Tapan Kumar Mallick v. State Of Bihar — 1997 DIGILAW 414 (PAT)

Judgment M.Y.Eqbal, J. 1. This revision application filed under Secs. 397 and 401 of the Criminal Procedure Code (hereinafter to be referred to as "the Code" for short) is directed against the order dated 5.9.1991 passed by Vth Additional Sessions Judge, Dhanbad, in S.T. No. 326 of 1989 whereby the charges under Sec. 304 (B) and alternative charge under Sec. 306 of the Indian Penal Code have been framed against the petitioner. 2. The petitioner is an accused in Putki P.S. Case No. 67 of 1988, registered under Sec. 304 (B) of the Indian Penal Code on the basis of the fardbeyan of Gautam Chandra Thakur. The prosecution story is that one Basan Millick, aged 20 years, was married with the petitioner on 19.6.1988. After three months of the marriage she started living with the petitioner at Moonidih. It was alleged by the informant that on 6.10.1988 on the occasion of Jitia, the petitioner demanded Rs. 60,000.00 and furniture from the informant and he said that if the same is not given, the consequences would be bad. It was further alleged that when the informant visited the house of the petitioner on the occasion of Dusera for taking his daughter to his place, the petitioner refused to allow her to go with the informant unless the demand is fulfilled. On 17.10.1988 one Khemlal Mahato informed the informant that there has been an incident with his daughter and he was called immediately Therefore on reaching Moonidih the informant learnt that his daughter died because of born. He also found that preparation of cremation was done. The informant thereafter fell unconscious. The informant, therefore, expressed his suspicion based on the information that his daughter had not committed suicide, but the petitioner had set fire as the dowry demand was not fulfilled. The court below after recording the evidence and after perusal of the other documents framed charges under Sec. 304 (B) and in the alternative under Sec. 306 of the Indian Penal Code. 3. Mr. Prem Shankar Dayal, learned Senior Counsel appearing on behalf of the petitioner, has contended that the framing of charge under Secs. 304 (B) and 306 of the Indian Penal Code are contrary to law and facts. learned Counsel submitted that the charges under the aforesaid two Sections cannot stand together. According to the learned Counsel the charges must be specific and in an unambiguous language. 304 (B) and 306 of the Indian Penal Code are contrary to law and facts. learned Counsel submitted that the charges under the aforesaid two Sections cannot stand together. According to the learned Counsel the charges must be specific and in an unambiguous language. learned Counsel further submitted that framing of charge under Sec. 304 (B) and in alternative of charge under Sec. 304 (B) and in alternative under Sec. 306 of the Indian Penal Code is wholly and unwarranted in law. learned Counsel contended that while framing of charge under Sec. 304 (B) of the Indian Penal Code it must specify the date of committing cruelty, as according to him on the same date there cannot be a charge of homicide and suicide. On the other hand, Mr. I.N. Gupta, learned A.P.P. appearing for the State, submitted that there is no illegality in framing the charges by the learned court below. learned Counsel submitted that alternative charge can be framed and it is only after the evidence of the witnesses was recorded, it shall be seen as to under which Section of the Indian Penal Code the guilt of the petitioner has been proved. learned Counsel further submitted that there is no bar in law for framing alternative charge. learned Counsel has also submitted that at this stage it cannot be said as to under which provision of the Indian Penal Code the petitioner is liable to be convicted. 4. Before appreciating the rival contentions of the learned Counsel for the parties, it would be useful to look into the relevant provision of law with regard to framing of charge. 5. First of all, I would like to refer the charge framed by the court below, which is quoted herein below: "First--That you, on or about the 16th day of October, 1988 at Quarter No. M.M.-125 of Munidih Project, vill. 5. First of all, I would like to refer the charge framed by the court below, which is quoted herein below: "First--That you, on or about the 16th day of October, 1988 at Quarter No. M.M.-125 of Munidih Project, vill. Munidih, P.S. Putki, District Dhanbad caused the death of your wife Basanti Mallick by burns which occurred otherwise than in normal circumstances within seven years of her marriage and that soon before death she (Basanti Mallick) was subjected to cruelty on harassment by you in connection with the demand of dowry and thus and thereby committed an offence punishable under Sec. 304 (b) of the Indian Penal Code and within my cognizance, Alternatively: That you, on about the 16th day of October, 1988 at Quarter No. 125 of Munidih Project, vill, Munidih, P.S. Putki, District Dhanbad Basanti Mullick your wife committed suicide and you abetted the commission by pressurising her to obtain dowry form her parents and thereby committed an offence punishable under Section 306 of the Indian Penal Code and within my cognizance. And I hereby direct that you be tried by the said court on the said charge." From perusal of the charge, it is manifest that the charge has been framed under Sec. 304 (B) of the Indian Penal Code and alternatively under Sec. 306 of the Indian Penal Code. It cannot be disputed that framing of alternative charge is permissible in law. Sec. 221 of the Code reads as under: "221. Where it is doubtful what offence has been committed..-- (1) If a single act of series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of the said offences. (2) If in such a case the accused is charged with one offence, and it appears with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of Sub-sections (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it". 6. 6. From bare perusal of the aforesaid provision it is clear that if a single act or series of acts is of such a nature that it is doubtful which of the several offences the facts which can be proved will constitute and in such circumstances the accused may be charged with having committed all or any of the offences and alternative charges can be framed against the accused persons. 7. In the revision application itself, it is stated by the petitioner that from the evidence it would appear that the petitioner arrived at 12 in the night and he was not present at the time of occurrence. It is further stated that the first information report does not disclose as to whether it was a suicide simplicitor or she was subjected to cruelty of different kinds by the petitioner, which resulted in the commission of suicide. 8. Secs. 221 and 222 of the Code are the two exceptions to the general rule that an accused cannot be convicted of an offence in absence of specific charge in that respect. Sec. 221 applies only to a case where a single act or series of acts alleged against the accused is of such a nature that it is doubtful which of the several offences, the facts which can be proved will constitute. It contemplates state of facts constituting a single offence, but where it is doubtful whether the act or acts involved may amount to one or acts involved may amount to one or another of several cognate offences. Reading Sub-sec. (1) or (2) together it is clear that where there is no difficulty about the facts, but they are such that it is doubtful which of the several offences has been committed and the accused is charged with one of the such offences, he may be convicted of the another offence proved to have been committed though not charged It is clear from the aforesaid provision that Sub-sec. (1) applies to those cases only in which the prosecution cannot establish exclusively any one offences, but is able, on the facts which can be proved to exclude the innocence of the accused and to show that he must have committed one or two or more offences. Sub-sec. (2) of Sec. 221 is only a corollary to Sub-sec. (1) applies to those cases only in which the prosecution cannot establish exclusively any one offences, but is able, on the facts which can be proved to exclude the innocence of the accused and to show that he must have committed one or two or more offences. Sub-sec. (2) of Sec. 221 is only a corollary to Sub-sec. (1) and emphasises that even when number of charges could be joined together in the cases set out in Sub-sec. (1) and one or more are not put in, even then they can be convicted in respect of those offences despite the absence of charges. The object is to prevent the failure of justice in cases where the commission of the offence not proved, but there is no specific charge for it. 9. Having regard to the settled principles of law discussed hereinabove, I do not find any force in the submission of Mr. Dayal. 10. The charge under Secs. 304 (B) and 306 of the Indian Penal Code cannot stand together. As indicated above, charges has been framed by the court below under Sec. 304 (B) in the alternative under Sec. 306 of the Indian Penal Code. The question of standing the aforesaid two charges together cannot arise. 11. Lastly, Mr. Dayal has drawn my attention to the charge framed by the court below and submitted that framing of charge is not an empty formality, but while framing the charge it is the duty of the court to apply its judicial mind and consider whether or not there is,any ground for presuming the commission of the offence by the accused, as it affects the persons liberty substantially. learned Counsel in support of his contention has relied upon a decision of this Court in Sunil Kumar Jha V/s. The State Bihar 1997 (1) PLJR 466 : (1997) 1 BLJR 668. True it is that the court cannot blindly accept the decision of the prosecution compelling the accused to face the trial. But it must see as to whether there is a prima facie case against the accused and there are materials the connect the accused with the alleged offence. It appears that before alleged offence. It appears that before framing the charge the learned Sessions Judge heard the parties on the petition filed by the petitioner for discharging him from the prosecution and passed the order dated 19.8.1991. It appears that before alleged offence. It appears that before framing the charge the learned Sessions Judge heard the parties on the petition filed by the petitioner for discharging him from the prosecution and passed the order dated 19.8.1991. From perusal of the aforesaid order, it appears that the materials available in the case diary came to a prima facie finding that there is enough ground for presuming that the accused has committed offence under Sec. 304 (B) of the Indian Penal Code or in the alternative the offences under Sec. 306 of the Indian Penal Code. Accordingly the learned Sessions Judge rejected the application of the accused-petitioner and ordered that let the charge be framed under the aforesaid two Sections. Consequently the learned Sessions Judge framed the charge. In such view of the matter, I am of the opinion that the court below before framing of charge has applied its judicial mind and has proceeded in accordance with law. I, therefore, do not find any illegality or infirmity in the impugned order whereby and whereunder charge has been framed against the petitioner. 12. In the result, I find no merit in this application and it is accordingly dismissed.