Madras High Court
I.Rajendran vs State Rep. By Its Through on 29 October, 2024
Crl.R.C.(MD)No.921 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 30.09.2024
Pronounced on : 29.10.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
Crl.R.C.(MD)No.921 of 2024
and
Crl.M.P.(MD)No.10167 of 2024
1.I.Rajendran
2.R.Devaprahasini ... Petitioners
Vs.
State rep. by its through
The Inspector of Police,
Madurai Town All Women Police Station,
Madurai.
(Crime No.01 of 2018) ... Respondent
Prayer : This Criminal Revision Petition filed under Sections 438 r/w 442
B.N.S.S., to call for the records relating to the order passed in Cr.M.P.No.
1340 of 2024 in C.C.No.38 of 2019 on the file of the Judicial Magistrate,
Additional Mahila Court, Madurai and set aside the same by allowing the
revision petition.
1/18
https://www.mhc.tn.gov.in/judis
Crl.R.C.(MD)No.921 of 2024
For Petitioners : Mr.P.T.Ramesh Raja
For Respondent : Mr.K.Sanjai Gandhi
Government Advocate (Crl. Side)
ORDER
The Criminal Revision is directed against the order passed in
Cr.M.P.No.1340 of 2024 in C.C.No.38 of 2019 dated 08.08.2024 on the
file of the Judicial Magistrate, Additional Mahila Court, Madurai,
dismissing the application filed for discharge under Section 239 of the
Code of Criminal Procedure.
2. The petitioners are the accused 2 and 3 in C.C.No.38 of 2019 for
the alleged offences under Sections 406 and 498(A) IPC.
3. It is evident from the records that on the basis of the complaint
lodged by one Deepika Rani, FIR came to be registered in Crime No.1 of
2018 against three persons including the petitioners for the alleged
offences under Sections 498(A) and 406 IPC and that after completing the
investigation, final report came to be filed before the jurisdictional Court
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and the case was taken on file in C.C.No.38 of 2019 and is pending on the
file of the Additional Mahila Court-Magisterial Level, Madurai.
4. When the calendar case was pending for framing of charges, the
petitioners, who are the accused 2 and 3, have filed the above application
in Crl.M.P.No.1340 of 2024 under Section 239 Cr.P.C. seeking orders to
discharge them from the above case. The respondent police has filed a
counter statement raising serious objections. The learned Judicial
Magistrate, after enquiry, has passed the impugned order dated 08.08.2024
dismissing the discharge application. Aggrieved by the order of dismissal,
the present revision came to be filed.
5. It is not in dispute that the marriage between the defacto
complainant and the first accused Praveenraj was solemnized on
29.05.2015.
6. The case of the prosecution is that at the time of marriage, the
defacto complainant's parents had given 81 sovereign of gold jewels and
household articles valued at Rs.3 lakhs and 9 sovereign of jewels to the
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first accused, that even at the time of marriage and reception, the
petitioners for not giving teak wood berow, had abused the defacto
complainant's parents in filthy language, that the first accused had
threatened the defacto complainant that he would release the video taken
at their first night, that all the accused had harassed the defacto
complainant and subjected her to mental cruelty, that on 14.08.2016, baby
showering ceremony was conducted and at that time, the second petitioner
has collected 81 sovereign of gold jewels from the defacto complainant
and failed to return the same to her and thereby committed criminal breach
of trust and that they had also abused the defacto complainant demanding
more dowry, failing which, they would not allow the defacto complainant
to live with the first accused.
7. The case of the petitioners is that the defacto complainant has
also filed a complaint under Section 12 of Protection of Women from
Domestic Violence Act and the same is pending in D.V.C.No.27 of 2020,
that the defacto complainant has examined herself as P.W.1, that the
complaint of the defacto complainant was earlier referred to the District
Social Welfare Officer/Dowry Prohibition Officer, that the defacto
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complainant and the petitioners had appeared before the District Social
Welfare Officer for enquiry, that after enquiry, the District Social Welfare
Officer has given a report stating that no dowry harassment was caused to
the defacto complainant, that the report given by the District Social
Welfare Officer was purposely suppressed by the respondent police, that
they have not examined the said District Social Welfare Officer during
investigation and therefore no case is made out for the offence under
Section 498(A) IPC as against the petitioners, that the defacto
complainant, while giving evidence as P.W.1 in D.V.C.No.27 of 2020, has
admitted that Ex.R.3-copy of the photograph was taken at naming
ceremony i.e., after the baby showering ceremony and in that photograph,
she was found that she was wearing all her jewels, that the defacto
complainant had taken her jewels away from the first accused on
02.12.2015 and for that the first petitioner has sent an e-mail message to
the father of the defacto complainant and the same was admitted by the
defacto complainant during her cross-examination in DVC case, that the
petitioners have not received any jewels from the defacto complainant and
all the jewels are in the custody of the defacto complainant and therefore
no case is made out for the offence under Section 406 IPC and that since
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the first accused sent a legal notice to the defacto complainant stating that
she had caused mental cruelty to him, after receiving the said notice, she
has given the above false complaint.
8. The respondent police has filed a counter statement raising
objections and further stated that during the course of investigation, all the
incriminating materials were collected and as many as 7 witnesses were
recorded and after proper investigation, final report came to be filed, that
the assertions made against the accused are specific as to the date and
place of occurrence and as to how the mother-in-law and father-in-law of
the defacto complainant caused mental cruelty on different occasions and
the same would go to show that there existed prima facie case against the
accused, that the allegations that the defacto complainant has admitted the
photograph taken at the naming ceremony of her child during her cross-
examination and that the defacto complainant was wearing all her jewels,
are mere presumption and assumption of the accused, that the defacto
complainant has given appropriate answer for the same and she has not
accepted what was so presumed by the accused, that the defacto
complainant has stated that she does not know what was written in the
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e-mail sent by her father-in-law, that the Court cannot consider the
evidence given in the DVC case at the stage of framing of charges, that the
probative and evidentiary value of the materials cannot be evaluated at the
time of framing of charges and that therefore the discharge application is
liable to be dismissed.
9. The learned counsel appearing for the petitioners would submit
that the District Social Welfare Officer has given a report stating that there
was no dowry harassment caused to the defacto complainant and that the
said report was not at all taken into account by the respondent police
during investigation. He would further submit that the evidence given by
the defacto complainant in the DVC case would go to show that the jewels
are only with the defacto complainant and not with the petitioners. By
placing the above arguments, the learned counsel appearing for the
petitioners would request the Court to consider the report of the District
Social Welfare Officer and the deposition of the defacto complainant
recorded in D.V.C.No.27 of 2020 on the file of the Additional Mahila
Court, Madurai.
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10. The learned counsel appearing for the petitioners would rely on
the judgment of the Hon'ble Supreme Court in Satish Mehra Vs. Delhi
Administration and another reported in (1996) 9 SCC 766 and argued
that the Court can very well consider the materials placed by the accused
while considering the discharge application or at the time of framing of
charges and the relevant passages are extracted hereunder:-
“Similar situation arise under Section 239 of the
Code (which deals with trial of warrant cases on police
report). In that situation the Magistrate has to afford the
prosecution and the accused an opportunity of being heard
besides considering the police report and the documents
sent therewith. At these two State the Code enjoins on the
Court to give audience to the accused for deciding whether
it is necessary to proceed to the next State. It is a matter of
exercise of judicial mind. There is nothing in the code
which shrinks the scope of such audience to oral
arguments. If the accused succeeds in producing any
reliable material at that stage which might fatally affect
even the very sustainability of the case, it is unjust to
suggest that no such material shall be looked into by the
Court at that stage. Here the "ground" may be any valid
ground including insufficiency of evidence to prove
charge.
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The object of providing such an opportunity as is
envisaged in Section 227 of the code is to enable the Court
to decide whether it is necessary to proceed to conduct the
trial. If the case ends there it gains a lot of time of the
Court and saves much human efforts and cost. If the
materials produced by the accused even at that early stage
would clinch the issue, why should the Court shut it out
saying that such documents need be produced only after
wasting a lot more time in the name of trial proceedings.
Hence, we are of the view that Sessions Judge would be
within his powers to consider even material which the
accused may produce at the stage contemplated in Section
227 of the Code.”
11. At this juncture, it is necessary to refer the Three Judge Bench
decision of the Hon'ble Supreme Court in the case of State of Orissa Vs.
Debendra Nath Padhi reported in AIR 2005 SC 359, wherein, the Hon'ble
Apex Court has held that Satish Mehra's case holding that the trial court
has powers to consider even materials which accused may produce at the
stage of Section 227 of the Code has not been correctly decided and the
relevant passages are extracted hereunder:-
“ .... In this case too the question was not about the
right of the accused to file material at the stage of framing
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charge but was about quashing of proceedings in exercise
of power under Section 482 of the Code. The decision in
the case of State of Madhya Pradesh v. MohanLal Soni
[(2000) 6 SCC 338] sought to be relied upon on behalf of
the accused is also of no assistance because in that case
an earlier order of the High Court wherein trial court was
directed to take into consideration the documents made
available by the accused during investigation while
framing charge had attained finality since that order was
not challenged and in that view this Court came to the
conclusion that the trial court was bound and governed by
the said direction of the High Court which had not been
followed. As a result of 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 accused may
produce at the stage of Section 227 of the Code has not
been correctly decided. ....”
12. The Hon'ble Supreme Court, in Debendra Nath Padhi's case
after surveying the law on the point, has specifically held that at the stage
of framing of charge, the trial Court can consider only the material
produced by the prosecution and there is no provision in the Code which
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would confer a right upon the accused to file any material or document at
that stage which right was held available to the accused only at the stage
of trial.
13. In the case of State of Gujarat Vs. Dilipsinh Kishorsinh Rao
reported in 2023 LiveLaw (SC) 874, the Hon'ble Supreme Court has
reiterated the legal position and the same is extracted hereunder:-
“7. It is trite law that application of judicial mind
being necessary to determine whether a case has been
made out by the prosecution for proceeding with trial and
it would not be necessary to dwell into the pros and cons
of the matter by examining the defence of the accused
when an application for discharge is filed. At that stage,
the trial judge has to merely examine the evidence placed
by the prosecution in order to determine whether or not the
grounds are sufficient to proceed against the accused on
basis of charge sheet material. The nature of the evidence
recorded or collected by the investigating agency or the
documents produced in which prima facie it reveals that
there are suspicious circumstances against the accused, so
as to frame a charge would suffice and such material
would be taken into account for the purposes of framing
the charge. If there is no sufficient ground for proceeding
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against the accused necessarily, the accused would be
discharged, but if the court is of the opinion, after such
consideration of the material there are grounds for
presuming that accused has committed the offence which is
triable, then necessarily charge has to be framed.
8. At the time of framing of the charge and taking
cognizance the accused has no right to produce any
material and call upon the court to examine the same. No
provision in the Code grants any right to the accused to
file any material or document at the stage of framing of
charge. The trial court has to apply its judicial mind to the
facts of the case as may be necessary to determine whether
a case has been made out by the prosecution for trial on
the basis of charge-sheet material only.”
14. Considering the above, legal position is well settled that while
considering the discharge application, the accused does not have any right
to produce any material or documents and that the Court should base its
decision solely on the charge sheet materials provided by the prosecution,
presuming the material to be true for the purpose of determining the
existence of prima facie case.
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15. Considering the above legal position, this Court has no
hesitation to hold that the materials now produced by the petitioners i.e.,
the report of the District Social Welfare Officer and deposition of the
defacto complainant in the DVC case, cannot be looked into. Even
assuming for arguments sake that the same can be considered for the
present discharge application, the report given by the District Social
Welfare Officer is binding neither on the police nor on the Court. The
police authorities are duty bound to investigate the case independently and
to take a decision as to whether there are prima facie materials to proceed
against the accused. As rightly observed by the learned trial Judge, the
defacto complainant has not only alleged dowry harassment but also
alleged other harassment meted out to her by her in-laws.
16. Regarding the evidence of the defacto complainant, that can be
used only for contradicting the defacto complainant while giving evidence
in the main trial of the present case and the evidence given in the other
case cannot be used for deciding the discharge application at this point of
time.
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17. At this juncture, it is necessary to refer the judgment of the
Hon'ble Supreme Court in State by the Inspector of Police, Chennai Vs.
S.Selvi and another reported in (2018) 13 SCC 455,
“7. It is well settled by this Court in catena of
judgments including the cases of Union of India v. Prafulla
Kumar Samal (1979) 3 SCC 4, Dilawar Balu Kurane v.
State of Maharashtra (2002) 2 SCC 135, Sajjan Kumar v.
CBI (2010) 9 SCC 368, State v. A.Arun Kumar (2015) 2
SCC 417, Sonu Gupta v. Deepak Gupta (2015) 3 SCC 424,
State of Orissa v. Debendra Nath Padhi (2003) 2 SCC 711,
Niranjan Singh Karan Singh Punjabi vs. Jitendra Bhimraj
Bijjayya (1990) 4 SCC 76 and Superintendent &
Remembrancer of Legal Affairs, West Bangal v. Anil
Kumar Bhunja (1979) 4 SCC 274 that the Judge while
considering the question of framing charge under Section
227 of the Code in sessions cases (which is akin to Section
239 CrPC pertaining to warrant cases) has the undoubted
power to sift and weigh the evidence for the limited
purpose of finding out whether or not a prima facie case
against the accused has been made out; where the material
placed before the court discloses grave suspicion against
the accused which has not been properly explained, the
court will be fully justified in framing the charge; by and
large if two views are equally possible and the Judge is
satisfied that the evidence produced before him while
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giving rise to some suspicion but not grave suspicion
against the accused, he will be fully within his rights to
discharge the accused. The Judge cannot act merely as a
post office or a mouthpiece of the prosecution, but has to
consider the broad probabilities of the case, the total effect
of the statements and the documents produced before the
court, any basic infirmities appearing in the case and so
on. This however does not mean that the Judge should
make a roving enquiry into the pros and cons of the mater
and weigh the materials as if he was conducting a trial”
18. It is settled law that at the stage of framing charge, the Court has
to prima facie consider whether there is sufficient ground for proceeding
against the accused and the Court is not required to appreciate evidence to
conclude whether the materials produced are sufficient or not for
convicting the accused.
19. It is also settled law that while considering an application
seeking discharge from a case, the Court is not expected to go deep of the
probative value of the material on record, but on the other hand, the Court
has to form a presumptive opinion as to the existence of the factual
ingredients constituting the offence alleged, and for that purpose, the
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Court cannot conduct a roving enquiry into the pros and cons of the matter
and weigh the evidence as if it is a main trial.
20. As rightly contended by the learned Government Advocate
(Criminal Side), there are specific allegations levelled against the
petitioners in the complaint as well as in the statement recorded under
Section 161(3) Cr.P.C. The petitioners have sought for discharge only on
the basis of the materials produced by them i.e., report of the District
Social Welfare Officer and deposition of the P.W.1 and except the above,
they have not canvassed any other reason or ground for seeking discharge.
As rightly contended by the learned Government Advocate (Criminal
Side), the prosecution has produced sufficient materials to proceed against
the petitioners. The learned trial Judge, by specifically observing that there
existed prima facie materials to frame charges against the accused,
dismissed the application.
21. Considering the above, the impugned order dismissing the
discharge application cannot be found fault with. Hence, this Court
concludes that the revision is devoid of merit and the same is liable to be
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dismissed.
22. In the result, this Criminal Revision Petition is dismissed.
Consequently, connected Miscellaneous Petition is closed.
29.10.2024
NCC :yes/No
Index :yes/No
Internet:yes/No
csm
To
1. The Judicial Magistrate,
Additional Mahila Court, Madurai.
2.The Inspector of Police,
Madurai Town All Women Police Station,
Madurai.
3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.
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K.MURALI SHANKAR,J.
csm
Pre-Delivery Order made in
and
Crl.M.P.(MD)No.10167 of 2024
Dated : 29.10.2024
https://www.mhc.tn.gov.in/judis
