A.Samuthrapandi, Aged 30 Yrs v. State Rep. By Its,

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 06.03.2018 DELIVERED ON : 22.01.2019

CORAM:

THE HONOURABLE MR.JUSTICE M.V.MURALIDARAN Crl.R.C.No.213 of 2018 and Crl.M.P.No.2061 of 2018 1.A.Samuthrapandi 2.A.Selvarani 3.A.Gurusamy 4.A.Muthuselvi ...

Petitioners Vs State represented by its The Inspector of Police, W-21, All Women Police Station, Guindy, Chennai - 600 032.

...

Respondent (Crime No.04/2017) Prayer: Criminal Revision filed under Sections 397 and 401 of Cr.P.C., against the order passed by the learned Judicial Magistrate, Alandur at Chennai in CMP.No.5789 of 2017 dated 06.01.2018.

For Petitioners: Mr.S.Kathiravan For Respondent : Mr.G.Harihara Arun Soma Sankar Government Advocate (Crl.Side)

JUDGMENT

This Criminal Revision Petition is filed by the petitioners/accused A1 to A4 against the order passed in C.M.P.No.5789 of 2017 dated 6.1.2018 by the Learned Judicial Magistrate, Alandur at Chennai wherein the learned trial judge dismiss their application filed under section 239 of Cr.P.C. 2.Brief case of the prosecution:

The case of the prosecution is that the complainant one S.Sumathi, daughter of Suyampuylinga Nadar lodged the complaint with the respondent police alleging that she lived a conjugal life for approximately 10 days with her husband A1 thereafter petitioner/accused A1 daily beaten her by demanding dowry on

instigation of her mother-in-law A2 brother-in-law A3 and her sister-in-law A4. After marriage in the nuptial day her husband A1 was slept without having sexual intercourse with her, and he told that he is using A32 pills (used to treat overactive bladder and urinary inconsistency) and even on the consecutive days also there was no sexual relationship among them and on next day morning her mother-in-law knocked the door and made her awake and asked her to given all her jewels, after she given her jewels to her mother-in-law, she weighed the jewels in her hand and identified 3 sovereign was less and said only 17 sovereigns it is not 20 sovereigns and demanded dowry of Rs.1,00,000/- in cash and 20 sovereign of gold jewels and she was subjected to torture without food and locked in her room by demanding dowry and A1 and her in-laws kicked her in her stomach and admitted in the hospital. Hence she preferred the complaint before the respondent police and the same was registered in Crime Number 4 of 2017.

3.The respondent police filed the final report under section 498(A) of IPC and 4 of dowry prohibition act r/w 109 and 294(b) of IPC before the learned Judicial Magistrate, Alandur dated 14.07.2017. The case was taken on file on summons were issued to the petitioners/accused A1 to A4 in C.C.No.624 of 2017. The petitioners/accused A1 to A4 filed discharge petition under Section 239 of Cr.P.C. in Crl.M.P.No.5789 of 2017 and the respondent police filed their counter opposing the same. 4.After hearing both parties and appreciating the materials placed, the learned Judicial Magistrate dismissed the discharge petition on 6.1.2018. Aggrieved over the same, the revision petitioners/accused filed this criminal revision. 5.

The learned counsel for the petitioners/accused submit that the Learned Judicial Magistrate failed to notice that the petitioners/accused were not sent to Department of Social Welfare Office, Kanchipuram for enquiry in the dowry related offences, but respondent police falsely mentioned in the FIR and the enquiry report of the Social Welfare Officer was not furnished in the final report.

6.This Court has issued the following observation in M.P.No.1 of 2008 in Criminal Original Petition No.10896 of 2008 filed by Tr.Romaiah:

"Except in case of Dowry Death/suicide and offences or serious nature, the Station House Officers of the AWPS are to register FIR only on approval of the

Dowry Prohibition Officers."

7.The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate failed to consider that the mediation among the complainant and the Appellants/Accused A1 was conducted in W21 - All Women Police Station" before the registration of FIR, in mediation process the complainant proposed for the nuclear family without alleging any offence related to dowry, but Appellants/Accused A1 denied her proposal and shown willingness to continue in the joint family, however the Respondent Police has suppressed this material fact in the FIR and in their counter affidavit of discharge petition, and no copy of Mediation Report along with charge sheet was furnished to the petitioners/accused.

8.Justice B.Chandra Kumar pronounced the guideline in his judgment while allowing a criminal petition filed by Syed Kaleemuallah Hussaini and three others in the Criminal Petition No.157 of 2014.

"As soon as a complaint is received either from the wife alleging dowry harassment or from the husband that there is possibility of his being implicated in a case of dowry harassment, then both the parties should be asked to undergo counseling with an experienced counselor", the judge said and directed that the report of the counselors should be made a part of the report to be submitted by the investigating officer to the Court."

9.The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate failed to notice that the complaint lodged by the complainant on 30.5.2016, but FIR registered only after 9 months and 24 days from the date of complaint in between that CSR (CSR.No.121/W21/AWPS/16) has been closed by the respondent police stating "Compromise effected" and one more complaint lodged by the complainant against the Appellants/Accused A1 and A2 in J11 Kannagi Nagar Police Station on 27.11.2016 for the offence under Sections 294(b), 323 of IPC in the Cr.No.1778 of 2016 and this case came before the learned Special Magistrate, Alandur, Chennai on 14.7.

related .

10.The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate failed to notice that the respondent police stated in their counter affidavit filed for the discharge petition under Section 239 of Cr.P.C. "the investigation officer had stopped proceeding on the complaint in CSR 121/W21/AWPS/16 only on the request of the complainant, who sought time for reunion", based on this admission by the respondent police that it is clear that complainant used the 498 (a) and D.P. Act as a weapon instead of shield to threaten her husband and in laws and make them to accept her demand with the help of respondent police.

11.The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate failed to notice that complainant stated in her complaint, FIR and 161 statement that her husband Appellants/Accused A1 and in laws Appellants/Accused A2 to A4 subjected her to torture by not providing her adequate food and locked her in room by demanding dowry, and her husband and in-laws kicked her in her stomach, pulled her hair due to this she was severely injured and admitted in hospital on 23.4.2016, where the allegation constitutes the offence but there are no Hospital Medical Records along with charge sheet was furnished and no legal evidence adduced (no doctor added in the list of evidence) by the respondent police to prove the offence.

12.It is pointed out at the time of argument that the Hon'ble High Court of Delhi in CRL.M.MC.7262/2206 on 23.2.2007 in Smt.Neera Singh Vs State (Govt. of NCT of Delhi) and ORS held that "vague allegations as made in the complaint by the petitioner against every member of the family of husband cannot be accepted by any Court at their face value and the allegations have to be scrutinized carefully by the Court before framing charges.

13.In State of Karnanatak Vs L.Muniswsamy. A three Judge Bench of Hon'ble Supreme Court had observed that at the state of framing the charge, the Court has to apply its mind to the question whether or not there is any ground for presuming the commission of the offence by the petitioner. As framing of charge affects a person's liberty substantially, need for proper consideration of material warranting such order was emphasized.

14.It is duly of the Court, even at the stage of framing the charge to consider whether there was sufficient material to go into trial. In other words, whether the evidence collected by the Prosecution if rebutted, warrant any conviction. In doing so, the Court can also consider the material on record in State of Assam Vs.Achit Ranjan Dey, 1989 Crl LJ 117 at 1118 (Gau). 15.The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate failed to consider that charge sheet witnesses Nos.

2, 3, 4 and 6 are interested witnesses who are all close relations of the complainant and they are not a direct witnesses , and the police not added neighbors who residing near to the matrimonial house located at 10th street of Kannagi nagar as witness, instead the respondent police added Muralidharan as PW 5 who working in the shop at 11th Kannagi Nagar, and Tmt Sangeetha, Department of Social Welfare Office, Kanchipuram as PW7 without conducted any Dowry offence related enquiry by calling the petitioner, PW8 and 9 are Investigating Officer and Inspector respectively. 16.

The learned counsel for the petitioners/accused submits that the learned Judicial Magistrate erred by not considering the fact that Appellants/Accused A4 unmarried sister of Appellants/Accused A1 was minor at the time complainant lodging the complaint with respondent police and she was studying in college, So having no interest of demanding of dowry or conducting cruelty on the complaint for the purpose of dowry. 17.

The learned counsel for the petitioners/accused submits that the Learned Judicial Magistrate erred by not considering the fact that Appellants/Accused A3 who is the elder brother of Appellants/Accused A1 he was married and having children, and he was residing in the separate residence with his own family even before the marriage of the complaint with his brother Appellants/Accused A1 so having no interest of demanding of dowry or conducting cruelty on the complaint for the purpose of dowry.

18.In Mahanataswamy v. State of Karnanaka, ILR 1986 Kant 2970: (1987 Cri LJ 497) this Court dealing with section 239 of Cr.P.C. held thus (at Page 500 of Cri LJ):

Section 239 of Cr.P.C. lays down that if the Magistrate considers the charge against the Appellants/Accused to be groundless, he shall discharge the Appellants/Accused. The work groundless in my opinion means that there must no ground for

presuming that the Appellants/Accused has committed the offence. The word groundless used in section 239 of Cr.P.C. means that the materials placed before the Court do not make out are not sufficient to make out a prima facie case against the Appellants/Accused.

19.The learned Government Advocate (Criminal Side) opposed this criminal revision and supported the findings of the trial judge in dismissing the discharge petition.

20.I heard Mr.S.Kathiravan, learned counsel for the petitioners and Mr.G.Harihara Arun Soma Sankar, learned Government Advocate (Criminal Side) for the respondent, keeping in view their arguments, I have carefully gone through the papers of the charge sheet along with the impugned order passed by the trial Court.

21.Before adverting to the claim of the parties, it is useful to refer to Sections 227 and 228 of Code of Criminal Procedure, which are reproduced below:

Discharge.

"227. If, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for so doing."

Framing of charge.

228. (1) If after such consideration and hearing as aforesaid, the Judge is of opinion that there is ground for presuming that the accused has committed an offence which- (a) is not exclusively triable by the Court of Session, he may, frame a charge against the accused and, by order, transfer the case for trial to the Chief Judicial Magistrate or any other Judicial magistrate of the first class and direct the accused to appear before the Chief Judicial Magistrate, or, as the case may be, the Judicial Magistrate of first class, on such date as he deems fit, and thereupon such Magistrate shall try the offence in accordance with the procedure for the trial of warrant-cases in accordance with the procedure for the trial of warrant cases instituted on a police report;

(b) is exclusively triable by the Court, he shall frame in writing a charge against the accused. Where the Judge frame any charge under clause (b) of subsection (1) the charge shall be read and explained to the accused and the accused shall be asked whether he pleads guilty of the offence charged or claims to be tried."

22.Relative scope of Sections 227 and 228 of the Code was noticed and considered by the Hon'ble Supreme Court in Amit Kapoor Vs. Ramesh Chander and another, (2012) 9 SCC 460. The Hon'ble Supreme Court held as under:

"17. Framing of a charge is an exercise of jurisdiction by the trial Court in terms of Section 228 of the code, unless the accused is discharged under Section 227 of the Code. Under both these provisions, the Court is required to consider the "record of the case" and documents submitted therewith and, after hearing the parties, may either discharge the accused or where it appears to the Court and in its opinion there is ground for presuming that the accused has committed an offence, it shall frame the charge. Once the facts and ingredients of the section exists, then the Court would be right in presuming that there is ground to proceed against the accused and frame the charge accordingly. This presumption is not a presumption of law as such.

The satisfaction of the Court in relation to the existence of constituents of an offence and the facts leading to that offence is a sine quo non for exercise of such jurisdiction. It may even be weaker than a prima facie case. There is a fine distinction between the language of Sections 227 and 228 of the Code. Section 227 is the expression of a definite opinion and judgement of the Court while Section 228 is tentative. Thus, to say that at the stage of framing of charge, the Court should form an opinion that the accused is certainly guilty of committing an offence, is an approach which is impermissible in terms of Section 228 of the Code." "19.

At the initial stage of framing of a charge, the Court is concerned not with proof, but with a strong suspicion that the accused has committed an offence, which, if put to trial, could prove him guilty. All that the Court has to see is that the material on record and the facts would be compatible with the innocence of the accused or not. The final test of guilt is not to be applied at that stage."

23.In the case of Onkar Nath Mishra and others Vs. State (NCT of Delhi) and another (2008) 2 SCC 561, the Hon'ble Apex Court in paragraph 11 of the judgement held as under: "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."

24.A three Judges Bench of Hon'ble Supreme Court in the case of State of Maharashtra Vs. Som Nath Thapa, (1996) 4 SCC 659 after noting three pairs of sections viz. (i) Sections 227 and 228 insofar as sessions trial is concerned (ii) Sections 239 and 240 relatable to trial of warrant cases, and (iii) Sections 245

(1) and (2) qua trial of summons cases, which dealt with the question of framing of charge or discharge, stated thus: "32 ............. 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 Courts 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 staage 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."

25.In State of M.P. Vs. Mohanlal Soni, (2000) 6 SCC 338, the Hon'ble Supreme Court held in paragraph 7 as under:

" 7.The crystallised judicial view is that at the stage of framing charge, the Court has to prima facie consider whether there is sufficient ground for proceeding against the accused. The Court is not required to appreciate evidence to conclude whether the materials produced are sufficient or not for convicting the accused."

26.In the case of State of Orissa Vs. Debendra Nath Padhi, (2005)1 SCC 568, Hon'ble Supreme Court while considering the question whether the trial Court can at the time of framing of charges consider the material filed by the accused, answered in negative in following words:

"18. We are unable to accept the aforesaid contention.The reliance on Articles 14 and 21 is misplaced...... Further, at the stage of framing of charge roving and fishing inquiry is impermissible. If the contention of the accused is accepted, there would be a mini-trial at the stage of framing of charge. That would defeat the object of the Code. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the learned counsel for the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence.

By way of illustration it may be noted that the plea of alibi taken by the accused may have to be examined at the stage of framing of charge if the contention of the accused is accepted despite the well settled proposition that it is for the accused to lead evidence at the trial to sustain such a plea. The accused would be entitled to produce materials and documents in proof of such a plea at the stage of framing of the charge, in case we accept the contention put forth on behalf of the accused. That has never been the intention of the law well settled for over one hundred years now. It is in this light that the provision about hearing the submissions of the accused as postulated by Section 227 is to be understood.

It is only means hearing the submissions of the accused on the record of the case as filed by the prosecution and documents submitted therewith and nothing more. The expression"hearing the submissions of the accused" cannot mean opportunity to file material to be granted to the accused and thereby changing the settled law.

be confined to the material produced by the police." 27.In Union of India Vs. Prafulla Kumar Samal, (1979) 3 SCC 4, the scope of Section 227 of Cr.P.C. was considered and after adverting to various decisions, the Hon'ble Supreme Court has enumerated the following principles:

"(1) That the Judges while considering the question of framing the charges under Section 227 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 discloses 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 depends 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 discharage the accused.

(4) That in exercising his jurisdiction under section 227 of the Code the Judge which under the present Code a senior and experienced 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."

28.The Hon'ble Supreme Court in Sajjan Kumar Vs. Central Bureau of Investigation, (2010)9 SCC, held in paragraph 24 of the judgement as under:

"At the stage of framing of charge under Section 228 Cr.P.C. or while considering the discharge petition filed under Section 227, it is not for the Magistrate or the Judge concerned to analyze all the materials including pros and cons, reliability or acceptability,

etc. It is at the trial, the Judge concerned has to appreciate their evidentiary value, credibility or otherwise of the statement, veracity of various documents and is free to take a decision one way or the other."

29.In Sheoraj Singh Ahlawat and others Vs. State of Uttar Pradesh and another, (2013)11 SCC 476, Hon'ble Apex Court after citing the catena of judgements has summorised the principles in respect of framing of charges or discharge of the accused and held as under:

"While framing charges, Court is required to evaluate materials and documents on record to decide whether facts emerging therefrom taken at their face value would disclose existence of ingredients constituting the alleged offence. At this stage, the Court is not required to go deep into probative value of materials on record. It needs to evaluate whether there is a ground for presuming that accused had committed offence. But it should not evaluate sufficiency of evidence to convict accused. Even if, there is a grave suspicion against the accused and it is not properly explained or Court feels that accused might have committed offence, then framing of charge against the accused is justified.

It is only for conviction of accused that materials must indicate that accused had committed offence but for framing of charges if materials indicate that accused might have committed offence, then framing of charge is proper. Materials brought on by prosecution must be believed to be true and their probative value cannot be decided at this stage. The accused entitled to urge his contentions only on materials submitted by prosecution. He is not entitled to produce any material at this stage and the Court is not required to consider any such material, if submitted. Whether the prima facie case made out depends upon fact and circumstances of each case. If two views are possible and materials indicate mere suspicion, not being grave suspicion, against accused then he may be discharged.

The Court has to consider broad probabilities of case, total effect of evidence and documents produced before it. The Court should not act as mouthpiece of prosecution and it is impermissible to have roving enquiry at the stage of framing of charges."

29.By keeping in mind the above settled principles, I find force in the submission of learned Counsel for the revision

petitioners. There cannot be any dispute that the powers can be exercised by the Court in exceptional circumstances and very sparingly. The Court is not expected to embark upon the enquiry about the guilt. This Court can interfere to prevent abuse of the process of the Court or otherwise to secure the ends of justice and one of the criteria is "where a criminal proceeding is manifestly attended with mala fide and/or where the proceedings is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."

30.It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the Courts in our country including the High Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of society. It is a matter of common experience that most of these complaints under Section 498-A of IPC are filed in the heat of the moment over trivial issues without proper deliberations. It is seen that a large number of such complaints are not even bona fide and are filed with oblique motive. At the same time, rapid increase in the number of genuine cases of dowry harassment is also a matter of serious concern.

It has also been held that the ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is a Herculean task in a majority of these complaints. The tendency of implicating the husband and all his immediate relations is also not uncommon. At times, even after the conclusion of the criminal trial, it is difficult to ascertain the real truth. The Courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. 31.A perusal of the record of the case reveals that the allegations made in the first information report in question are in respect of the offence under Section 498(A) of the Indian Penal Code as well as the Dowry Prohibition Act.

Considering the nature of allegations leveled in the first information report it is apparent that the dispute is more in the nature of a personal dispute in respect of a matrimonial matter. At this juncture it may be apposite to refer to the decision of the Hon'ble Supreme Court in the case of B.S.Joshi v.

"Marriage is a sacred ceremony, the main purpose of which is to enable the young couple to settle down in life and live peacefully. But little matrimonial skirmishes suddenly erupt which often assume serious proportions resulting in commission of heinous crimes

in which elders of the family are also involved with the result that those who could have counselled and brought about rapprochement are rendered helpless on their being arrayed as accused in the criminal case. There are many other reasons which need not be mentioned here for not encouraging matrimonial litigation so that the parties may ponder over their defaults and terminate their disputes amicably by mutual agreement instead of fighting it out in a Court of law where it takes years and years to conclude and in that process the parties lose their "young" days in chasing their "cases" in different Courts.

There is no doubt that the object of introducing Chapter XX-A containing Section 498-A of Indian Penal Code was to prevent torture to a woman by her husband or by relatives of her husband. Section 498-A was added with a view to punishing a husband and his relatives who harass or torture the wife to coerce her or her relatives to satisfy unlawful demands of dowry. The hyper technical view would be counterproductive and would act against interests of women and against the object for which this provision was added.

32.In this case, the first revision petitioner/A1 is the husband of the defacto-complainant Sumathi.A2 Selvarani is the mother A1. A3 Balagurusamy is the elder brother of A1 and residing separately with his family. A4 Muthuselvi, unmarried sister of A1and she was studying in college and minor during the occurrence.

33.The defacto-complainant alleged in the FIR and in her 161 statement that revision petitioner/accused No.1 namely Samuthrapandi and in-laws (A2 to A4) subjected her to torture by not providing her adequate food and locked her in room by demanding dowry, in-laws pulled her hair and kicked her in her stomach and due to this she was severely injured and admitted in Hospital on 23.04.2016. But there are no Hospital Medical Records along with charge sheet and no legal evidence adduced by the respondent police to prove the offence. Further except the interested/related witnesses, no independent person was examined by the respondent to corroborate the version of the defactocomplainant. 34.The present case is a glaring example of mala fide, where the proceeding has been maliciously instituted against the revision petitioners/accused Nos.3 and 4 with ulterior motive for wreaking vengeance and with a view to spite them due to private and personal grudge.

35.The materials produced on record by the prosecution show the existence of sufficient grounds against the accused no.1 and 2 for framing of charge and not against A3 and A4. Whether the materials placed on record by the prosecution are sufficient for passing an order of conviction or not, is a matter of trial. At this stage, it cannot be said that there is no material at all for proceeding against the first and second revision petitioners. In view of the prosecution record, more particularly of the charge sheet witnesses noticed supra, learned Trial Judge is correct in dismissing the application filed seeking discharge against A1 and A2.

36.For the foregoing reasons, the criminal revision petition is partly allowed in respect of third and fourth petitioners/A3 and A4 and accordingly allowed. The first and second petitioners/accused 1 and 2 should face the trial. However, it is observed that any observations made by this Court, will not, in any manner, affect the merits of the case against accused Nos.1 and 2. Consequently, connected miscellaneous petition is closed.

s/d- Assistant Registrar(CS VIII) True Copy Sub-Assistant Registrar To 1.The Judicial Magistrate, Alandur, Chennai.

2. The Inspector of Police, W-21, All Women Police Station, Guindy, Chennai - 600 032.

Crl.R.C.No.213 of 2018 and Crl.M.P.No.2061 of 2018 SS(CO) SP(08/03/2019)