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2017 DIGILAW 1526 (ALL)

Saurabh Gupta v. State of U. P.

2017-06-14

K.P.SINGH

body2017
JUDGMENT K.P. Singh, J. 1. Heard Shri Hari Om Khare, learned counsel for the applicants and learned Additional Government Advocate and perused the record of the case. 2. By means of this application, the applicants, who are husband, mother-in-law and father-in-law of the victim (deceased) have prayed for quashing of an order dated 12.7.2002 passed by the Additional Sessions Judge, Court No. 2, Meerut whereby the learned Judge framed the charges against the applicants in ST No. 765 of 2002, under sections 498-A, 304-B IPC and 3/4 of Dowry Prohibition Act, police station Brahmpuri, district Meerut. 3. In brief, the facts of the case as set out in the FIR lodged by the informant Yogendra Pal Gupta, opposite party No. 2 on 20.11.1997 are that marriage of her daughter Smt. Neeru alias Moni was performed with Saurabh Gupta as per Hindu rites and rituals on 11.2.1997. After marriage the behaviours of the applicants was normal, but after some times his son-in-law Saurabh Gupta and his mother Smt. Raj Rani Gupta and father Indra Prakash Gupta beaten his daughter and kicked out her from home and asked her to bring colour T.V. and Rs. 50,000/- in cash. On the assurance of some relatives, he managed Rs. 20,000/- and sent his daughter to her in-laws house. As the thrust of money could not be quenched, they again started misbehaving and beating her daughter for additional dowry. The informant was not in a position to give the money and colour T.V. Her daughter told him as well as her mother that if they do not arrange for money, her husband and her in-laws would kill her. Today at 5.00 PM, Indraprakash has informed him on telephone that due to the blast of cylinder, his daughter Neeru and his son-in-law Saurabh have sustained burn injuries. When he reached the spot, he saw that his daughter was burnt after pouring kerosene. 4. On the basis of the aforesaid written report, a case was registered at case crime No. 314 of 1997, under sections 498-A, 304-B IPC and 3/4 Dowry Prohibition Act, Police station Brahmpuri, district Meerut. After conclusion of investigation, the Investigating Officer submitted the charge sheet against the applicants and by the impugned order the charges were framed against the applicants as mentioned herein above. 5. After conclusion of investigation, the Investigating Officer submitted the charge sheet against the applicants and by the impugned order the charges were framed against the applicants as mentioned herein above. 5. Learned counsel for the applicants has contended that learned lower court has erred in not considering the statement of the victim (deceased) recorded under section 164 Cr.P.C., which was treated as dying declaration. 6. It is also submitted that the learned trial court has illegally and arbitrarily rejected the application of the applicants for discharge and framed the charges. 7. In support of his contention, learned counsel for the applicants has cited two case laws; (i) Ramesh Kumar and others v. State of Madhya Pradesh, 1 (2001) DMC 67; and (ii) Sunil Bajaj v. State of M.P., IV (2001) CCR 131 (SC). 8. Per contra, learned Additional Government Advocate has supported the judgment of the lower court and contended that learned court below has sufficient evidence to frame the charges against the applicants under sections 498A, 304-B IPC and 3/4 of Dowry Prohibition Act. 9. The purpose of framing a charge is to give intimation to the accused of clear, unambiguous and precise notice of the nature of accusation that the accused is called upon to meet in the course of a trial. 10. Before adverting to the claim of the parties, it is useful to refer to sections 227 and 228 of the Code of Criminal Procedure, which are reproduced below: Discharge. “227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Framing of charge. 228. “227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing.” Framing of charge. 228. (1) If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which -- (a) is not exclusively triable by the court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases in accordance with the procedure for the trial of warrant cases instituted on a police report; (b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. (2) Where the Judge frame any charge under clause (b) of sub-section (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried.” 11. Relative scope of sections 227 and 228 of the Code was noticed and considered by the Hon’ble Supreme Court in Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460 . The Hon’ble Supreme Court held as under: “17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the code, unless the accused is discharged under section 227 of the Code. Under both these provisions, the Court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Under both these provisions, the Court is required to consider the “record of the case” and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the court while section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code.” “19. At the initial stage of framing of a charge, the court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage.” 12. In the case of Onkar Nath Mishra and others v. State (NCT of Delhi) and another (2008) 2 SCC 561 , the Hon’ble Apex Court in paragraph 11 of the judgment held as under: “It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage the court is not expected to go deep into the probative value of the material on record. At that stage the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence.” 13. A three Judges Bench of Hon’ble Supreme Court in the case of State of Maharashtra v. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: “32. ............ If on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the courts were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a charge, probative value of the materials on record cannot be gone into, the materials brought on record by the prosecution has to be accepted as true at that stage.” 14. In State of M.P. v. Mohanlal Soni, (2000) 6 SCC 338 , the Hon’ble Supreme court held in paragraph 7 as under: “7. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 15. The crystallised judicial view is that at the stage of framing charge, the court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused.” 15. Hon’ble Supreme Court in Sajjan Kumar v. Central Bureau of Investigation, (2010) 9 SCC, held in paragraph 24 of the Judgment as under: “At the stage of framing of charge under section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyse all the materials including pros and cons, reliability or acceptability, etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other.” 16. In State of Delhi v. Gyan Devi and others (2000) 7 SCC 239, Hon’ble Supreme Court reiterated that at the stage of framing charge the trial court is not to examine and assess in details the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the material to establish the offence alleged against the accused persons. 17. In the case in hand, serious allegations have been made against the applicants regarding dowry demand and harassment and on account on non-fulfillment of the same, she was subjected to cruelty and ultimately she was burnt to death. 18. I have gone through the above two case laws cited by the learned counsel for the applicants. The above judgments are connected with a criminal case in which accused persons were convicted and appeal had been preferred against the order of conviction, but in the present application the facts are different. In the present case the learned trial court has passed the order in question at the stage of framing of charge. So the case laws cited by the learned counsel for the applicants is of no avail. 19. In the present case the learned trial court has passed the order in question at the stage of framing of charge. So the case laws cited by the learned counsel for the applicants is of no avail. 19. Moreover, so far as the contention of the learned counsel for the applicants that learned lower court has not considered the statement of the victim recorded under section 164 Cr.P.C., while framing the charge, is concerned, Hon’ble Supreme Court in the case of State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568 , while considering the question whether the trial court can at the time of framing of charges consider the material filed by the accused, answered in negative in following words: “18. We are unable to accept the aforesaid contention. The reliance on Articles 14 and 21 is misplaced ...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood. It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression “hearing the submissions of the accused” cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law. At the stage of framing of charge hearing the submissions of the accused has to be confined to the material produced by the police.” 20. The grounds of discharge have been laid down by the Hon’ble Apex Court in Omwati v. State (Delhi Administration) 2001 (42) ACC 840 (SC), in which it has been held that the Court may discharge an accused on following considerations: (1) If upon consideration that there is sufficient grounds for proceeding against the accused, he shall discharge the accused for which he is required to record his reasons for so doing. No reasons are required to be recorded when the charges are framed against the accused persons. (2) Where it is shown that the evidence which the prosecution proposes to adduce to prove the guilt of the accused, even if fully accepted before it, is challenged in cross-examination, are rebutted by defence evidence, cannot show that accused committed the crime then and then alone the Court can discharge the accused. The Court is not required to enter into meticulous consideration of evidence and material placed before it at this stage. 21. So the materials at the hands of the prosecution are sufficient or not are matters for trial. At the stage of charge, it cannot be claimed that there is no sufficient ground for proceeding against the accused and discharge is the only remedy. Whether the trial would end in conviction or acquittal is absolutely immaterial. 22. Having considered the submissions of the parties, I am of the view that there is no infirmity or illegality in the impugned order dated 12.7.2002 passed by the Additional Sessions Judge, Court No. 2, Meerut. The application is accordingly rejected. 23. Interim order dated 05.12.2002 stands discharged. 24. 22. Having considered the submissions of the parties, I am of the view that there is no infirmity or illegality in the impugned order dated 12.7.2002 passed by the Additional Sessions Judge, Court No. 2, Meerut. The application is accordingly rejected. 23. Interim order dated 05.12.2002 stands discharged. 24. As the trial was held up for about one and a half decade, the learned lower court is directed to proceed with the trial and conclude the same as expeditiously as possible.