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Allahabad High Court · body

2019 DIGILAW 2209 (ALL)

Mohd Usman v. State Of U. P.

2019-09-20

NARENDRA KUMAR JOHARI

body2019
JUDGMENT : Narendra Kumar Johari, J. The present Criminal Revision has been filed against the Order dated 02.09.2016 passed by Additional Chief Judicial Magistrate, Court No.12, Azamgarh in Case No.243 of 2014 arising out of Case Crime No.365 of 2011, U/s 498-A,504 and 506 of Indian Penal Code (hereinafter referred to as "I.P.C.") and Section 3/4 of Dowry Prohibition Act, Police Station- Dedarganj, District- Azamgarh. Learned court below has rejected the discharge application of accused-revisionist by the impugned order dated 02.09.2016. 2. The brief facts of the case is that complainant- Smt. Kiswari Begam has filed an application under Section 155 (3) of Code of Criminal Procedure (hereinafter referred to as "Cr.P.C.") stating therein that opposite parties are in-laws of her daughter, namely, Shugufta Parveen. She was tortured by her husband and his family member in connection with demand of additional dowry and she was expelled by them from her matrimonial house. She prayed before Magistrate to pass an order for registration of First Information Report against her husband and his family member/revisionist. The Magistrate considered the prayer of complainant and passed the order to police station concerned to register the case under relevant sections and to investigate. 3. In compliance of the order of Magistrate Police Station- Dedarganj, District- Azamgarh registered the Case Crime No.365 of 2011 under Sections 498-A,352,323,504 and 506 of I.P.C. and Section 3/4 of Dowry Prohibition Act, against revisionist. After due investigation, police found the prima facie case against the accused-revisionists and submitted charge-sheet against them, upon which Magistrate took the cognizance on 21.09.2012. Subsequently the Court also tried for mediation and the matter was sent for mediation to Mediation and Conciliation Centre of the Court, but the attempt was failed. 4. Accused persons appeared before the Court concerned and was released on bail. Thereafter, the accused persons moved an application in Court on 01.09.2014 and prayed for their discharge. The Court considered the application of accused persons and rejected their discharge application. Accused persons again moved the application for discharge which was again rejected by the Court on the ground of earlier rejection of discharge application. Thereafter, accused persons filed an application under Section 482 of Cr.P.C. before this Court vide Case No.5977 of 2014 and prayed to quash the chargesheet. Accused persons again moved the application for discharge which was again rejected by the Court on the ground of earlier rejection of discharge application. Thereafter, accused persons filed an application under Section 482 of Cr.P.C. before this Court vide Case No.5977 of 2014 and prayed to quash the chargesheet. The Court considered the player of accused applicant and passed the order on 26.02.2014, which reads as under: - "Heard learned counsel for the applicants and learned AGA. By moving the present application under section 482 Cr.P.C., charge sheet in Case Crime No.365 of 2011, under Sections 498-A,323,504,506 IPC and 3/4 D.P.Act, P.S. Didarganj, District Azamgarh, has been prayed to be quashed. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicant. All the submissions made relates to the disputed question of fact, which cannot be adjudicated upon by this Court under Section 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of the law laid down by Supreme Court in cases of R.P.Kapur Vs. State of Punjab, (1960) AIR SC 866, State of Haryana Vs. Bhajan Lal, (1992) SCC(Cri) 426, State of Bihar Vs. P.P.Sharma, (1992) SCC(Cri) 192 and lastly Zandu Pharmaceutical Works Ltd. Vs. Mohd.Saraful Haq and another, (2005) SCC(Cri) 283 (Para-10). The disputed defence of the accused cannot be considered at this stage. No case for quashing the charge sheet is made out and as such the prayer is declined. However, it is provided that the applicants, at proper stage of trial, without seeking any adjournment may plead his discharge, if the charge has already not been framed. With the aforesaid directions, this application is finally disposed of." 5. Accused persons again moved an application for their discharge on 01.09.2014 which was rejected by the court concerned on 02.09.2016, against which the present revision has been filed by accused/revisionist. 6. Learned counsel for revisionist has argued that the victim was dumb, that is why her evidence was not admissible as it was not recorded with the assistance of expert. It was a matrimonial dispute between husband and wife and the rest family members of husband have falsely been implicated. No specific role of revisionists has been assigned. 6. Learned counsel for revisionist has argued that the victim was dumb, that is why her evidence was not admissible as it was not recorded with the assistance of expert. It was a matrimonial dispute between husband and wife and the rest family members of husband have falsely been implicated. No specific role of revisionists has been assigned. Revisionist number 5 to 7 are sisters of her husband, they were also falsely been implicated. The demand of the dowry as mentioned in application under section 156 (3) is highly improbable. There is no medical report. The revisionist has been falsely implicated as general allegation. No case is made out against revisionist/accused, consequently they are liable to be discharged. 7. Learned counsel for respondent no.2 and learned A.G.A. has vehemently opposed the argument of learned counsel for revisionists. 8. Heard the argument of both the sides and perused the record. 9. The question before court is that what is the scope of discharge application? 10. In a warrant case which is instituted on police report when accused appears before the Magistrate at the commencement of the trial, the court upon considering the police report and documents sent with chargesheet, and after giving the opportunity of hearing to prosecution and accused if considers that the charges against the accused persons are groundless, the Court shall discharge the accused persons and record his reasons for doing so. The power is given to Magistrate is enacted under section 239 of Code of Criminal Procedure which reads as under-: "239. When accused shall be discharged.- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." 11. The wording used in above Section 'magistrate thinks' and 'magistrate considers' gives a discretionary power to Magistrate. This discretion qualifies the judicial discretion which consists the judicial application of mind. The wording 'an opportunity of being heard' does not mean hearing of arguments only rather it includes hearing of evidence as well, if needed. The wording used in above Section 'magistrate thinks' and 'magistrate considers' gives a discretionary power to Magistrate. This discretion qualifies the judicial discretion which consists the judicial application of mind. The wording 'an opportunity of being heard' does not mean hearing of arguments only rather it includes hearing of evidence as well, if needed. The Magistrate has to afford an opportunity of hearing both to the prosecution and the accused before passing any order of discharge in favour of accused. The word 'hearing' contemplates oral hearing or granting audience as distinguished from examination of anyone as a witness. In other words, the wording 'opportunity of being heard' does not mean examination of any witness as they merely gives a right of audience to the prosecution and the accused, to argue their case in favour of framing charges or discharge. The word 'consider' means to fix the mind on with a view to careful examination, that is due application of mind. In another words it can be said that while framing charge the Magistrate is expected to apply his mind to the facts of the case keeping in view the a essential ingredients of the offence for which the accused is sought to be charged. 12. The real test for determining whether the charge should be considered groundless is that where the materials are such that even if unrebutted, make out no case whatsoever. Even very strong suspicion founded on materials before magistrate is sufficient for framing of charges. Where there is prima facie material is available to frame charge against the accused, it cannot be said to be groundless and accused cannot be discharged under section 239 of Cr.P.C. This is not the stage for weighing the pros and cons of all the implications of the materials. The exercise at this stage should be confined to considering the police report and the documents sent along with, to decide whether an allegation against the accused are groundless or whether there is a ground for presuming that the accused has committed the offence. The presumption therein is always rebuttable by the accused for which there must be opportunity of participation in the trial. Undoubtedly if there is no incriminating material then the charge against the accused would be groundless. 13. The presumption therein is always rebuttable by the accused for which there must be opportunity of participation in the trial. Undoubtedly if there is no incriminating material then the charge against the accused would be groundless. 13. In present case a typed copy of First Information Report has been annexed as annexure no.1 where in the complainant has mentioned the detail facts regarding her torture by the family members of her in-laws. During investigation the statement of complainant was recorded by investigating officer under Section 161 of Cr.P.C. which is also annexed as annexure-2. The statement given by victim has also been attached with present revision as annexure-3. These statements can be considered at this stage. First information report (annexure-1) contains the reference about medical examination dated 10.08.2010 at primary health centre Sodhi. 14. It has been mentioned in discharge application dated 01.09.2014 (annexure-5) that the unmarried girls have also been implicated in the case. The word 'unmarried' gives presumption of joint residence of girls with other family members of in-laws. Nowhere in discharge application it has been mentioned that revisionists are residing separately. The question of demand of dowry can be decided after evidence and on merit of the case. Nothing has been mentioned in discharge application which could show that essential ingredients of offence are not made out. The discharge application does not contains any such fact which could be able to draw adverse interference at the stage of Section 239 of Cr.P.C. against the allegations of complainant. 15. So far as the argument regarding inadmissibility of the statement of victim, on the ground that victim was unable to speak and no assistance of interpretor was taken, is concerned, there is provision under Section 119 of Evidence Act, which reads as under:- "119. 15. So far as the argument regarding inadmissibility of the statement of victim, on the ground that victim was unable to speak and no assistance of interpretor was taken, is concerned, there is provision under Section 119 of Evidence Act, which reads as under:- "119. Witness unable to communicate verbally--A witnesses who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs; but such writing must be written and the signs made in open Court, evidence so given shall be deemed to be oral evidence: Provided that if the witness is uable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, ans such statement shall be videographed." The aforesaid provision indicates that if a witness is unable to communicate verbally the Court recording his/her statement shall take the assistance of interpretor. At the stage of Section 239 of Cr.P.C., the merit-demerit or admissibility as per provisions of evidence act cannot be considered. 16. Considering the material available on record and arguments of the both sides, no illegality or irregularity is found in the impugned order. The revision has no force and is liable to be dismissed. 17. Accordingly, the revision is dismissed. 18. The case is pending before the court concerned since 2011, therefore, trial court is directed to decide the case expeditiously preferably within 8 months from the date of receipt of this order.