IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 306 of 2007
For Approval and Signature:
HONOURABLE MS JUSTICE SONIA GOKANI
========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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BALUBHAI TAKHAJI JADEJA & 3 - Applicant(s)
Versus
STATE OF GUJARAT & 1 - Respondent(s)
========================================================= Appearance :
MR.D K.PUJ for Applicant(s) : 1 - 4. Ms,Chetnaben Shah, APP - for Respondent(s) : 1, DELETED for Respondent(s) : 2, =========================================================
CORAM : HONOURABLE MS JUSTICE SONIA GOKANI
Date : 27/01/2012
ORAL JUDGMENT
Petitioners are the original accused in 1st Cr.No. 3035 of 2000 registered with Rapar Police Station on 14th June, 2000, by one Shri Manharlal Soni. The original complainant lodged the complaint u/s. 306 of the Act was added on 21st June, 2000. According to the prosecution, daughter of the deceased was divorced within 6 months of her marriage and two days prior to date of incidence, the accused had demanded sum of Rs.75,000/- as the cost of divorce. As they continue to threaten for money from the deceased. He attempted suicide on 14.6.2000 on account of mental torture and harassment on 14th June, 2000 and passed away on 15th June, 2000.
A complaint was registered against the present petitioner–original accused and after due investigation the charge-sheet was filed against them and on the matter being committed to the Court of Sessions, the same was registered as Sessions Case No.68 of 2000.
Petitioners moved different applications for discharge and after hearing both the sides, these applications were dismissed vide its order dated 26th April, 2007. The impugned order is challenged by way of present petition by raising various grounds for such challenge.
At the outset there is need to reproduce the provision of Section 227 of Criminal Procedure Code relating to discharge observed as under:
227. Discharge – If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, 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 .
Law in respect of discharge is very well laid down by the Apex Court in various authorities and one such is reproduced here:-
“The Apex Court in the case of State of W.B & Anr. vs. Mohd. Khalid & Ors. [1995 (1) SCC 684] has ruled that at the time of question of framing the charge, the only aspect that needs to be considered is that the material brought on the record should reasonably connect the accused with the crime. No further inquiry is required to be made. As the test applied is of prima facie case, some evidence only is required. But that is not the stage for the court to go into the probative value of the material on record and the evidence collected by the prosecution will have to be accepted at that stage. Not that the Court is not permitted to apply its mind nor is it to accept everything as a Gospel truth but it needs to consider whether there was any ground for presuming commission of offence by the accused.”
It is contended in the present petition and before this Court fervently relying upon the decision in case of Union of India V/s. Prafull Kumar Samal reported in 1979(3) SCC 4 that:-
“In exercise of powers under section 227, the judge is not act merely as a post office or a mouthpiece of 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 matter 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.”
Further reliance is placed on the judgement of Apex Court in case of Dilawar Balu Kurane Vs. State of Maharashtra reported in 2002(2) SCC 135, wherein also the ratio laid down in case of Prafull Kumar Samal (Supra) followed. It is also urged further urged that the deceased committed suicide after three days of alleged incident of demanding money or giving threat that would not constitute of any ingredient of instigation and the presence of menas rea since is, necessary concomitant of instigation. It would not be possible to held that the suicide would direct result of alleged demand or threat . Furthermore, it has been argued that the ingredients of abatement are completely missing in the charge-sheet and even if the material adduced with the charge-sheet indicate that disputes in the family were on account of divorce and that had nothing to do with any alleged demand prior to the commission of suicide. Further reliance is placed on the judgment of Apex Court in case of Sanju alias Sanjay Singh Sengar Vs. State of M.P. reported in AIR 2002 SC 1998, where the appellant had told the deceased to go and die and that also was not held to have constituted of ingredients of instigation.
As against that respondent-State has strongly objected to any interference in the order of learned Sessions Judge on the ground that there is absolutely no error in the order of the learned Sessions Judge. Ms. Chetanaben Shah learned Asstt.Public Prosecutor urged this Court that law in this regard is very well settled. It is not for the learned Judge to evaluate and appreciate the evidence at the time of deciding the application for discharge.
On hearing learned advocate for the parties, this Criminal Revision Application merits no consideration for the following reason:
This Revision Application is directed against the order of learned Additional Sessions Judge, Gandhidham, when he was asked to decide discharge application moved by present Revisionist, he upon consideration of record and documents along with charge-sheet and on hearing the submissions of both the sides, chose to reject this application holding therein that there was sufficient material available.
There appears to be absolutely no error or perversity in the order passed by the learned Sessions Judge who in his well considered order examined, authorities submitted by both the sides and concluded on the basis of well laid down principles with regard to the discharge that the stage was not for Court to consider probative value of the material adduced before it nor was the time for the Court to appreciate the evidence and there was sufficient material available for it to conclude prima facie that there was ground for presuming the commission of offence by accused and for it to frame the charges against them.
So as not to prejudice the case of either side in the future, it would be appropriate to this Court not to dwell into the facts at this stage broadly when the order of discharge is well supported by reasons . Court was not required to see whether the Trial will end in conviction or acquittal as all that was needed to be considered was prima facie case and requirement of prima facie case was some evidence for framing the charges. Rest of the aspects could be dealt with at the time of final hearing of the Trial.
In the opinion of this Court, there appears to be sufficient prima facie material for the Court to frame the charges and not to allow the charges and not to allow the application for discharge. Learned Presiding Officer committed no error in dismissing the application for discharge. No cause could be shown by this Court to interfere with the said order in Revision Application for Revisionist is dismissed.
As periodically this Court directed to Trial Court sympathetically consider the application for adjournment before admitting the revision in the year 2007 and eventually vide order dated 29.11.2007 record and proceedings of the Sessions Case had already been called for naturally Sessions Case has not proceeded, needless to say Registry shall sent the said record and proceedings within two weeks of this order and report to the Court in this regard. Learned Sessions Judge shall make an endeavour to give appropriate to the matter considering the long lapse of time spent in the litigation . Application stands disposed of accordingly.
Rule stands discharge to the above extent.
bina (Ms.Sonia Gokani,J)