IN THE COURT OF SHRI GURVINDER PAL SINGH ADDITIONAL SESSIONS JUDGE05, SOUTH WEST DISTRICT DWARKA COURTS, NEW DELHI Criminal Revision No.: 440556/18 CNR No.DLSW0100811112016 State of NCT of Delhi Through Public Prosecutor .... Revisionist Vs 1. Bhagwan Dass (FIL) S/o Late Mangal Ram R/o D140141, Gali No.3, Sector 5, Dakshin Puri, New Delhi. 2. Mahender Kumar (Devar) S/o Bhagwan Dass R/o D140141, Gali No.3, Sector 5, Dakshin Puri, New Delhi. 3. Vinod Kumar (Jeth) S/o Bhagwan Dass R/o D178, Dakshin Puri, New Delhi. .... Respondents CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 1 of 11 Revision under Section 397 Cr.P.C. against impugned order dated 29.08.2016 passed by Magisterial Court discharging respondents Date of Institution : 13.10.2016 Arguments heard on : 07.07.2018 Date of Judgment : 25.07.2018 JUDGMENT
1. Revision under section 397 of The Code of Criminal Procedure, 1973 (in short Cr.P.C.) has been preferred by Revisionist/State through Ld. Public Prosecutor for setting aside order dated 29.08.2016 passed by Ms. Richa Gusain Solanki, Learned Metropolitan Magistrate(Mahila Court01), Dwarka Courts, New Delhi, in case bearing FIR no.121/14, titled as “State Vs. Satish Kumar & Ors.” PS CWC/Nanakpura whereby respondents accused Bhagwan Dass, Mahender Kumar and Vinod Kumar were discharged for offences under section 498A/406/34 IPC.
2. Revision petition rests on the premise laid by revisionist/State that learned Trial Court has passed the impugned order without CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 2 of 11 appreciating the evidence on record against the accused persons; learned Trial Court has erred in appreciating that there are specific allegations in the complaint wherein complainant has specifically stated that after two days of her marriage her inlaws started taunting her for bringing insufficient dowry and in continuity of that accused Bhagwan Dass specifically demanded gold chain and ring and also Rs.3 lacs cash alongwith accused husband and motherinlaw; in continuity of said demand when complainant showed her inability to fulfill their demands, she was beaten by accused Mahender by caught holding her hair; learned Trial Court has completely ignored the allegations against accused Vinod of threatening the complainant that if she does not fulfill their dowry demands then he would force her for prostitution and also slapped and abused her; complainant had been subjected to mental and physical cruelty at the hands of inlaws. It is also averred that the learned Trial Court has failed to appreciate the well settled principle of law that at the time of framing of charge, meticulous consideration of evidence and other material is not necessary as held by Apex Court in case “State Vs. Bangarappa (2001) 1 SCC 369, AIR 2001 SC222: 2001 CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 3 of 11 CrLJ 111”. It is prayed that the impugned order be partially set aside and directions be given to frame charge under section 498A/406/34 against accused persons i.e., Bhagwan Dass, Mahender and Vinod.
3. Sh.R.K.Sheoran, Ld. Counsel for respondents submitted that the accused persons have resolved the matrimonial dispute with the first informant complainant wife as per mediation proceedings of date 30.05.2018 in Mediation Center, Saket Courts whose copy is placed on record. Learned Additional Public Prosecutor for the State/revisionist pressed for disposal of this revision petition on merits.
4. I have heard the revisionist/State through Sh. Pramod Kumar, learned Additional Public Prosecutor for the State and respondents through Sh.R.K.Sheoran, learned counsel. I have perused the record of revision and of Trial Court. I have given my thoughtful consideration to the contentions put forth.
5. The law on the question of consideration of charge is well settled. If the criminal court, on consideration of the material submitted CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 4 of 11 with the charge sheet finds that a grave suspicion exists about the involvement of the accused in the crime alleged, it is expected to frame the charge and put the accused on trial. At such initial stage of the trial, the truth, veracity and effect of the evidence which the prosecutor proposes to adduce are not required to be meticulously judged, nor is any weight to be attached to the probable defence of the accused.
6. In the case of “State of Bihar Vs. Ramesh Singh”, AIR 1977 SC 2018, Hon’ble Supreme Court observed as under :
“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 S. 227 or S.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.
XXXXX 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.
XXXXX 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 CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 5 of 11 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.
7. In “Union of India Vs. Prafulla Kumar Samal”, 1979 Crl.
L.J.154, Hon’ble Supreme Court made the following observations regarding the test to be applied at the stage of consideration of the case for charge :
“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. 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. In exercising his jurisdiction under Section 227 the Judge which under the present Code is 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. Similar observations were made in State of M.P Vs. S.
B.Johari 2000 Crl. L. J. 944 (SC) in the following words : CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 6 of 11 “The Court is not required to appreciate the evidence and arrive at the conclusion that the materials produced are sufficient or not for conviction the accused. If the Court is satisfied that a prima facie case is made out for proceeding further then a charge has to be framed. The charge can be quashed if the evidence which the prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged by cross examination or rebutted by defence evidence if any, cannot show that accused committed the particular offence. In such case there would be no sufficient ground for proceeding with the trial.”
9. In the case of “P. Vijayan Vs. State of Kerala,” 2010 Crl. L.
J. 1427, while observing that the criminal court is not a mere post office to frame the charge at the behest of the prosecution, Hon’ble Supreme Court has observed that the court is required to exercise judicial mind to the facts of the case in order to determine whether a case for trial has been made out or not. In this context, the following observations indicate the manner of assessment :
“In assessing this fact, it is not necessary for the Court to enter into the pros and cons of the matter or into a weighing and balancing of evidence and probabilities which is really the function of the Court, after the trial starts. At the stage of S. 227 the Judge has merely to sift the evidence in order to find out whether or not there is sufficient ground for proceeding against the accused. In other words, the sufficiency of ground would take within its field the nature of the evidence recorded by the police or the documents produced before the court which ex facie disclose that there are suspicious circumstances against the accused so as to frame a charge against him.”
CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 7 of 11
10. Sections 406 & 498A of IPC read as under: “406. Punishment for criminal breach of trust : Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
………………………………………………………………………………………………..” “498A. Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.
Explanation For the purpose of this section “cruelty” means
(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.”
11. The complaint as well as statements of witnesses recorded under section 161 Cr.P.C. by the officers of investigating agency are bereft of averments of any facts of (1) entrustment of any articles by complainant or her relatives to arraigned respondents/accused; (2) the arraigned respondents accused having dishonestly misappropriated or CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 8 of 11 converted to own use any entrusted property of complainant having dominion over it or having dishonestly used or disposed it; (3) the respondents accused having not returned any entrusted articles on demand of complainant. For want of such aforeelicited facts in the evidence collected during course of investigation, it cannot be said that there is any prima facie case for offence u/s 406 IPC against any of the arraigned respondents/accused.
12. In the case of Devender Kumar Mathur & Ors. Vs. State 2002(2) Crimes 12, High Court of Delhi laid down that to bring the case within the ambit of sections 498A IPC, it must be shown by positive evidence that cruelty was of nature to drive woman to commit bodily injury to herself or to commit suicide.
13. Also, the trial court in the impugned order has rightly held that though complainant alleges that respondent/accused Bhagwan Dass used to demand ring and chain from her but she does not mention even a single incident or the first time when he did so. Similarly, the complainant stated that interalia arraigned accused Bhagwan Dass used CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 9 of 11 to demand Rs.3 lacs but not a single specific incident is described. Also regarding corespondent accused Vinod, there is no specific allegation of any demand made by him. The premise laid by State that there were specific allegations in the complaint regarding such demands for gold chain and ring and also Rs.3 lacs cash by respondents/accused are bereft of substance since there is no mention of even a single incident or the first time when the arraigned respondents/accused did so. The afore elicited leveled allegations against respondents accused are bald, vague, devoid of necessary material particulars and facts with respect to the dates, month or year or any specific occasion. Mere taunts never constitute harassment nor suffice to constitute offence of cruelty within the ambit of section 498A IPC.
14. In the case of Smt. Rani & Another, 1996 JCC 119 it was held that taunt for not bringing dowry is quite distinct from demand of dowry.
15. In case of Manju Ram Kalita Vs. State of Assam V(2009) SLT 368 it was held that petty quarrels cannot be termed as cruelty to CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 10 of 11 attract provisions of section 498A whereas causing mental torture to the extent that it becomes unbearable may be termed as cruelty.
16. Finding the revision petition devoid of merits and being not maintainable in view of aforesaid discussion, it is hereby dismissed.
17. Trial court record alongwith copy of this judgment be sent back to concerned Magisterial Court. File of revision petition be consigned to record room. Digitally signed by GURVINDER PAL GURVINDER SINGH PAL SINGH Date: 2018.07.25 12:40:30 +0530 Announced in the open court (GURVINDER PAL SINGH) on date 25.07.2018 ASJ 05/SW/DWARKA COURTS NEW DELHI (sc) CR No 440556/16 CNR No.DLSW0100811112016 State Vs. Bhagwan Dass & Ors Page 11 of 11