Sunday, February 15, 2015

Classic case on 227CrPC discharge. “..When Judge considers there is no sufficient ground for proceeding against accused..”

Classic case on 227CrPC discharge. "..When Judge considers there is no sufficient ground for proceeding against accused.."


This case At MP High court discusses the tests for discharge and when an accused could be discharged. We are adding relevant extracts and also the full case below for the benefit of all concerned !!


* the accused is to be charged "…where the materials placed before the Court disclose grave suspicion against the accused which has not been properly explained…"


* "…the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused. The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial…."


* "….All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. …"


* "…Further, at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage…."


* "…..This Court as the revisional Court, would also refrain from entering into merits of the incriminating evidence proposed to be adduced for proving the guilt of the respondent ….


* Once discharged "…the order of discharge should not be lightly interfered with …"




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This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.

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CASE FROM JUDIS / INDIAN KANOON WEB SITE

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HIGH COURT OF MADHYA PRADESH : JABALPUR


Criminal Revision No.1400/2004


Dr. R.K.Sharma, son of Omkar Prasad Sharma,

Resident of F.H.375, Scheme No.54,

Indore (M.P.)   ............ Petitioner

 

   vs.

 

(1)  Shirish Hardenia, aged about 34 yrs.,

Son of Lajja Shankar Hardenia,

 

(2)  Lajja Shankar, aged about 69 years,

Son of Nanhelal Hardenia,

 

(3)  Smt. Meera, aged about 67 years,

W/o Lajja Shankar Hardenia,

 

(4)  Smt. Sangeeta, wife of Shirish Hardenia, aged about 30 years,

All residents of E-4, 45 Bungalow,

T.T. Nagar, Bhopal (M.P.)

 

(5)  The State of Madhya Pradesh,

Through: S.H.O., M.P. Nagar,

Bhopal (M.P.)     ...... Respondents

 

    and

 

Cr.R. No.1445/2004

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Amrish Hardeniya, son of Lajjashankar Hardeniya,

aged 38 years, resident of 13, Press Complex,

M.P. Nagar, District Bhopal (M.P.)     ............ Petitioner


     vs.


The State of M.P.,

Through: S.H.O., M.P. Nagar,

Bhopal (M.P.)                                      ...... Respondent


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Shri S.C.Datt, Senior Advocate with Shri Siddharth Datt, Advocate for the petitioner in Cr.R. No.1445/04 and respondent nos. 1 to 4 in Cr.R.No.1400/04.

Shri Sharad Verma, Advocate for the petitioner in Cr.R. No.1400/04.

Shri G.S.Thakur, Panel Lawyer for respondent-State.

 

Cr. Revision Nos. 1400/2004 & 1445/2004

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ORDER


06.05.2008

 

These revisions are interlinked, as preferred against the order-dated 26/8/2004, passed by First Additional Sessions Judge, Bhopal in Sessions Trial No.83/04. By that order, Amrish, the petitioner in Cr. R. No.1445/2004, was charged with the offences punishable under Sections 498-A and 306 of the IPC whereas all the four co-accused, the respondent nos. 1 to 4 in Cr. R. No.1400/04 were discharged. Legality, propriety and correctness of the order of discharge have not been challenged by the State but by Dr. R.K. Sharma, the father of Archana (since deceased). http://evinayak.tumblr.com/  http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

2. Marriage of Archana was solemnized with Amrish on 19/11/1995. In the wedlock, a daughter, named as Anukriti, was born. At the relevant point of time, Archana was living with Amrish and Anukriti at 13, Press Complex, M.P. Nagar, Bhopal whereas all other accused who stand discharged by the trial Judge, were residing at E-4, 45 Bungalow, T.T. Nagar, Bhopal (M.P.). On 28.09.2003 at about 5.35 p.m., Archana was taken to Jaiprakash Hospital, Bhopal in dead condition by Amrish. According to him, Archana had committed suicide by hanging herself from the ceiling fan. In the light of the intimation, initially, a marg (death case) was registered at P.S. M.P. Nagar, Bhopal. However, on the following day i.e. 29.09.2003, Dr. R.K. Sharma, the revisionist in Cr. R. No.1400/04, suspecting the murder of his daughter viz. Archana lodged a report. Thereupon, a case, under Sections 498A and 306 of the IPC, was registered. After inquest proceedings, dead body of Archana was sent to the Medico Legal Institute, Bhopal for post-mortem. It was performed by a team of doctors headed by Dr. D.K. Satpathy, the Director of the Institute. The cause of Archana's death was ascertained as asphyxia as a result of hanging. In response to a query made by the Investigating Officer, two members of the team namely Dr. D.K. Satpathy and Dr. C.S. Jain, opined that Archana's death was suicidal in nature. During investigation, three letters written by Archana to her parents in the year 1996 were seized and referred to Handwriting Expert along with her specimen handwriting available in a register. In turn, he gave the opinion that the questioned letters were authored by Archana only. Ultimately, charge-sheet, for the offences punishable under Sections 498A and 306 read with 34 of the IPC, was put up against Amrish, his parents namely Lajja Shankar & Smt. Meera, younger brother Shirish and Sangeeta, the wife of Shirish in the Court of Smt. Rashmi Agrawal, ACJM, Bhopal, who committed the case to the Court of Session for trial.

 

3. A bare perusal of the impugned order would reveal that the learned trial Judge had proceeded to discharge all the four relatives of Amrish for the following reasons : -

(i) The statutory presumption, under Section 113A of the Indian Evidence Act, was not attracted to the facts and circumstances of the case.

(ii) None of the relatives arraigned as accused was residing with the deceased viz. Archana.

(iii) Even if the allegation that a demand of Rs.10 lacs as capital investment for publication of newspaper was made during the period upto 1999 is taken at its face value, no cognizance of the offence under Section 498A of the IPC could be taken after the prescribed period of 3 years.

(iv) The demand of Rs.10 lacs as dowry was allegedly made during the period when Sangeeta was not a member of Lajja Shankar's family in view of the fact that she and Shirish got married in the year 2000 only.

(v) Mere allegation regarding demand of Rs.10 lacs as dowry in absence of corresponding assertion in the letters written by Archana or in the police statements of her parents & relatives as to consequent harassment and torture was not sufficient to constitute the offence under Section 498A of the IPC against them.

 

However, while placing reliance on the decisions of the Apex Court in Brij Lal vs. Prem Chand AIR 1989 SC 1661 and State of Punjab vs. Iqbal Singh AIR 1991 SC 1532, the learned trial Judge declined to discharge Amrish, observing that there was sufficient material to proceed against him, for the offences under Sections 498A and 306 of the IPC.

 

4. The order of discharge has been challenged inter alia on the under-mentioned grounds:

(i) The letters written by the deceased to her parents clearly indicated that she was subjected to taunting and booing by the respondent nos. 1 to 4 (in Cr. R. No.1400/04) due to non-satisfaction of demand of dowry.

(ii) There was sufficient material on record to suggest that Archana was repeatedly asked by all the accused to bring an amount of Rs.10 lacs as additional dowry.

(iii) The case against the other accused was not distinguishable from that of Amrish.

(iv) At the stage of framing of charge, a roving inquiry into pros and cons of the matter was not at all required.

 

5. In reply, the learned Senior Counsel has not only contended that the discharge of the respondents was well merited, but also urged that no offence was made out against Amrish.

 

6. The well-settled principles governing the standard of test, proof and judgment to be applied at the stage of charge in a trial before a Court of Session, may extensively be reproduced as under :-

 

"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. 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 S. 227 or S. 228 of the Code. 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 (State of Bihar vs. Ramesh Singh AIR 1977 SC 2018).

 

However, in exercising powers under Section 227 of the Code of Criminal Procedure, the Judge has to sift and weigh the evidence for the limited purpose for 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 (Union of India v. Prafulla Kumar Samal and another (1979) 3 SCC 4).

 

7. As explained in Stree Atyachar Virodhi Parishad vs. Dilip Nathumal Chordia, (1989) 1 SCC 715, the decisions in Ramesh Singh's case and Prafulla Kumar's case do not lay down different principles. Moreover, Section 227 itself contains enough guidelines as to the scope of enquiry for the purpose of discharging an accused. It provides that "the judge shall discharge when he considers that there is no sufficient ground for proceeding against the accused". The 'ground' in the context is not a ground for conviction, but a ground for putting the accused on trial. It is in the trial, the guilt or the innocence of the accused will be determined and not at the time of framing of charge. The court, therefore, need not undertake an elaborate enquiry in sifting and weighing the material. Nor is it necessary to delve deep into various aspects. All that the Court has to consider is whether the evidentiary material on record if generally accepted, would reasonably connect the accused with the crime. Further, at the stage of framing of charge, probative value of the materials on record cannot be gone into; the materials brought on record by the prosecution has to be accepted as true at that stage (State of Maharashtra vs. Som Nath Thapa AIR 1996 SC 1744 referred to).

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8. Taking into consideration these guiding principles, this Court as the revisional Court, would also refrain from entering into merits of the incriminating evidence proposed to be adduced for proving the guilt of the respondent nos.1 to 4 in Cr. R. No.1400/04 and the petitioner in Cr.R.No.1445/04 and would confine itself to the appreciation of material collected during investigation with a view to ascertaining as to whether any prima facie case is made out.

 

9. It is true that the facts of the case do not attract statutory presumption under Section 113-A of the Evidence Act as the period of more than 7 years after marriage of Archana had already elapsed before the incident in question. However, there is no proposition of law that conviction for the offence under Section 306 of the IPC can not be recorded in a case where the marriage of the deceased had taken place more than 7 years prior to the incident. To substantiate the view, Iqbal Singh's case (supra) and Dalbir Singh vs. State of U.P AIR 2004 SC 1990 may be cited as illustrations. Further, the bar of limitation to take cognizance of the offence under Section 489A of the IPC is also not absolute (Vanka Radhamanohari vs. Vanka Venkata Reddy (1993) 3 SCC 4 referred to). Law is well settled on the point that even in a case of suicide also, letters written by the deceased which are directly connected with or related to death in question would fall within four corners of Section 32 of the Indian Evidence Act (See Sharad Biridhichand Sarda vs. State of Maharashtra AIR 1984 SC 1622). Although, Archana wrote the letters indicating maltreatment meted out to her at the hands of Amrish, his parents and younger brother Shirish in the year 1996 yet, the learned judge completely overlooked the fact, as stated by the parents and other witnesses, that the harassment of Archna for non- satisfaction of the dowry demand had not ceased during the intervening period. In this regard, effect of the assertion made by Sheetal Bhandari that, in the month of August, 2003, during her last visit to parental home, Archana had disclosed that her in-laws were still pressurizing hard to bring money, was not considered at all.

 

10. Explanation (a) to Section 498-A itself refers to both mental and physical cruelty (See Pawan Kumar vs. State of Haryana, AIR 1998 SC 958). Accordingly, even the mental torture in a given case would be a case of cruelty and harassment within the meaning of Section 498A of the IPC. Moreover, the impact of complaints, accusations or taunts on a person amounting to cruelty depends on various factors like the sensitivity of the individual victim concerned, the social background, the environment, education etc. Further, mental cruelty varies from person to person depending on the intensity of sensitivity and the degree of courage or endurance to withstand such mental cruelty (Mohd. Hoshan vs. State of A.P. AIR 2002 SC 3270 relied on). In this view of the matter, the fact that respondent nos. 1 and 4 in Cr. R. No.1400/04 were living separately did not assume any significance. However, the fact remains that Sangeeta became member of Lajja Shankar's family in the year 2000 only. In absence of any specific instance of cruelty during the subsequent period, the omnibus statements made by the parents and other relatives were apparently not sufficient for making out even a prima facie case for the offence under S. 498A of the IPC against her.

 

11. Amongst the decisions relating to the offence of abetment of suicide, the one in State of West Bengal vs. Orilal Jaiswal AIR 1994 SC 1418 sounds a note of caution that the Court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the Court that a victim committing suicide was hyper-sensitive to ordinary petulance, discord and difference in domestic life, quite common to the society to which the victim belonged and such petulance, discord and difference were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty. Mahendra Singh and Anr. vs. State of M.P. 1995 Supp. (3) SCC 731 and Swami Prahlad Das vs. State of M.P. 1995 Supp. (3) SCC 438 are the authorities for the proposition that mere utterance of words " go and die" during a quarrel or in the spur of the moment or in anger was not even prima-facie enough to instigate the deceased to commit suicide. In Ramesh Kumar vs. State of Chhatisgarh AIR 2001 SC 3837 also it was laid down that a word uttered in a fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation. The ratio laid down in Sanju @ Sanjay Singh Sengar vs. State of M.P. AIR 2002 SC 1998 is that the word "instigates" within the meaning of S.107 of the IPC denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite and as such presence of mens rea is the necessary concomitant for instigation. In Randhir Singh and Anr. vs. State of Punjab 2004 (13) SCC 129, it was observed that "more active role which can be described as instigating or aiding the doing of a thing is required before a person can be said to be abetting the commission of offence under Section 306 of the IPC. However, as explained by a three judge Bench of the Apex Court in Gurbachan Singh vs. Satpal Singh AIR 1990 SC 209, normally direct evidence of suicide is not available.

 

12. It is true that there is no prima facie evidence on record to show that the suicide was a direct result of any immediately preceding quarrel. However, as per the version of maid-servant Lata Wadekar, it was Amrish only who had taken her to the room where Archana was found hanging from ceiling fan by Dupatta. In this view of the matter, being the only person present inside the room where Archana was found dead, he was expected to be aware of the circumstances surrounding her death. It is relevant to note that in the letter-dated 18/9/96, Archana had expressed apprehension of danger to her safety. As explained in Ramesh Singh's case (supra), where the material placed before the Court discloses grave suspicion against the accused that has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial.

 

13. Accordingly, learned trial Judge did not commit any error of jurisdiction in framing the charges under challenge against Amrish.

 

14. This brings me to the other part of impugned order whereby the co-accused were discharged. As propounded way back in 1938 by a Division Bench of the Nagpur High Court, the order of discharge should not be lightly interfered with (See Sheoprasad Ramjas Agrawal vs. Emperor AIR 1938 Nagpur 394). The Apex Court in Century Spinning and Manufacturing Company Limited Vs. State of Maharashtra AIR 1972 SC 545 has also observed that order framing charge affects personal liberty of a person and, therefore, the Court should not frame a charge simply because the prosecuting agency, by relying upon the documents referred to in Section 173 of the Code, considered it proper to institute the case. As further ruled in State of Karnataka vs. L. Munishwamy AIR 1977 SC 1489, for the purpose of determining whether there is sufficient ground for proceeding against an accused the court possesses, comparatively wider discretion in exercise of which it can determine the question whether the material on the record, if unrebutted, is such on the basis of which a conviction can be said reasonably to be possible.

 

15. The Supreme Court in Kans Raj vs. State of Punjab AIR 2000 SC 2153 has deprecated the tendency of the parents of the deceased for roping in all in-laws in the matters of dowry death in their over enthusiasm and anxiety to seek conviction for maximum people. As pointed out already, the material on record is not sufficient to prima facie establish complicity of Sangeeta in the alleged offences of cruelty and consequent abetment of suicide. Applying the aforesaid propositions of law, her discharge does not require any interference under the revisional jurisdiction. http://evinayak.tumblr.com/  http://vinayak.wordpress.com http://fromvinayak.blogspot.com

 

16. However, the past instances of cruelty as reflected in the letters coupled with the case diary statements of the prosecution witnesses suggesting that the dowry harassment had continued to persist, almost till the incident in question, provided sufficient ground for framing of charges against all the three accused namely Lajja Shankar, Meera and Shirish.

 

17. To sum up, none of the reasons assigned by the trial Judge for discharging the parents and brother of Amrish deserves acceptance. Their discharge, therefore, is not sustainable.

 

18. For these reasons, the impugned order so far as it relates to Amrish and Sangeeta is maintained whereas the other part concerning Lajja Shankar, Smt. Meera and Shirish is hereby set aside. As an obvious consequence, discharge of these three accused namely Lajja Shankar, Smt. Meera and Shirish is annulled. Instead, it is directed that the trial Judge should also proceed against them in accordance with law after framing suitable charges of the offences punishable under Sections 498A and 306 of the IPC.

 

19. In the result, Cr.R.No.1445/04 is dismissed whereas Cr.R.No.1400/04 stands partly allowed to the extent as indicated hereinabove.

 

20. A copy of this order be retained in the connected revision.

 

(R.C.Mishra) JUDGE 06.05.2008

 


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PDF file of this order uploaded to http://1drv.ms/1EBF5FL

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Vinayak
Father of a lovely daughter, criminal in the eyes of a wife, son of an compassionate elderly mother, old timer who hasn't given up, Male, activist