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2004 DIGILAW 720 (JHR)

RAJ KISHORE ROY v. STATE OF JHARKHAND

2004-07-19

M.Y.EQBAL

body2004
Judgment : M. Y. EQBAL, J. ( 1 ) THIS revision application is directed against the order dated 30-7-2002, passed by Sessions Judge in Session Trial no. 545 of 1995 whereby he has rejected the application of the petitioners under Section 227 of Cr. P. C. wherein prayer was made to discharge them from the case. ( 2 ) THE opposite party No. 2 complainant smt. Sarita Roy filed complaint case in the court of C. J. M. Jamshedpur alleging inter alia that she was married to petitioner No. 2 ravi Shankar Roy on 4-3-88 and after marriage she was subjected to assault and torture on account of demand of dowry as the same was not fulfilled. It was further alleged that due to sporadic torture and physical assault, miscarriage of the pregnancy was caused twice and during the period of gestation of pregnancy, the accused husband cohabited against her will, as a result of which premature baby was begotten and that she was driven out along with her baby, of the house and the accused persons kept all the golden ornaments, wearing apparels and other necessary articles. The complainant therefore alleged that the petitioners who are the accused persons committed offence under Sections 498-A, 406, 313, 506,109/ 34 of the I. P. C. read with Sections 3/4 of dowry Prohibition Act. ( 3 ) THE complaint petition was sent to the concerned police station and accordingly a case was instituted being Sakchi P. S. case no. 263 of 1991 and after investigation police submitted charge-sheet. Consequently, cognizance of the offence was taken and the case was committed to the Court of Session. ( 4 ) THE Court below considering the application filed by the petitioner under Section 227 of the Cr. P. C, and after hearing learned counsel, rejected the same by the impugned order. ( 5 ) I have heard learned counsel appearing for the parties. ( 6 ) BEFORE appreciating the submission of the learned counsels, I would like to refer paras 6 and 7 of the impugned order passed by Sessions Judge rejecting the application of the petitioners under Section 227 of the cr. P. C. which reads as under :"i do find force in the submission made on behalf of the State. ( 6 ) BEFORE appreciating the submission of the learned counsels, I would like to refer paras 6 and 7 of the impugned order passed by Sessions Judge rejecting the application of the petitioners under Section 227 of the cr. P. C. which reads as under :"i do find force in the submission made on behalf of the State. It be stated that it is true that the case of the complainant has been supported by her father only and none other has come forwarded to support the case of the complainant. However, I may say that it is the settled principle of criminal jurisprudence that even if one witness is found to be trust worthy, conviction can be sustained and this is not the stage to look for corroboration rather it has been well- settled by the Honble Supreme Court that the Court at the stage of Sec. 227 of Cr. ,p. C. should notmake a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial. In this regard, I may refer to a decision, reported in 1979 (3) SCC 5 (sic ). Therefore, taking into consideration the statement of the complainant, her father and the documents referred to above, I do find that there has been sufficient material to proceed with the case so far offence u/ss. 498-A, 406 and 506 of the I. P. C. is concerned. In the aforesaid situation, I may say that the decision, referred to above, on behalf of the accused- petitioners are not applicable in the facts and circumstances of the case. Now, coming to the question as to whether there has been sufficient material to ceed with the case, so far offence u/s. 313 of the I. P. C. is concerned. I may say that the complainant, though in her complaint petition, has stated that due to torture, miscarriage was caused twice, but the complainant in her statement u/s. 161 of Cr. P. C. has not stated such thing nor does the father of the complainant has stated so and that it is the case of the complainant that subsequently she begotton a prematured baby and, therefore, I am of the view that there has been no sufficient material to proceed with the case so far offence u/s. 313 of I. P. C. is concerned 228 of Cr. P. C. , let the case be remitted to the Court of C. J. M. for framing charge and to proceed with the trial. Accordingly, the petition filed u/s. 227 of cr. P. C. is disposed of. " ( 7 ) A copy of the F. I. R. and complaint petition has been annexed as Annexure I to the instant application. From bare perusal of the complaint, it appears that so far petitioner Nos. 3 to 5 are concerned no specific allegation of torture or assault has been made against them. Except against husband, petitioner No. 1 the allegation is that the accused persons assaulted the complainant for the cause of dowry. The Sessions Judge in his order has taken notice of the fact that the case of the complainant was supported only by her father and none other came forward to support the case of the complainant. It is true that the Court at the stage of Section 227 of the Cr. P. C. should not make roving enquiry into the pros and cons of the matter and weigh the evidence as if he is conducting a trial. But at the same time while exercising Jurisdiction under Section 227, Cr. P. C. the Court cannot act merely as a Post Office Box or as a mouth piece of the prosecution but has to consider the broad probability of the case; the total effect of the evidence and documents produced, any basic Infirmities and find out whether a prima facie case against the accused has been made out. The Court is bound to discharge the accused if he thinks that there is no sufficient ground for proceeding against the accused persons. ( 8 ) IN the Instant case, as noticed above, there is no specific allegation in the complaint petition against the petitioner Nos. 3 to 5. The Sessions Judge found that although in the complaint petition allegation of miscarriage due to torture was made but the complainant in her statement under section 161, Cr. P. C. has not stated such thing nor does the father of the complainant has stated so. On this ground the Sessions Judge held that there is no sufficient material to consider the case so far Section 313, I. P. C. is concerned. P. C. has not stated such thing nor does the father of the complainant has stated so. On this ground the Sessions Judge held that there is no sufficient material to consider the case so far Section 313, I. P. C. is concerned. In my view the Sessions judge also failed to take into consideration the fact that even no specific allegation of torture and assault were made in the complaint against petitioner Nos. 3 to5. In absence of specific allegation supported by evidence the Court below ought to have atleast discharge petitioner Nos. 3 to 5 as no prima facie case has been made out against them. ( 9 ) FOR the reasons aforesaid this application is allowed in part and the impugned order is modified to the extent that the trial shall proceed against petitioner Nos. 1 and 2 and petitioner Nos. 3 to 5 shall stand discharged from the prosecution. Revision partly allowed. --- *** --- .