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2020 DIGILAW 1173 (ALL)

Sohanveer Singh v. State of U. P.

2020-09-29

MANJU RANI CHAUHAN

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JUDGMENT : MANJU RANI CHAUHAN, J. 1. This criminal revision U/s 397/401 Cr.P.C. has been filed against the order passed by the Additional Sessions Judge/Special Judge (POCSO-III), Amroha in Sessions Trial No. 296 of 2019 (State vs. Sohanveer Singh) arising out of Case Crime No. 93 of 2018, under Sections 420, 406, 498-A, 307, 323, 504 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Didauli, District-Amroha, whereby discharge application filed by the revisionist under Section 227 I.P.C. has been rejected. 2. Heard Mr. Amit Kumar Srivastava, learned counsel for the revisionist, Mr. Amit Daga, learned counsel for opposite party no. 2 and the learned A.G.A. for the State as well as perused the entire material available on record. 3. The facts, which are born out from the records of the present criminal revision are as follows: The marriage of Sameer Malik, son of the present revisionist, namely, Sohanveer Singh has been solemnized on 23rd November, 2010 with opposite party no. 2, namely, Jyoti in accordance with Hindu Rites and Rituals. However, after some time, the relationship between the husband and wife became strained and incompatible due to which the opposite party no. 2 has lodged first information report on 17th March, 2018, which has been registered as Case Crime No. 93 of 2018, under Sections 420, 406, 498-A, 307, 323, 504 I.P.C. as also under Sections 3/4 D.P. Act, Police Station-Didauli, District-Amroha against revisionist (father-in-law, Anupam Singh (mother-in-law), Sameer Malik (husband) and Shweta Malik (sister-in-law). After registration of the aforesaid first information report, the revisionist and other named accused persons had approached this Court by means of Criminal Misc. Writ Petition No. 9838 of 2018, wherein their arrest had been stayed till submission of the Police report by a Coordinate Bench of this Court vide order dated 18th April, 2018. After completing statutory investigation under Chapter XII Cr.P.C. the Police has submitted charge-sheet on 7th July, 2018 against the revisionist, his wife and son, namely, Anupam Singh and Sameer Malik respectively under Sections 420, 406, 498A, 307, 323, 504 I.P.C. as also under Sections 3/4 D.P. Act, whereas the daughter of the revisionist, namely, Shweta Malik has been exonerated by the Investigating Officer. On the charge-sheet being submitted, cognizance was taken by the Chief Judicial Magistrate, Amroha vide order dated 19th September, 2018 and the case has been registered as Criminal Case No. 9086 of 2018 (State vs. Sameer Malik and Others). Thereafter the revisionist has been granted bail by a Coordinate Bench of this Court vide order dated 18th February, 2019 passed in Criminal Misc. Bail Application No. 7104 of 2019. Thereafter the revisionist has filed a discharge application in Sessions Trial No. 296 of 2019, which has been rejected by the court below vide order dated 2nd September, 2020. It is against this order that the present criminal revision has been filed. 4. Mr. Amit Kumar Srivastava, learned counsel for the revisionist submits that the revisionist, who is 70 years old, is the father-in-law of opposite party no. 2. Being the father-in-law, he has been falsely implicated in the present case. Neither in the statements of witnesses nor in the first information report, any specific allegation qua demand of dowry or harassment of opposite party no. 2 by the revisionist, has been levelled against him. Only general and vague allegations have been made against the revisionist without any clinching evidence. Specific allegations of harassment and attempt to kill opposite party no. 2 has been levelled against his daughter, namely, Shweta Malik but she has been exonerated by the Investigating Officer, which also makes the prosecution story doubtful. He further submits that prima-facie no offence under Sections 420, 406, 498-A, 307, 323, 504 I.P.C. as also under Sections 3/4 D.P. Act is made out against the revisionist. Learned counsel for the revisionist next submits that the court below has rejected the discharge application of the revisionist by means of the order impugned, only on the basis of statements of two witnesses, namely, Aditya Khatri and Mahendra Khatri, whereas their names were not mentioned in the charge-sheet as witnesses, therefore, the order impugned is per se illegal. It is further submitted that the prosecution story is not supported by any medical evidence, as the present case is a case of no injury, whereas the revisionist is facing prosecution under Sections 307 and 323 I.P.C. which also makes the prosecution story doubtful. It is further submitted that the revisionist has neither taken any dowry from opposite party no. It is further submitted that the prosecution story is not supported by any medical evidence, as the present case is a case of no injury, whereas the revisionist is facing prosecution under Sections 307 and 323 I.P.C. which also makes the prosecution story doubtful. It is further submitted that the revisionist has neither taken any dowry from opposite party no. 2 nor he harassed her for the same, while on the other hand the revisionist purchased a property in the name of opposite party no. 2 and gave financial assistance to the tune of Rs. 84 lacs. to opposite party no. 2 and her family members. There is no independent or public witnesses on the basis of which it can be said that the revisionist has committed any offence as alleged. It is then submitted that the investigation in the present case was done in a most illegal manner. It is lastly submitted that the once the investigation is illegal, the charge-sheet on the basis of such illegal investigation has no legs to stand and entire proceedings are liable to be quashed. In support of his plea, he has placed reliance upon following judgments of the Apex Court and this Court: 1. Dilawar Balu Kurane vs. State of Maharastra, 2002 (44) ACC 447 (SC) 2. Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Chaudhary, 2009 (64) ACC 454 3. P. Vijayan vs. State of Kerala and Another, (2010) 2 SCC 398 4. L. Krishna Reddy vs. State by Station House Officer, 2013 (83) ACC 947 (SC) 5. Geeta Mehrotra vs. State of U.P. 2013 (80) ACC (U.P.) On the cumulative strength of the aforesaid, learned counsel for the revisionist submits that the order impugned rejecting the discharge application is illegal and liable to be set aside. 5. Per contra, learned A.G.A. for the State and Mr. Amit Daga, learned counsel for opposite party no. 2 submit that the order of the court below rejecting the discharge application has been passed on the basis of oral as well as documentary evidence as collected during the course of investigation as well as on the basis of statements of independent witnesses recorded before the court below. Therefore, the same is not liable to be set aside by this Court while exercising its power in revisional jurisdiction. Mr. Amit Daga, learned counsel for opposite party no. Therefore, the same is not liable to be set aside by this Court while exercising its power in revisional jurisdiction. Mr. Amit Daga, learned counsel for opposite party no. 2 further submits that the necessary ingredients which requires to constitute the alleged offence against accused persons including the revisionist are available in the first information report as well as in the statements of witnesses recorded by the Investigating Officer during the course of investigation and in series of judgments, the Apex Court as well as this Court have settled that if the material available on record, discloses grave suspicion against the accused, then the charges will be framed to proceed against the accused. Probative value of evidence (material) as brought on record cannot be gone into before or at the stage of framing of charges. It is further submitted that there are specific and ample allegations against the revisionist that he along with co-accused persons harassed, ill-treated and tortured the informant (opposite party no. 2) for nonfulfillment of additional demand of dowry. As per the version of the first information report and the statements of the witnesses, it is evident that the revisionist and other co-accused persons are responsible for harassment of opposite party no. 2 for non-fulfillment of additional demand of dowry. As per the material available on record, there are specific allegations of receiving dowry to the tune of Rs. 5 lacs by the revisionist and other co-accused persons at the time of marriage and for non-fulfillment of additional demand of dowry, they harassed and tortured her and tried to kill her also in the month of April, 2015. It is further submitted that the statements of independent witnesses, namely, Rakesh Kumar and Sm. Shobha Devi recorded by the Investigating Officer will clearly go to show that on 14th March, 2018 at about 06:00 p.m. the accused persons including the revisionist visited the parental house of opposite party no. 2 and beat opposite party no. 2 and her father brutally. It is also submitted that from the material available on record, it will also go to show that accused revisionist being head of his family concealed the material fact regarding education, employment and mental state of his son Sameer while solemnizing his marriage with opposite party no. 2, which makes the case of cheating and harassment of opposite party no. 2. 2, which makes the case of cheating and harassment of opposite party no. 2. It is lastly submitted that entire material available on record in the shape of first information report as well as statement of witnesses discloses the cognizable offence punishable under Sections 420, 406, 498-A, 307, 323, 504 I.P.C. as also under Sections 3/4 D.P. Act against the accused persons including the revisionist and thus, the revisionist cannot be discharged at this stage. In support of his case, Mr. Daga has relied upon following judgments of the Apex Court: 1. State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 2. State (NCT of Delhi) vs. Shiv Charan Bansal and Others, (2020) 2 SCC 290 3. M.E. Shivalingamurthy vs. Central Bureau of Investigation, Bengaluru, 2020 AIR (SC) 331 On the cumulative strength of the aforesaid, Mr. Daga submits that the order passed by the court below rejecting the discharge application of the revisionist is within the four corners of law and does not suffer from any illegality and infirmity. Thus, the same deserves to upheld and the present revision is liable to be dismissed. 6. I have considered the submissions made by the learned counsel for the parties and have gone through the records of the present criminal revision. 7. All the contentions raised by the revisionist's counsel relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various intricacies of factual details which have been touched upon by the learned counsel. The veracity and credibility of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded. 8. Before proceeding to adjudge the validity of the impugned order it may be useful to cast a fleeting glance to some of the representative cases decided by the Hon'ble Supreme Court which have expatiated upon the legal approach to be adopted at the time of framing of the charge or at the time of deciding whether the accused ought to be discharged. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh, 1977 (4) SCC 39 which are as follows:- “4. It shall be advantageous to refer to the observations made by the Hon'ble Apex Court in the case of State of Bihar vs. Ramesh Singh, 1977 (4) SCC 39 which are as follows:- “4. Under S. 226 of the Code while opening the case for the prosecution the prosecutor has got to describe the charge against the accused and State by what evidence he proposes to prove the guilt of the accused. Thereafter, comes at the initial stage, the duty of the Court to consider the record of the case and the documents submitted therewith and to hear the submissions of the accused and the prosecution in that behalf. The Judge has to pass thereafter an order either u/s. 227 or u/s. 228 of the Code. If “the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing”, so enjoined by s. 227. If, on the other hand, “the Judge is of opinion that there is ground for presuming that the accused has committed an offence which....... (b) in exclusively triable by the court, he shall frame in writing a charge against the accused, as provided in S. 228. Reading the two provisions together in juxtaposition, as they have got to be, it would be clear that at the beginning and the initial stage of the trial the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. Nor is any weight to be attached to the probable defence of the accused. It is not obligatory for the Judge at that stage of the trial to consider in any detail and weigh in a sensitive balance whether the facts, if proved, would be incompatible with the innocence of the accused or not. The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at this stage of deciding the matter under s. 227 and 228 of the Code. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. At that stage the court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the court to think that there is ground for presuming that the accused has committed an offence then it is not open to the court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima-facie whether the court should proceed with the trial or not. If the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence, if any, cannot show that the accused committed the offence, there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is neither possible nor advisable. We may just illustrate the difference of the law by one more example. If the scales of pan as to the guilt or innocence of the accused are something like even at the conclusion of the trial, then, on the theory of benefit of doubt the case is to end in his acquittal. But if, on the other hand, it is so at the initial stage of making an order under S. 227 or S. 228, then in such a situation ordinarily and generally the order which will have to be made will be one under S. 228 and not under S. 227.” 9. Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja, AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows: “18. Aforesaid case was again referred to in another Apex Court's decision Superintendent and Remembrancer of Legal Affairs, West Bengal vs. Anil Kumar Bhunja, AIR 1980 (SC) 52 and the Apex Court proceeded to observe as follows: “18. It may be remembered that the case was at the stage of framing charges; the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer. At this stage, as was pointed out by this Court in State of Bihar vs. Ramesh Singh, AIR 1977 SC 2018 , the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged. The standard of test, proof and judgment which is to be applied finally before finding the accused guilty or otherwise, is not exactly to be applied at the stage of Section 227 or 228 of the Code of Criminal Procedure, 1973. At this stage, even a very strong suspicion founded upon materials before the Magistrate, which leads him to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged; may justify the framing of charge against the accused in respect of the commission of that offence.” 10. In yet another case of Palwinder Singh vs. Balvinder Singh, AIR 2009 SC 887 the Apex Court had the occasion to reflect upon the scope of adjudication and its ambit at the time of framing of the charge and also about the scope to consider the material produced by the accused at that stage. Following extract may be profitably quoted to clarify the situation: “12. Having heard learned counsel for the parties, we are of the opinion that the High Court committed a serious error in passing the impugned judgment insofar as it entered into the realm of appreciation of evidence at the stage of the framing of the charges itself. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. The jurisdiction of the learned Sessions Judge while exercising power under Section 227 of the Code of Criminal Procedure is limited. Charges can be framed also on the basis of strong suspicion. Marshalling and appreciation of evidence is not in the domain of the Court at that point of time. This aspect of the matter has been considered by this Court in State of Orissa vs. Debendra Nath Padhi, (2005) 1 SCC 568 wherein it was held as under: “23. As a result of the aforesaid discussion, in our view, clearly the law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. Satish Mehra's Case holding that the trial Court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided.” 11. The following observations made by the Hon'ble Supreme Court in the case of Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Choudhary, AIR 2009 SC 9 also reiterated the same position of law:- “10. After analyzing the terminology used in the three pairs of sections it was held that despite the differences there is no scope for doubt that at the stage at which the Court is required to consider the question of framing of charge, the test of a prima-facie case to be applied. 11. The present case is not one where the High Court ought to have interfered with the order of framing the charge. As rightly submitted by learned counsel for the appellant, even if there is a strong suspicion about the commission of offence and the involvement of the accused, it is sufficient for the Court to frame a charge. At that stage, there is no necessity of formulating the opinion about the prospect of conviction. That being so, the impugned order of the High Court cannot be sustained and is set aside. The appeal is allowed.” 12. In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The appeal is allowed.” 12. In fact while exercising the inherent jurisdiction under Section 482 Cr.P.C. or while wielding the powers under Section 226 of the Constitution of India the quashing of the complaint can be done only if it does not disclose any offence or if there is any legal bar which prohibits the proceedings on its basis. The Apex Court decisions in R.P. Kapur vs. State of Punjab, AIR 1960 SC 866 and State of Haryana vs. Bhajan Lal, 1992 SCC (Cr.) 426 make the position of law in this regard clear recognizing certain categories by way of illustration which may justify the quashing of a complaint or charge-sheet. 13. In the case of State (NCT of Delhi) (Supra), which has been relied upon by the learned counsel for opposite party no. 2, the Apex Court in paragraph nos. 39 and 40 has observed as follows: “39. The Court while considering the question of framing charges under Section 227 of the Cr.P.C. has the power to sift and weigh the evidence for the limited purpose of finding out whether or not a prima-facie case has been made out against the accused. The test to determine prima-facie case would depend upon the facts of each case. If the material placed before the court discloses grave suspicion against the accused, which has not been properly explained, the court will be fully justified in framing charges and proceeding with the trial. The probative value of the evidence brought on record cannot be gone into at the stage of framing charges. 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 ingredients constituting the alleged offence. At this stage, there cannot be a roving enquiry into the pros and cons of the matter, the evidence is not to be weighed as if a trial is being conducted. Reliance is placed on the Judgment of this Court in State of Bihar vs. Ramesh Singh where it has been held that at the stage of framing charges under Sections 227 or 228 of the Cr.P.C. if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused had committed the offence, then the Court should proceed with the trial. 40. 40. In a recent Judgment delivered in Dipakbhai Jagdishchandra Patel vs. State of Gujarat and Another in Criminal Appeal No. 714 of 2019 decided on 24.04.2019, this Court has laid down the law relating to framing of charges and discharge, and held that all that is required is that the court must be satisfied with the material available, that a case is made out for the accused to stand trial. A strong suspicion is sufficient for framing charges, which must be founded on some material. The material must be such which can be translated into evidence at the stage of trial. The veracity and effect of the evidence which the prosecutor proposes to adduce are not to be meticulously judged at this stage, nor is any weight to be attached to the probable defence of the accused at the stage of framing charges. The court is not to consider whether there is sufficient ground for conviction of the accused, or whether the trial is sure to end in the conviction.” 14. Illumined by the case law referred to herein above, this Court has adverted to the entire record of the case. 15. The submissions made by the revisionist's learned counsel call for adjudication on pure questions of fact which may be adequately adjudicated upon only by the trial court and while doing so even the submissions made on points of law can also be more appropriately gone into by the trial court in this case. This Court does not deem it proper, and therefore cannot be persuaded to have a pre-trial before the actual trial begins. A threadbare discussion of various facts and circumstances, as they emerge from the allegations made against the accused, is being purposely avoided by the Court for the reason, lest the same might cause any prejudice to either side during trial. But it shall suffice to observe that the perusal of the F.I.R. and the material collected by the Investigating Officer on the basis of which the charge sheet has been submitted makes out a prima-facie case against the accused at this stage and this Court does not find any justifiable ground to set aside the impugned order refusing the discharge of the accused. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless. 16. This court has not been able to persuade itself to hold that no case against the accused has been made out or to hold that the charge is groundless. 16. The prayer for quashing or setting aside the impugned order is refused as I do not see any illegality, impropriety and incorrectness in the impugned order or the proceedings under challenge. There is absolutely no abuse of court's process perceptible in the same. The present matter also does not fall in any of the categories recognized by the Apex Court which might justify interference by this Court in order to upset or quash them.