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2019 DIGILAW 63 (MAN)

Maibam Renubala Devi v. Moirangthem Dinora Singh

2019-09-20

M.V.MURALIDARAN

body2019
JUDGMENT : Heard Mr. L. Padmanabh, learned counsel for the petitioner also heard Mr. L. Lokendro Singh and Mr. R.K. Priyokumar, learned counsel for the respondent. Brief Case of the Petitioner: 2. The respondent being a complainant filed Criminal (Complaint) Case No.2 of 2014 is a close friend of the petitioner No.1/accused No.1. They have no love affair. The petitioner No.2 who is accused No.4 is the lover of the petitioner No.1/accused No.1. The accused No.3, the mother of the petitioner No.1/accused No.1 arranged for marrying her daughter to another person against the interest of petitioner No.1/accused No.1. On 30.06.2013 the petitioner No.1/accused No.1 stealthily came out of her parental home and stay at the house of respondent/complainant. The parents of the respondent/complainant treated the said event of staying by the petitioner No.1/accused No.1 at their house as an elopement. After consulting to the parents of the petitioner No.1/accused No.1 who are accused No.2 and 3 performed a ceremony of Heithil-Leithinba (a customary engage ceremony) and fixed for marriage between the respondent/complainant and petitioner No.1/accused No.1 in the month of November, 2013 without consent. The respondent/complainant expended money for the marriage by constructing house, buying clothes and eatable things and also printed invitation card. He purchased T.V. and DVD set and gave to the petitioner No.1/accused No.1 for bringing them as Sridhan (Awunpot) items. While doing so, the petitioner No.1/accused No.1 eloped with the petitioner No.2/accused No.4 and lived together as husband and wife. On 21.11.2013 the respondent/complainant filed a Criminal (complaint) case No.65 of 2013 in the Court of the learned Chief Judicial Magistrate, Thoubal for the offences U/s 34/120(B)/418/500/504/506 and 493 IPC against the present petitioners and parents of the petitioner No.1. Again on 10.01.2014 the respondent/complainant filed a criminal case No.2 of 2014 in the Court of the learned Chief Judicial Magistrate, Thoubal U/s 120-B/406/418/500/504/496 and 34 IPC against the present petitioners and the parents of the petitioner No.1 on the same facts and allegation without explaining why the respondent filed the Criminal case twice on the same allegations. And the delay of filing Criminal case No.2 of 2014 was not explained. And the delay of filing Criminal case No.2 of 2014 was not explained. After due proceedings of criminal case No.2 of 2014 on 15.12.2016, Learned Chief Judicial Magistrate framed charge U/s 120(B)(1)406/504 IPC against the accused No.1 and 4 without considering the case of complainant/respondent is a Civil in nature case and whether there is prima facie evidence that the accused persons have committed the alleged offences or not?. And the main accused person No.2 and 3 who have agreed and ensure to marry the accused No.1/Petitioner No.1 to the complainant/respondent have been already discharged. The accused No.1 and 4 filed a Criminal Revision Case No. 1 of 2017 before the learned Sessions Judge, Thoubal against the said order dated 15.12.2016 passed by the learned Chief Judicial Magistrate thereby framing charge under section 120(B)(1)/406/504 IPC against the petitioners. On 20.3.2018, the learned Sessions Judge rejected the Criminal Revision Case No.1 of 2017. Hence this Criminal Petition filed before this Court. Objections raised by the Respondent: 3. The petitioner No.1 was eloped and married to the petitioner No.2 during the subsistence of a marriage contract between the petitioner No.1 and the respondent after performance of Waroipot ceremony between them which is unlawful in the eyes of law. 4. The Ld. Trial Court have framed charges against the Petitioners after discharging the parents of the petitioner No.1 even though the parents of both petitioners shall be charged for they have intentionally involved in the engagement for the same marriage between the Petitioners during the subsistence of a Marriage contract of the Petitioner No.1 with the Respondent, part performance of the same contract was completed by performing a “Waroipot” ceremony in the presence of friends and relatives. 5. The Order for framing charge was uphold by the concerned Ld. Court of Sessions, Thoubal under the verses that the meticulous analysis of the evidence is not required in the present stage of the Case. 6. The learned counsel for the petitioner cited the following decisions: 1. 1979 AIR (SC) 366 – Union of India Vs Profullo Kumar Samal 2. 2008 AIR (SC) 204 – Onkar Nath Mishra & Ors. – Vs- State (NCT of Delhi) & Anr. 3. 2010 A1 OIL 625-Sajjan Kumar Vs BI 4. 1954 AIR (SC) 266 – Harihar Chakravarty Vs State of West Bengal 5. 1970 AIR (SC) 359 – Kantilal Chandulal Mehtra Vs State of Maharashtra 6. 2008 AIR (SC) 204 – Onkar Nath Mishra & Ors. – Vs- State (NCT of Delhi) & Anr. 3. 2010 A1 OIL 625-Sajjan Kumar Vs BI 4. 1954 AIR (SC) 266 – Harihar Chakravarty Vs State of West Bengal 5. 1970 AIR (SC) 359 – Kantilal Chandulal Mehtra Vs State of Maharashtra 6. 2018 Legal Eagle 184 – Girija Prasad Gupta Vs State of U.P. and Ors. 7. I have given my careful consideration to the respective submission made by the learned counsel for both parties. 8. The test of determine a prima facie case would naturally depend upon the facts of the each case and no straight jacket formula or universal law can be made in this behalf. It is well settled proposition of law of the Hon’ble Apex Court in the Union of India Vs. Prafulla Kumar Samal and Another (cited supra), where the material placed before the Court disclosed grave suspicion against the accused which has not been properly explained the Court will be fully justified in framing the charge and proceeding with the trial. It is further observed that if two views are equally possible and if it gives rise some suspicion, but not a grave suspicion against the accused, then the Court can discharge the accused. At paragraph-10 of the said decision, it has been observed as under:- “10. Thus, on a consideration of the authorities mentioned above, the following principles emerge: (1) That the Judge while considering the question of framing the charges under Section 227 of the Code 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: (2) 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. (3) The test to determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. By and large however if two views are equally possible and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but not grave suspicion against the accused, he will be fully within his right to discharge the accused. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced Judge cannot act merely as a Post office or a mouth-piece of the prosecution, but has to consider the broad probabilities of the case, the total effect of the evidence and the documents produced before the Court, any basic infirmities appearing in the case and so on. This however does not mean that the Judge should make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial.” This proposition of law has been laid down in the case of State through Central Bureau of Investigation Vs. Dr. Anup Kumar, Srivastava (cited supra), wherein at paragraphs-25 to 30, it has been observed as under:- “25. Framing of charge is the first major step in a criminal trial where the court is expected to apply its mind to the entire record and documents placed therewith before the court. Taking cognizance of an offence has been stated to necessitate an application of mind by the court but framing of charge is a major event where the court considers the possibility of discharging the accused of the offence with which he is charged or requiring the accused to face trial. There are different categories of cases where the court may not proceed with the trial and may discharge the accused or pass such other orders as may be necessary keeping in view the facts of a given case. In a case where, upon considering the record of the case and documents submitted before it, the court finds that no offence is made out or there is a legal bar to such prosecution under the provisions of the Code or any other law for the time being in force and there exists no ground to proceed against the accused, the court may discharge the accused. There can be cases where such record reveals the matter to be so predominantly of a civil nature that it neither leaves any scope for an element of criminality nor does it satisfy the ingredients of a criminal offence with which the accused is charged. In such cases, the court may discharge him or quash the proceedings in exercise of its powers under the provisions. Similarly, the law on the issue emerges to the effect that conspiracy is an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means. The object behind the conspiracy is to achieve the ultimate aim of conspiracy. For a charge of conspiracy means knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do. 9. At this stage, it would be appropriate to quote a decision of the Hon’ble Apex Court in CBI v. K. Narayana Rao wherein it was held as under: (SCC p. 530, para 24) “24. The ingredients of the offence of criminal conspiracy are that there should be an agreement between the persons who are alleged to conspire and the said agreement should be for doing of an illegal act or for doing, by illegal means, an act which by itself may not be illegal. In other words, the essence of criminal conspiracy is an agreement to do an illegal act and such an agreement can be proved either by direct evidence or by circumstantial evidence or by both and in a matter of common experience that direct evidence to prove conspiracy is rarely available. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Accordingly, the circumstances proved before and after the occurrence have to be considered to decide about the complicity of the accused. Even if some acts are proved to have been committed, it must be clear that they were so committed in pursuance of an agreement made between the accused persons who were parties to the alleged conspiracy. Inferences from such proved circumstances regarding the guilt may be drawn only when such circumstances are incapable of any other reasonable explanation. In other words, an offence of conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent and acceptable evidence.” 10. Further, what constitutes the offence is a question of law; whether on the evidence that crime has been committed is a question of fact. If, therefore, the evidence creates doubt and does not displace wholly, the presumption of innocence, the charge cannot be said to have been established. 11. In the case on hand, the learned trial court considered the material before it and hearing the parties framed the charges for the offences under section 120(b), 406 & 504 IPC. The order of framing charge appears to have been made by proper application of judicial mind. 12. The learned counsel for the petitioner indicate strong suspicion about the existence of criminal conspiracy between accused 1 to 4. The learned trial court after considering the vague allegation in the complaint rightly discharged accused Nos. 2 and 3. 13. Therefore sufficient materials exist in the allegations in the complaint for framing charges. 14. In the result, the criminal petition is dismissed.