Abhinav Pal And Another vs State Of Uttarakhand And Another

Sharad Kumar Sharma, J

These Revisions are listed for argument, but none appears to assist the Court even in the revised call. Since these are Criminal Revisions, these cannot be dismissed for want of prosecution, hence the same are being decided on merits after considering the material which is placed on record by the parties.

These are four Criminal Revisions, which are questioning the order dated 27th August, 2018, as rendered by the Additional Sessions Judge 4th, Dehradun in Sessions Trial No. 59 of 2018, State Vs. Abhinav Pal and others, which was arising out of the Case Crime No. 163 of 2017, for commission of the offences under Sections 498-A, 304-B I.P.C. and ¾ of Dowry Prohibition Act, which was registered at Police Station Raipur, District Dehradun.

The ground, on which, the charge has been framed and has been challenged in the revision is to the effect that the learned Sessions Judge while framing the charge under Sections 498-A and 304-B I.P.C. to be read with Section ¾ D.P. Act and alternatively framing the charge under Section 306 I.P.C. by separate order on the same day would be vitiated. The revisionist No. 1, who has been charged for the commission of the offence, he is posted as Manager in Allababad Bank, Kanpur Zone and revisionist No. 2, i.e. father-in-law of the deceased, he too resides in Kanpur along with the revisionist No. 1 of Criminal Revision No. 308 of 2018. They contend that the deceased was a native of Agra and since her parents were working in Dehradun as Administrative Assistant and, hence, admittedly, they lived in Dehradun, which happens to be approximately about 700 kms. away from their principal place of abode. They contend that on perusal of the Case Crime No. 163 of 2017, the deceased, it was contended to be not residing with the revisionist for a period of last more than one year and the death of the deceased has taken place in her official accommodation and as there is no evidence was ever produced by the parents of the deceased person nor there is any evidence on record to show that the revisionist were ever involved in the commission of offence as narrated therein. They should not be charged with for the commission of offence, as framed against them in the charge under Section 227 of the Code of Criminal Procedure.

The ground taken in the revisions are that in view of the provisions contained under Section 113-B of the Indian Evidence Act in order to establish the commission of offence under Sections 304-B, there are certain basic ingredients which are necessarily required to be satisfied to make the present accused guilty for commission of the offence under Section 304-B. None of the parameters as narrated therein in the ground which was taken into consideration or was available for the purposes of establishment of offence as alleged or for framing of charge by the impugned order dated 27th August, 2018.

Apart from it, while questioning the charge, the revisionist had tried to make effort to press upon their non involvement, the intention which they wanted to resort to were the grounds which should be pressed at the time when the trial was supposed to commence after the framing of the charge against them for the offence narrated therein, it cannot be considered in the revision against the charge, for example in the revision, in question, they have tried to interpret the statement recorded of one Mr. Mukesh as recorded under Section 161 of the Cr.P.C. so as to co-relate their innocence and non-involvement in the commission of the offence under Sections 498-A and 304-B I.P.C. and ¾ D.P. Act. But the fact which is admitted even by the revisionist in the revision is that the deceased Ritu, who was married to respondent No. 1 of the Revision No. 308 of 2018 and there have been certain controversy pertaining to the place of residence where would the deceased Ritu reside after the marriage being solemnized with the revisionist No. 1. They have narrated various stories pertaining to the period during which the deceased Ritu had lived with the in-laws in order to substantiate that there was no ground which could establish the charge with regard to the commission of offence under Section 304-B cannot be attributed against them in view of the period during which the deceased Ritu had lived with her in-laws.

Not even this, the revisionist has also gone to the extent of levelling allegations that at the time when the deceased was not very comfortable and conducive to the revisionist No. 1 of Revision No. 308 of 2018, the member of the family has expressed that they apprehend that the deceased Ritu was having love affairs with one Mr. Mukesh and as a consequence of the said relationship, the revisionist No. 1 has contended that though they being married, the deceased Ritu was not having any physical relationship with the revisionist No.1 and hence, the revisionist No. 1 contended that he has initiated the proceedings for dissolution of the marriage on 24th October, 2016, along with the relief which he has sought for was under Section 14 of the Hindu Marriage Act before the Principal Judge Family Court Kanpur.

He contends that the plea of Section 14 was accepted by the Judge Family Court, Kanpur as for a period of one year after the marriage they did not had any emotional bondage amongst each other and, he contended the petition of dissolution of marriage was in contravention of the Hindu Marriage Act and, hence, he contended in the memorandum of revision that circumstances which prevailed amongst themselves, it cannot be said that the revisionist No. 1 or the revisionist No. 2 were at all involved in the commission of offence as alleged and they ought not to be charged by the learned Sessions Judge in Session Trial No. 59 of 2018, State Vs. Abhinav Pal and others. After having considered the plea of Section 14, this Court is of the view that it will have no implication as against the framing of charge.

At this stage, though there is none on behalf of the revisionist to assist the Court nor any counsel has appeared to assite the Court, but after going through the charge framed by the Additional Sessions Judge 4th, Dehradun, the Court concerned had considered the material and the evidence which were adduced after the submission of the chargesheet, which was sufficient enough to establish their involvement for the commission of offence, hence, the Magistrate concerned has framed the charge against them and on considering the factum of the strained relationship which the revisionist No. 1 had with his wife, who was married with him on 10th March, 2016, this Court is of the view that it is not that the Trial Court has framed the charge without application of any mind or without considering the evidence or material which was produced before it had framed the charge against the accused persons.

As far as scope of interference while exercising power under Section 397 to be read with 401, the scope of interference against the framing of the charge is very limited and particularly when the Sessions Court has applied its mind after considering the evidence had recorded its reasons, its not this stage, where the propriety of evidence and test of innocence is to be scrutinized by the Magistrate ceased with the trial and has framed the charge. Thus, it cannot be judiciously examined while exercising the revisional power because the propriety of framing of the charge is exclusively which is falling within the domain of the session trial, though obviously, it had be on application of mind and considering the facts available before it. It has been held out by the Hon'ble Apex Court in the judgment reported in 2019 (2) Supreme 210, Pallavi Vs. State of U.T. Chandigarh and others, in para 7 that the interference in a charge which has been framed by the Session Court, after going through the merits of the material, ought not to be interfered or set aside by the Court while exercising its power under Section 397. Para 7 of the said judgment reads as under :-

"7. When the Judicial Magistrate has, based on the chargesheet and on the materials filed along with the chargesheet, satisfied himself, order of framing of charge against respondents no.2 and 3. At the stage of framing of charge, the court is concerned only with the aspect that there is prima facie materials presuming that the accused has committed the offence. At the initial stage the court is not called upon to examine the sufficiency or otherwise of the materials produced by the prosecution and also to examine whether the same are sufficient to sustain the conviction of the accused thereon. The learned Sessions Judge, in our view ought not to have gone into the merits of the materials and erred in setting aside the order of the Judicial Magistrate framing charge against accused."

The Hon'ble Apex Court has propounded the ratio that as far as the aspect pertaining to the framing of the charge is concerned, it has to be arrived at based on the appreciation of the material by the Sessions Court and its examination may not be within the scope of revisional Court to go into the propriety of the charge and particularly on appreciation of evidence, which is being sought to be pleaded by the learned counsel for the revisionist in his pleadings in order to challenge the order of framing of charge.

The learned counsel for the respondent had further placed reliance on a judgment rendered by the Hon'ble Apex Court in the reported in 2019 (3) Supreme 171, State Represented by Deputy Superintendent of Police Vigilance and Anti-Corruption, Tamil Nadu Vs. J. Doraiswamy and others, wherein, the Court has held that once the charge has been framed under Section 227, the interference at the revisional stage, when the charge has been put to challenge will amount to exercising of the power under Section 228 for discharging a person that too without appreciating the evidences to be adduced by the prosecution against the revisionists, who have already been charged by the Sessions Court after considering the F.I.R., chargesheet and other evidence on record. That may not be the scope of revision as a person who has already been charged by the Session Court based on the material, could only be scrutinized independently, considering the evidence which is led by the parties. Relevant paras of the judgment are quoted hereunder:-

"14. In our view, such approach of the High Court while deciding the discharge applications of the respondents (accused) is not legally correct and, therefore, it cannot be upheld.

In our view, consideration of the record for discharge purpose is one thing and the consideration of the record while deciding the appeal by the Appellate Court is another thing.

While considering the case of discharge sought immediately after the chargesheet is filed, the Court cannot become an Appellate Court and start appreciating the evidence by finding out inconsistency in the statements of the witnesses as was done by the High Court in the impugned order running in 19 pages. It is not legally permissible.

We have neither set out the facts and nor the evidence (which is yet to be led and tested in the trial) in detail and have also refrained ourselves from recording any finding on the merits of the case, else it will cause prejudice to the rights of the parties while prosecuting their case in the trial.

All that we say while allowing these appeals is that there is no prime facie case made out for discharge of the respondents at this stage of the trial. They, therefore, have to stand for trial on merits in the light of the documents and contents of chargesheet filed pursuant to the order of the Court. The Special Court (CJM) should have, therefore, allowed the State to adduce the evidence on merits in support of the charge-sheet to prove the charges.

In view of the foregoing discussion, the appeals succeed and are accordingly allowed. The impugned order is set aside. As a consequence, the applications filed by the respondents under Section 227 of the Cr.P.C. are dismissed.

Consequently, this Court does not find any merit in the revisions and hence, the Revisions are dismissed.