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2020 DIGILAW 1151 (ALL)

Rehana v. State of U. P.

2020-09-22

GAUTAM CHOWDHARY

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JUDGMENT : GAUTAM CHOWDHARY, J. 1. Heard Sri. N.I. Jafri, Senior Advocate assisted by Sri. Gurfan Ahmad Khan, learned counsel for the revisionists, learned A.G.A. for the State of U.P. and perused the record. 2. The present criminal revision has been filed with a prayer to allow the revision and set aside the judgment and order dated 07.01.2020 passed by learned Sessions Judge, Badaun, in Sessions Trial No. 62 of 2019 (State vs. Mushrarat Khan and Others) in Case Crime No. 446 of 2018, under sections 498-A, 304-B IPC read-with section 3/4 Dowry Prohibition Act, Police Station-Wazir Ganj, District-Budaun upon application filed under section 319 Cr.P.C. filed by opposite party no. 2 which is pending in the court of Sessions Judge, Badaun. 3. In short brief facts of the case are that the revisionists of the said case were exonerated during investigation and no charge-sheet was submitted against them. The first information report of the incident was lodged by the father of the deceased Anish Khan/opposite party no. 2. According to the statement of PW-1, prior to the incident, it was told to the informant by the daughter of the deceased that her husband Mushrarat Khan, her in-laws being father-in-law Maisar Khan, mother-in-law, Sahida, devar Nasrat Khan and nanad Rihana used to physically and mentally torture her for dowry. It was also told that all the above accused demanded a new car and they also asked for 14 tola gold and one lakh rupees cash. According to the first information report, on 28.10.2016 the deceased, Maijveen was harassed and beaten up by her in-laws for demanding the said dowry and on 29.10.2016 it came within the knowledge of the first informant by his relative that her daughter Maijveen had been killed by her in-laws by poisoning. The body of the deceased was kept on the boundary of her house and all the in-laws had escaped from the house. He reported the incident at Police Station-Wazirganj against husband, Mushrarat Khan, father-in-law, Maisar Khan, mother-in-law, Sahida, devar, Nasrat Khan and nanad, Rihana but the co-accused Nasrat Khan and Rihanna got exonerated during investigation and the charge-sheet was not submitted against them, while the lower court found that Nasrat Khan and Rihanna were the participants of the said incident and therefore they needs to be summoned. 4. 4. Revisionist's counsel has tried to point out certain infirmities in the evidence which has been made the basis to summon the accused-revisionists under Section 319 of Cr.P.C. The factual controversies have been raised and certain submissions which are more in the nature of ultimate defense that the accused may finally take to show their innocence, have also been made. The plea that the accused-revisionist has been falsely implicated, has also been taken. Learned counsel for the revisionist has not been able to point out any such illegality or impropriety or incorrectness which may persuade this Court to interfere in the impugned order. There is no abuse of court's process perceptible in the same. The relevant law also have been taken into consideration by the lower court. This Court also does not see any such element of perversity in the impugned order. The evidence as has been produced during the course of trial appears to have been sufficient to justify the summoning of the revisionists. 5. At this stage, reference may also be made to the five judges judgment of Apex Court in the Case of Hardeep Singh vs. State of Punjab and Others, 2014 (3) SCC 92 , wherein the Apex Court has also considered the words Inquiry ‘Trial’ the relevance of the material collected during the course of inquiry and its evidentiary value. Paragraphs 27, 29, 34, 39, 41, 81, 82, 83 of the said judgment are relevant for the controversy in hand and are therefore, reproduced herein-below: “27. The stage of inquiry commences, insofar as the court is concerned, with the filing of the charge-sheet and the consideration of the material collected by the prosecution, that is mentioned in the charge-sheet for the purpose of trying the accused. This has to be understood in terms of Section 2(g) Cr.P.C. which defines an inquiry as follows: “2(g) ‘inquiry’ means every inquiry, other than a trial, conducted under this Code by a Magistrate or court.” 29. Trial is distinct from an inquiry and must necessarily succeed it. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly vs. State of Kerala, (2004) 4 SCC 584 : 2004 SCC (Cri) 1348, this Court observed that though the word “trial” is not defined in the Code, it is clearly distinguishable from inquiry. The purpose of the trial is to fasten the responsibility upon a person on the basis of facts presented and evidence led in this behalf. In Moly vs. State of Kerala, (2004) 4 SCC 584 : 2004 SCC (Cri) 1348, this Court observed that though the word “trial” is not defined in the Code, it is clearly distinguishable from inquiry. Inquiry must always be a forerunner to the trial. 34. In Common Cause vs. Union of India, (1996) 6 SCC 775 : 1997 SCC (Cri) 42 : AIR 1997 SC 1539 , this Court while dealing with the issue held: (SCC p. 776, para-1) “(i) In cases of trials before the Sessions Court the trials shall be treated to have commenced when charges are framed under Section 228 of the Code of Criminal Procedure, 1973 in the cases concerned. (ii) In cases of trials of warrant cases by Magistrates if the cases are instituted upon police reports the trials shall be treated to have commenced when charges are framed under Section 240 of the Code of Criminal Procedure, 1973 while in trials of warrant cases by Magistrates when cases are instituted otherwise than on police report such trials shall be treated to have commenced when charges are framed against the accused concerned under Section 246 of the Code of Criminal Procedure, 1973. (iii) In cases of trials of summons cases by Magistrates the trials would be considered to have commenced when the accused who appear or are brought before the Magistrate are asked under Section 251 whether they plead guilty or have any defence to make.” (Emphasis supplied) 39. Section 2(g) Cr.P.C. and the case laws referred to above, therefore, clearly envisage inquiry before the actual commencement of the trial, and is an act conducted under Cr.P.C. by the Magistrate or the court. The word “inquiry” is, therefore, not any inquiry relating to the investigation of the case by the investigating agency but is an inquiry after the case is brought to the notice of the court on the filing of the charge-sheet. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial. 41. The court can thereafter proceed to make inquiries and it is for this reason that an inquiry has been given to mean something other than the actual trial. 41. In a somewhat similar manner, it has been attributed to the word “course” the meaning of being a gradual and continuous flow advanced by journey or passage from one place to another with reference to period of time when the movement is in progress. [State of Travancore-Cochin vs. Shanmugha Vilas Cashewnut Factory, AIR 1953 SC 333 ] 81. An inquiry can be conducted by the Magistrate or court at any stage during the proceedings before the court. This power is preserved with the court and has to be read and understood accordingly. The outcome of any such exercise should not be an impediment in the speedy trial of the case. Though the facts so received by the Magistrate or the court may not be evidence, yet it is some material that makes things clear and unfolds concealed or deliberately suppressed material that may facilitate the trial. In the context of Section 319 Cr.P.C. it is an information of complicity. Such material therefore, can be used even though not an evidence in stricto sensu, but an information on record collected by the court during inquiry itself, as a prima facie satisfaction for exercising the powers as presently involved. 82. This pre-trial stage is a stage where no adjudication on the evidence of the offences involved takes place and therefore, after the material along with the charge-sheet has been brought before the court, the same can be inquired into in order to effectively proceed with framing of charges. After the charges are framed, the prosecution is asked to lead evidence and till that is done, there is no evidence available in the strict legal sense of Section 3 of the Evidence Act. The actual trial of the offence by bringing the accused before the court has still not begun. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. What is available is the material that has been submitted before the court along with the charge-sheet. In such situation, the court only has the preparatory material that has been placed before the court for its consideration in order to proceed with the trial by framing of charges. 83. It is, therefore, not any material that can be utilised, rather it is that material after cognizance is taken by a court, that is available to it while making an inquiry into or trying an offence, that the court can utilise or take into consideration for supporting reasons to summon any person on the basis of evidence adduced before the court, who may be on the basis of such material, treated to be an accomplice in the commission of the offence. The inference that can be drawn is that material which is not exactly evidence recorded before the court, but is a material collected by the court, can be utilised to corroborate evidence already recorded for the purpose of summoning any other person, other than the accused. This would harmonise such material with the word “evidence” as material that would be supportive in nature to facilitate the exposition of any other accomplice whose complicity in the offence may have either been suppressed or escaped the notice of the court.” 6. In view of the discussions made herein above, the submissions made by the learned counsel for the revisionists are not found to be cogent enough to quash the order impugned in the present revision. Consequently, the present revision is accordingly dismissed. 7. However, it is observed that if the bail has not been obtained as yet, the accused-revisionist may appear before the court below and apply for bail within two months from today. The court below shall make an endeavour to decide the bail application keeping in view the observations made by the Court in the Full Bench decision of Amrawati and Another vs. State of U.P. 2004 (57) ALR 290 and also in view of the decision given by the Hon'ble Supreme Court in the case of Lal Kamlendra Pratap Singh vs. State of U.P. 2009 (3) ADJ 322 (SC). 8. In the aforesaid period or till the date of appearance of the accused in the court below, whichever is earlier, no coercive measures shall be taken or given effect to.