order made in a case. The object of this
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provision is to set right a patent defect or an error of jurisdiction
or law. There has to be a well-founded error and it may not be
appropriate for the court to scrutinise the orders, which upon the
face of it bears a token of careful consideration and appear to be
in accordance with law. If one looks into the various judgments
of this Court, it emerges that the revisional jurisdiction can be
invoked where the decisions under challenge are grossly
erroneous, there is no compliance with the provisions of law, the
finding recorded is based on no evidence, material evidence is
ignored or judicial discretion is exercised arbitrarily or
perversely. These are not exhaustive classes, but are merely
indicative. Each case would have to be determined on its own
merits.
13. Another well-accepted norm is that the revisional
jurisdiction of the higher court is a very limited one and cannot
be exercised in a routine manner. One of the inbuilt restrictions
is that it should not be against an interim or interlocutory order.
The Court has to keep in mind that the exercise of revisional
jurisdiction itself should not lead to injustice ex facie. Where the
Court is dealing with the question as to whether the charge has
been framed properly and in accordance with law in a given
case, it may be reluctant to interfere in exercise of its revisional
jurisdiction unless the case substantially falls within the
categories aforestated. Even framing of charge is a much
advanced stage in the proceedings under the CrPC."
23. In view of the aforesaid prepositions, the learned trial Court, while
framing of charges, must apply its judicial mind on the material placed
on record and must be satisfied that there is strong possibility subsist that
the accused has committed the offence. At the juncture of framing of
charges, the Court has to prima facie examine whether there is sufficient
ground for proceeding against the accused. Nevertheless, the Court is
not expected to evaluate or analyse the findings in order to arrive at the
conclusion that the material furnished by the prosecution are sufficient to
convict the accused or not? In the case at hand, the findings of learned
trial Court regarding prima facie case against the accused persons appear
to be infallible.
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24. So far as the revisional power of this Court is concerned, it is well
settled legal position that the jurisdiction of the revisional Court is not as
that of an appellate Court, which is free to reach its own conclusion on
evidence untrammeled by any finding entered by the trial Court.
Actually the jurisdiction of revisional Court has a limited scope. The
revisional Court can interfere with the impugned order of subordinate
Court only when it is unjust and unfair. In case where the order of
subordinate Court does not suffer from any infirmity or illegality merely
because of equitable considerations, the revisional Court has no
jurisdiction to re-consider the matter and pass a different order in a
routine manner.
25. In view of the aforesaid principles of law and factual matrix of the
case, this Court is of the view that there is no illegality, perversity or
infirmity found in the impugned order of the learned trial Court
regarding framing of charges against the petitioners, hence no
interference is warranted by this Court. As a result thereof, this revision
petition, being devoid of merits, is dismissed and the impugned order
dated 21.01.2022 is hereby affirmed.
26. With the aforesaid the revision petition stands dismissed.
27. A copy of this order be sent to the concerned Court for
necessary information.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
sumathi
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