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2015 DIGILAW 1457 (JHR)

Ashwini Kumar Mahto v. State of Jharkhand

2015-11-23

RAVI NATH VERMA

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Order : The petitioner has questioned the legality of the order dated 07.01.2015 passed by the learned Judicial Magistrate, 1st Class, Bokaro in G.R. Case no. 808 of 2013 arising out of Chandankiary (Barmasia) P.S. Case No. 54 of 2013 instituted under Section 498-A of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act whereby and whereunder the petition filed by the petitioner for his discharge under Section 245 of the Code of Criminal Procedure (in short ‘the Code’) has been rejected. 2. The factual aspect of the case, which is necessary for the proper adjudication of the issue involved in this case, is as follows: At the instance of the informant Rita Mahto, the aforesaid case was instituted on the basis of a written complaint filed by her with the allegation that the marriage of the informant was solemnized with Parwati Charan Mahto @ Bapi, the son of the present petitioner, in the year 2006 in which her father had given sufficient dowry by way of cash, motorcycle, golden chain and other articles but after the birth of a female child, her husband started demanding Rs.50,000/- for purchasing computer otherwise threatened to solemnize second marriage and due to non-fulfillment of their demand of dowry, she was subjected to physical and mental torture at the hands of her husband, father-in-law and mother-in-law. 3. After completion of the investigation, the police submitted the charge sheet whereafter the court concerned took cognizance of offence. The petitioner filed a petition for his discharge under Section 245 of the Code, but the same was rejected by the order impugned holding sufficient prima facie materials available on record against the petitioner for framing of charge. 4. Learned counsel for the petitioner while assailing the order impugned as perverse and bad in law seriously contended that the court below while considering the issue of sufficiency of prima facie materials against the petitioner to frame charge, has not applied its judicial mind and ignored the very settled principle of law. In fact, the court below in the impugned order has not considered at all and discussed the evidences and materials available in the case diary. It was also submitted that there is no specific allegation of either demand of dowry or torture against this petitioner. In fact, the court below in the impugned order has not considered at all and discussed the evidences and materials available in the case diary. It was also submitted that there is no specific allegation of either demand of dowry or torture against this petitioner. Lastly, the court below has wrongly interpreted the petition filed for discharge as under Section 245 of the Code of Criminal Procedure in place of Section 239 of the Code. 5. Contrary to the aforesaid submissions, the learned counsel representing the State seriously contended that the court below while rejecting the prayer for discharge has clearly given a finding of sufficiency of material available on record to frame charge against the petitioner and at this stage, meticulous examination of evidences and roving enquiry are not possible. 6. Before adverting to the rival submissions, I think it proper to examine the scope and ambit of power of the court on discharge petition. The Criminal Procedure Code contemplates the discharge of an accused by the court of sessions under Section 227 of the Code in a case triable by it, the cases instituted upon a police report and triable by a Court of Magistrate are covered by Section 239 of the Code and the cases instituted otherwise than on a police report i.e. complaint are dealt with in Section 245 of the Code. From a mere reading of the aforesaid provisions, it is evident that on the basis of a complaint filed by a party, the petition for discharge would be maintainable under Section 245 of the Code otherwise in a sessions triable cases, the petition for discharge shall be maintainable under Section 227 of the Code and in cases instituted upon police report triable by a court of Magistrate is covered under Section 239 of the Code. In the instant case, the first information report was lodged at the instance of the informant and after investigation, police submitted the charge-sheet under Section 498-A of I.P.C. and 3/4 of Dowry Prohibition Act, which is exclusively triable by a court of Magistrate. Hence, a petition under Section 239 of the Code was maintainable for discharge but the court below has wrongly considered the petition filed for discharge under Section 245 of the Code. It is true that nomenclature of the case is not important. Hence, a petition under Section 239 of the Code was maintainable for discharge but the court below has wrongly considered the petition filed for discharge under Section 245 of the Code. It is true that nomenclature of the case is not important. Now, I would like to examine the issue involved in this case on the merit of the case. 7. There is basically no difference in a discharge petition filed either under Section 227 or 239 of the Code. The above two provisions of the Code provide that upon consideration of the record of the case, the documents submitted with the police report as contemplated under Section 173 of the Code and after hearing the prosecution and the accused, the court is expected and bound to decide whether there is sufficient ground to proceed against the accused and as a consequence thereof either discharge the accused, if there is no prima faice case, or proceed to frame charge against the said accused. The settled law at this point is succinctly analyzed by the Hon’ble Supreme Court in Sajjan Kumar Vs. CBI [ (2010) 9 SCC 368 ] wherein the Hon’ble Court has observed in para 19 as under: “ 19. It is clear that at the initial stage, if there is 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 only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. If the evidence which the prosecution proposes to adduce prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted 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.” 8. In another case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the same issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 as follows:- “28. In another case Rajiv Thapar and others Vs. Madan Lal Kapoor; (2013) 3 SCC 330 , the Hon’ble Supreme Court while dealing with the same issue of discharge in a complaint case, lodged at the instance of father of a deceased girl, held in paragraph- 28 as follows:- “28. This is not a stage of evaluating the truthfulness or otherwise of the allegations levelled by the prosecution/complainant against the accused. Likewise, it is not a stage for determining how weighty the defences raised on behalf of the accused are. Even if the accused is successful in showing some suspicion or doubt, in the allegations levelled by the prosecution/complainant, it would be impermissible to discharge the accused before trial. This is so because it would result in giving finality to the accusations levelled by the prosecution/complainant, without allowing the prosecution or the complainant to adduce evidence to substantiate the same. The converse is, however, not true, because even if trial is proceeded with, the accused is not subjected to any irreparable consequences. The accused would still be in a position to succeed by establishing his defences by producing evidence in accordance with law. There is an endless list of judgments rendered by this Court declaring the legal position that in a case where the prosecution/complainant has levelled allegations brining out all ingredients of the charge(s) levelled, and have placed material before the Court, prima facie evidencing the truthfulness of the allegations levelled, trial must be held.“ 9. I have also gone through the case diary available on the record and I find that there is strong prima facie case and grave suspicion against this petitioner also. The witnesses examined during investigation in different paragraphs of case diary have all supported the prosecution version of demand of dowry and torture. This is not a stage to make a roving enquiry into the matter or to see whether the trial will end in conviction or acquittal rather the court has to presume a strong suspicion or a grave prima facie case to proceed with the case. Even if the accused is successful in showing the suspicion or doubt in the allegation levelled by the prosecution, at this stage, it would be impermissible to discharge the accused before trial. 10. For the reasons aforesaid, I do not find any illegality in the order impugned. Accordingly this revision application is, hereby, dismissed.