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2003 DIGILAW 593 (MP)

HEMRAJ v. STATE OF M P

2003-04-23

DIPAK MISRA

body2003
Judgment ( 1. ) INVOKING the revisional jurisdiction of this Court under Section 401 of the Code of Criminal Procedure (in short the Code) the accused persons, six in number, have called in question the penetrability of the order dated 1-7-1996 passed by the learned Fifth Additional Sessions Judge, Bhopal, in S. T. No. 141/96 whereby he has framed charges under Sections 304-B and 306 of the Indian Penal Code (for brevity the IPC) against the petitioners after refusing to pass an order of discharge in their favour. ( 2. ) THE facts as have been unfurled are that the marriage of the deceased, Mamta, was solemnised with Jagmat Singh and they belong to the same village having their houses in close proximity. As there was demand of dowry and the deceased was treated with cruelty she extinguished her life spark by consuming poison on 24-12-1995. On an FIR being lodged the criminal law was set in motion and eventually after completion of the investigation charge-sheet was placed before the Competent Court which in turn, committed the matter to the Court of Session. Thereafter, the matter stood transferred to the learned Trial Judge. ( 3. ) AT the time of framing of charges a prayer was made to discharge the accused persons on the grounds that a divorce had already taken place between the husband and the deceased; that there was no material on record to book them under Section 304-B of the IPC or for that matter under Section 306, IPC; that the deceased had died in her parental house; and that in the dying declaration she had not implicated any of the accused persons to attract their complicity in the offences of this nature. The learned Trial Judge on a perusal of the material brought on record came to hold that there was prima facie allegation against the accused persons and, therefore, there was no justification for not framing of charges, and accordingly he proceeded to frame the charges against the accused persons. ( 4. ) ASSAILING the aforesaid order it is averred in the petition that when the divorce had taken place a year back the question of commission of offence under Section 304-B of the IPC does not arise. ( 4. ) ASSAILING the aforesaid order it is averred in the petition that when the divorce had taken place a year back the question of commission of offence under Section 304-B of the IPC does not arise. It is urged in the petition when a relationship has come to an end even if the death had occurred within a period of seven years the concept of presumption does not get attracted. It is also putforth that the learned Trial Judge has framed the charges in a most mechanical manner without scrutinising the material brought on record and hence, the order passed by him is liable to be set aside. ( 5. ) MRS. Chanchal Sharma, learned Panel Lawyer for the State, per contra, has contended that the fulcrum of the averment that there had been a divorce by Panchayat does not commend acceptability inasmuch as the divorce by holding a Panchayat is not permissible in law as far as the accused husband and the deceased are concerned and in the absence any dissolution of marriage in accordance with law the stand taken by the revisionists is not to be taken note of. It is contended by her that mere a statement at some place would not severe the relationship and the criminal culpability would not stand extinguished by such a stray statement. The learned Panel Lawyer for the State has further submitted that approach of the learned Trial Judge can not be found fault with as he has rightly framed charges against the accused persons. ( 6. ) BEFORE I refer to the factual score I think it appropriate to refer to certain citations in the field. It is well settled in law that framing of charge is not an empty formality and the Court is not expected to act or function like a post office. It is a judicial act requiring proper application of judicial mind. It is incumbent upon the Court to consider the material before it and weigh them in the requisite parameters of law, as provided in the Code. The Apex court in the case of State of Bihar Vs. It is a judicial act requiring proper application of judicial mind. It is incumbent upon the Court to consider the material before it and weigh them in the requisite parameters of law, as provided in the Code. The Apex court in the case of State of Bihar Vs. Ramesh Singh, AIR 1977 SC 2018 , expressed the view in the following terms :- "it is not obligatory for the judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise the accused is not exactly to be applied at the stage of deciding the matter under Section 227 or Section 228 of the Code. " ( 7. ) IN the case of Union of India Vs. Prafulla Kumar, AIR 1979 SC 366 , the Apex Court has indicated the test and duty of the Court while considering the question of framing charges under Sections 226 and 228 of the code. The principles culled therein are as under :- " (1) That the Judge while considering the question of framing the charges under Section 227 of the Code has the undoubted power to sift and weigh the evidence for the limited purposes of finding out whether or not a prima facie case against the accused has been made out. (2) Where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing a charge and proceeding with the trial. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however, if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the code the Judge which under the present Code is a senior and experienced Court can not 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 evidence 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 matter and weigh the evidence as if he was conducting a trial. " ( 8. ) IN Supdt. and Remembrancer of Legal Affairs, West Bengal Vs. Anil Kumar Bhunja, AIR 1980 SC 52 , Their Lordships of the Apex Court held that if from the material on record, inference of strong suspicion can be drawn that would be sufficient in framing charge against the accused in respect of commission of the offence. In the case of Niranjan Singh Karan Singh Punjabi, advocate Vs. Jitendra Bhimraj Bijja, AIR 1990 SC 1962 , the Apex Court has ruled thus:- ". . . . . . . . It seems well settled that at the Sections 227-228 stage the court is required to evaluate the material and documents on record with a view to finding out if the acts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting alleged offence. The Court may for this limited purpose sift the evidence as it can not be expected even at the 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. " ( 9. ) IN this context I may profitably refer to the decision rendered in the case of State of Maharashtra Vs. " ( 9. ) IN this context I may profitably refer to the decision rendered in the case of State of Maharashtra Vs. Priyasharan Maharaj, AIR 1997 SC 2041 , wherein Their Lordships reiterated the principle that at the stage of framing charge the Court is required to consider material with a view to find out if there is ground for presuming that the accused had committed an offence for proceeding against him and not for the purpose of arriving at the conclusion that it does not likely to lead to a conviction. ( 10. ) IN this context I may profitably refer to the decision rendered in the case of 1998 (6) JT 371 , wherein Their Lordships clearly expressed the view that while dealing with a question of framing of charge, Court is required to confine its attention to only those material collected during investigation which can be legally translated into evidence and not upon further evidence that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. ( 11. ) FROM the aforesaid pronouncement of law, the legal principle that emerges is that at the time of framing of charge though Court is required to exercise judicial mind to the facts of the case in order to determine whether a case for trial has been made out by the prosecution but it is not necessitous to enter or probe into the pros and cons of the matter and to weigh or balance the evidence and probabilities. The evaluation of the material with niceties or scanning with the subtleties is not permissible. The Court is required to see from the facts whether accepted on the face value of the material the ingredients of the offences alleged are in existence. ( 12. ) I have stated the law as it has been averred that there has been a mechanical approach by the learned Trial Judge. Mrs. Chanchal Sharma, learned Panel Lawyer for the State has studiedly contended that the real plea canvassed before this Court that there has been a divorce but that can not be accepted in law. On a perusal of the order it transpires that though there are six accused persons the learned Trial Judge has not discussed or dwelled upon the allegations pertaining to each of the accused. On a perusal of the order it transpires that though there are six accused persons the learned Trial Judge has not discussed or dwelled upon the allegations pertaining to each of the accused. In the case of Imtiyaz Ahmed vs. State of Madhya Pradesh, 1997 (1) MPLJ 683 , Rajeev Gupta, J. after referring to the decision rendered in the case at State of Maharashtra Vs. Som nath Thapa, AIR 1996 SC 1744 , in Paragraph 6 expressed the view as under:-"6. As the tendency of framing common charges, in a trial involving more than one accused, is on the increase, it is high time to check the above trend. An accused can be made to face trial on a particular charge/charges only on the basis of the material available in the charge-sheet/complaint against that accused and not on the material available against his co-accused. It is, therefore, always incumbent on the Trial Court, while considering the framing of charges against the accused persons in a trial, involving more than one accused, to evaluate the material, available against each and every accused, individually for ascertaining the culpability of each and every accused and then frame charge/charges against each and every accused accordingly. " ( 13. ) IF the impugned order is tested on the anvil of the aforesaid principle, I am of the considered view, the same does not withstand scrutiny inasmuch as the learned Trial Judge has not considered the case of each and every accused individually for finding out whether any offence had been committed by him or her on the basis of the material brought on record. There has been, even no prima facie analysis on that score. Thus, the impugned order is liable to be lanceted on this count alone and I so do. As a logical corollary the matter has to go back to the learned Trial Judge for reconsideration of the material contained in the charge-sheet against the accused persons and to pass necessary orders according to law. It needs no special emphasis to state that if the learned Trial Judge would be convinced and would be in a position to arrive at the conclusion that no prima facie case is made out for the alleged commission of the offence by the accused person he would pass appropriate orders, if the facts and circumstances so warrant discharge of the accused persons. I may hasten to add, that I have not expressed any opinion on the merits of the case, but have only stated the guidelines. ( 14. ) RESULTANTLY, the criminal revision is allowed to the extent indicated above. A copy of the order be sent to the learned Trial Judge for due compliance in accordance with law. Entire exercise, as directed, shall be completed within a period of two months from the date of receipt of the order passed today. Criminal Revision allowed.