Court No. - 17
Case :- CRIMINAL REVISION No. - 587 of 2018 Revisionist :- Onkar Singh And 2 Others Opposite Party :- State Of U.P. And Another Counsel for Revisionist :- Vijay Praksah Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
This Criminal Revision has been preferred against the judgement and order dated 1.02.2018 passed in Criminal Case No. 5372 of 2017 under Sections 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act, P.S. Kavi Nagar, District Ghaziabad whereby the discharge application of the accused revisionists has been rejected.
It has been contended by the learned counsel for the revisionists that the accused revisionists have been falsely implicated. There is no specific allegation of Sections 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act against the revisionist Nos. 2 and 3 in particular.
Learned counsel for the revisionists has relied upon the guidelines laid down in Criminal Appeal No. 1265 of 2017 arising out of Special Leave Petition (Crl.) No.2013 of 2017 (Rajesh Sharma and Ors. Vs. State of U.P. & Anr.) in which in para 19, following guidelines have been issued:
"19. Thus, after careful consideration of the whole issue, we consider it fit to give following directions :-
i) (a) In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.
(b) The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.
(c) The Committee members will not be called as witnesses.
(d) Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.
(e) Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.
(f) The committee may give its brief report about the factual aspects and its opinion in the matter.
(g) Till report of the committee is received, no arrest should normally be effected.
(h) The report may be then considered by the Investigating Officer or the Magistrate on its own merit.
(i) Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.
(j) The Members of the committee may be given such honorarium as may be considered viable.
(k) It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.
ii) Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;
iii) In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;
iv) If a bail application is filed with at least one clear day's notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;
v) In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;
vi) It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and
vii) Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.
viii) These directions will not apply to the offences involving tangible physical injuries or death."
Learned counsel for the revisionists also relied upon Criminal Appeal No. 1365 of 2014 arising out of SLP (Crl.) No. 3051 of 2008 (Dinesh Tiwari Vs. State of U.P. & Anr.) in which in para 10, following has been held:
"10. Relative scope of Sections 227 and 228 Cr.P.C. was noticed and considered by this Court in Amit Kapoor v. Ramesh Chander and another, (2012) 9 SCC 460. This Court held as follows:
"17. Framing of a charge is an exercise of jurisdiction by the trial court in terms of Section 228 of the Code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, 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. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgment of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code."
"19. At the initial stage of framing of a charge, the court is concerned not with proof but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage. We may refer to the well-settled law laid down by this Court in State of Bihar v. Ramesh Singh: (SCC pp. 41-42, para 4) "4. Under Section 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 under Section 227 or Section 228 of the Code. If 'the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing', as enjoined by Section 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) is exclusively triable by the court, he shall frame in writing a charge against the accused', as provided in Section 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 the stage of deciding the matter under Section 227 or Section 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. 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 evidence, if any, cannot show that the accused committed the offence, then 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 Section 227 or Section 228, then in such a situation ordinarily and generally the order which will have to be made will be one under Section 228 and not under Section 227."
Learned counsel for the revisionists has taken this Court through the F.I.R. in which it has been mentioned that O.P. No.2 was used to be tortured for bringing less dowry and demand was being made by all the three revisionists of an amount of Rs.25,00,000/- for purchasing a flat. Her husband was working in a private company. Thereafter, learned counsel had taken this Court through the statement made by the victim under Section 164 Cr.P.C. in which it has been stated by her that her 'sasural wale' were not happy with this marriage because of less dowry and were demanding Rs.25,00,000/- as an additional dowry, which, when refused by her because of incapacity of her parents to pay the same, she was used to be ill treated, beaten and abused by her 'sasural wale'. Thereafter, learned counsel for the revisionists had pointed out towards the order of court below dated 20.01.2018 in which the application was considered by the court below which was moved by the O.P. No.2 for addition of charge under Section 377 I.P.C. because there were allegation in the complaint as well as in the statement of the victim in that regard, but the court did not find sufficient evidence to frame charge under the said Section and the said application was rejected and it was directed that the file be placed before court for framing charge under Section 498A, 323, 504, 506 I.P.C. and 3/4 D.P. Act.
In rebuttal, learned A.G.A. has drawn the attention of Court to the statement of victim given under Section 161 Cr.P.C. in which it has been stated by her that her 'sasural wale' were not happy with the dowry provided during the marriage and started demanding Rs. 25,00,000/- in addition. Her husband used to work in Gurgaon in an I.T. Company where he had taken house on rent. The revisionist accused started pressing for purchase of flat for which Rs. 25,00,000/- was required and started making the said demand from her and when the same was not fulfilled, her ill treatment began to be done more gradually. Her husband used to torture her including indulging in unnatural sex with her. When they used to visit Ghaziabad to her parents-in-law's place, they used to beat her also and say that if she does not bring the said amount, she would be continued to be ill treated. Besides that, several dirty allegations against her father-in-law were also made.
Based on the aforesaid statement, learned A.G.A. has stated that there was specific evidence of Section 498A, 323, 504, 506 and 3/4 D.P. Act against all the three revisionists.
Heard the arguments of learned counsel for the revisionists and learned A.G.A. and perused the record.
The Court is of the view after having gone through the above evidence on record that there is no infirmity found in the order which has been passed by the court below in finding that there was sufficient evidence to at least frame charge under the aforesaid sections because at the level of framing charge, the court is not supposed to see that the evidence which has come on record is sufficient enough to result in conviction rather it should see that it was sufficient to make out a triable case. Hence, there is sufficient evidence found to make out a triable case in the estimation of this Court. The evidence on record is sufficient, at least, to frame the charge, hence, the application for discharge has been rightly rejected and I do not find any infirmity in the said order.
This revision is, accordingly, rejected.
Order Date :- 22.2.2018 A. Mandhani