Vikramsinh Chaitanyasinh Chudasma v. State of Gujarat
2017-04-07
A.J.SHASTRI
body2017
DigiLaw.ai
JUDGMENT : A.J. Shastri, J. 1. The petitioner has filed the present petition challenging the legality, validity and the propriety of the order passed by the learned Additional Chief Judicial Magistrate, Surendranagar in Criminal Case No. 6979 of 1995 below Exh. 1 dated 21.09.2011 and also sought consequential relief as prayed for in para 6 of the petition, which reads as under: "6. The petitioner most humbly prays: (i) that the Hon'ble Court may be pleased to call for record and proceedings of Criminal Case No. 6979/1995 pending in the Court of Addl. Chief Judicial Magistrate, Surendranagar; (ii) that the Hon'ble Court may be pleased to quash the order of framing of the charge for the offence U/s. 406 IPC in Criminal Case No. 6979/1995 pending in the Court of Addl. Chief Judicial Magistrate, Surendranagar; (iii) that the Hon'ble Court may be pleased to stay the proceedings of Criminal Case No. 6979/1995 pending in the Court of Addl. Chief Judicial Magistrate, Surendranagar; (iv) that the Hon'ble Court may be pleased to direct the opponent No. 2 to pay appropriate compensation for said illegal and unwarranted harassment after 21/7/2000 by continuing the proceedings illegally without attending the court proceedings; (v) that any just and proper order may be passed." 2. The case of the petitioner is that, marriage had taken place between the petitioner and respondent No. 2 on 17.05.1989. However since the same could not last long which has resulted into the litigation between the parties on account of some irreconcilable disputes between the husband and the wife, the petitioner has filed Hindu Marriage Petition No. 42 of 1992 before the learned Joint District Judge at Bhavnagar seeking initially divorce from respondent No. 2 on account of cruelty and desertion. On account of such proceedings, as per the say of the petitioner, that present respondent No. 2 had filed a complaint before the learned Chief Judicial Magistrate for the offences punishable under Sections 406, 498A, 504 and 506 read with Section 34 of the Indian Penal Code initially against three accused persons. The said complaint came to be registered as Criminal Case No. 6979 of 1995. 3.
The said complaint came to be registered as Criminal Case No. 6979 of 1995. 3. At the relevant point of time, the petitioner along with other two accused persons approached this Court by way of petition being Criminal Miscellaneous Application No. 339 of 1996 for quashing the said criminal case since the learned Magistrate, on 16.10.1995, was pleased to issue process upon the said complaint for offences punishable under Sections 406, 504, 506(1) read with Section 34 of the Indian Penal Code. The said petition for quashing, after hearing both the sides, came to be partly allowed by judgment and order dated 04.02.1997. 4. Pursuant to the said order passed by this Court on 04.02.1997, the case was awaiting final disposal at the trial Court level wherein during the pendency, it appears that, in Hindu Marriage Petition presented by the petitioner - accused, an overall settlement took place between the parties and a specific affidavit appears to have been filed by respondent No. 2 in said Hindu Marriage Petition No. 42 of 1992. The terms and conditions of the settlement has put an end to the entire dispute and based upon such final settlement the Hindu Marriage Petition No. 42 of 1992, which was filed by the present petitioner, came to be disposed of by decree of the divorce with mutual consent on 21.07.2000 and the marriage, which was solemnized on 17.05.1989 came to be dissolved with immediate effect. The operative part of the said decree is reproduced hereinafter. "The Marriage Petition praying for decree of divorce by mutual consent is allowed. The marriage between Vikramsinh Chaitanyasinh Chudasama and Prafullakumari Surendrasinh Jadeja which was solemnised at Surendranagar on 17-05-1989 as per Hindu rites shall stand dissolved with immediate effect. The decree of divorce under Section 13B of the Hindu Marriage Act, 1955 be issued forthwith." 5. The record indicates that after the said final disposal of the Hindu Marriage Petition in view of overall settlement, an application was filed by the present petitioner in Criminal Case for seeking discharge from the criminal prosecution and the said application was submitted on 03.02.2007 and by making such application petitioner has requested the Court below to discharge him from Criminal Case No. 6979 of 1995 filed by the respondent No. 2. However, it appears that, vide order dated 15.12.2007, the said application came to be turned down.
However, it appears that, vide order dated 15.12.2007, the said application came to be turned down. Resultantly, it appears that a Criminal Miscellaneous Application No. 11121 of 2009 came to be filed by the petitioner. This Court, on 24.09.2009, was pleased to issue notice and granted interim relief staying the further proceedings of Criminal Case by recording the fact which took place between the parties during the pendency of the proceedings. However, it further appears that said proceedings were not attended by respondent No. 2 and therefore in absence of original complainant, this Court was not in position to dispose of the petition in its entirety to quash the complaint on the basis of the settlement and therefore after observing that, it was kept open for the petitioner to move necessary application before the Court below, which will examine whether there was any real settlement between the parties, and will pass appropriate order and by observing thus, the Court was pleased to dispose of the said petition on 04.12.2009. 6. It appears from the pleadings that pursuant to the disposal of the said Miscellaneous Criminal Application, on the date of hearing in the Criminal Case, further cross examination of original complainant was to be taken up. However, the complainant did not co-operate and the proceedings were kept lingering and therefore the learned trial Judge even closed the stage of evidence of the complainant without completion of cross-examination and the matter was fixed for hearing of the charge on 01.02.2011. Though the evidence was not complete of respondent No. 2 on account of her non-cooperation, the learned judge heard the stage of framing of charge in Criminal Case on 28.02.2011 and then the matter was kept for orders on 19.03.2011. It appears further that respondent No. 2 submitted an application to recall and vacate the order of closing of case by filing an application at Exh. 183 to which the petitioner protested. However, by rejecting the objection submitted by the present petitioner, an application submitted by respondent No. 2 came to be granted and therefore again Criminal Case was kept pending for further cross examination.
183 to which the petitioner protested. However, by rejecting the objection submitted by the present petitioner, an application submitted by respondent No. 2 came to be granted and therefore again Criminal Case was kept pending for further cross examination. It appears that again on 11.07.2011 to 26.09.2011 the respondent No. 2 did not remain present before the Court and therefore once again learned Chief Judicial Magistrate was pleased to pass an order of closer of evidence of complainant without further cross examination and therefore again her cross examination could not take place on account of her non-cooperation. However, despite the aforesaid circumstances prevailing on record, the learned Additional Chief Judicial Magistrate, on 21.09.2011, was pleased to pass an order prima facie holding that case is made out of Section 406 of the Indian Penal Code and therefore directed to frame the issue for the offence of Section 406 of Indian Penal Code and it is this order passed by the learned Additional Chief Judicial Magistrate, Surendranagar has again brought the petitioner before this Court by preferring present petition. 7. In the backdrop of present factual matrix, this Court, while initially entertaining the petition on 29.12.2011, after considering and recording the fact on affidavit of respondent No. 2 filed in Hindu Marriage Petition, and after taking note of the affidavit in which a specific assertion about handing over back of her ornaments, issued notice and granted interim relief in terms of para 6(iii) of the petition. This petition thereafter appeared before this Court on 11.04.2012 wherein after hearing both the sides this Court was pleased to admit the petition and continue interim relief till further orders and with these background of facts the petition has now come up for final hearing before this Court. 8. Shri A.D. Shah, learned senior advocate appearing for the petitioner has vehemently contended that the conduct on the part of respondent No. 2 is reflecting clear intent to compel the petitioner to languish in litigation. Mr. Shah further submitted that despite the fact that there is specific settlement concluded between the parties, the respondent No. 2 has chosen to continue with the criminal case by not cooperating and in defiance of solemn assertion in the form of affidavit given by her and therefore Mr. Shah learned counsel has stated that entire conduct reflects a clear intention to abuse the process of law. Mr.
Shah learned counsel has stated that entire conduct reflects a clear intention to abuse the process of law. Mr. Shah has further contended that for framing the charge, there must be proper material before the Court and in view of the fact that cross examination has not been possible on the ground of non-cooperation of respondent No. 2 there was no sufficient evidence available with the learned Magistrate to frame the charge. Mr. Shah has further contended that the very ground on which order came to be passed by learned Chief Judicial Magistrate is not available in view of the fact that twice the stage of further cross examination was closed on the ground of persistent absent of complainant and therefore premature stage is not legal ground on which charge was to be framed. Mr. Shah has contended that it is erroneous on the part of learned Magistrate to hold that there is prima facie evidence available to frame the charge but then Mr. Shah contended that the word 'evidence' cannot be treated as 'evidence' as no cross-examination has taken place and mere chief examination cannot construe as an 'evidence'. Mr. Shah has further contended that while exercising the jurisdiction, learned Magistrate has not observed the principles laid down by the Apex Court in case of Gopal Saran v. Satyanarayan reported in AIR 1989 SC 1141 . It has also been contended that the learned Magistrate has issued process for Section 406 of Indian Penal Code but the very fact that jewellery was admittedly handed over back by the petitioner to respondent No. 2 in the proceedings before Hindu Marriage Petition and the same was verified by her own affirmation of affidavit. There appears to be no material sufficient enough to frame charge of Section 406 of the Indian Penal Code. It was also contended by Mr. Shah that entire issue was settled between the parties and in addition to jewelleries, a sizeable amount of Rs. 1,25 lakhs was fixed and paid to her by way of full and final settlement in the form of permanent alimony as well and therefore Mr. Shah has contended that the reasons which are assigned by learned trial Judge are not palatable in eye of law. It is also contended by Mr.
1,25 lakhs was fixed and paid to her by way of full and final settlement in the form of permanent alimony as well and therefore Mr. Shah has contended that the reasons which are assigned by learned trial Judge are not palatable in eye of law. It is also contended by Mr. Shah that complainant happened to be a lawyer and therefore deliberately is not attending the proceedings and conveniently after stage of examination in chief recorded way back on 03.11.1998, she has chosen not to remain present and kept the issue entirely languishing. This amounts to sheer abuse of process which ought not to have ignored by learned Magistrate. Mr. Shah drawn attention of this Court and contended that settlement has taken place way back in July, 2000 and divorce decree with mutual consent came to be passed in July, 2009 and therefore not to appear for cross examination for almost a period of 10 years after settlement and still not remaining present, amounts to a clear intention to abuse the process of law and therefore on the contrary requested the Court that instead of order under challenge the entire complaint deserves to be quashed. Mr. Shah, the learned advocate has further contended that a valuable right is entangled in provisions of Sections 244 and 245 of the Cr.P.C. and its inbuilt mechanism requires application of mind while resorting to. Here order impugned does not require any such eventuality and therefore it requires to be set aside. 9. Mr. Shah, the learned advocate has further contended that after full and final overall settlement deduced in writing, signed by the parties and based upon such consequential decree for divorce with mutual consent leaves no room for respondent No. 2 to raise any grievance as no further dispute survives after such incident and therefore the continuation of proceedings amounts to a sheer abuse of process. Mr. Shah has further drawn attention of this Court to a decision in the case of Shlok Bhardwaj v. Runika Bhardwaj reported in (2015) 2 SCC 721 and has contended that learned judge before passing an order impugned ought to have appreciated this material aspect and therefore by referring to this decision of Apex Court Mr. Shah has contended to grant relief as prayed for in the petition. Mr.
Shah has contended to grant relief as prayed for in the petition. Mr. Shah has further drawn attention of this Court to a decision rendered in case of Ram Kumar Pande v. The State of M.P. reported in AIR 1975 SC 1026 in which it has been pointed out that there is no concept of res judicata in criminal jurisprudence and therefore present petition is maintainable and by referring to these decisions Mr. Shah requested the Court to allow the petition. It has been contended that for resorting to a stage of section 244 and 245(i) of Cr.P.C., there must be some evidence and mere chief examination cannot construe as 'evidence' and therefore in the absence of any evidence the trial Court could not have passed an order impugned in the present petition. Mr. Shah has further contended that after referring to the impugned order that there is complete lack of application of mind, the reasons which are assigned and based upon the impugned order are not germane to law and the background of fact clearly indicates that respondent No. 2 somehow utilised her position as a lawyer to harass the petitioner which clearly indicates ill-intention of respondent and therefore the same may not be encouraged any further and requested the Court to grant the relief as prayed for. Mr. Shah by canvassing these submissions has drawn attention of this Court to a settlement deed attached to the petition compilation in which there appears to be a clear assertion that ornaments given at the time of marriage have been handed over back and there appears to be a declaration that no further ornament is left out from being handed over. Further assertion is also brought to the notice of this Court is that an amount of Rs. 1.25 lakhs is fixed as permanent alimony as a full and final settlement between the parties and it is also emerging that criminal case is required to be withdrawn. Mr. Shah has brought to the notice of this Court that this deed has been signed by respondent No. 2, identified by learned advocate and an order is also passed about recording of settlement which reads as under: "Heard the deponent in person. She is herself an Advocate. She agrees to the contents of this affidavit. Hence recorded." and based upon this settlement, Mr.
She is herself an Advocate. She agrees to the contents of this affidavit. Hence recorded." and based upon this settlement, Mr. Shah has brought to the notice of this Court that divorce took place by consent and therefore ultimately requested the Court to consider all these factual circumstances and allow the petition. 10. To oppose the stand taken by the petitioner Mr. Satyen Raval, learned advocate representing respondent No. 2 has contended that petition is not maintainable as the same is a successive petition. It has also been contended that pursuant to the earlier order of this Court dated 04.12.2009 passed in Criminal Miscellaneous Application No. 11121 of 2009 the petitioner was under an obligation to submit an application before the Court below who will examine whether settlement was genuine or not, still no such application is presented and therefore when the petitioner himself has not availed that opportunity the plea raised by petitioner in present proceedings is not available to him. Mr. Raval, learned advocate has further contended that even if the factum of consent terms in the form of affidavit is not in dispute still however in the absence of any application having been given by the petitioner as per earlier order it is not open for petitioner to raise any grievance against the order which has been passed by learned Magistrate. Mr. Raval has further contended that the contention regarding premature which has been raised in hearing for framing of charge is just and valid ground for substantiating the order dated 21.09.2011 and there appears to be no legal infirmity in arriving at such decision and therefore in absence of any legal infirmity petition may not be entertained any further. Mr. Raval has further contended that there are enough circumstances available to attract the ingredients of breach of trust and therefore rightly the charge is ordered to be framed for offences under Sections 406 of Indian Penal Code. Mr. Raval has contended that still the petitioner is in possession of many more articles of Shtridhan property of respondent No. 2 and inspite of faith and trust reposed in petitioner, the petitioner has chosen not to hand over the same and therefore there is no error committed by learned Magistrate in framing charge for offence under Section 406 of the Indian Penal Code. Mr.
Mr. Raval has further contended that there are many disputed questions of facts which require to be adjudicated and examined during the trial and therefore at this stage of the proceedings to come to the conclusion that charge of Section 406 of Indian Penal Code is erroneously framed is not safe to conclude and therefore petition being devoid of merits deserves to be dismissed. Mr. Raval further contended that inspite of liberty the petitioner has chosen not to move an application and has not permitted the aspect of examination of settlement between the parties and therefore rightly an order came to be passed to frame the charge of Section 406 of Indian Penal Code. After referring to the material attached to petition compilation, ultimately Mr. Raval has requested the Court to dismiss the petition at this stage of proceedings, however, has candidly offered no contrary circumstances towards the signature of respondent No. 2, the identification and her declaration on oath at Exh. 140, dated 20.07.2000. 11. Mr. L.R. Poojari, learned Additional Public Prosecutor has also submitted that since the signature, identification and declaration is not in dispute by respondent No. 2 and based upon which the decree for divorce with consent of the parties was also not disputed, in absence of any cogent material to frame the charge for offence under Section 406 of Indian Penal Code is not justified, however, since it is essentially a fight between the petitioner and respondent No. 2 has left the matter to discretion of the Court to pass suitable order. 12. Mr. Shah, learned senior counsel, in contrast to the submissions made by learned advocate for respondent No. 2 - complainant, has drawn attention of this Court to the affidavit in rejoinder submitted at page-69 of the petition compilation and has specifically drawn attention of the Court to the fact that there is a categorical denial about any ornament left out of respondent No. 2 after compromise which took place on 28.07.2000. Mr.
Mr. Shah has specifically drawn attention to averments made by respondent No. 2 in affidavit in rejoinder more particularly in para 9 are per-se incorrect, nowhere any grievance is raised before the forum where the decree for divorce came to be passed and on the contrary the disposal of the Hindu Marriage Petition, it is respondent No. 2 who has refrained from observing the terms of affidavit and therefore as a sheer false suit is at the best of respondent No. 2 tried to be projected before the Court. Mr. Shah has specifically drawn attention of the Court to aforesaid proceedings before the Court below where the complainant has chosen not to even attend Court proceedings and not to make her available for cross examination and therefore Mr. Shah has contended that she being a lawyer is trying to misuse the process and for that Mr. Shah drawn attention of this Court to Rojnama of the case, which reflects the non-cooperation of respondent No. 2, and the order about closer stage of cross examination passed on earlier occasion and by referring to these documents Mr. Shah has contended that entire conduct of respondent No. 2 is with an ill-motive and therefore more than enough period is dragged by respondent No. 2 and therefore ultimately requested the Court to put an end the present proceedings by allowing the petition and by granting the relief as prayed for. 13. Having heard learned advocate appearing for the respective parties and having gone through the material on record and also having perused relevant papers produced along with reply and rejoinder, following circumstances are reflecting. 13.1 The impugned challenge in the present petition is about the order of framing of charge for section 406 of the Indian Penal Code. Now to understand whether the background of fact is attracting an offence of section 406 of IPC one has to look to the definition of criminal breach of trust. Criminal breach of trust is defined under section 405 of Indian Penal Code which reads as under: "405. Criminal breach of trust.
Now to understand whether the background of fact is attracting an offence of section 406 of IPC one has to look to the definition of criminal breach of trust. Criminal breach of trust is defined under section 405 of Indian Penal Code which reads as under: "405. Criminal breach of trust. - Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits "criminal breach of trust". Section 406 of IPC is dealing with the punishment aspect of the said offence which is also quoted hereinafter. "406. Punishment for criminal breach of trust.- Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both." 13.2 The basic element to attract the offence of criminal breach of trust requires the proof of entrustment and whether the accused was actuated by dishonest intention or not misappropriated it or converted it to his own use to the detriment of person who entrusted and therefore prima facie it must indicate an aspect of entrustment between the transferor and transferee. The word 'entrusted' in this section is very important and unless there is entrustment, there cannot be an offence under this section. Now keeping this requirement of law in mind, at least prima facie the learned trial Judge at this stage ought to have gone into the aspect whether elementary circumstances appearing can attract this requirement of criminal breach of trust. The answer appears to be 'No' in view of the fact that on record an unequivocal declaration on oath in the form of affidavit is appearing at Exh. 140 filed in Hindu Marriage Petition No. 42 of 1992 which is not in dispute.
The answer appears to be 'No' in view of the fact that on record an unequivocal declaration on oath in the form of affidavit is appearing at Exh. 140 filed in Hindu Marriage Petition No. 42 of 1992 which is not in dispute. The clear assertion made in this affidavit is indicated in no uncertain terms at internal page-2 that whatever ornaments either gold or in silver had been allegedly entrusted at the time of marriage to respondent No. 2 and the same had been taken back and possessed by respondent No. 2 and there is also categorical assertion in this affidavit that no other article or ornament is left in any form and this clear assertion in the form of affidavit has been signed specifically by respondent No. 2. The signature of the respondent No. 2 has been identified by lawyer and even the learned Judge has also examined and heard respondent No. 2 in person where also she declared before the Court that contents of this affidavit are clear. Hence, the said compromise came to be recorded on 20.07.2000. 13.3 Further, this assertion on oath is reflecting clearly that all pending cases including present one which are lying in the Court at Surendrangar will have to be withdrawn in view of the statement and therefore this situation which is available before the learned trial Judge ought to have been taken note of before issuing process for offence under Section 406 of IPC. There appears to be nothing left over as per the say of respondent No. 2 only then what remains is indisputable to attract the offence under Section 406 of IPC.
There appears to be nothing left over as per the say of respondent No. 2 only then what remains is indisputable to attract the offence under Section 406 of IPC. One additional feature is also to be taken note of is that this very affidavit undisputedly considered and utilised in the main proceedings i.e. Hindu Marriage Petition No. 42 of 1992 and based upon this even the marriage between respondent No. 2 and petitioner came to be dissolved by consent with immediate effect way back on 21.07.2000 and therefore it appears from the record that the case which was to be withdrawn in the month of July, 2000 has been prolonged under one pretext or other by respondent No. 2 and that appears to be an example of abuse of process of law more particularly when the factum of affidavit and the dissolution of marriage is not in dispute even before this Court by learned counsel for respondent No. 2 and therefore there appears to be not sufficient material available to frame even the charge of offence of Section 406 of IPC. 13.4 Normally the Court has not to undertake this exercise of sufficiency of material to formulate charge of offence but the peculiar set of circumstances appearing where apart from any material, there is no justifiable material available at all to frame the charge of section 406 of IPC. On the contrary, the record indicates that there is a clear attempt on the part of respondent No. 2 to prolong the litigation and compel the petitioner to languish in litigation only. The Rojnama attached to the rejoinder affidavit by the petitioner clearly indicates that there appears to be total non-cooperation on the part of respondent No. 2 to dispose of the proceedings between petitioner and herself and there appears to be an intent and simply because respondent No. 2 happened to be a lawyer cannot take advantage of her position and allow such litigation hanging on the head of the petitioner. Had there been any dispute about the affidavit and its genuineness, dispute about settlement and dispute about the dissolution of marriage, the Court may not have thought it fit to invoke exercise of inherent jurisdiction but this peculiar set of circumstances which are prevailing on record has rather compelled the Court to examine the validity of the order passed by the learned trial Judge to frame the charge.
13.5 The Court is also mindful of the fact that at the stage of framing of charge, Court is not concerned with the proof of allegations rather to focus on material and form an opinion but at the same time the Court is also under an obligation to look into the relevant material for exercising such powers for framing the charge. Here as it reflects from the record, apart from adequacy or inadequacy of material there appears to be no material to frame charge of section 406 of IPC except bald assertion of respondent No. 2 in the complaint. But then by virtue of affidavit, by virtue of a clear declaration of respondent No. 2 herself which is not even disputed in the proceedings, it is respondent No. 2's assertion lean in favour of petitioner. 13.6 The petitioner by way of present petition has not only invoked the jurisdiction of this Court under Section 397 of Cr.P.C. only but has also invoked Section 482 of the Cr.P.C. and the conjoint effect of this invocation is to exercise a judicial discretion whether to allow such order to stand in the eye of law. No doubt there are some fetters in exercising such jurisdiction but when conscience of the Court is shaken that no interference would result into a miscarriage of justice, the Court can certainly go into the aspect of exercise of even revisional jurisdiction under Section 397 of Cr.P.C. and this appears to be a fit case to invoke such exercise of jurisdiction. 14. It is settled propositions of law by catena of decisions that Court cannot be made a prisoner of procedure and therefore simply because the petitioner has not availed of an opportunity to file an application he is to be estopped from challenging the order of even framing of charge is not permissible. A substantive challenge is made here that of an order of framing of charge which can independently be gone into. Following is the observation of the Apex Court in case of S.P. Gupta v. Union of India reported in AIR 1982 SC 149 which is worth to be taken note of and hence quoted hereinafter. ".. it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities.
".. it must not be forgotten that procedure is but a handmaiden of justice and the cause of justice can never be allowed to be thwarted by any procedural technicalities. The Court would therefore unhesitatingly and without the slightest qualms of conscience cast aside the technical rules of procedure in the exercise of its dispensing power and treat the letter of the public minded individual as a writ petition and act upon it." A further reference can also be made to the decision of the Apex Court in the case of Kuldeep Kumar v. Smt. Chander Kanta reported in 1984 Cri.L.J. 550. Relevant para 3 of the said decision reads thus. "3. The learned counsel for the petitioner on the other hand relies upon Chandra Prakash Gupta v. State of U.P., 1979 ALL LJ 1344, in which it was held that the provisions of Ss.397 and 399 of the Code could not be a bar to the application under Sec.482. That seems to be the correct position. This court cannot be made a prisoner of procedure. In Rai Kapoor v. State (Delhi Admn.) AIR 1980 SC 258 : (1980 Cri L.J 202) it has been held that even where the High Court cannot revise and order, it is entitled to examine the matter under Section 482. I would, therefore, reject this objection." 15. The issue related to the framing of charge is an important issue which is putting criminal proceedings in motion for final adjudication and therefore Court concerned has not to look into so deeply whether offence is committed or not but at least bare minimum requirement is to be seen whether any material is available. Here to formulate an opinion that prima facie offence of section 406 of IPC is attracted, some material except bald statement has to be there on record. On the contrary, on the case on hand, a converse situation is prevailing wherein respondent No. 2 alone has submitted an affidavit in detail undisputedly which has culminated finally in ending of marriage between petitioner and respondent No. 2 way back in the year 2000 and therefore in view of such settlement it was obligatory on the part of the respondent No. 2 to withdraw from the proceedings which were pending but still however, the Rojkam indicates that the case instead of withdrawal has been dragged on till a period of more than a decade.
This being the position the conduct ought to have been measured and therefore this material aspect ought not to have been ignored while framing the charge. The Court ought to have applied the test as to whether un-controverted allegations and documents, prima facie, establish the ingredients of offence or not. The mechanical exercise is not warranted in framing of charge against the accused and therefore this being a clear example of legal infirmity in exercising jurisdiction the Court cannot ignore the same. 16. While dealing with an issue about the framing of charge a Magistrate inquiring into the case is not to act as a post office and has to come out to the conclusion whether case before him is fit for commitment of the accused to the Court of sessions. He is entitled to sift and weigh the material on record but only to see whether there is sufficient evidence for commitment or not. The exercise of jurisdiction under Sections 226 and 227 of the Cr.P.C. has been analyzed by the Apex Court in the case of Sajjan Kumar v. Central Bureau of Investigation reported in (2010) 9 SCC 368 . The Court has observed in para 21 as under: "21. On consideration of the authorities about the scope of Sections 227 and 228 of the Code, the following principles emerge: (i) The Judge while considering the question of framing the charges under Section 227 CrPC has the undoubted power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima facie case against the accused has been made out. The test to determine prima facie case would depend upon the facts of each case. (ii) 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. (iii) The court cannot act merely as a post office or a mouthpiece of the prosecution but has to consider the broad probabilities of the case, total effect of the evidence and the documents produced before the court, any basic infirmities etc. However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial.
However, at this stage, there cannot be a roving enquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial. (iv) If on the basis of the material on record, the court could form an opinion that the accused might have committed offence, it can frame the charge, though for conviction the conclusion is required to be proved beyond reasonable doubt that the accused has committed the offence. (v) At the time of framing of the charges, the probative value of the material on record cannot be gone into but before framing a charge the court must apply its judicial mind on the material placed on record and must be satisfied that the commission of offence by the accused was possible. (vi) At the stage of Sections 227 and 228, the court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. For this limited purpose, sift the evidence as it cannot be expected even at that 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. (vii) If two views are possible and one of them gives rise to suspicion only, as distinguished from grave suspicion, the trial Judge will be empowered to discharge the accused and at this stage, he is not to see whether the trial will end in conviction or acquittal." 17. In view of the aforesaid decision and the proposition of law if we apply this principle on case on hand, the background of fact can distinguish from what has been emerged. Here on the contrary, unequivocal and undisputed facts as stated here are reflecting which prima facie have not been taken care of by the learned trial Judge. Had there been any circumstance in which aforesaid issue had been touched by the trial Court and then arrived at a different satisfaction possibly the Court may not have ventured to intercept and interfere with the order. But here not only the aforesaid facts are not in dispute but except too technical points nothing further has been agitated.
Had there been any circumstance in which aforesaid issue had been touched by the trial Court and then arrived at a different satisfaction possibly the Court may not have ventured to intercept and interfere with the order. But here not only the aforesaid facts are not in dispute but except too technical points nothing further has been agitated. Simply because the ex-parte disposal of earlier proceedings, in which there is observation that applications should have been made but that simply would not preclude the petitioner from challenging the legality and validity of the order of framing of charge. Further, it appears from the record that on earlier proceedings when this Court has dealt with Criminal Miscellaneous Application No. 339 of 1996 in which at a stage of issuance of process at a very initial stage the Court did not accept the plea of petitioner but then it appears that after disposal of the said petition on 04.02.1997 there appears to be undisputed material change of circumstance by virtue of which a clear assertion is emerging of respondent No. 2 herself which fact is not in dispute and therefore in the absence of any principle of res judicata being applied in the criminal proceedings too technical plea which has been taken by learned counsel for the respondent that this tantamount to be a second petition and therefore not maintainable found to be devoid of merit. As stated earlier that the Court cannot be made a prisoner of procedure and cannot allow miscarriage of justice or to allow the party to abuse process and therefore if one looks at the decision delivered by the Apex Court and the observations contained therein in Kuldeep Kumar v. Smt. Chander Kanta (supra), on the contrary by virtue of subsequent development, respondent No. 2 has to be estopped from taking such plea and taking advantage of her own wrong of not withdrawing the criminal case and not cooperating with proceedings pending before the trial Court no leverage be given to abuse the process. The observations contained in para 11 in case of Shlok Bhardwaj v. Runika Bhardwaj reported in (2015) 2 SCC 721 is worth to be taken note of and therefore reproduced hereinafter. "11.
The observations contained in para 11 in case of Shlok Bhardwaj v. Runika Bhardwaj reported in (2015) 2 SCC 721 is worth to be taken note of and therefore reproduced hereinafter. "11. It is clear from perusal of the impugned order of the High Court that the development of settlement between the parties during pendency of the revision petition has not even been adverted to. Once the matter was settled between the parties and the said settlement was given effect to in the form of divorce by mutual consent, no further dispute survived between the parties, though it was not so expressly recorded in the order of this Court. No liberty was reserved by the wife to continue further proceedings against the husband. Thus, the wife was, after settling the matter, estopped from continuing the proceedings." Of course, the background of fact is slightly different in that case but a fact is taken note of by the Apex Court about development of settlement between the parties during the pendency of the proceedings and it has been observed that once the matter was settled between the parties the said settlement was given effect to and no further dispute was to be precipitated. Here also an affidavit clearly indicative of the fact that after settlement of dispute since no liberty was reserved by the wife to continue further proceedings against her husband respondent No. 2 has to be estopped from continuing proceedings and therefore this material aspect also ought not to have been ignored while framing the charge of such a serious offence of Section 406 of IPC. The Court has also considered the contention raised by counsel that word 'evidence' is to be construed as a combination of 'chief - examination' and 'cross-examination' and to pin' point this, counsel for the petitioner relied upon the decision of the Apex Court in the case of Gopal Saran v. Satyanarayan reported in AIR 1989 SC 1141 . However, this contention appears to be not that much attractive in view of the fact that at framing of charge the detailed examination of that nature is not to be undertaken. But still however, the word 'evidence' includes the cross-examination also and therefore few observations contained in para 5 of the said decision are wroth to be reproduced hereinafter. "....
However, this contention appears to be not that much attractive in view of the fact that at framing of charge the detailed examination of that nature is not to be undertaken. But still however, the word 'evidence' includes the cross-examination also and therefore few observations contained in para 5 of the said decision are wroth to be reproduced hereinafter. ".... It may be mentioned that the plaintiff had not subjected himself to cross-examination in spite of the order of the Court after the remand, therefore, it would not be safe to rely on the examination-in-chief recorded which was not subjected to cross-examination before the remand was made. If that is so, it will appear that there is no evidence of the plaintiff in respect of allegations in the plaint." 18. From the aforesaid observation also it appears that there is no evidence available before the learned trial Judge to frame the issue. However be that as it may, the impugned exercise of jurisdiction in framing the charge against the petitioner is based upon not cogent reasons and the ultimate conclusion reflecting in para 3 is not justifiable. From the peculiar background of the fact emerging from the record it appears that the conclusion arrived at and the reasons assigned are quite contrary to record and therefore this impugned order is necessarily required the Court to quash as not sustainable in eye of law. 19. The Court has taken care of the contention and dealt with the same as canvassed by learned counsel for the respondent about fact of non-filing of an application pursuant to the order passed by this Court and about maintainability of second petition. The Court has discarded such plea on account of undisputed substantial development in the change of circumstance in the form of affidavit of respondent No. 2 alone which has culminated into final disposal of divorce proceedings and therefore no premium can be allowed to respondent No. 2 on the ground of any hyper technicality. The conduct on the part of respondent No. 2 is not justifiable to substantiate her plea taken by counsel and therefore the Court deems it proper not to permit such hyper technicality to allow the petitioner to languish in litigation and subjected to coercive method adopted against the petitioner.
The conduct on the part of respondent No. 2 is not justifiable to substantiate her plea taken by counsel and therefore the Court deems it proper not to permit such hyper technicality to allow the petitioner to languish in litigation and subjected to coercive method adopted against the petitioner. The Court has examined the order in present peculiar set of circumstance and therefore Court has not examined any other legal right if any available to respondent No. 2. 20. In view of the aforesaid circumstances, the petition deserves to be allowed and the impugned order under challenge of framing of charge of offence under Section 406 of Indian Penal Code is quashed and set aside. Rule is made absolute to the aforesaid extent. Petition Allowed.