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2023 DIGILAW 1236 (JHR)

Md. Imran v. State of Jharkhand

2023-10-09

SUBHASH CHAND

body2023
ORDER : 1. Heard learned Sr. Counsel on behalf of the petitioner and on behalf of the State, learned A.P.P. and also on behalf of O.P.No. 2, learned Counsel are present. 2. The instant Cr. Revision was initially preferred against the order dated 24.03.2020 taking cognizance on the charge-sheet by the concerned court. Subsequently I.A.No. 325 of 2023 was filed on behalf of petitioner wherein the prayer was amended seeking to set aside the order passed by the court-below while rejecting the discharge application of the petitioner vide order dated 19.12.2022 in G.R. Case No. 1130 of 2019. 3. The learned Counsel for the petitioner has submitted that the F.I.R. of this case was lodged on 15.10.2019 against the four named accused including the petitioner making allegations in regard to Section 498-A of I.P.C. and 3/4 of Dowry Prohibition Act. 4. After this F.I.R. the investigation was concluded and the charge-sheet was filed against the petitioner who is the husband of the victim. Indeed, this F.I.R. was the counter blast of the legal proceedings which were initiated on behalf of the petitioner much before the lodging of the F.I.R. and contended that prior to lodging this F.I.R. the complaint was filed on behalf of the petitioner Md. Imran against Syed Md. Salimuddin, Syed Azaz Ahmad, Syed Md. Abdulla, Md. Jawed Akhtar and Sajid Akhtar in regard to the occurrence on 23.09.2019 for the offence under Sections 147, 324, 379, 384,387,420,427, 506/34 of I.P.C. 5. It is also further submitted that on behalf of the petitioner an application was also moved under Section 39 Cr.P.C. before the Court of Chief Judicial Magistrate, Bokaro which was registered MCA No. 1981 of 2019 against the nine accused persons as a safeguard that he may be implicated in false and fabricated case. This application was moved much before the lodging of the F.I.R. and was registered by the court concerned on 17.06.2019. The petitioner has also given a notice through his Advocate Mr. S.N.Pandey to his wife Gajala Praveen for restitution of conjugal right. This application was moved much before the lodging of the F.I.R. and was registered by the court concerned on 17.06.2019. The petitioner has also given a notice through his Advocate Mr. S.N.Pandey to his wife Gajala Praveen for restitution of conjugal right. This notice was issued on 17.09.2019 it was also much before the lodging of the F.I.R. On the complaint of the petitioner subsequently the court concerned also summoned the accused persons under Sections 323,379,386, 506 read with Section 34 of I.P.C. after an enquiry under Section 200 and 202 of Cr.P.C. The order dated 14.02.2020 is also Annexure of the supplementary affidavit filed on behalf of the petitioner. 6. It is also further submitted that when the petitioner did not come to the matrimonial house for restitution of conjugal right the petitioner had given Talaq to his wife. Copy of the same is also annexed with the supplementary affidavit filed on behalf of the petitioner-husband which is in Urdu and Hindi translate is also annexed therewith. This Hukme Talaq Nama is also dated 01.10.2019 much before the date of occurrence shown in the F.I.R. and prior to date of lodging of the F.I.R. and contended that in view of the above from all these documentary evidence the allegations made against the petitioner in the F.I.R. are belied and contended that the application of the discharge which was rejected by the court-below has not taken into consideration all these documentary evidence and contended to set aside the impugned order and to allow this Cr. Revision. 7. Per contra the learned Counsel for the O.P.No. 2 and learned A.P.P. on behalf of the State opposed the contentions made by the learned Sr. Counsel on behalf of the petitioner and contended that the allegations made in the F.I.R. are also supported from the restatement of the victim and other prosecution witnesses. The offence under Section 498-A of I.P.C. and 3/4 of Dowry Prohibition Act is made out against the petitioner. The learned court-below has rightly rejected the discharge application of the petitioner. 8. It is also further submitted that so far as the document and the evidence upon which the petitioner has relied and has contended that this F.I.R. was the counter blast case are also rebutted from the document Annexure-B which is filed with the counter-affidavit on behalf of the petitioner i.e. 06.02.2019. 8. It is also further submitted that so far as the document and the evidence upon which the petitioner has relied and has contended that this F.I.R. was the counter blast case are also rebutted from the document Annexure-B which is filed with the counter-affidavit on behalf of the petitioner i.e. 06.02.2019. This document also much before all the proceedings which were initiated by the petitioner which are being filed by him along with supplementary affidavit. 9. It is the settled law that the court concerned while the framing charge or disposing the discharge application has to take into consideration the allegations made in the F.I.R. and also the evidence which was collected by the I.O. during the investigation the court has to see whether there are sufficient grounds to proceed against the accused on the basis of the allegations made in the F.I.R. and the evidence collected by the I.O. during the investigation. The Marshalling of the evidence or appreciation of the evidence is not permissible at this stage the court cannot conduct the mini trial while disposing the discharge application of the accused. 10. The prosecution story as per F.I.R. allegations is that the informant Gajala Praveen the victim herself gave the written information with the Police Station concerned on 15.10.2019 with these allegations that she was married on 31.10.2018 with Md. Imran according to Muslim rites and rituals. After two days of marriage, the members of the in-laws house began to torture for the less dowry. For the non-fulfilment of the demand of additional dowry her husband, father-in-law, her mother-in-law began to torture her. Her brother-in-law was in Sahudi Arabia used to threaten her over the video call. During her pregnancy she went to her parental house for treatment and she was blessed with a baby girl on 08.09.2019 but no one took care of her during that period from the in-laws house. On 05.10.2019 she received a notice of Talaq and this F.I.R. was lodged. On this written information the case crime No. 08 of 2019 was registered with the police station concerned against the four accused including the petitioner. The I.O. after concluding the investigation filed charge-sheet against the petitioner Md. Imran. The cognizance was also taken by the court concerned on the same. 11. On this written information the case crime No. 08 of 2019 was registered with the police station concerned against the four accused including the petitioner. The I.O. after concluding the investigation filed charge-sheet against the petitioner Md. Imran. The cognizance was also taken by the court concerned on the same. 11. From the perusal of the case diary, it is found that in Para 4 of the case diary the informant-victim in her restatement corroborated the prosecution story. In Para 5 of the case diary statement of father of victim, in Para 6 of the case diary statement of brother of victim Zawed Akhtar and in Para 7 of the case diary the brother of victim Md. Ejaj Ahmad were recorded. All these witnesses also corroborated the prosecution story. In Para 8 of the case diary the witness Raja Ali also corroborated the prosecution story. In Para 34, 35 and 36 the statement of independent witness Rani Singh, Anurag Singhal and Sutap Das were also recorded. They also supported the prosecution version. 12. In the F.I.R. the date of occurrence is shown 05.10.2019 and this F.I.R. was lodged on 15.10.2019. Much before this F.I.R. the petitioner was assaulted by the members of his in-laws house for the same he had filed the complaint before the court concerned. The copy of that complaint has also been annexed on behalf of the O.P.No. 2 with the counter-affidavit. That complaint is also much before the date of the occurrence as shown in the F.I.R. which is dated 25.09.2019. 13. Along with the supplementary affidavit petitioner has also filed the copy of the petition under Section 39 of Cr.P.C. which was given by him before the Court of Chief Judicial Magistrate, Bokaro same was registered on 17.06.2019 as MCA No. 1981 of 2019 as a safeguard that the accused person may implicate him in any case. All the accused are the members of the in-laws house of the petitioner. This application was also much before the date of occurrence shown in the F.I.R. and also much before the date of lodging the F.I.R. The petitioner has also given the notice through his Advocate for restitution of conjugal right to his wife Gajala Praveen on 17.09.2019. All the accused are the members of the in-laws house of the petitioner. This application was also much before the date of occurrence shown in the F.I.R. and also much before the date of lodging the F.I.R. The petitioner has also given the notice through his Advocate for restitution of conjugal right to his wife Gajala Praveen on 17.09.2019. Admittedly the envelope of the notice was issued by Gajala Praveen but it is stated it was sent under registered post A/D yet it is stated that the envelope was empty. When his wife did not come back for restitution of conjugal right, he gave the Hukme Talaqnama on 01.10.2019 i.e. after also prior to date of the occurrence as shown in the F.I.R. This Hukme Talaqnama is in Urdu and its Hindi translation is on record. In the F.I.R. itself this notice of divorce was received by the informant-victim on 05.10.2019 and showing this very date of occurrence, this F.I.R. was lodged on 15.10.2019. 14. While framing the charge, the defence case of the accused cannot be taken into consideration. The only circumstance is that if the defence of the accused is documentary and from which it is found that the allegations in the F.I.R. are totally ruled out then in that circumstance the defence case of the accused can be taken into consideration at the time of disposal of discharge application. 15. The Hon’ble Apex Court held in Palwinder Singh vs. Balwinder Singh, (2008) 14 SCC 504 : 13. Having heard the 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 also be framed 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 v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 wherein it was held as under: (SCC p. 579, Para 23) “23. 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 v. Debendra Nath Padhi, (2005) 1 SCC 568 : 2005 SCC (Cri) 415 wherein it was held as under: (SCC p. 579, Para 23) “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 v. Delhi Admn. (1996) 9 SCC 766 : 1996 SCC (Cri) 1104] 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.” 16. The Hon’ble Apex Court held in Sanghi Brothers (Indore) Pvt. Ltd. vs. Sanjay Choudhary and Others, (2008) 10 SCC 681 : 11. Sections 227, 239 and 245 deal with discharge from criminal charge. In State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 : 1977 SCC (Cri) 404 it was noted that at the stage of framing the charge the court has to apply its mind to the question whether or not there is any ground for presuming the commission of offence by the accused. (underlined [Ed. Herein italicised] for emphasis) The court has to see while considering the question of framing the charge as to whether the material brought on record could reasonably connect the accused with the trial. Nothing more is required to be inquired into. [See Stree Atyachar Virodhi Parishad v. Dilip Nathumal Chordia, (1989) 1 SCC 715 : 1989 SCC (Cri) 285 and State of W.B. v. Mohd. Khalid, (1995) 1 SCC 684 : 1995 SCC (Cri) 266] 17. The Hon’ble Apex Court also held in Rukmini Narvekar vs. Vijaya Satardekar and Others, AIR 2009 SC 1013 : 38. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. In my view, therefore, there is no scope for the accused to produce any evidence in support of the submissions made on his behalf at the stage of framing of charge and only such materials as are indicated in Section 227 CrPC can be taken into consideration by the learned Magistrate at that stage. However, in a proceeding taken therefrom under Section 482 CrPC the court is free to consider material that may be produced on behalf of the accused to arrive at a decision whether the charge as framed could be maintained. This, in my view, appears to be the intention of the legislature in wording Sections 227 and 228 the way in which they have been worded and as explained in Debendra Nath Padhi Case (2005) 1 SCC 568 : 2005 SCC (Cri) 415 by the larger Bench therein to which the very same question had been referred. 18. The Hon’ble Apex Court held in Central Bureau of Investigation vs. Mukesh Pravinchandra Shroff and Others, (2010) 3 SCC Cr. 315: “The appreciation of evidence, at the stage of discharge is impermissible what is required is to be seen is whether there are sufficient grounds to proceed against accused.” 19. Even if all these documentary evidence which are being adduced on behalf of the petitioner in his defence though ruled out the allegations made in the F.I.R., yet the same is also rebutted from the document Annexure-B of the counter-affidavit filed on behalf of O.P.No. 2. This Anneuxre-B is dated 06.02.2019 signed by Md. Imran who is petitioner herein. The signature of Gajala Praveen is also therein. This settlement was in Mahila Thana, Bokaro. It shows that the dispute was between the parties at that time also and after the intervention of the Mahila Thana Police the accused Md. Imran took his wife along with him. 20. In view of the above, the evidentiary value of all these documentary evidence which has been adduced on behalf of the petitioner cannot be scrutinized at the stage of framing charge. All these issues are to be decided at the time of trial. 21. From the allegations made in the F.I.R. which are supported with the evidence collected by the I.O. during investigation there were sufficient ground to proceed the trial against the petitioner accused. 22. The impugned order passed by the learned court-below does not need any interference. Accordingly, this Cr. 21. From the allegations made in the F.I.R. which are supported with the evidence collected by the I.O. during investigation there were sufficient ground to proceed the trial against the petitioner accused. 22. The impugned order passed by the learned court-below does not need any interference. Accordingly, this Cr. Revision is dismissed. 23. Interim order, if any, stands vacated.