Smt. Vinod Chandel vs Abhilasha Chandel

Kuldip Singh, Judge

The order dated 29.08.2011 passed by learned Chief Judicial Magistrate, Shimla, in Case No. 31-2 of 09/02 framing charge against the petitioner u/s 506-II, has been assailed in the revision.

The facts, in brief, are that respondent had filed a complaint under Sections 420, 506 IPC against the petitioner alleging therein that respondent is legally wedded wife of late Ram Partap Chandel. The respondent and her daughter are only legal heirs of Ram Partap Chandel and they are only entitled to his property.

It has been alleged that petitioner has drafted a false and frivolous Will and on the basis of that Will, the petitioner is trying to cheat the respondent and her daughter. The petitioner is illegally withdrawing money from the money to which she is not entitled. The petitioner is bent upon to harm the respondent and her daughter and complaint to this effect was made to S.H.O., Sadar, Shimla.

It has been alleged that respondent had been receiving threats at Shimla on her telephone number and respondent had made a complaint in this regard to Telecom Department and the local police. On these facts, the complaint has been filed.

The respondent had examined herself and two other witnesses in preliminary evidence and on the basis of preliminary evidence, summons were issued to the petitioner. The pre-charge evidence was recorded. The learned Chief Judicial Magistrate discharged the petitioner for offence punishable u/s 420 IPC, but ordered framing of charge for offence punishable u/s 506-II IPC. It has been submitted that no case u/s 506-II IPC is made out against the petitioner on the basis of material on record. The learned Chief Judicial Magistrate has erred in ordering framing of charge against the petitioner u/s 506-II IPC. The material has been misconstrued and misinterpreted, the order dated 29.08.2011 is liable to be set aside.

I have heard learned counsel for the parties and have also gone through the record. The learned counsel for the petitioner has submitted that case has been instituted on the basis of complaint. It has been submitted that Section 245 Cr.P.C. provides that if after taking evidence u/s 244 Cr.P.C. the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. It has been submitted that Section 245 Cr.P.C is applicable to a warrant case instituted otherwise than on a police report. The scope of Section 245 Cr.P.C. is different from scope of Section 239 Cr.P.C. which refers to cases instituted on police report. It has been submitted that u/s 239 Cr.P.C. the accused is to be discharged if charge against the accused is found to be groundless whereas u/s 245 Cr.P.C. the accused is to be discharged if no case against the accused has been made out which unrebutted would warrant his conviction. It has been submitted that material on record if remains unrebutted the petitioner cannot be convicted u/s 506-II IPC, therefore, petitioner is entitled to discharge u/s 506-II IPC also. The learned counsel for the respondent has supported the impugned order.

The allegations in the complaint are that petitioner is bent upon physically harming the complainant. The accused is repeatedly threatening the complainant that she will get the complainant and her daughter killed through her goondas. A complaint has been made by the complainant to the SHO, Sadar, Shimla, on 29.11.2001 and similar complaint was also addressed to the General Manager, Department of Telecom. The complainant is under constant threat from the accused and even the daughter of the complainant is under constant threat for life from the accused. There is likelihood that on the line of threatenings the accused may try to kill the complainant and her daughter with a view to grab their property.

The complaint was filed in the Court on 14.03.2002. It appears from the complaint that threats were extended by petitioner to respondent on telephone. The respondent appeared as CW-1 and in her statement as CW-1, the respondent has stated that petitioner extended threats on telephone No. 2813019. A complaint to this effect was made to Telephone Department vide Ex.CW1/D and to the police vide Ex. CW1/E. In cross-examination, she has stated that she was given threats on telephone in the year 1997 after the death of her husband. She lodged the complaint to the Telephone Department in the year 1997-98 and to the S.H.O. in the year 1998. The telephone No. 2813019 is not of her residence. She has stated that in the complaint telephone number has not been written. She has also stated that in Ex. CW1/E telephone number has not been written.

CW-2 Kaushal Kumar is the brother of the complainant. He has stated that his sister and her daughter had been receiving threats on telephone. He has not stated that on which telephone the threats had been coming and who had been giving the threats. CW-3 Jai Chand has stated that petitioner had been giving threats on telephone to the complainant that she would kill her, but he has not stated that on which telephone number the threats had been given. In cross-examination, he has stated that such threats had been coming after 1984-85. He never met the petitioner.

Exhibit CW1/D is the complaint written by respondent to the General Manager, Department of Telecom, wherein a request has been made to change the telephone No. 213019 on the ground that she had been receiving threats from petitioner on the said telephone number. Exhibit CW1/D is dated 04.12.2001. Exhibit CW1/E is the complaint dated 29.11.2001 lodged by respondent with S.H.O., Sadar, Shimla stating therein that she had been receiving threats from petitioner on telephone. In Ex. CW1/E neither the telephone number nor period has been specified when respondent received threats from petitioner. In the complaint, the respondent has not specified the period, date, telephone number when respondent allegedly received threats from petitioner for killing the respondent and her daughter.

The respondent in her statement has given telephone No. 2813019, but in further cross-examination she has stated that this telephone number is not of her residence. In her statement, she has stated that she had been receiving threats after 1997 when her husband died. She has stated that she had lodged written complaint in the year 1997-98, but no such complaint has been proved on record. She has stated that she had submitted a written complaint to the S.H.O. in the year 1998, but even that complaint is not on record. Exhibit CW1/D is dated 04.12.2001 and Exhibit CW1/E is dated 29.11.2001. In Ex. CW1/D, she has given telephone number 213019 and in her statement she has stated that she had been receiving threats on telephone number 2183019, but again in the cross-examination she has stated that telephone No. 2183019 is not of her residence. The respondent has led contradictory evidence regarding alleged threats extended by petitioner to kill her and her daughter. The evidence led by the respondent is not sufficient even if such allegations remain unrebutted to warrant conviction of petitioner for offence punishable u/s 506-II IPC. The learned Chief Judicial Magistrate has not properly appreciated the material on record in ordering framing of charge for offence punishable u/s 506-II IPC.

In view of above, the revision is allowed and the order dated 29.08.2011 passed by learned Chief Judicial Magistrate, Shimla, in Case No. 31-2 of 09/02 framing charge against the petitioner u/s 506-II, is set aside and the petitioner is discharged u/s 506-II IPC. In view of disposal of the main petition, Cr.M.P. Nos. 829 and 940 of 2011 are also disposed of.