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Judgment
1. This application under Section 482 of Cr.P.C. has been filed against the order dated 1-3-2017 passed by Sessions Judge, Shahdol in Criminal Revision No.6/2017, thereby affirming the order dated 26-12-2006 passed by J.M.F.C. Shahdol in Criminal Case No.529/2016 by which the Trial Court has framed charge under Section 498-A of I.P.C. against the applicant.
The undisputed facts are that the applicant and the respondent no.2 were married on 30-1-2013 and have one child out of wedlock.
The respondent no.2 has lodged a F.I.R. on 15-5-2016 on the allegations that she is working on the post of Sub-Inspector in Railway Department. She was married to the applicant in the year 2013 as per Hindu Rites and Rituals. One boy was born who died immediately after his birth. They have one daughter aged about 10 months. On 15-5-2016, she had gone on her duty. When she came back, she was having high fever and requested the applicant to serve food, otherwise she would go back to her parents'' house. The applicant replied that she may go anywhere, but she will have to leave the child with him and on trivial issues, he is pressurizing her to give divorce by mutual consent. From the date of marriage, the applicant is harassing her mentally. On this complaint, the police registered the F.I.R. for offence under Section 498-A of I.P.C.
The police after completing the investigation, filed the charge sheet for offence under Section 498-A of I.P.C.
The Trial Court by order dated 26-12-2016 framed charge under Section 498-A of I.P.C.
Being aggrieved by the order framing charge, the applicant filed a criminal revision, which too has suffered dismissal by order dated 1-3-2017.
Hence, this application has been filed challenging the order dated 26-12-2016 and 1-3-2017 passed by the Trial Court and the Revisional Court respectively.
This Court by order dated 2-11-2017, directed the parties to remain present before this Court so as to find out the possibility of compromise between the parties.
The applicant and the respondent no.2 are present before the Court. The respondent no.2, in an unequivocal terms submitted that she wants to reside with the applicant, whereas the applicant has refused to keep the respondent no.2 with him. Thus, it is clear that in view of adamant attitude of the husband, compromise is not possible.
The case was thereafter heard on merits.
It is submitted by the Counsel for the applicant that the behaviour of the respondent no.2 was cruel towards the applicant and his family members. Therefore, the applicant had filed a petition under Section 13 of Hindu Marriage Act and the respondent no.2 after appearing before the Trial Court, filed her written statement and admitted all the allegations. However, there was compromise between the parties and thereafter the petition for divorce was withdrawn and the parties started residing together. However, the respondent no.2 resided with the applicant for near about 3-4 months and thereafter, she lodged the F.I.R. This clearly shows that it is the respondent no.2 who is cruel towards the applicant and his family members and the F.I.R. has been lodged just in order to harass the applicant. The Counsel for the applicant has relied upon the judgment passed by the co- ordinate Bench of this Court in the case of Dashrath P. Bundela and others Vs. State of M.P. reported in (2011) ILR (MP) 2923 and Kailashchandra Maheshwari and others Vs. State of M.P. and others reported in (2006) 1 MPHT 349.
Per contra, it is submitted by the Counsel for the respondent no.2 that the behavior of the applicant had been cruel towards the respondent no.2 right from the date of marriage. The respondent no.2 with an intention to resolve the dispute, as she always wants to reside with the applicant, admitted all the allegations which were made in the divorce petition, as it was the condition imposed by the applicant that in case the respondent wants to reside with him, then she will have to admit all the allegations. With an intention to save her married life, the respondent no.2 accepted all his conditions and accepted the allegations and thereafter the divorce petition was withdrawn by the applicant and they started residing together. However, the conduct of the applicant did not improve and therefore, the F.I.R. was lodged. The respondent no.2 is still ready and willing to reside with the applicant. It is further submitted that the F.I.R. is not the encyclopaedia of the offence. The respondent no.2 has stated in detail about the harassment by the applicant in her statement recorded under Section 161 of Cr.P.C. Prima facie offence is made out. For framing charges, only strong suspicion is required and the possibility of conviction cannot be a criteria for framing charges. The possibility that the accused might have committed an offence, is sufficient to frame charges. The allegations made against the applicant prima facie make out an offence under Section 498-A of I.P.C.
Heard the learned Counsel for the parties. The respondent no.2 in her statement recorded under Section 161 of Cr.P.C. has stated that after the marriage, the applicant had taken her to Manali along with his other relatives and it was decided that the rent of the Hotel shall be payable by his relatives. However, at the time of check-out, the applicant demanded Rs.20,000/- from the respondent no.2 for payment of the rent of the Hotel. As the respondent no.2 was neither having sufficient amount nor was having her A.T.M. card, therefore, the applicant had made the issue. After coming back from Manali, he compelled her to handover her ornaments to her mother-in-law. The applicant used to ask for every detail of her salary and also used to pressurize that the respondent no.2 should handover the entire salary to her mother-in-law. By keeping her in dark, the applicant had also got his mobile number registered in the bank account of the respondent no.2 for receiving the SMS alerts. For every expenditure, out of her own salary, the applicant used to ask for the details of expenditure. He used to quarrel with her for every withdrawal. On 15-5-2016, when she came back from her duty, she was having high fever. she requested the applicant to serve the food as she was not well, otherwise, she would go back to her parents'' home. In reply, the applicant said that she may go wherever she wants, however, she will have to leave the child with him. He also used to pressurize her to grant divorce by mutual consent.
The applicant is also present in the Court. On query, he accepted that for near about 2 ? years he was getting the SMS alert of every transaction done by the respondent no.2 in her own bank account. He also stated that the respondent no.2 was giving money out of her salary to her relatives.
Be that whatever it may be. The moot question for determination is that whether the allegations made by the respondent no.2 against the applicant are sufficient to frame charge under Section 498-A of I.P.C. or not?
Before adverting to the facts of the case, it would be apposite to consider the scope of power under Section 239 and 240 of the Criminal Procedure Code. Section 239 of Cr.P.C. reads as under :-
When accused shall be discharged.-- If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing.
Section 240 of Cr.P.C. reads as under :
Framing of charge.-- (1) If, upon such consideration, examination, if any, and hearing, the Magistrate is of opinion that there is ground for presuming that the accused has committed an offence triable under this Chapter, which such Magistrate is competent to try and which, in his opinion, could be adequately punished by him, he shall frame in writing a charge against
the accused. (2) The charge shall then be read and explained to the accused, and he shall be asked whether he pleads guilty of the offence charged or claims to be tried.
The Supreme Court in the case of Sheoraj Singh Ahlawat Vs. State of U.P. reported in (2013) 11 SCC 476 held as under :
The case at hand being a warrant case is governed by Section 239 CrPC for purposes of determining whether the accused or any one of them deserved to be discharged. Section 239 is as under: "239. When accused shall be discharged.--If, upon considering the police report and the documents sent with it under Section 173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an opportunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for so doing." A plain reading of the above would show that the court trying the case can direct discharge only for reasons to be recorded by it and only if it considers the charge against the accused to be groundless. 13. Section 240 of the Code provides for framing of a charge if, upon consideration of the police report and the documents sent therewith and making such examination, if any, of the accused as the Magistrate thinks necessary, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence triable under Chapter XIX, which such Magistrate is competent to try and which can be adequately punished by him. 14. The ambit of Section 239 CrPC and the approach to be adopted by the Court while exercising the powers vested in it under the said provision fell for consideration of this Court in Onkar Nath Mishra v. State (NCT of Delhi ). That too was a case in which a complaint under Sections 498-A and 406 read with Section 34
IPC was filed against the husband and parents- in-law of the complainant wife. The Magistrate had in that case discharged the accused under Section 239 CrPC, holding that the charge was groundless. The complainant questioned that order before the Revisional Court which directed the trial court to frame charges against the accused persons. The High Court having affirmed that order, the matter was brought up to this Court. 15. This Court partly allowed the appeal qua the parents-in-law while dismissing the same qua the husband. This Court explained the legal position and the approach to be adopted by the court at the stage of framing of charges or directing discharge in the following words:
"11. It is trite that at the stage of framing of charge the court is required to evaluate the material and documents on record with a view to finding out if the facts emerging therefrom, taken at their face value, disclosed the existence of all the ingredients constituting the alleged offence. At that stage, the court is not expected to go deep into the probative value of the material on record. What needs to be considered is whether there is a ground for presuming that the offence has been committed and not a ground for convicting the accused has been made out. At that stage, even strong suspicion founded on material which leads the court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged would justify the framing of charge against the accused in respect of the commission of that offence."
The Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa reported in (1996) 4 SCC 659 has held as under :
In Antulay case Bhagwati, C.J., opined, after noting the difference in the language of the three pairs of sections, that despite the difference there is no scope for doubt that at the stage at which the court is required to consider the question of framing of charge, the test of "prima facie" case has to be applied. According
to Shri Jethmalani, a prima facie case can be said to have been made out when the evidence, unless rebutted, would make the accused liable to conviction. In our view, a better and clearer statement of law would be that if there is ground for presuming that the accused has committed the offence, a court can justifiably say that a prima facie case against him exists, and so, frame a charge against him for committing that offence. 31. Let us note the meaning of the word ''presume''. In Black''s Law Dictionary it has been defined to mean "to believe or accept upon probable evidence". (emphasis ours). In Shorter Oxford English Dictionary it has been mentioned that in law ''presume'' means "to take as proved until evidence to the contrary is forthcoming", Stroud''s Legal Dictionary has quoted in this context a certain judgment according to which "A presumption is a probable consequence drawn from facts (either certain, or proved by direct testimony) as to the truth of a fact alleged." (emphasis supplied). In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at p. 1007 of 1987 Edn. 32. The aforesaid shows that if on the basis of materials on record, a court could come to the conclusion that commission of the offence is a probable consequence, a case for framing of charge exists. To put it differently, if the court were to think that the accused might have committed the offence it can frame the charge, though for conviction the conclusion is required to be that the accused has committed the offence. It is apparent that at the stage of framing of a 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.
In the case of State of Tamil Nadu Vs. Suresh Rajan reported in (2014) 11 SCCC 709, it has been held by the Supreme Court as under :
We have bestowed our consideration to the rival submissions and the submissions made by Mr Ranjit Kumar commend us. True it is that at the time of consideration of the applications for discharge, the court cannot act as a mouthpiece of the prosecution or act as a post office and may sift evidence in order to find out whether or not the allegations made are groundless so as to pass an order of discharge. It is trite that at the stage of consideration of an application for discharge, the court has to proceed with an assumption that the materials brought on record by the prosecution are true and evaluate the said materials and documents with a view to find out whether the facts emerging therefrom taken at their face value disclose the existence of all the ingredients constituting the alleged offence. At this stage, probative value of the materials has to be gone into and the court is not expected to go deep into the matter and hold that the materials would not warrant a conviction. In our opinion, what needs to be considered is whether there is a ground for presuming that the offence has been committed and not whether a ground for convicting the accused has been made out. To put it differently, if the court thinks that the accused might have committed the offence on the basis of the materials on record on its probative value, it can frame the charge; though for conviction, the court has to come to the conclusion that the accused has committed the offence. The law does not permit a mini trial at this stage.
If the allegations made against the applicant are considered in the light of the judgments passed by the Supreme Court, then it is clear as noon day that there is a sufficient material on record to presume that the applicant has committed an offence and the allegations are not groundless. So far as the divorce proceedings are concerned, whether the respondent no.2 had admitted the allegations in order to save her married life or not and what would be the effect of admission made by the respondent no.2 in another proceedings are some of the questions which can be decided only after recording of evidence at the trial.
Hence, this Court is of the considered opinion that the Trial Court did not commit any mistake by framing charge under Section 498-A of I.P.C. and accordingly, the order dated 26-12- 2016 passed by J.M.F.C., Shahdol in Criminal Trial No.529/2016 and the order dated 1-3-2017 passed by the Sessions Judge, Shahdol in Criminal Revision No.6/2017 are hereby affirmed.
The application fails and is hereby dismissed.