Final Order 6

Order Details: COPY OF JUDGMENT
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IN THE COURT OF MS. SHEFALI SHARMA,
ADDITTIONAL SESSIONS JUDGE-02, NORTH
DISTRICT, ROHINI COURTS, DELHI
In the matter of:
Criminal Revision No. 198/2023
Vimla Devi
D/o Sh. Ram Samujh
R/o H. No. 418, Pocket E-16,
Rohini, Sector – 8, Delhi.
....Revisionist
Versus
(1) State
Through
Assistant P.P.
(2) Dinesh Kumar
S/o Sh. Jiya Lal,
R/o H.No. 256, Village Rasavan,
Post Didarganj, Tehsil Phoolpur,
Kushak Goan, Azamgarh,
UP – 223224.
...Respondents
Date of Institution : 04.07.2023
Conclusion of arguments : 25.09.2023
Date of Order : 05.10.2023
ORDER
1. Present revision petition is preferred by the
revisionist against the order dated 21.03.2023 (hereinafter
referred to as impugned order) passed by ld. MM (Mahila Court),
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North whereby she has discharge respondent Dinesh Kumar, in
case FIR No. 1071/2007, PS Rohini, U/s 498A/406 IPC.
2. Arguments heard. Perused the record.
3. It is submitted by Ld. Counsel for the revisionist that
the ld. MM without appreciating facts of the case has wrongly
discharged the respondent no.2/accused U/s 498A/406 IPC.
4. As regards the powers of Revision U/s 397 Cr.P.C
the Ho'ble Supre Court in the latest judgment dated 17.02.2022 in
the case of Directorate of enforcement Vs. Gagandeep Singh
2022 SCC online Delhi 514 has reiterated the law that:
“the provision of revision in Cr.P.C. suggests
that the court shall limit itself to the findings
sentence or order pass by the subordinate
court, against which the revisionists is
seeking relief before the court concerned and
shall not go beyond the analysis and
observations made by the subordinate court.”
Section 397 Cr.P.C. unequivocally states that the
High Court and Sessions Courts which is exercising its revisional
jurisdiction shall apprise itself solely of the question of
correctness, legality and properity of the order of the subordinate
court.
The Hon'ble Supreme Court in Directorate of
enforcement Vs. Gagandeep Singh (supra) again emphasised
that:
“in its revisional jurisdiction court will not
proceed into the enquiry of the records,
documents and other evidence in consideration
before the Trial Court but shall constarin itself
to the findings of the lower court in the
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impuged order and to the question whether
there is any patent, illegality, error apparant on
record or incorectness.”
5. It is pertinent to note the case law on the point of
charge and the considerations to be kept in mind for framing
charge. It is a settled law that at the stage of charge, only prima
facie case is to be looked into and the court is not to marshal the
evidence and meticulous examination of the material on record is
not required and the court is required to examine the question
only prima facie. In the case of Union of India Vs. Praful
Kumar and Anr. (1979) 3SCC76 it was held as under:
1. that the judge while considering the
question of framing the charges U/s
228 of the Code has the undoubted
power to sift and weigh the evidence
for the limited purpose of finding out
whether or not a prima facie case
against the accused has been made out.
2. 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.
3. 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.
4. that in exercising his jurisdiction U/s
227 of the Code the judge which under
the present Code is a senior and
experienced Code cannot act merely as
a post office or a mouth piece of the
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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 corns
of the matter and weigh the evidence as
if he was conducting a trial.
In the case of West Bengal Vs. Anil Kumar (1979)
4 SCC 274 the Hon’ble Supreme Court held that “the standard of
test, proof and judgment which is to be applied finally before
finding the accused guilty or otherwise is not exactly to be
applied at the stage of Section 227 or 228 of the Code….”
6. From the above discussion it seems well settled that at
the stage of charge court is required to evaluate the material
documents on record with a view to finding out if the facts
emerging there from taken at their face value disclose the
existence of all the ingredients constituting the alleged offence
prima facie.
7. It has been observed by Ld. Trial Court that there is
no specific allegations qua demand of dowry and cruelty against
the accused persons. However, a perusal of the record shows that
in the original complaint before CAW Cell dated 10.08.2006,
there are specific allegations that the accused persons committed
cruelty upon the complainant for want of sufficient dowry. She
stated in her complaint “shadi ke kuch dino baad hi mera pati
aur sasural walie mujse dahej kam milne ke vajah se tank karne
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lage.... apne pitaji ko bhi unse jo ban pada unhone shadi mein
bhi diya aut baad mein dete rahe lekin in logo ka lalach aur
julam khatan nahi hua”.
There are specific allegations that despite giving birth
to a boy in the April 1999, the behaviour of accused persons did
not change and they kept instigating husband Dinesh
Kumar/respondent herein to remarry second time to a girl, who
could bring more dowry and accused Dinesh Kumar infact
remarried without taking legal divorce from complainant to some
other girl on 20.05.2006. Moreso, there is detailed list of dowry
articles attached with the original complaint with regard to
offence under Section 406 IPC.
8. Ld. Trial Court erred in discharging the accused/
respondent herein by over looking the documents which are
attached with the charge-sheet, apart from the statement of
witnesses against the accused for the offence punishable under
Section 498A/406 IPC.
9. In view of the above said discussion and
observations, the impugned order dated 21.03.2023 is set aside to
this extent and file is remanded back to rehear the arguments on
the point of charge qua the offences under Section 498A/406 IPC
(charge already framed under Section 494 IPC) and after
reappreciating all necessary documents attached with the charge-
sheet, pass further appropriate orders in accordance with law.
The revision petition is accordingly allowed with these
observations.
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10. TCR, if any be sent back to the concerned court with
copy of this order.
11. Revision file be consigned to Record Room.
Pronounced in open (SHEFALI SHARMA)
Court on 05.10.2023 ADDITIONAL SESSIONS JUDGE-02,
NORTH DISTRICT,
ROHINI COURTS, DELHI
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