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2022 DIGILAW 416 (MP)

Ashok Sharma v. State of Madhya Pradesh

2022-03-10

RAJEEV KUMAR SHRIVASTAVA

body2022
JUDGMENT Rajeev Kumar Shrivastava, J - The revisionists have come up with present revision under Section 397 r/w Section 401 of CrPC, challenging the impugned order dated 23/07/2019 passed by Judicial Magistrate First Class, Gwalior in Criminal Case No. 2529 of 2018, whereby the charges have been framed against revisionists for offences under Sections 498-A, 294, 506 Part II of IPC and Section 4 of Dowry Prohibition Act. 2. Facts giving rise to present revision, in short, are that on 20/06/2018 at Mahila Police Station, Gwalior complainant Smt. Tanu Sharma submitted a written complaint alleging therein that, she got married to Rahul Sharma, resident of Mathura (UP) on 12/12/2016 as per Hindu rites and rituals at Silver OAK Hotel, City Centre, Gwalior and at the time of marriage, her father had given net cash of Rs.11 lac along with other gold ornaments as per status but her in-laws were not satisfied with it and started ill-treatment with her and pressurize her to bring some more dowry. Her husband told her to bring a SUV Car, otherwise they use to beat her. It is alleged that when complainant lived with her husband in Delhi, on 25/06/2017 accused revisionists Nos.1, 2 and 4 (father-in-law, mother-in-law and sister-in-law of the complainant) came to Delhi and told the complainant for calling her parents in regard to talking on the issue of dowry and her Mausa Girraj Sharma also came to Delhi, where revisionists No.1 to 4 told if the parents of complainant did not fulfil demand of Rs.5 lac and said car, they did not bring the complainant with them. After two months thereafter, the parents of complainant gave Rs.5 lac to her in-laws. It is further alleged that on one day of night at around 12 O'clock, her husband and her other in-laws left her lonely in the rented house and the complainant thereafter called her Mausa Giraj Sharma on 15/10/2017 and informed about the incident. Thereafter, the complainant along with her family members went to her in-laws house at Mathura on 18/10/2021 where her in-laws also insulted the father of complainant and turn out them out of house and in order to save their life, complainant along with her father immediately came to Gwalior and since then, complainant is residing in her parental house at Gwalior. Many times, family members of the complainant tried to settle the matter but her in-laws were not ready. Therefore, a complaint/FIR has been lodged at Mahila Police Station, Gwalior and on the basis of which, the police has registered aforesaid offences as mentioned in para 1 of this order against accused persons. After completion of investigation and other formalities, police filed charge sheet before the Court of JMFC. Being aggrieved, present revision has been filed. 3. Challenging the impugned order of framing charges as well as impugned FIR, the counsel for revisionists submitted that the Court below did not appreciate evidence and materials properly and committed grave error in framing charges against revisionists. There is no direct or indirect evidence available against revisionists but in order to harass them, the complainant has lodged a false and frivolous FIR on the basis of general and omnibus allegations. Initially, the revisionist No.1, who is father-in-law of complainant, submitted a report to SSP, Mathura stating therein that the conduct and behaviour of the complainant is not good and there is a relationship between complainant with one Nitin Gupta and when police did not take any action, he filed a private complaint before the Court of JMFC, Mathura and on the basis of counter-blast, present FIR/complaint has been lodged by complainant which is an afterthought. There is mala fide intention of complainant and prosecution launched against revisionists is clear abuse of process of law in the light of decision of Hon'ble Apex Court in the case of State of Haryana vs. Ch. Bhajanlal & Others 1990 SCR Supl.(3) 259. It is further contended that earlier, the husband of complainant filed an application under Section 9 of the Hindu Marriage Act and same has been allowed by the concerning Family Court. It is further contended that without conducting a preliminary enquiry by the police, the impugned FIR has been lodged against the revisionists and the same deserves to be quashed in the light of the judgment passed by Hon'ble Apex Court in the matter of Lalita Kumari vs. Government UP and Others, reported in (2014) 2 SCC 1 . It is further contended that there is a growing tendency in the society to falsely implicate the in-laws under Section 498-A IPC in regard to demand of dowry, therefore, prosecution cannot be permitted to unnecessarily harass by registration of FIR against innocent persons like present revisionists. It is further contended that there is a growing tendency in the society to falsely implicate the in-laws under Section 498-A IPC in regard to demand of dowry, therefore, prosecution cannot be permitted to unnecessarily harass by registration of FIR against innocent persons like present revisionists. In support of contention, the counsel for revisionists has placed reliance on the judgment of Hon'ble Supreme Court in the case of Preeti Gupta vs. State of Jharkhand, AIR 2010 SC 3363 . There is no specific allegation against revisionists in regard to bringing more dowry and after marriage, since the complainant was living in Delhi and revisionists No. 1 and 2 (father-in-law and mother-in-law) are living separately in Mathura, therefore, no offence of demand of dowry is made out against them in the light of the judgment of K. Subha Rao & Others vs. The State of Telangana & Others (CRA No.1045 of 2018, decided on 21st August, 2018). It is further contended that the sister-in-law of the complainant (herein revisionist No.4) has already got married in 2016 and since then, she is living at Bombay, therefore, no case of harassment or ill-treatment is made out against her. Therefore, it is prayed that the impugned order of framing of charges passed by the Court below be set aside and present revision deserves to be allowed. 4. Per contra, learned Counsel for the State supported the impugned order of framing charges and submitted that prima facie offence is made out against the revisionists. Hence, prayed for dismissal of present revision. 5. I have considered rival contentions of parties and perused documents vailable on record. 6. As regards framing of charges and quashing the same, the law is well settled. 7. In the case of Union of India Vs. Prafulla Kumar Samal and nother [ (1979) 3 SCC 4 ], it is held by the Apex Court 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. (4) That in exercising his jurisdiction under Section 227 of the Code the Judge which under the present Code is a senior and experienced court cannot act merely as a post office or a mouthpiece 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.' 8. In the case of Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135 ], it is held by the Apex Court as under:- '12. Now the next question is whether a prima facie case has been made out against the appellant. In the case of Dilawar Balu Kurane Vs. State of Maharashtra (2002) 2 SCC 135 ], it is held by the Apex Court as under:- '12. Now the next question is whether a prima facie case has been made out against the appellant. In exercising powers under Section 227 of the Code of Criminal Procedure, the settled position of law is that the Judge while considering the question of framing the charges under the said section 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; 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; by and large 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 justified to discharge the accused, and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a post office or a mouthpiece 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 but should not make a roving enquiry into the pros and cons of the matter and weigh the evidence as if he was conducting a trial [See Prafulla Kumar Samal (supra)]. 14. We have perused the records and we agree with the above views expressed by the High Court. We find that in the alleged trap no police agency was involved; the FIR was lodged after seven days; no incriminating articles were found in the possession of the accused and statements of witnesses were recorded by the police after ten months of the occurrence. We are, therefore, of the opinion that not to speak of grave suspicion against the accused, in fact the prosecution has not been able to throw any suspicion. We, therefore, hold that no prima facie case was made against the appellant. 9. In the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 ], it is held by the Apex Court as under:- '21. We, therefore, hold that no prima facie case was made against the appellant. 9. In the case of Sajjan Kumar Vs. Central Bureau of Investigation (2010) 9 SCC 368 ], it is held by the Apex Court 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 Cr.P.C. 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, the 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 weigh 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 discloses the existence of all the ingredients constituting the alleged offence. (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 discloses 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.' 10. In the case of State through Central Bureau of Investigation Vs. Dr. Anup Kumar Srivastava [ AIR 2017 SC 3698 ], it is held by the Apex Court as under:- '23.. The legal position is well-settled that at the stage of framing of charge the trial court is not to examine and assess in detail the materials placed on record by the prosecution nor is it for the court to consider the sufficiency of the materials to establish the offence alleged against the accused persons. At the stage of charge the court is to examine the materials only with a view to be satisfied that a prima facie case of commission of offence alleged has been made out against the accused persons. It is also well settled that when the petition is filed by the accused under Section 482 of the Code seeking or the quashing of charge framed against him the court should not interfere with the order unless there are strong reasons to hold that in the interest of justice and to avoid abuse of the process of the court a charge framed against the accused needs to be quashed. Such an order can be passed only in exceptional cases and on rare occasions. The court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. The court is required to consider the 'record of the case' and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such. The satisfaction of the court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine qua non for exercise of such jurisdiction. It may even be weaker than a prima facie case.' 11. Similarly, in the case of Soma Chakravarti Vs. State, reported in (2007) 5 SCC 403 ], it is held by the Hon'ble Apex Court that at the time of framing of charges the probative value of material on record cannot be gone into, and the material brought on record by the prosecution has to be accepted as true. 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. Whether the accused committed the offence or not, can only be decided in the trial. The charge may although be directed to frame when there exists the strong suspicion but it is also trite that the Court must come to a prima facie finding that there exists some material therefor. 12. Further, this Court in the case of Colgate Palmolive India Ltd. vs. Satish Rohra, [ 2005 (4) MPLJ 380 ], has held in the following manner:- "6. I have heard the learned Counsel of both the parties and carefully perused the evidence and the material on record. Before considering the evidence and the material on record for the limited purpose of finding out whether a prima facie case for issuance of process has been made out or not, it may be mentioned at the very outset that the various documents and the reports filed by the petitioners/Company along with the petition can not be looked into at the stage of taking cognizance or at the stage of framing of the charge. The question whether prima facie case is made out or not has to be decided purely from the point of view of the complainant without at all adverting to any defence that the accused may have. No provision in the Code of Criminal Procedure grants to the accused any right to file any material or document at the stage of taking cognizance or even at the stage of framing of the charge in order to thwart it. That right is granted only at the stage of trial. At this preliminary stage the material produced by the complainant alone is to be considered." 13. In the light of aforesaid law laid down by Hon'ble Supreme Court as mentioned above, it appears that the Court below has considered the material with a view to find out if there is ground for presuming that the accused persons have committed the offence. The Court below has analyzed the material for the purpose of finding out whether or not prima facie case against the accused has been made out. The truthfulness of statements or circumstances or documents of prosecution cannot be questioned at this stage by defence. The material on record discloses grave suspicion. On the basis of material on record, the Court could form an opinion that accused might have committed an offence. It is established that at the time of framing of charges, there is no scope to appreciate entire evidence in details. The Court below has examined case and found prima facie case against revisionists and there is specific allegations against them for harassment and ill-treatment with complainant in regard to non-fulfillment of more dowry. therefore, the Court below has not committed any error in passing the impugned order of framing charges. This Court does not find any perversity or illegality in the order impugned warranting interference by this Court at the state of framing of charges. Accordingly, the impugned order dated 23/07/2019 passed by JMFC, Gwalior in Criminal Case No. 2529 of 2018 is hereby affirmed. 14. As a sequel, revision being devoid of merits, is hereby dismissed.